The Supreme Court’s 1984 decision in Chevron U.S.A., Inc. v. NRDC, Inc. signaled an expanded role for federal agency regulation by generally requiring courts to defer to an agency’s interpretation of an ambiguous federal statute and allowing the executive branch to “make  policy choices—resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.” But Chevron has increasingly come under withering judicial and scholarly criticism. Justice Thomas, for example, has written that Chevron deference “wrests from Courts the ultimate interpretative authority to say what the law is” and violates the constitutionally mandated separation of powers. Some scholars similarly argue that Chevron has led federal courts to shirk their constitutional responsibilities and potentially encouraged vague legislative drafting:
Judges often seem to cling to Chevron for fear they would otherwise face insurmountable difficulties in interpreting ambiguous authorizing statutes. But this fear rests on the mistaken assumption that authorizing statutes would remain static. If Chevron were clearly rejected, there is reason to expect that statutes would shift toward express and specific authorization for agency rulemaking.
The current Court seems increasingly inclined to poke holes in Chevron, including by making greater use of exceptions to the doctrine that permit the judiciary to conduct a probing inquiry into statutory meaning and ambiguity. The most visible of these tools has been the major questions doctrine, which generally provides that, “if an agency seeks to decide an issue of major national significance, a general delegation of authority may not be enough; instead, the agency’s action must be supported by clear statutory authorization.” Other possible judicial mechanisms for weakening Chevron include more probing textual analysis and a narrower view of textual ambiguity, increased reliance on statutory vagueness, and closer review of whether an agency properly complied with notice and comment procedures. The ongoing student loan forgiveness litigation implicates similar questions, including whether the administration properly construed “waive or modify” in the HEROES Act to authorize it to cancel student debt, and whether the major questions doctrine is implicated.
Firearms law is no exception to this general trend of courts declining to defer to how an agency has interpreted a potentially ambiguous federal statute. While the Court has not invoked the major questions doctrine in a firearms case, the continued viability of Chevron has frequently taken center stage in ongoing firearms-related litigation including challenges to the ATF’s 2019 rule banning bump stock devices. (Dru Stevenson previously summarized the state of litigation on the bump-stock ban in a March 2021 post).
On January 6 in Cargill v. Garland, the en banc Fifth Circuit struck down a Trump-era rule banning bump stocks (generally speaking, devices that increase the rate of fire of semi-automatic weapons). The court held that “[a] plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of ‘machinegun’ set forth in the Gun Control Act and National Firearms Act.” In other words, ATF’s decision to interpret “machinegun” to include bump stocks—thus allowing the agency to prohibit the devices under the National Firearms Act—was inconsistent with the statute’s plain language because “a semi-automatic rifle equipped with a non-mechanical bump stock” does not operate “automatically” and “by single function of the trigger.” Moreover, the opinion notes, ATF long took the position that bump stocks were not machine guns within the meaning of the statute, before reversing course in 2018 and 2019. The court rejected the notion that Chevron should support the agency’s interpretation of the statute—first observing that the government had not asked for Chevron deference and also holding that, in any event, Chevron does not apply to statutes authorizing criminal (rather than civil) penalties. Finally, Cargill held that the rule of lenity required reading the term “machinegun” narrowly to exclude bump stocks in the case of an ambiguous criminal statute. The court concluded by observing that:
Many commentators argue that non-mechanical bump stocks contribute to firearm deaths and that the Final Rule is good public policy. We express no opinion on those arguments because it is not our job to determine our nation’s public policy. That solemn responsibility lies with the Congress, and our task is confined to deciding cases and controversies, which requires us to apply the law as Congress has written it.
Similar administrative law and deference issues often arise in cases challenging the ATF’s “frame or receiver” rule that took effect in August 2022. This rule, which targets “ghost guns” and self-manufactured firearms, has been challenged in court by both gun-rights groups and gun-violence-prevention organizations. On March 2, a judge in the Northern District of Texas issued a preliminary injunction of the ATF “frame or receiver” rule as applied to Defense Distributed (one of the first companies to create and sell blueprints for a 3D-printed gun) in Vanderstok v. Garland. The decision noted that the rule, first promulgated by the Biden administration in 2021, “departs from nearly 45 years of ATF precedent, during which the agency declined to interpret the GCA’s term ‘firearms’ to include partially manufactured frames and receivers.” The objective of the new rule is to regulate component parts used to assemble self-manufactured firearms in the same way that the agency regulates pre-assembled firearms. The opinion adopts the judge’s analysis in a prior decision that the final rule exceeded agency authority because “[t]hat which may become a receiver is not itself a receiver” or a “firearm” within the meaning of the Gun Control Act, and because “[n]o weapons parts kit” meets the unambiguous statutory definition of a “firearm” (the same judge has issued preliminary injunctions as to other “ghost gun” manufacturers).
Both Cargill and Vanderstok rely in part on the fact that ATF reversed its own prior interpretation of the statutory language at issue. In other words, courts have found it especially relevant that the rules require adopting a different interpretation of the authorizing statute from an interpretation previously endorsed by the agency. While a 1997 note in The University of Chicago Law Review suggests that courts at that time generally deferred to even revised agency interpretations in the same way they deferred to initial interpretations, the decisions in Cargill and Vanderstok indicate that closer scrutiny of revised or reversed agency interpretations may be yet another tool that courts are using to chip away at Chevron. This development is closely related to more searching judicial scrutiny of statutory language, the rise of textualism, and a greater willingness to conclude that language is clear and unambiguous. If an agency has historically taken a certain position and then reverses itself, courts now seem likely to conclude that the initial interpretation was likely the correct “plain meaning” of the statute and that later claims of ambiguity are insincere.
In each of these cases, I believe the outcome may ultimately be beneficial to the extent it forces legislators in the future to grapple with issues of national salience rather than looking to the executive branch. Bump stocks received a great deal of public attention and criticism following the 2017 Las Vegas shooting, with the NRA and leading Republican legislators indicating that they were open to banning the devices by legislation at that time. Similarly, an increasing number of ghost guns are now recovered from crime scenes, and ghost guns and 3D-printed weapons have been used in recent school shootings. Current support for federal legislation addressing ghost guns appear to be high—a December 2021 poll indicated 73% support among likely voters and 59% support among Republicans for “legislation to make these weapons traceable by adding serial numbers to components, imposing background checks and requiring online purchasers to pick up their orders at federally licensed gun shops.”
While it’s almost always easier to accomplish regulatory objectives through executive action rather than through legislation—and executive action often provides the administration with a steady stream of positive press—there are serious downsides to circumventing the legislative process in this way. For example, while bipartisan support for a federal law banning bump stocks likely existed in the months following the Las Vegas shooting, the ATF rule and subsequent litigation have almost certainly made the issue more polarized (in part because arguments that the rule was in excess of ATF’s authority tend to blend with arguments that the rule was bad policy). We may now be seeing a similar phenomenon with the “frame or receiver” rule, with initially high levels of public support for stricter regulation eroding as litigation over the ATF rule takes center stage.