Last week, the Supreme Court agreed to hear a case about commercial fishing that raises an issue the current members of the Court have been very interested in as of late—Chevron Deference. With the Court agreeing to hear the case, there has been a lot of speculation about what the end of Chevron may mean across the legal landscape. But what might it mean for gun rights?
First, it’s important to understand what Chevron Deference is. Chevron, as it’s not-so-affectionately called among legal circles, is a doctrine that was established by the Supreme Court in Chevron v. Natural Resources Defense Council almost 40 years ago. That doctrine states that if a court is trying to interpret an ambiguous statute being enforced by a federal executive branch agency, the court must defer to the agency’s interpretation of the statute so long as it’s “reasonable.”
While that may sound innocuous, Chevron Deference has wreaked havoc on our legal system and the principle of separation of powers ever since it was decided. In practice, courts across the country regularly defer to federal agencies almost as a matter of course. Courts have determined that a “reasonable” interpretation doesn’t have to be the best interpretation, just one that could be viewed as rational in light of the ambiguously written statute.
That means even if a challenger to an agency’s interpretation of law provides the court with a better—or the best possible—interpretation of the law, the court will still side with the agency if its interpretation can be seen as “reasonable.”
Further contributing to this problem, over the past 40 years, Congress has written ever more vague laws, giving federal agencies even more “ambiguous” statutes to interpret as they see fit.
In effect, because of Chevron, federal agencies have taken to essentially writing laws in the form of their own interpretations of these vaguely written federal statues. They’re already charged with enforcing these laws and because of Chevron, they’ve avoided any meaningful judicial review of their “interpretations.” As a result, we now have a system where executive branch agencies that control almost every aspect of life in the United States have become judge, jury, and executioner.
Now, the Supreme Court has agreed to take up this question. Specifically, the Supreme Court granted review in a case called Loper Bright Enterprises v. Raimondo. With that case, the Court is looking to address the following question:
Should the Court overrule Chevron…or at least clarify that statutory silence concerning controversial powers expressly, but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.
Also relevant, the newest Supreme Court Justice, Justice Ketanji Brown Jackson, is recused from the case. Only the eight remaining Justices will hear and consider the question: Chief Justice Roberts, and Justices Thomas, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett. That sets up a potentially interesting split.
Based on recent opinions from Justice Thomas and Justice Gorsuch, and the Court’s recent treatment of the related Auer Deference (like Chevron, but deference as to an agency’s interpretation of its own regulations, rather than federal statutes), it seems like this case may spell the end for the controversial doctrine.
What would the end of Chevron mean for gun rights?
As you’ve probably already surmised, the Bureau of Alcohol, Tobacco, Firearms and Explosives, or the AFT/ATF, is one such federal agency that has benefitted greatly from Chevron Deference over the past few decades. An end to that deference across the board would means an end to courts’ deferring to the ATF’s “interpretation” of so-called “ambiguous” federal gun control statutes across the board, which would strike a massive blow in reducing the agency’s unconstitutional overreaches in a number of areas.
Interestingly, we’ve already seen some courts move away from deference to the ATF. In Cargill v. Garland, a challenge to the Trump-era bump stock ban, the entirety of the Fifth Circuit recently ruled that the ban was outside of the ATF’s scope of authority, and it specifically stated that the Circuit cannot and would not defer to the agency’s interpretation because the law has criminal implications.
Thus, under a competing doctrine known as the rule of lenity, the Circuit must read the statute as narrowly as possible in favor of the individuals the law would be enforced against. And the Sixth Circuit just ruled in a very similar way in Hardin v. ATF.
But there isn’t any consistency yet on the issue, and the Supreme Court has not weighed in on the interplay of lenity and Chevron. While the end of Chevron might not be as earth-shattering for the ATF as it would be for other federal agencies, it would certainly help firmly settle the question that executive branch agencies can’t bend congressionally-enacted law to the agencies’ will—including the ATF.
Of course, such a ruling would be directly relevant to the ongoing challenges to Biden’s ATF’s “Frame or Receiver Rule,” such as VanDerStok v. Garland, and its Stabilizing (or Pistol) Brace Rule, such as Mock v. Garland. But most importantly, the end of Chevron would be an important turn back to the actual structure of the Constitution and an important recognition of the separation of powers—a turn the nation desperately needs.
Cody J. Wisniewski (@TheWizardofLawz) is a Senior Attorney for Constitutional Litigation with FPC Action Foundation. His work has appeared in the Washington Times, the Washington Examiner, National Review, the Federalist, and more. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional limitations.
see you next fall.
