Supreme Court to Hear Case That Could Rein in Federal Agencies | National Review
Justice Ketanji Brown Jackson recused herself from the case.
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Chevron deference
View: https://youtu.be/btqTAYf_1Io
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Well…this could get interesting. SCOTUS to hear case that could end ‘Agency Interpretation’ of laws.
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View: https://youtu.be/btqTAYf_1Io
ReluctantDecoy
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Does this mean I will be able to shoulder my business card soon?
The prospect of the Supreme Court revisiting – and potentially consigning to the legal trash pile – the “rule” of Chevron U.S.A., Inc. v. NRDC, Inc., 468 U.S. 837 (1984), is and should be exciting to lawyers whose practice involves proceedings before administrative agencies. However, this prospect is likely less important with regard to the Second Amendment than some might think.
Some background. Federal administrative agencies are the creation of Congress. In general, they are created to facilitate the execution of some substantive statute also enacted by Congress. In creating an agency, Congress typically specifies the enactment the agency is authorized to enforce, sets for the standards by which the agency will effect its enforcement, and, often, authorizing the agency to promulgated (pursuant to the procedural requirements of the Administrative Procedures Act, 5 U.S.C. §§ 551-559) “regulations.”
Depending on the terms of the statute creating the agency, an agency’s power to promulgate regulations falls into one of two categories: “interpretive regulations” and “legislative regulations.” In somewhat simplified form, “interpretive regulations” are statements by the agency as to how it interprets the underlying substantive statute. “Interpretive regulations” do not have the force of law, and the issue of whether an “interpretive regulation” is “correct” is left entirely to the reviewing Court’s judgment, based on the Court’s interpretation of the underlying statute. In short, an “interpretive regulation” is nothing more – or less – than notice to the world as to what the agency thinks (and is likely to contend the statute means if the issue goes to court). By itself, an "interpretive regulation" does not create new legal duties. Put another way, a person cannot be indicted for "violating" an "interpretive regulation," only (perhaps) of violating the underling statute.
On the other hand, “legislative regulations” – sometimes referred to as “fill in the blank regulations” – are authorized where Congress decides some governing principle, but leaves to the agency to determine precise standards or measures by which the statutory principle will be achieved. “Legislative regulations” are not immune from judicial review, but unlike the case with “interpretive regulations,” a reviewing court does not substitute its judgment for the agencies as to the regulation’s particulars, but only decides whether the “legislative regulation” is reasonably related to achievement of the statutory principle enacted by Congress. And if a "legislative regulation" is determined to be within the agency's delegation of authority, a person can be charged with "violating" it, because the regulation created legal duties that did not exist before the agency promulgated it.
So far so good. Now let us consider a situation in which the issue is whether the subject of a “legislative regulation” is within the scope of the matters defined in the statute as delegated to the agency. For instance, the statute may define “wetlands” in terms of the animals that make an area their home, and later an agency issues a “legislative regulation” that extends to other areas, not because animals make the area their home but, maybe, might have some effect (such as runoff) on those areas. In such a case, someone might challenge the regulation as being “beyond the jurisdiction” of the agency. This is an important distinction, because, axiomatically, an entity has no power to alter, amend or otherwise define its own “jurisdiction.” Rather, “jurisdiction” is always a question of law, relegated exclusively to the courts.
Then along came Chevron. Eschewing the details, it involved a question of the “jurisdiction” of an agency, and when the matter came to court, the agency contended that the court to should defer to the agency’s definition of the agency’s jurisdiction because that question was somehow based on the agency’s claimed “expertise.” For some unfathomable reason, the Court accepted this argument. As summed up by one authority, the Chevron rule “is an administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer.”
Okay, let’s get away from legal mumbo-jumbo and ask what all of this means in the Second Amendment context, and, more particularly, the BATFE context. Less than many think, in my judgment. For instance, the National Firearms Act defines a machine gun in very specific mechanical terms. See 18 U.S.C. § 921(a)(23), incorporating 26 U.S.C. § 5845(b). With respect to bump stocks, BATFE issued a regulation that extended the term “machine gun” to mean things that pretty clearly were dehors the definition enacted by Congress. And nothing in the National Firearms Act authorized BAFTE to issue regulations changing Congress’s explicit definition. See 18 U.S.C. § 926. As a result, any action by BATFE purporting to extend the definition of “machine gun” to include “bump stocks” is, at best, an interpretation of the definition enacted by Congress in § 5845. That issue, so far at least has not involved Chevron, and reviewing courts seem to have limited themselves to reading the Congressional definition of “machine gun.” In fact, BATFE has long been considered an agency authorized to issue only “interpretive regulations” and not “legislative regulations.”
