A recent Supreme Court decision on administrative law has implications for those concerned about the right to keep and bear arms. Yes, administrative law sounds about as boring as….well, words fail me….administrative law, but believe me, you’d better pay attention to it because the rules that agencies like the BATFE promulgate can have a serious impact on the kinds of firearms and ammunition that are available for purchase. The Supreme Court ruled that administrative agencies do not need to issue a notice and allow a 30-day period for comments from the general public if all they’re doing is changing an “interpretive” rule . . .
What does that mean? Well, the blog at Venable LLP does a decent job of defining an ‘interpretive’ rule:
“[I]nterpretive rules” (including guidance documents, agency manuals, and interpretative bulletins)…explain how the legislative rules will be applied and to resolve ambiguities in the meaning of those rules. Interpretive rules technically do not have the force and effect of law, and thus can be issued without public notice and comment. But agencies can and do apply these “interpretations” as if they are binding. Regulated companies have long complained that agencies use the “interpretive rule” pathway to change the meaning of their legislative rules without going through the required procedures. To curb this abuse of agency authority, in Paralyzed Veterans v. of Am. v. D.C. Arena L.P., the D.C. Circuit held that an agency may not significantly revise a prior, definitive interpretation of its legislative rules without going through the notice and comment process.
This differs from a substantive rule, which (as SCOTUSBlog states,) “binds” the public and has the “force and effect” of law.
If it seems to you that the distinction between a rule that “interprets” and a rule that “binds” parties is largely academic, you may be right, as can be seen in the case that was before the Supreme Court, Perez v. Mortgage Bankers Association.
In this case, the Department of Labor had issued a new substantive rule stating that overtime must be given to any employee “whose primary duty is selling financial products,” following the usual notice-and-comment procedure while doing so. Two years later, the DoL issued an interpretive rule, which said that mortgage loan officers were not responsible for selling financial products, and therefore were exempt from overtime requirements. A few years after that, it reversed itself, changing its interpretive rule, which now said, no, mortgage loan officers were NOT exempt from overtime.
In issuing the last rule change, however, the DoL did not follow the notice-and-comment procedure. The Mortgage Bankers Association (an organization that, I guess, is more dedicated to protecting the interests of banks, and not mortgage loan officers,) filed suit, claiming that since the notice-and-comment procedure was not followed, the re-interpretation of the overtime rule was invalid, and thus, mortgage loan officers should still be exempt from overtime requirements.
The Supreme Court disagreed, unanimously striking down the Paralyzed Veterans doctrine. The Court held that federal law does not require notice-and-comment for interpretive rules.
Okay, but why does this matter to gun owners? Remember that whole business we just went through involving the attempt by the BATFE to ban M855 and SS109 ammunition? The notice posted by the ATF and the 30-day comment period that followed allowed plenty of time for a hue and cry to be raised by the gun rights community (including many who read TTAG.) This was arguably a change of an interpretive rule — i.e., the BATFE was not making a new substantive rule, it was simply changing its interpretation as to whether a specific type and caliber of ammunition should be considered to be “rifle” or “pistol” ammunition.
In the Brave New World after Perez, it doesn’t look like they’ll need to bother with a notice and comment period for such changes going forward. If they want, they can simply put the new rule into effect. Given our recent experience, that’s a little unsettling.
That said, it might not be all dark clouds on the horizon. As the Venable blog points out:
The suggestion by Justices Alito, Scalia, and Thomas that federal courts should stop the practice of deferring to agency interpretations of their rules, and reclaim for themselves the power to decide whether a regulation means what the agency says it means, likely will trigger a wave of litigation that, if successful, could force important changes in the way agencies draft rules.
If this case also signals a new attitude on the part of the Court to be less deferential toward substantive rulemaking on the part of administrative agencies, well, that will probably be a good thing, on balance. There’s always the chance that Congress might be able to enact a legislative remedy if the BATFE goes too far and refuses to back down next time — depending on who succeeds the current President, that is.
(Let’s also not forget that a groundswell of outrage in the general public and Congress can force an Agency to back down, as recently happened.)
Still, that’s for the long term. In the meantime, we will have to deal with the law as it is right now. If the BATFE were to start promulgating a few petty rules designed to harass gun owners and manufacturers, it will take time, money, and effort to oppose them. Note, too, that the money and effort will be almost exclusively expended by the gun rights side in opposing it, since the people defending the rule will have their legal fees paid for by the taxpayers.
I could see an aggressive administration pushing the BATFE to enforce a series of petty rules like the M855 ban that skate on the edge of what was authorized by statute. That would force gun rights groups to choose between accepting the rule or expending effort and money opposing them, hoping to exhaust them before delivering a coup de grace like Bane versus Batman.
DISCLAIMER: The above is an opinion piece, and is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice on this subject, you are strongly urged to hire and consult your own counsel.