Unelected Bureaucrats Making Law – How Did We Get Here?

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This is TTAG’s weekly roundup of legal and legislative news affecting guns, the gun business and gun owners’ rights.

On The Growing Executive, The Waning Judicial, and President Trump

Last week I penned an article about President Trump’s relationship with gun rights. My friend John Boch made some counterpoints, and a lot of you might be wondering just how we got to a point where entire classes of firearms can be summarily made verboten without any new laws being passed. So I’m going to take us on a bit of a bumpy ride.

I asserted that Trump could take action on many matters affecting our rights any time he wanted. I got some push-back for this…but I’m right.

No, I didn’t skip civics, either. It can be confusing how so many new “rules” and “regulations” come to affect us gun owners without us hearing about new laws. That’s because the administrative state is the fastest growing branch of government.

This is what a bump fire stock is and how it works.

Nick Leghorn for TTAG

Administrative agencies, like the ATF and EPA, are increasingly encouraged to write their own rules far beyond the scope that the law allows. Hence why you saw “bump stocks” banned without Congress acting, why you saw 7N6 ammunition disappear, why you saw foreign made semi-autos dry up. None of this came with the help of Congress. All of it came at the behest of the executive branch, headed up by none other than whoever was president at the time.

I want to make clear that in no way was I expressing any opinion on who you should vote for. I’m fiercely apathetic when it comes to how you vote. What I was saying is that if gun rights matter to us, we should communicate very clearly to the president that we know what power he has. Politicians benefit from public confusion over what it is they can and cannot do. Instead of furthering this, we should recognize something and agree:

Like him or not, the president could make huge differences in quality of life for gun owners without asking anyone’s permission.

He could direct ATF to reverse broken and expansive “interpretations” of the law. He could withdraw from agreements that keep guns and parts from being imported. He could reverse George Bush Sr.’s asinine “sporting purposes” interpretation. He could direct the DOJ to de-prioritize enforcement of simple possession offenses.

He could do many, many more things for us all by himself, but he hasn’t. He’s only tightened our chains. I want to know why that is, and you should too.

As for the argument that the President “knew” the Courts would overturn the ATF’s arbitrary bump stock ban, I’d just like to point out that hasn’t happened, and it’s not a surprise. The ban isn’t still in place because we didn’t try to stop it. I — and many lawyers much smarter than me — have been working tirelessly in several federal circuits pouring everything we have into challenging this insane overreach from the very first day.

We haven’t seen a court step up to knock down the ban, and we’re not surprised. Not because the ban is legal (it isn’t), but because while the executive branch has grown tremendously over the last several decades, and the judicial branch seems to have lost its hat and crawled into a hole. It started in the New Deal era when judges began citing “legislative deference” as a judicial virtue, rather than an abdication of power.

In response to the clearly unconstitutional, but publicly popular New Deal mandates (including the National Firearms Act, which many of my friends seem to bizarrely regard as permissible), judges sought to avoid “subverting the will of the people” by overturning laws that were “duly passed by the legislature.”

This was garbage then, and it’s garbage now. The Constitution says it’s the job of the legislature to make laws, and the job of the judiciary to slap those laws off the book when they don’t walk the straight and narrow line afforded by the Constitution. It doesn’t matter if it’s popular. If the government lacks express constitutional authority, it can’t do it. Plain and simple. Except the powers that be didn’t see it that way.

As the judiciary ceded power to the legislature, the legislature got sick of doing all the hard work. Thus, the legislature began establishing executive branch offices to administer and enforce the half-baked, extra-constitutional programs passed by that body. So we saw, and continue to see, an explosion of bureaus, helmed by un-elected, lobster-clawed bureaucrats who answer only to the President.

As the legislature created and funded more and more of these vague agencies, it handed off more and more of its lawmaking obligations. It would write and pass something maniacally vague, and provide that whatever dime-store lobsters it released into the agency would write their own rules and regulations “consistent with” that vague enabling statute.

When you tell a group of ill-accountable people to determine how much power they have by reference to an intentionally open-ended document, they are going to “find” as much power as they can. And then find some more.

There have been some attempts to tamp down on this, and there is the Administrative Procedures Act, but from the same seed that sprouted “legislative deference” bore “administrative deference.”

In the estimation of our judiciary, these un-elected bureaucrats were selected to do very technical things! They are experts, in the eyes of the government, not because they are or ever were correct about the law, but because they are “experts.”