It is widely believed, including by some weighty authorities, that the exercise of regulatory power by unelected administrative agencies has far exceeded the scope of what Congress did, or could have, delegated to the executive under Article 1 of our Constitution. And as widely believed is the notion that Chevron made this problem worse. The portend of the Supreme Court reigning in the agencies a tad is, indeed, exciting, but it has little do so with the Second Amendment.
Some background. Federal administrative agencies are the creation of Congress. In general, they are created to facilitate the execution of some substantive statute also enacted by Congress. In creating an agency, Congress typically specifies the enactment the agency is authorized to enforce, sets for the standards by which the agency will effect its enforcement, and, often, authorizing the agency to promulgated (pursuant to the procedural requirements of the Administrative Procedures Act, 5 U.S.C. §§ 551-559) “regulations.”
Depending on the terms of the statute creating the agency, an agency’s power to promulgate regulations falls into one of two categories: “interpretive regulations” and “legislative regulations.” In somewhat simplified form, “interpretive regulations” are statements by the agency as to how it interprets the underlying substantive statute. “Interpretive regulations” do not have the force of law, and the issue of whether an “interpretive regulation” is “correct” is left entirely to the reviewing Court’s judgment, based on the Court’s interpretation of the underlying statute. In short, an “interpretive regulation” is nothing more – or less – than notice to the world as to what the agency thinks (and is likely to contend the statute means if the issue goes to court). By itself, an "interpretive regulation" does not create new legal duties. Put another way, a person cannot be indicted for "violating" an "interpretive regulation," only (perhaps) of violating the underling statute.
On the other hand, “legislative regulations” – sometimes referred to as “fill in the blank regulations” – are authorized where Congress decides some governing principle, but leaves to the agency to determine precise standards or measures by which the statutory principle will be achieved. “Legislative regulations” are not immune from judicial review, but unlike the case with “interpretive regulations,” a reviewing court does not substitute its judgment for the agencies as to the regulation’s particulars, but only decides whether the “legislative regulation” is reasonably related to achievement of the statutory principle enacted by Congress. And if a "legislative regulation" is determined to be within the agency's delegation of authority, a person can be charged with "violating" it, because the regulation created legal duties that did not exist before the agency promulgated it.
So far so good. Now let us consider a situation in which the issue is whether the subject of a “legislative regulation” is within the scope of the matters defined in the statute as delegated to the agency. For instance, the statute may define “wetlands” in terms of the animals that make an area their home, and later an agency issues a “legislative regulation” that extends to other areas, not because animals make the area their home but, maybe, might have some effect (such as runoff) on those areas. In such a case, someone might challenge the regulation as being “beyond the jurisdiction” of the agency. This is an important distinction, because, axiomatically, an entity has no power to alter, amend or otherwise define its own “jurisdiction.” Rather, “jurisdiction” is always a question of law, relegated exclusively to the courts.
Then along came Chevron. Eschewing the details, it involved a question of the “jurisdiction” of an agency, and when the matter came to court, the agency contended that the court to should defer to the agency’s definition of the agency’s jurisdiction because that question was somehow based on the agency’s claimed “expertise.” For some unfathomable reason, the Court accepted this argument. As summed up by one authority, the Chevron rule “is an administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer.”
Okay, let’s get away from legal mumbo-jumbo and ask what all of this means in the Second Amendment context, and, more particularly, the BATFE context. Less than many think, in my judgment. For instance, the National Firearms Act defines a machine gun in very specific mechanical terms. See 18 U.S.C. § 921(a)(23), incorporating 26 U.S.C. § 5845(b). With respect to bump stocks, BATFE issued a regulation that extended the term “machine gun” to mean things that pretty clearly were dehors the definition enacted by Congress. And nothing in the National Firearms Act authorized BAFTE to issue regulations changing Congress’s explicit definition. See 18 U.S.C. § 926. As a result, any action by BATFE purporting to extend the definition of “machine gun” to include “bump stocks” is, at best, an interpretation of the definition enacted by Congress in § 5845. That issue, so far at least has not involved Chevron, and reviewing courts seem to have limited themselves to reading the Congressional definition of “machine gun.” In fact, BATFE has long been considered an agency authorized to issue only “interpretive regulations” and not “legislative regulations.”
It is widely believed, including by some weighty authorities, that the exercise of regulatory power by unelected administrative agencies has far exceeded the scope of what Congress did, or could have, delegated to the executive under Article 1 of our Constitution. And as widely believed is the notion that Chevron made this problem worse. The portend of the Supreme Court reigning in the agencies a tad is, indeed, exciting, but it has little do so with the Second Amendment.
I’ve been arguing against the perversion that is secondary legislation for decades now.
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