Sometimes, the biggest things the Supreme Court does can fly under the radar of just about everyone but the involved parties (and the law geeks). Today, the Supreme Court granted cert in a case that might bring a truly seismic change in the law – including laws affecting gun owners.
By way of background [law geek mode: ON], we all know that Congress passes laws (subject to presidential veto and veto override procedures). However, in most cases, Congress leaves it to federal agencies to implement those laws, including promulgating the regulations that govern the nuts-and-bolts of how the law will works.
For example, the National Firearms Act of 1934 imposed a tax on the manufacture and transfer of machine guns, suppressors, SBS/SBR’s, etc., and required them to be registered with the federal government. However, the ’34 Act didn’t specify how this would be done (e.g., would it be something that you could just go and do on a cash-and-carry basis at your local post office, or did it require all of the hoops we see today?).
Congress left it up the bureaucrats to come up with the regulations on how to implement that law. To a certain extent, that makes sense; it’s impossible for every act of Congress to include every detail of how each law is to be implemented.
Of course, many of these regulations themselves wind up being cumbersome or hard to understand, especially when they deal with technical matters or may conflict with other laws or regulations. Thus, the same agency that promulgated the regulations is often required to interpret them, both formally (such as in a decision in an administrative enforcement proceeding) and informally (e.g., in an opinion letter).
What happens when someone disagrees with a regulation or the agency’s interpretation of it, and argues that the regulation/interpretation is inconsistent with the law passed by Congress…or maybe isn’t even authorized by the law in the first place?
Normally, you would think that federal courts would decide those kinds of issues, as that’s what the judicial branch is supposed to do. However, that’s where things get messy.
Under what is known as Auer deference, named for a Supreme Court case, Auer v. Robbins, courts must defer to the agency’s interpretation of that agency’s own regulations unless such interpretation is plainly erroneous. Under a related doctrine, known as Chevron deference, where a statute implicitly gives an agency the power to promulgate regulations, the courts are not to substitute their interpretation of a statute for a reasonable one that has been made by the bureaucrats.
Why the Supreme Court decided to abdicate judicial authority in this fashion is a hotly discussed topic among law professors and serious law geeks. From a practical standpoint, the upshot of this is that it allowed federal bureaucrats to amass huge amounts of unchecked power over the past few decades, because it is almost impossible for anyone (other than Congress or the President, both of which are too busy to deal with all the decisions made by thousands of bureaucrats) to challenge their actions.
For gun owners, we need only look at the behavior of the BATFE in its shifting interpretations of firearms laws and regulations, which the courts have largely let stand because of Auer and Chevron deference.
Recently, there has been a push from some quarters to reconsider Auer deference, Chevron deference, and other aspects of the modern administrative law state, and overturn them as being inherently unconstitutional; specifically, that such deference to bureaucratic decisions violates the required Separation of Powers.
Were that to happen, the current administrative state would be rocked to its core. While there have been some rumblings from Justice Thomas and others in this regard, there did not appear to be a majority on the Supreme Court interested in potentially unleashing this kind of political earthquake. (Scalia and Kennedy were, at best, squishy on the issue.)
Today, however, the Supreme Court granted cert in a case, Kisor v. Wilkie, that specifically challenges whether Auer deference is constitutional. With the addition of Justices Gorsuch and Kavanaugh — both of whom have expressed reservations about the current state of administrative law — there may now indeed be the five votes need to begin to undo the decades-long abdication of power to the vast federal bureaucracy, including BATFE.
Keep your eye on this one. This case could eventually do more for gun owners than any case since Heller, and indeed could be one of the most important Supreme Court cases in recent history.