Elections have consequences, and while the expected “Red Wave” was nothing of the sort, Republicans did take control in the House of Representatives. That means Republicans will chair all House committees, thus setting their agendas for the next two years. Ohio Congressman Jim Jordan will chair the powerful House Judiciary Committee, through which all gun measures must pass. Jordan also leads the House Freedom Caucus and belongs to the House Second Amendment Caucus. He has outspokenly opposed anti-gun efforts in committee and on the House floor. Now, he’s set to take on the ATF.
Applying the Constitution to firearms legislation is one of Jordan’s strong suits. References to the Second Amendment and Supreme Court cases like the Heller, McDonald, and Bruen Decisions are common in his speeches and questions. So, it’s not all that surprising that Jordan plans to look into the ATF’s recent activity, especially its rulemaking process. We’ll have to see if anything positive comes from it, but it’s good to see the aggressive Biden ATF receiving Congressional attention.
The ATF’s Growing Power
Like other executive agencies, the ATF makes rules that carry the force of law. The recent Frames and Receivers Rule, the Bump Stock Rule, the Rare Breed Trigger debacle, and the upcoming Pistol Brace Rule are all examples of non-elected officials framing and deciding federal law.
And that’s the problem. Article I of the United States Constitution clearly reserves to Congress the sole power to make federal law. The Executive Branch, to which the ATF and other agencies belong, is not given that power. The Executive Branch may only enforce the laws Congress passes. So, why do so many agencies, like the ATF, EPA, and others, actually make rules that equate to federal law? That’s easy. Congress and the courts allow them to. But that may be changing.
The Chevron Deference Doctrine
The ATF and other agencies get away with their rulemaking shenanigans through a court procedure called the Chevron Deference Doctrine. The idea is that these agencies know more about their areas of responsibility than Congress does, so they should be deferred to when their rules are challenged in court. That seems reasonable in mundane matters, but federal agencies have expanded their reach into substantive political and economic realms.
Presidents have relied more and more on agency rules when they can’t move their agendas through Congress. Both parties do it. Donald Trump pushed the ATF to ban bump stocks. Joe Biden has gotten his “ghost gun” ban and the Pistol Brace Rule will drop any day. Word is that braces will now be NFA items, just like the rule on the Rare Breed Forced Reset Trigger.
Congress enacted the NFA in 1934, but it’s now the ATF that decides what is and isn’t an NFA item. Up to now, the courts have allowed them to proceed because of the Chevron Deference Doctrine. Since Congress has not addressed those particular issues, the courts defer to the ATF’s supposed “expertise,” even when real experts testify against it
But, last summer, the Supreme Court ruled, in West Virginia v. EPA, that the Chevron Deference Doctrine may not be applied to issues with “vast economic and political significance.” Gun control certainly fits that description. The problem is that the ATF, as instructed by the Biden Administration and the Justice Department, continues to make those rules, despite the Supreme Court’s ruling.
“How can they do that,” you may ask. The answer is that the decision only applies to court cases challenging the rule in question. Unfortunately, it’s not illegal to knowingly make an unconstitutional rule or law, and those rules and laws can only be declared unconstitutional by the courts. So, even if the ATF makes an unconstitutional rule, it still carries the weight of law until struck down by a federal judge. Even then, the ATF will appeal any ruling that goes against it, meaning the suit will likely take years to adjudicate.
Congressional Sidestepping
Congress has long been happy to allow federal agencies to essentially usurp their power on controversial issues. Remember, politicians’ number one goal is to get reelected. Taking a stand on certain issues makes reelection more difficult, since it potentially alienates half the constituency and provides campaign fodder to opponents.
Politically charged issues are often held back from a vote so that a given party’s members don’t have to vote publicly. Some are brought to the floor, knowing they will lose, to force a public vote that the opposing party can fundraise and campaign on. It’s a real mess.
So, Congress doesn’t want to get into the details on stuff like pistol braces. They aren’t interested in such minutiae. They would rather talk about sexier stuff like an “assault weapons” ban, on which they can pander to their political base without actually knowing anything about the topic.
Jim Jordan’s Warning
Jordan is probably no different in that regard, at least on some issues. He does, however, have a record of standing up for gun rights. And he seems ready to at least examine how the ATF does business. In a November 28, 2022, letter to ATF Director Steve Dettelbach, Jordan reminded the director that he had requested “information and documents concerning the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) efforts to regulate firearms through the rulemaking process.”
Those requests have gone unanswered, and Jordan says that if Dettelbach and the ATF do not comply, “the Committee may be forced to resort to compulsory process to obtain the material we require.” That’s obviously a subpoena threat.
How that will go remains to be seen. I’m very skeptical of Congressional hearings. They are often spectacles for public consumption that never really accomplish anything. It’s usually more about damaging the other party than dealing with a problem, and no one is more accomplished than Congress when it comes to looking like they are doing something when they really aren’t.
But Jordan’s actions are encouraging, especially since he cites the Constitution’s Article I in his letter. Executive power has been growing at the Legislative Branch’s expense since at least 1932. Congress has often been more than happy to allow that power transfer since it lets them get by with not standing up on controversial issues. Here’s hoping that is about to change, at least regarding gun legislation and how the ATF purposely turns responsible citizens into criminals through their rulemaking process.