*Caution*
There could be some nasty unintended consequences if the ruling goes the way we think it might…
Not the least of which would be congress would actually have to work re understanding and passing laws relevant to all manner of regulations and standards………… yeah that could end badly but could also sort things out more quickly.
It wouldn’t really force Congress to work harder; it would force courts to rule in favor of citizens when considering laws where Congress failed to work hard enough to be unambiguous. The laws that are legitimate, necessary, and Constitutional tend to be unambiguous; the rest shouldn’t have been passed in the first place.
That would be more accurate yes………I guess I am skipping steps to what end results could be when laws don’t go the way their writers intended.
Roger; I was just clarifying that today’s web of regulatory administrivia is necessary only if one starts from the assumption that we need government to improve our lives. Constitutional government requires only that it deters / punishes foreign invaders, murderers, etc. and leaves us free to improve our own lives.
Damn you are jumping right to where we unfuck our school system for a generation and actually raise our kids to be citizens. I hope it gets there I just know we have a lot to fix on the way.
We do, and I don’t hold out much hope of that. The school system by its nature attracts people who are “nice” (i.e. believe that factual truth, reason, rights, principles, etc. should be subordinated to feelings / making people like you).
………..but on the up end the Department of Education could no longer set the rules on less than coherent laws potentially so a intro to a win in sections of the country that actually care about their kids.
SAFE, I’d rather deal with the Congress making laws the way they are supposed rather than deferring to government bureaucrats.
Walt I agree with the sentiment but think about the majority of representatives at the moment and tell me honestly that they are up to the task
SAFE,
Spending my life being transferred all over the place reinforced the idea that while funding decisions should be made at the lowest affected level, decisions of principle should be made at the highest. It’s not that I have “faith” in the DOE, but I have faith in inertia posing an impediment to crazy at the fifty-state level.
SAFE you have to start somewhere. IF the beggars don’t do what we require, then it is up to the citizens to vote the bums out!
that was informative
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“That doctrine states that if a court is trying to interpret an ambiguous statute being enforced by a federal executive branch agency, the court must defer to the agency’s interpretation of the statute so long as it’s “reasonable.””
Would that mean *all* previous ATF ‘determination letters’, such as the one that initially determined arm braces could be used pressed against the shoulder are also now invalid?
“Inquiring minds want to know”…
Geoff, It would surely open the door wide to contest AFT “letters”
I honestly pray that this happens.
Whenever I hear some Leftalunatic quote something from SCOTUS and say “It’s the law of the land because SCOTUS said it!”, I remind them that even that high Court reverses its own rulings from time to time. Roe (1973) was overturned by Dobbs (2022). Obergefell (2015) was decided by the very same nine Justices who only two years earlier had issued an opposite ruling on the matter.
If Chevron is overturned, listen to the Leftalunatics howl at the moon.
I usually go with Dred Scott. “In 1857, the nation’s top court ruled that living in a free state and territory did not entitle Dred Scott to his freedom because, as an enslaved man, he was not a citizen, but essentially another person’s property.”
Eric,
Ranking right up there with Korematsu as one of the most EVIL SCOTUS decisions ever. Dred Scott was an horrific decision, as was Korematsu. Roe wasn’t an “evil” decision (IMHO), it was just stupid, POORLY-REASONED (“emanations from the penumbra”????? AYFKMRN?????), poorly-drafted decisions SCOTUS has done. More importantly, it ignored federalism in favor of “this is what we think”. But both sides have been guilty of that.
I think Chevron is going to die a well-deserved death, but . . . we shall see.
That’s right an agency inherently biased against The Second Amendment can be reasonable in a sneaky nasty nice way such as giving law abiding citizens a time and date to comply or else. That would sound reasonable to third reich nazis et al.
Zipper lipped courtroom drama queen.
Awwwww, did Deborah hurt you little feelings? 😉
knowing full-well that many, if not most…won’t comply?….is that a factor?
“That doctrine states that if a court is trying to interpret an ambiguous statute being enforced by a federal executive branch agency, the court must defer to the agency’s interpretation of the statute so long as it’s “reasonable.”
What the fuck is innocuous about that?
The court must defer to the Constitutionality of the statute you bastards!
I hate politicians with a passion…
Chevron isn’t related to constitutionality. If the law is unconstitutional it won’t (shouldn’t) get to the point of considering Chevron deference anyway.
In the military there’s a procedure called the 5 Paragraph Order, which is issued in conjunction with a plan of attack. Part of that (an important part) is the Commanders Intent, which eliminates any ambiguity for those tasked with carrying out the order.
