Loper Bright Means Auer’s Demise, Too

Earlier this year, in United States v. Poore, the Seventh Circuit deferred to the U.S. Sentencing Commission’s interpretation of its Sentencing Guidelines. No. 22-3154, 2025 WL 1201946 (7th Cir. Apr. 25, 2025). The court’s deference followed their understanding of Stinson v. United States, where the Supreme Court held that Guidelines commentary receives Auer deference, giving it “controlling weight unless it is plainly erroneous or inconsistent with the” Guideline. 508 U.S. 36, 45 (1993); see also Auer v. Robbins, 519 U.S. 452, 461 (1997). But strikingly, unlike some other circuits, they failed to apply Kisor’s modification of Auer. In Kisor v. Wilkie, the Supreme Court cabined Auer deference, holding that it should only be employed if, after exhausting all traditional tools of construction, the “regulation is genuinely ambiguous.” 588 U.S. 558, 573 (2019). Following Kisor would direct courts to the Guidelines section that unambiguously excludes Mr. Poore’s prior inchoate crime conviction from the “crimes of violence” sentencing enhancement. U.S.S.G. § 4B1.2(a) (2023). Instead, the Seventh Circuit, exhausted without exhausting any interpretive tools, deferred to Guidelines commentary that ignored this exclusion. That deference may cost Mr. Poore two more years in prison.

While the post-Kisor version of Auer deference would correct the Seventh Circuit, even that version is disharmonious with a more recent Supreme Court precedent. Auer deference, even after Kisor, is too deferential to cohere with Loper Bright’s logic. Poore can be the case that spells Auer’s rightful demise – if it reaches the Supreme Court.

Kisor explains that “the core theory of Auer deference is that sometimes the law runs out, and policy-laden choice is what is left over.” 588 U.S. at 575. This theory expired when the Supreme Court held that “statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning.” Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 400 (2024). In other words, the law does not simply run out. Loper Bright’s categorization of statutes naturally extends to regulations as well. In fact, Kisor itself groups statutes and regulations together when discussing “the law.” See 588 U.S. at 575. Agency rules are not statutes, but agencies exercise legislative power “by promulgating regulations with the force of law.” City of Arlington v. FCC, 569 U.S. 290, 313 (2013) (Roberts, C.J., dissenting). Giving agencies’ rule interpretations a less thorough constitutional inspection than statutes – another product of legislative power – is anathema to Loper Bright and, indeed, the Constitution itself. Mr. Poore’s circuit court woes are but one illustration of this tenuous treatment.

Moreover, the Kisor question of “genuine ambiguity” promises future heartburn. If Loper Bright closed the Chevron first-step door of deciding questions on statutory ambiguity, Auer and Kisor keep a side door open for courts to enjoy drawing the contours of regulatory ambiguity. Through this post-Kisor iteration of Auer deference, one can imagine the brewing of another Chevron situation, described by Loper Bright as one where “the doctrine continued to spawn difficult threshold questions that promise to further complicate the inquiry.” 603 U.S. at 375. It is difficult, after all, to genuinely know what “genuine ambiguity” means. In Loper Bright, the Supreme Court reasoned that “the concept of ambiguity has always evaded meaningful decision.” Id. The same opinion states that “there is a best reading all the same” in cases of potential ambiguity. Id. at 373. Loper Bright’s admonition on the ambiguity of ambiguity – coupled with its conviction in the existence of a best reading – submits that qualified deference may not be a lesser evil than unqualified deference. Auer deference undermines Loper Bright and complicates the problems it aims to solve.

Furthermore, the rule of lenity is, in part, designed to protect defendants from a government taking advantage of ambiguity. Auer deference strips this protection from Mr. Poore. In United States v. Vargas, the Fifth Circuit saw a different Sentencing Guideline section as being “grievously ambiguous,” a higher standard than the bar for being “genuinely ambiguous” and one where the rule of lenity cannot intrude. 74 F.4th 673, 698 (5th Cir. 2023). In the court’s view, a spectrum within ambiguity, itself an amorphous concept, compels deference to Guidelines commentary that could enhance criminal sentencing. But deference should have “no role to play when liberty is at stake.” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 140 S. Ct. 789, 790 (2020) (Gorsuch, J., respecting denial of certiorari). If the law as it stands discards the rule of lenity in cases it is definitionally designed for, where sentencing may increase and liberty may decrease because deference ends the inquiry, the law must be corrected. Auer deference subverts the rule of lenity and the liberty it helps protect.

Finally, Loper Bright explains that courts have “special competence” in resolving legal questions. 603 U.S. at 400-401. Courts are tasked with the duty to “ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.” Vasquez v. Hillery, 474 U.S. 254, 265 (1986). Using their “special competence” on three-letter executive agency rulemaking – but not on Guidelines commentary that may sacrifice liberty under the costume of ambiguity – is not a “principled and intelligible” direction that American law should be flirting with. Loper Bright directs courts to do the former. As the latter duty must logically follow the former, Auer deference seems well-positioned as a candidate for common sense’s next victim.

September 5, 2025