The Supreme Court just released a decision curtailing the power of executive agencies to interpret and exploit ambiguities in federal law. Loper Bright Enterprises v. Raimondo overturned what is known as the “Chevron Doctrine,” which required courts to defer to an agency’s supposed expertise, even if the agency’s interpretation differed from that of the court. This is good news all around, but MagLife readers will be particularly interested in how this affects the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). We’ll get to that below, but let’s begin with a quick look at what the Chevron Doctrine did and why the high court overturned it.
What Was the Chevron Doctrine?
My teachers told me that the federal government’s three branches basically worked like this: the Legislative Branch (Congress) made the laws; the Executive Branch (the president and federal agencies) enforced the laws; and the Judicial Branch (the courts) interpreted the laws. That is indeed the case, though it’s obviously more complicated.
The US Constitution’s first three Articles lay out the basic guidelines for the governmental branches and how they interact with one another. Alexander Hamilton, himself a strong proponent of a powerful Executive Branch, confirmed the judiciary’s reserved power in The Federalist No. 78. Hamilton wrote that “[T]he courts were designed to be an intermediate body between the people and the legislature, in order…to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.”
The Chevron Doctrine essentially required the Judicial Branch to defer to the Executive Branch when interpreting federal law passed by Congress. If, say, the Environmental Protection Agency (EPA) interpreted an unclear aspect of a federal statute a particular way, the courts had to go along with it. Even if the court’s interpretation was different. The EPA’s argument would be that they are the subject matter experts when it comes to environmental issues. However, the Chevron Doctrine ignored the fact that while federal agencies may be subject matter experts, they are not judicial experts. Oh, they had an army of lawyers, but those lawyers were paid to further the agency’s interest, not uphold the Constitution. You’d think those things would be one and the same, but we all know they aren’t.
So, the Chevron Doctrine gave the Executive Branch powers over legislation that it was never intended to have. The EPA, by the way, was one of the worst about invoking the Chevron Doctrine to get their way.
Hamilton also declared that the Constitution, which established separation of powers, must rule over any judicial action. “A constitution,” Hamilton wrote, “is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcileable (sic) variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
In other words, the Judicial Branch is charged with safeguarding the Constitution from the Legislative Branch, and the judges’ interpretation should rule the day. “The intention of the agents,” in this case, refers to the federal agencies in their role of executing the statute in question. The Loper Bright opinion returns that power to the judiciary, where the Framers intended it to reside.
Finally, the landmark Supreme Court case of Marbury v. Madison confirmed the judiciary’s power to interpret the law. Chief Justice John Marshall wrote that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Chevron turned that on its head and worse. Note that nothing Hamilton or Marshall wrote, said, or even implied stated that the Executive Branch had any role in interpreting the law. But Chevron conveyed that power.
How Does Loper Bright Affect Gun Rights?
Look no further than the fallout from 2022’s Bipartisan Safer Communities Act (BSCA) to see how the ATF used Chevron to push the Biden Administration’s anti-gun agenda. The BSCA broadly addressed three policy issues: federal funding of state Red Flag Laws, closing the so-called “boyfriend loophole,” and enhancing firearms background checks for 18-20-year-olds.
But the law’s language was very vague. Texas Senator John Cornyn and Connecticut Senator Chris Murphy, the BSCA’s main sponsors, said that the allocated money could be used for “anti-violence programs and “anti-violence interventions,” respectively. The Justice Department (DOJ) was given discretion over how the funds were spent.
I wrote at the time that “gun controllers will take full advantage of any opening they see. Crack the door an inch, and they’ll attack it with a crowbar.” That’s exactly what happened. The very anti-gun DOJ, prompted by the White House Office for Gun Violence Prevention, used the ATF to promulgate the infamous “Engaged in the Business” Rule, whose primary goal is ending all private firearms sales. ATF and DOJ invoked the BSCA as allowing the rule despite the law’s saying nothing of the sort. The rule is promoted as an “anti-violence initiative” that will supposedly save lives. The statute’s vagueness and its sponsors’ comments gave the DOJ an opening, and they took it.
The Engaged in the Business Rule is being challenged in federal court, where it’s already taken its first loss. Thanks to Loper Bright, the ATF will not be able to invoke Chevron Deference in the Pistol Brace or Frames & Receivers Rules or in any other case that challenges ATF interpretations.
Chevron Deference and the APA
The ATF’s rules have been challenged under the Administrative Procedures Act (APA), which governs how federal agencies conduct their business. The APA was instrumental in overturning Chevron since it specifically acknowledges the courts’ role in interpreting statutory law. Chevron Deference transferred that role to the agencies. It essentially gave an agency, such as the ATF or EPA, the power to make law, enforce the law, and interpret the law if it was challenged. That’s way too much power.
Chief Justice John Roberts’ opinion makes that clear, using the APA to shred Chevron. Roberts writes that “[C]ongress in 1946 enacted the APA ‘as a check upon administrators whose zeal might otherwise have carried them to excesses, not contemplated in legislation creating their offices.’ The APA prescribes procedures for agency action and delineates the basic contours of judicial review of such action. And it codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment. As relevant here, the APA specifies that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action (emphasis added)—even those involving ambiguous laws.”
The Loper Bright opinion brings us back to the APA’s, and the Framers’, original intent: that the courts, whose job is to interpret and protect the Constitution, shall have the sole right to say what ambiguous laws mean. Not overzealous or politically motivated federal bureaucrats.
What Now?
The Executive Branch will still push the envelope on what they’re allowed to do. Governments and governmental entities are like that. They naturally try to gather power to themselves at the expense of other entities, whether it be rival agencies and branches, or even the people as represented by the Constitution itself. That’s why the Framers insisted on the separation of powers and checks and balances between the branches.
It is a truism that once a bureaucracy is created, its primary endeavor becomes justifying its own existence. It can only do that by expanding its power and attracting ever more funding. That funding is justified by seeking even more power and funding. It never ends. The Chevron Doctrine enabled that process. Here’s hoping that Loper Bright can restrict it by restoring the proper relationship between the Legislative and Judicial Branches and reining in the Executive (including the ATF) a bit.