An excellent point. I’d add the critical concept of “task and purpose”, i.e. there can be no task / means without a purpose / end, AND accomplishing the purpose is what matters even if you completely fail at (or disregard) the task.
The basic point I’m trying to make is that Congress is the corollary to a military Commander. If they wrote laws with similar organization to the 5 paragraph order there would be far less wiggle room for the various agencies to ‘interpret’ the law.
PS: This is normally created at the Battalion level or higher, and takes some serious planning and coordination. It’s been about 40 years since I was involved in this. The details of it are readily available on-line.
In the Army the Co Cdr and PL damn well BETTER clearly understand the BN/BDE Cdr’s intent.
I agree with both your points, and would add that the Constitution provides HHQ Commander’s Intent. If a law can’t be traced back to a constitutionally delegated power, it isn’t a law.
The LGOPP premise is based on Commanders intent.
How do you spell screwed? BATFE!
Not sure it will make much of a difference. The states seem to be inclined to completely ignore Supreme Court rulings they dislike. Our “justice dept” is also inclined to do nothing about it either.
Au contraire. Cody’s analysis is spot on, and it’s hard to appreciate how big an earthquake nuking Chevron would be . . . much bigger in the overall scheme of things than Bruen or Dobbs. About the only think I can think of that would have a bigger impact in terms of reining in the federal government would be if the Court reconsidered Wickard v. Filburn.
Chevron deals with federal agencies, not the states, and DOJ is on the side of the agencies anyway. Right now, when a federal agency goes totally off the reservation (a-la EPA, FTC, SEC, DOL, DoEd, OSHA . . . and they do that many, many times than little ole BATFE), there’s not much you or I can do about it, because the courts have been handcuffed by Chevron and Auer deference. The bureaucrats thus can pretty much do what they want, and they know it and act accordingly.
Auer deference (which deals with ambiguities in regulations) was all but eliminated a couple of years back (Kisor v. Wilkie). If Chevron deference also gets gutted, what does that mean?
It means private litigants can file suit to challenge a regulation as being contrary to the law, and the district court has to hear the case and make the agency justify its interpretations. More importantly, the court has to judge the regulation on its merits, not by letting the government start on your one yard line every time.
Add to that the ability of private litigants to do some creative forum shopping, and the bureaucrats would find their wings clipped very short.
This is potentially YUUGE!
Dept of “Justice” being the agency, and it’s subordinate thugeries, are what needs to be gutted.
LKB,
SO close! The problem (to me) seems to be that philosophical approach to appellate review. The threshhold question should ALWAYS be “is this law a valid exercise of a specifically-delegated power?”. If the answer is “no”, the analysis need go no further – chuck it. THEN, after that question is answered, we can start ‘getting into the weeds’, like standard of review, etc. If the answer to question one is “no” . . . the case should be over. And every appellate court should have to state their analysis and conclusion of that question up front in ANY decision about a law.
“The threshhold question should ALWAYS be “is this law a valid exercise of a specifically-delegated power?”.
Fully agree, however….
The courts are all about “due process”, and seem to avoid constitutional issues any way possible. And I understand the reluctance.
Judges/Justices are not clinically “objective”; they are people, and people are political animals. Thus it is that courts too often worry more about the potential fall out of deciding constitutional questions, preferring to stay in the minutia of “process”.
Seems the general assumption regarding enactment of law is that all law is considered constitutional, until proven otherwise, and the proof, or lack, rests in the process of application of the law. This legal/political theory does have utilitarian advantages, but also puts jurists in the position of trying to resolve a question as a matter of process, rather than constitutional derivation.
Concur somewhat with Sam. It’s a general principle of judicial review that you reach a constitutional issue only as the last resort. (Felix Frankfurter wrote extensively on why this should be.)
First, courts must ask if there is jurisdiction (both personal and subject matter)? If not, end of story.
Second, is there a procedural defect (e.g., standing, failure to exhaust administrative remedies, failure to satisfy a required conditions to sue)? If so, game over.
Third, can the case be disposed of on the facts or by statutory interpretation, rather than reaching the constitutional issue?
Only if the case cannot be adjudicated based on any of the foregoing should a court reach of the biggest stick in the bag and reach the constitutional issue.
If courts are encouraged to just jump to the constitutional issues right off the bat, we would be awash in all sorts of conflicting and contradictory findings, to say nothing of encouraging judicial activism.
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the caps were off!
Never trust SCOTUS
It isn’t just about “gun rights”. If the SC rules that in all cases where criminal charges can be brought, the “rule of lenity” preempts agency self-interpretation of a “vague” regulation in the agency’s favor, we will have even more entertainment, on a broader scale.