So, whenever the law seemed a little bit vague, and the administrative agency “interpreted” the law to include whatever problème du jour the executive branch happened to be harping on, well, it must be OK. Because they’re the “experts,” and experts can’t have strings to pull.

This has all wound up in the continued metastasis of an impossibly large executive branch, helmed, again, by the president. The bump stock ban is the largest, most extra-textual expansion of executive authority standing, and if you believe that treatment won’t spread to other areas of law, you need a new optometrist.

If the Supreme Court doesn’t reel it back, it means the president can direct his agencies to write new law…as long as they don’t admit they’re writing new laws.

We stand now at the precipice between a president and a king. And it’s not just our current president. At minimum, Trump will have left a shiny, powerful tool in the toolbox for whoever comes next. The last thing we need to do is sweep it under the rug. While you might forget that it’s there, I’m quite confident whoever is sitting in the oval office in the future will not.

Connecticut Passes Safe Storage and Attempts to Stop the Signal

While this was a slow week for gun law news, it wasn’t a dead one. Connecticut saw a safe storage requirement (both in the home and vehicles), and banned “ghost guns.”

We’ve covered these time and time again. It’s bad, unenforceable policy. Both a “ghost gun” ban and a “safe storage” requirement could only really be enforced against people who let law enforcement into their house for something else. Have some minor dispute in your home? Gun safe not locked? Guess who’s getting booked.

comments

  1. avatar Specialist38 says:

    Yup. About right.

    1. avatar tmm says:

      I agree. It bears making the point that if the President is making noise about infringing our rights, I don’t care what kind of mind game or misdirection is being made, you had better TELL HIM WHAT YOU THINK and that it’s a bad idea, because princess is sure to bend his ear, too. This goes for legislative (congress) critters, too…Fed State and Local!

  2. avatar Ed Schrade says:

    During court proceedings in a lawsuit against the ATF, the ATF admitted in writing that they did not have legal authority to do so.

    1. avatar Hannibal says:

      No they didn’t. That was an interpretation from the other side spinning the ATF’s response. Read the original response.

      1. avatar EWTHeckman says:

        They admitted that they do not have the legal authority to change the law. But they claim that is not what they did even though that is exactly what they did.

  3. avatar California Richard says:

    Welcome to California, where the legislature gave a blank check to the state DOJ to regulate “assault weapons”. The DOJ can change the regulations on whim, redefine what an “assault weapon” is without any public discourse, and affect the legality of a Constitutionally protected right…… I’ve been saying it for years here on TTAG: you can run from California, but California will find you. Better to stay and fight. Keep the fight here.

    1. avatar SoCalJack says:

      Good points. I have to wonder how many gun owners, former CA residents, left primarily due to CA gun laws. I love exercising what gun rights we have left on a monthly basis and donate to CRPA, GOC, GOA, and FPC. But diminishing gun rights would be lower on my list of why I would leave CA. CA becoming more of a Socialist-state would be one of the main reasons I’d leave. In the meantime we fight for our gun rights.

    2. avatar Chris T in KY says:

      For over 170 years people moved to California to make a better life for themselves. And now they are leaving to find a better life as well. It’s not just about guns. California was passing racist gun control laws affecting the chinese and mexicans the most. But now its all regulations not just gun regulations.

      The conservative gun owners like myself left decades ago. The ones leaving now are gun grabbing Liberals who finally can’t stand the government that THEY FOR YEARS worked to make bigger.

      The Rainbow flag is more important than making government smaller or more efficient. Now you can call me a homophobe. That’s normally the first response instead of addressing the 2A or any serious public issue.

      “WROL Is Here… In California” 15 minutes long

  4. avatar American Patriot says:

    Like it or not the politicians, LE, Judges, the rich & famous are all above the law & there is Nothing the regular Joe blow can do about it. Now the rule of law has extended into Mob rule and there is still nothing you can do about it. Sure you can pay thousands of $ for lawyers & attempt to sue but you’ll just waste money. The U.S. is about 49% totally lost & 1 election will flip it into total socialism!

    1. avatar Carolina Kid says:

      That’s why We The People have plenty of firearms……….Thanks Forefathers !

      Everyone needs to wake the hell up and realize the 2nd U.S. Civil War IS on the horizon…and it’s coming fast.

      1. avatar SoCalJack says:

        I can see CW2 coming, but Dems are going to play the slow game, they cannot afford CW2. In the meantime, keep prepping for a long grid down senario.

  5. avatar MarkPA says:

    “He [the President] could direct . . . . He could withdraw . . . . He could . . . ” Yes, all these things are true. A President could do a lot of things for us. And we wish he would do so.

