Every day across the United States, controlled substance offenders are subjected to a provision of the United States Sentencing Commission’s Career Offender Sentencing Guidelines that drastically increases their average sentences. The sentences of offenders committing inchoate controlled substance offenses are not, however, enhanced by the actual language of the Guidelines; rather, the enhancement is solely the result of interpretive commentary to the Guidelines that lacks any textual hook in the language of the Guidelines. According to the courts, the commentary to the Sentencing Guidelines are meant to interpret the Guidelines and have no independent legal force. This is crucial—while the Sentencing Guidelines must satisfy the notice and comment provisions of the Administrative Procedure Act and are subject to congressional amendment and revocation, commentary is unilaterally issued by the Sentencing Commission without any scrutiny by the various branches of government. Most courts have declined to challenge the Commission’s use of commentary as a back door to substantive rulemaking. Instead, these courts liberally defer to the Commission’s wishes, allowing it to operate as a super-legislature with back-door rulemaking powers. Beginning in 2014, federal circuit courts began to push back against the Commission’s broad authority, resulting in a serious circuit split that subjects criminal defendants to different rules across different jurisdictions. As the Commission has thus far been unable to resolve the split through amendment, the Supreme Court must step in and take unilateral rulemaking power back from the Commission.