Their are by far, more corruption in federal agencies regarding “Chevron Doctrine”, than as regards “gun rights”. If the SC tightly restricts “Chevron Doctrine”, we will see a virtual explosion of lawfare trying to evade, stall, defy the SC.
I strongly disagree. Pray tell what form such lawsuits would take?
If Chevron goes down, what we’ll see is a tidal wave of test cases filed in friendly district courts in friendly circuits to knock down all sorts of federal regulations, and routine lawsuits challenging administrative findings (e.g., BATFE finds you violated some new reg or interpretation thereof and yanks your FFL; court case challenges the validity of the reg / interpretation and thus lawfulness of the agency action).
And all it takes is one district court to find the reg. invalid (and, of course, for that finding to be upheld on appeal) to knock it out nationwide, because the usual remedy is a judgment vacating the regulation. I.e., if there is a final judgment from a court of proper jurisdiction finding regulation X is invalid, that’s typically binding on the government nationwide. (That’s why the Fifth Circuit’s decision in the bump stock case is so big . . . if SCOTUS denies the gov’t cert petition, the remedy in that case is probably going to be a judgment vacating the bump stock rules nationwide, notwithstanding that other circuits have upheld them.)
I can’t speak for Sam, but “lawfare” needn’t necessarily mean lawsuits. Agencies could “try to evade, stall, defy the SC” with more “interpretations”, with dire consequences for citizens (the process is the punishment) even if we “win”, and zero consequences for bureaucrats (who pass along any “losses” to taxpayers / non-Democrats).
See below. The APA is a pretty sturdy check on the ability of agencies to do a lot of that.
LKB,
I appreciate you taking the time to post here, and your expertise. I wouldn’t begin to debate you on the APA.
What I do understand is conflict and strategy. If one side is attrited regardless of whether it loses or “wins”, and the other has both the initiative and zero danger of casualties (lost jobs, savings, relationships, and reputations), how can the latter ever really lose?
LKB, Horse Pucky!
To be clear, my disagreement is with Sam’s prediction of lots of lawfare to defy a SCOTUS finding nuking Chevron. The left and the bureaucrats (but I repeat myself) won’t like it, but I’m just not seeing what form such lawfare would take. It’s not like the agency can get an enforceable preemptive judgment against everyone who might have standing to challenge a regulation or interpretation.
What you are more likely to see is a push for legislation requiring all suits challenging federal regs to be brought in DC district courts.
“I strongly disagree. Pray tell what form such lawsuits would take?”
Not sure what you disagreed with, but you did outline the legal entertainment that would ensue if “Chevron” is curtailed.
As to lawfare, thinking law suits, regulation explosion, govt agencies at all levels posting unlimited numbers of policies and rules that are designed to provoke law suits. Limit the ability of govt agents to legislate amongst themselves, and the limits just might cause govt agencies to go full authoritarian.
Ah, the entertainment.
Note: Apparently New York is trying to moot some of the CCIA, by repealing some of the provisions regarding “sensitive places”. This tactic is approved by SCOTUS.
“It’s not like the agency can get an enforceable preemptive judgment against everyone who might have standing to challenge a regulation or interpretation.”
But, agencies can proliferate regulations they know will be challenged in court. Govt has unlimited financial resources, groups fighting such defiant governments can be checkmated by the lack of resources to bring suits.
Case in point is NY trying to moot a case challenging churches as “sensitive places”. Mooting will be approved, and NY can, as many times as wanted, include churches as “sensitive places. Then, change the law, to remove churches, over and over.
Methinks you’re not fully aware of what goes into the issuance of federal regulations.
The Administrative Procedures Act limits agencies from simply “proliferating” regulations at whim. There are all sorts of legal and procedural requirements in the APA (e.g., notice and comment periods) that have to be met before the regulation can be put in the books. As PDT’s admin found out the hard way, if you cut an APA corner on issuing a reg, the courts can easily bounce it (no Chevron deference if the reg was not properly enacted in accordance with the APA).
So how would getting rid of Chevron change anything? Now, as long as the agency does the APA dance (and Congress doesn’t exercise its right to countermand the reg), the courts are pretty much handcuffed. Nuking Chevron means that the agency has to touch all the bases under the APA *and* will then have to convince courts that the regulation in both authorized by and in accordance with the governing statute.
That would be a huge change in the weather.
LKB, for all the “regulations” the agency regulations have proliferated like rice in a rice patty. Getting rid of Chevron would place the making of these regulations back where it belongs. In CONGRESS!