    Yet, we have to acknowledge that President Trump has a lot of issues on his plate; not the least of which is draining the swamp. We are at risk of asking Trump to do lots of little favors for us that make us feel good for a few days each; but, which don’t move all the boulder-sized balls forward.

    Our problem with the judiciary is that it is stacked with judges – especially justices – who don’t see things our way. One thing that Trump is working hard on is refilling vacancies with much better jurists. Nothing will fix the judiciary other than replacing bad judges/justices with good justices.

    Trump has no control over the number of opportunities he has. That control is in the hands of God and the judges who choose to retire. Trump can only nominate good jurists and push the GOP in the Senate to confirm. Nothing is more important than re-electing Trump to a second term; followed by electing Pence to two more terms.

    Our greatest vulnerability is a SCOTUS bench which refuses to grant cert. On any topic whatsoever (e.g., even the reinstatement of slavery) the Congress could do whatever it wishes so long as it believes that SCOTUS won’t stop it. All it takes for evil to prevail is for 5 justices of the Supreme Court to do NOTHING.

    That said about the Presidential power to nominate judges, the President actually has relatively little power. Tinkering a bit around the edges of a gun law is nothing compared to the power of Congress to pass a law that says whatever Congress might please.

    Congress is a creature of we the People – or, more specifically – those of us who choose to vote. We believe that 100 million Americans are gun owners. If 1/3 of voters are gun owners AND they voted on ONE ISSUE – then we would have no problem. That we DO have problems is evidence that gun owners are NOT voting gun rights.

    All it takes to STOP a bill from becoming law is 41 Senators to vote NO! We have 40 or so Right-to-Carry states. If 41 out of the 80 Senators representing these states would vote gun rights then no new control bills could pass. We gun voters can’t even get 41 out of our 80 senators to vote gun rights!

    I appreciate the validity of everything the OP wrote. Notwithstanding the truth of his statements, there are priorities. Our Presidential priority is for Trump+Pence to nominate judges and especially justices. Our legislative priority is to gain control over 41 Senators. If we can’t get that done then it won’t help to get a real gun-rights supporter into the White House.

    1. avatar uncommon_sense says:

      MarkPA,

      For reference several of those 40 shall-issue states do not have Republican, much less firearm friendly, United States Senators.

      My state is a shall-issue state and we only sent one Republican Senator to office for six years out of the last 60 years.

      I hate my state (both on a local level and state level). If my extended family did not live here, I would move in a heartbeat.

  6. avatar Merle 0 says:

    Growing and festering leftist infection that’s been brewing for decades.

  7. avatar NORDNEG says:

    By by American pie, drove my Chevy to the levy & kissed my ass goodby,,,, big government sucks.

  8. avatar Green Mtn. Boy says:

    By congress abdicating their duties spelled out in the Constitution as written. Agencies Constitutionally can not write law. Most of said agencies are not Constitutionally authorized in the first place,the root of the problem.
    Nancy preaches of her duty to the Constitution and yet continues to violate the hell out of it,there is a word for that but then everyone knows she is one of the biggest Hypocrites.

  9. avatar strych9 says:

    The issue with administrative growth and overreach is certainly a knotty one.

    The point I’ve made repeatedly is that I don’t know what the guy is doing but that it’s odd and may, I’ve stressed MAY many times here, be a risky attempt to get the judicial branch to slap down the administrative portion of the Executive branch because it’s gotten out of control. There are a number of reasons Trump may wish to do this and feel that he cannot.

    One of which is that the administrative portions of the Executive listen to the President pretty much when they want to. Executive Order 12291 (Reagan) and Executive Order 12866 (Clinton) are pretty well ignored at this point when it’s a “big” issue of ‘serious importance’.

    Did anyone see a CBO or a CRS report on the effects of the 7N6 or Bumpstock orders? How about the proposed ‘greentip’ ban? I didn’t and I wouldn’t be surprised that they were never done because it was “too hard”.

    All three easily fall under these two EO’s as there’s no way that any of these had less than a $100 million impact or did not ‘…adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities’ or ‘Raise novel legal or policy issues arising out of legal mandates’ or ‘Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof’.

    You can see this kind of problem with financial regulation where financial regulators ignore their analysis and reporting requirements and just do what they want in some cases. This has lead to them being chastised by portions of the Legislative branch. To quote from the Congressional Research Service itself in 2017 “Whether the requirements facing financial regulators should allow for this discretion is a contentious issue…”.

