(Reuters) - Last March, in a little-noticed dissent from the denial of U.S. Supreme Court review in Garco Construction v. Speer, Justice Clarence Thomas said the court’s 1997 precedent in Auer v. Robbins is primed for reconsideration. Auer, in case you’ve forgotten, requires courts to defer to executive agencies’ interpretations of their own rules and regulations. As Justice Thomas chronicled in his Garco dissent, that principle has in recent years taken a beating in concurrences written by Thomas, Chief Justice John Roberts and Justice Samuel Alito. Justice Neil Gorsuch joined Thomas’ dissent, signaling his eagerness to rethink Auer deference. In all, Thomas posited, the line of cases culminating in Auer precedent “is on its last gasp.”
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You have to take Thomas’ prediction with a grain of salt, considering that the justice’s dissent was prompted by the Supreme Court’s refusal to accept an opportunity to revisit Auer deference, even though four justices have expressed doubts about the precedent.
But if the newly entrenched conservative majority is looking for an opportunity to undo Auer, Judge Amul Thapar of the 6th U.S. Circuit Court of Appeals – who is considered a short-lister for any additional Supreme Court seat that opens up during the Trump presidency – flagged a hot prospect on Monday in his concurrence in U.S. v. Havis. “If there was ever a case to question deference to administrative agencies under Auer v. Robbins,” Judge Thapar wrote, “this is it.”
The Havis case involves the sentence imposed on Jeffrey Havis, who pleaded guilty in Tennessee to a firearms charge. The government said Havis was subject to an extra-long prison term because of a prior conviction for attempting to sell or distribute cocaine. Havis’ lawyer, federal public defender Jennifer Coffin, contended that the guidelines issued by the U.S. Sentencing Commission specify an enhanced sentence for completed drug sales or transfers, not attempts. The only place in which the Sentencing Commission said the guidelines cover attempted sales was commentary accompanying the guidelines.
Coffin argued that because the commission’s commentary was not subjected to notice-and-comment under the Administrative Procedure Act’s rulemaking process, the commentary was not entitled to deference under Auer or related Supreme Court precedent, specifically addressing deference to commentary on the sentencing guidelines, in 1993’s Stinson v. U.S.
Unfortunately for Coffin's client, the 6th Circuit previously held in 2012’s U.S. v. Evans that the sentencing guidelines encompass an attempt to sell. All three of the judges on the Havis panel – Thapar, Jane Stranch and Martha Daughtrey – agreed that the Evans court, which did not consider Auer or Stinson precedent, may have been too quick to reach that conclusion. Judges Thapar and Stranch concluded that the 6th Circuit’s ruling in Evans mandates the outcome for Havis and can only be undone by the en banc 6th Circuit or the Supreme Court. (Both implied they’d welcome an en banc revisiting.) Judge Daughtrey, in dissent, said Evans does not control Havis’ sentence because Havis raised separation-of-powers issues not addressed in the Evans ruling.
Beyond the facts of the Havis case, Judges Thapar and Stranch wrote dueling concurrences about Auer deference, with Thapar calling for its abolition and Stranch defending its premise. “The lesson here is that the existing system works,” Stranch wrote. “The current arguments for curtailing agency deference risk dismissing a system that Congress created out of a need to employ the significant expertise held by agencies and their stakeholders in complex areas of the law and instead substituting courts that are ill-equipped for the task. Our carefully developed doctrines of deference strike the proper balance among our three branches by respecting both the exercise of legislative authority and the judiciary’s right to make the ultimate decision.”
Judge Thapar, like the justices who have recently criticized Auer precedent, argued that deference upsets the balance of power between the courts and federal agencies. “The government cannot be faulted for arguing for deference,” he wrote. “But judges should be faulted for accepting the government’s argument. How is it fair in a court of justice for judges to defer to one of the litigants? In essence, the argument boils down to this - the government is populated by experts and when they speak we should tip the scales of justice in their favor. Such deference is found nowhere in the Constitution — the document to which judges take an oath.”
I don’t know if the Havis case will ever reach the Supreme Court. I left a message for Havis counsel Coffin, asking if she planned to follow the panel’s advice and seek en banc review, but didn’t hear back. But it’s worth paying attention to the case’s progress. As Judge Thapar said (echoing Justice Antonin Scalia), deference issues are all the more pressing in criminal cases, in which courts are supposed to be vigilant about protecting defendants’ liberty.
It’s also worth pointing out that Judge Thapar’s Havis concurrence marks at least the second time that the judge, a Trump appointee to the 6th Circuit, has explicitly criticized established precedent. (The previous example was his dissent in a discriminatory zoning case, Tree of Life Christian Schools v. City of Upper Arlington, 2018 WL 4443591.)
As I’ve said, President Trump’s appellate appointments have quickly shown how eager they are to confront case law they don’t like. If Auer deference is truly at its “last gasp,” to quote Justice Thomas, the Havis case could be its dying breath.