Whew!
So much to unpack, here. Sure, Chevron is sh***y law, and should have never been decided that way, and should have been overturned decades ago. But Chevron is a symptom, not the disease.
Congress should be required to pass ALL legislation as “single purpose” bills, with a stated intent, reference to the relevant enabling provision in the Constitution, and every legislator should be required to record a vote. PERIOD. “Omnibus” bills are a heinous perversion of the legislative power.
On any review of any law, the first question out of the box is “is this law a valid exercise of a specifically-delegated power”. If the answer is “no”, I don’t give a rat’s hind-end how “reasonable” the law may seem (to you), it falls. Agencies should be even more constrained – who voted for these @$$holes, anyway???? When do we get a “vote veto” over their stupidity?
A legal author (Randy Barnett) wrote an entire book on the idea that the initial presumption in ANY court case should be the “presumption of liberty”. ALWAYS rule in favor of individual liberty, unless the Constitution and statutes CLEARLY authorize something different. Not complicated; just difficult for the Karens who think they’re smarter than everyone else, and don’t “get their way”. T.S., Eliot. Go complain to the manager.
“Not complicated; just difficult for the Karens who think they’re smarter than everyone else, and don’t “get their way” ”
How often I have heard:
“It is too hard to change the Constitution; we can’t let law stand in the way of doing what is right (according to me)”
Since our government was established to secure the blessings of liberty, and not the well being of morbidly obese government at any level, vague laws should……
be null and void;
or, interpreted always in the favor of the citizen
This article and the conversation are why I stay with TTAG. This was Farago-level journalism and the great commenting that it inspired. Thank you all.
Chevron itself is a fairly narrow ruling. If a statute authorized some regulation, but is vague about how to implement it, then the Regulatory Agency is to be deferred to as to HOW, so long as the interpretation is reasonable.
The issue is that agencies have tried (and often succeeded) in expanding that deference well beyond Chevron.
If a statute is silent then no, it’s not within the regulatory authority of the agency. If the statute is clear (e.g. definition of machine gun), then also no, reinterpretation of the statute is again, not within the regulatory authority.
Chevron is also only supposed to apply to regulatory things, not criminal. If criminal penalties are present, then the “Rule of Lenity” is supposed to apply.
The bump stock ban shouldn’t be Chevron related. The statute is clear what defines a machine gun. One could argue that the pistol brace ban would be Chevron related, but since there are criminal penalties associated, then Lenity applies. (and because at one point the ATF said a pistol brace is not a stock, they can’t claim that it is unambiguously a shoulder stock)
I think the court will uphold Chevron, but with some very clear “limiting language”.
Hmmmmmmm.
And how many of you would trust the average Yale educated judge with a lifetime appointment to rewrite firearms regulations from the bench?
@LKB
Having a federal employee for 10yrs, I do know and understand the process for issuing regulations. I also know that people who are already eager to violate rules and regulations are not likely to be expected to honor the rules you identified. Violating federal procedures has no penalty, but does trigger legal challenges by those affected… challenges that do not deter govt aggression.
And the procedural timing is not a deterrent; merely a warning of what is to come. ATF as an example shows us that even knowing a mass of legal challenges over pistol braces (or bump stocks), the agency moved forward. Attempts at enjoining the ATF in order to prevent implementation of bans are largely ineffective, and the courts allowed the ATF bans to proceed.
“The Ride” is the punishment, and govt agencies do not quake at putting subjects through “the ride”. IIRC, the warning period for fed agencies (a timeline not necessarily replicated in non-fed, govt regimes) is 120 days. Objections during that period can be freely ignored, without sanction). A delay is not Kryptonite to government agencies.
If “Chevron” is eventually limited by SCOTUS, agencies will not take it “lying down”.
A lot of the “Ride” is because of the impunity created by Chevron deference . . . Because the courts are handcuffed, the bureaucrats know they can push the envelope.
We disagree on the how effective or widespread bureaucratic pushback would be . . . but let’s hope that we have the opportunity to see who’s right if Chevron’s nuked.
“…but let’s hope that we have the opportunity to see who’s right if Chevron’s nuked.”
If limiting Chevron doesn’t create a feast of legal entertainment, it will be really disappointing. Big fan of free entertainment.
@LKB
“The APA is a pretty sturdy check on the ability of agencies to do a lot of that.”
Quick skim of APA, and a question remains: Does the APA limit the number of regulation changes that can be promulgated in a specific time frame?
Thanx, as always, for the education.
Comments are closed.