Sunday, July 24, 2022

Supreme Court EPA Decision may Apply to ATF Rules

On June 30, 2022, the Supreme Court issued its decision on the West Virginia v. EPA case

The decision reinforced earlier precedent on the non-delegation doctrine. It is a welcome start to roll back the lawlessness of the administrative state. 

Might the EPA case signal a willingness to strike down arbitrary rule changes in the BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) agency?

The architects of the administrative state understood very well it was a critical way to undermine the Constitution:

The reason for this is that the ideas that gave rise to what is today called "the administrative state" are fundamentally at odds with those that gave rise to our Constitution. In fact, the original Progressive-Era architects of the administrative state understood this quite clearly, as they made advocacy of this new approach to government an important part of their direct, open, comprehensive attack on the American Constitution.

In the decision, on page 4 of Justice Gorsuch's concurrence, in footnote 1, Justice Gorsuch points out the Progressive disdain for power in the hands of the people:  

1. For example, Woodrow Wilson famously argued that “popular sovereignty” “embarrasse[d]” the Nation because it made it harder to achieve “executive expertness.”

In the EPA decision, the Court explains it is defending the Constitutional protections of separation of powers. It shows there is a long history of court decisions preventing the agglomeration of powers from one of the three governmental branches to another by improper delegation. From the decision p. 17-18:

Despite its textual plausibility, we noted that the Agency’s interpretation would have given it permitting authority over millions of small sources, such as hotels and office buildings, that had never before been subject to such requirements. Id., at 310, 324. We declined to uphold EPA’s claim of “unheralded” regulatory power over “a significant portion of the American economy.” Id., at 324. In Gonzales v. Oregon, 546 U. S. 243 (2006), we confronted the Attorney General’s assertion that he could rescind the license of any physician who prescribed a controlled substance for assisted suicide, even in a State where such action was legal. The Attorney General argued that this came within his statutory power to revoke licenses where he found them “inconsistent with the public interest,” 21 U. S. C. §823(f ). We considered the “idea that Congress gave [him] such broad and unusual authority through an implicit delegation.

 In the recent case involving the CDC, SCOTUS told the CDC it had overstepped its authority. The quote is on page 18:

Extraordinary grants of regulatory authority are rarely accomplished through “modest words,” “vague terms,” or “subtle device[s].” Whitman, 531 U. S., at 468. Nor does Congress typically use oblique or elliptical language to em-power an agency to make a “radical or fundamental change”to a statutory scheme.

This seems to apply to changes in the BATFE's changing regulatory stance on pistol braces. The BATFE  reversed what it said about pistol braces previously. The BATFE is changing their definition and changing the law. The ATF estimates three million stabilizing braces have been sold:

It is estimated that manufacturers of stabilizing braces have sold 3 million stabilizing braces since 2013. ATF has observed that the development and production of rifled barrel weapons with “stabilizing braces” has become more prevalent in the firearms industry and that, consequently, requests for classifications for this kind of firearm design have also increased.

In a dissent by Justice Gorsuch on a decision of the Supreme Court not to accept a bump stock case, he makes a plea for the rule of law, rather than a rule by administration. 

Justice Gorsuch on bumpstocks:

Chevron’s application in this case may be doubtful for other reasons too. The agency used to tell everyone that bump stocks don’t qualify as “machineguns.” Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it. And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations.

Then, on page 19 of the EPA concurrency by Justice Gorsuch, he makes this point:

The Court acknowledges only that, under our Constitution, the people’s elected representatives in Congress are the decision makers here—and they have not clearly granted the agency the authority it claims for itself.

 It is difficult to know how the Supreme Court will rule. It appears several justices are willing to rein in administrative agencies. The BATFE is not a popular agency. Some justices on the court are concerned with the rule of law. People subject to the law cannot be expected to follow the law if it changes willy-nilly, without Congressional debate and voting.


There are several justices on the Supreme Court who are willing to rein in the power of the administrative state. It is easier for the Court to keep the status quo instead of subjecting the country to radical change. Striking down regulations which propose radical change, before they have gone into effect, has a reasonable chance. In addition, the BATFE regulations directly impact the Second Amendment. This gives proponents of the status quo two separate, but reinforcing arguments to strike down the proposed changes.

There is no certainty the Supreme Court will decide to hear the cases challenging the BATFE regulatory changes. The chance for the Supreme Court to hear a case increases if there is a split in the circuit courts of appeal. 

This correspondent believes the EPA case makes it significantly easier for the courts to strike down BATFE regulations as unconstitutional under either the non-delegation principle or the Second Amendment. 

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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