    And so I wonder what will happen but I know that for all that “The Executive controls the administrative because the administrative is part of the executive…” talk, it’s just a theory. In practice the rules set by POTUS are routinely ignored and the administrative state is too big for the White House to effectively keep an eye on it at all times.

    Based on the incongruities in the noted actions it’s possible that Trump wishes to curtail the administrative state and do so with a order from the Judiciary which carries more weight than an EO and is harder to change in the future. Is that really the goal? Dunno. He’ll claim victory either way because that’s what politicians do. He certainly has no particular reason to love the administrative state the way some claim he does since major portions of that administrative state have been involved in trying to remove him from office since the first day he got there.

    1. avatar Dude says:

      “it’s just a theory”
      You got that right. Trump only wishes he had full control over the administrative state. They’ve been a thorn in his side. He should work on purging previous political appointees that became employees just like Obama did when he came in. That would be a start.

      1. avatar strych9 says:

        Indeed. And the Left only wishes that they had full control and that the public would simultaneously believe that Trump has full control.

        The truth is that the administrative state has become, effectively, the second estate.

  10. avatar Biatec says:

    I completely agree. I don’t think most people care or even know enough about ti to understand what is happening. That or they yell 4d chess. I get that Trump is smart. If you think 4d chess is acceptable for confiscation you are the problem. People lost money, jobs and resources on that and now people can go to prison for it.

    Even if it’s overturned it still hurt people. We need to hold politicians to higher standards and educate others about politics. Most people I know don’t care even if I tell them. They have a bunch of pre programmed ideas about what the government does, how it works and what it’s purpose is. School did it. It’s so much to teach and explain. We all need to do educate others on american history and what rights are.

  11. avatar Matt says:

    Regarding CT.

    I believe the only change for safe storage not in a motor vehicle was changing the age from 18 to 16 yet it is still extremely vaguely worded as:

    “knows or reasonably should know that”

    So that is still beneficial at least.

  12. avatar Jay in Florida says:

    Under no circumstances if a cop asks. Just say NO. You cant come in my house. Gets you a warrent. Problem solved?????

  13. avatar We don't have rights if we can't defend them! says:

    Don’t wait for the next event hold their feet to the fire it only takes a few clicks everyday!

    Many email programs allow u to schedule emails daily with different msgs.

    All of Congress has twitter its easy to do as well.

    Contact Congress 202-225-3121
    https://gunowners.org/alert082119/
    https://gunowners.org/alert090419/

    1. avatar Green Mtn. Boy says:

      This !

  14. avatar Chris T in KY says:

    We got this way when the majority decided to replace the church and the synagogue with government. Houses of worship supplied the majority of the social support the poor needed. Private social groups made up for the rest. Social spending of all types has become the biggest portion of federal and state spending.

    I’m not saying you need to believe in God. But being a member of a PRIVATE religious group or PRIVATE ethnic organization had its $$$ privileges.

    California was the most prosperous state in the nation. Now they have the most generous state welfare benefits in the country. When people wanted more welfare they just moved to California. And they now have more poor people than Mississippi. Gun rights are going away in California. But in the former confederate state, Mississippi is now a constitutional carry state.

    The people who support gun control are also they same ones who want to control every aspect of you personal life including your bedroom life. Red flag laws? And every other room in your home as well.

    Because you had an intimate relationship with someone now the state can regulate your gun ownership. The Liberals and the Left are in your bedroom.

  15. avatar Gadsden Flag says:

    This is nothing new. The author referenced the New Deal. This phenomenon is a bit older than that. Real power in the United States of America began to move from the states (where it belongs) to Washington D.C. and the. federal government at the conclusion of the Civil War. Much to the detriment of our nation. I fear it is too late to reverse this without drastic steps that most of our countrymen can’t stomach.

    1. avatar Dude says:

      Yep D.C. is so wealthy now, the surrounding area was growing like crazy while the rest of the country was suffering through the recession and the after effects. The D.C. area is also over 90% democrat. They love big government.

    2. avatar Chris T in KY says:

      The states may have lost power to the feds after the civil war. Buy you know what? It didn’t stop them from passing state level gun control laws. Those gun control laws all started at the state level.

      I don’t believe there was a federal gun control law on the books until the 1934 National Firearms Act was passed. So for about 70 years all the infringements were created at the state level.

      Racist gun control laws were mostly passed before 1900. The New York Sullivan Act wasn’t passed until 1911. But you could still purchase thru the US Mail a cannon, it’s ammunition or any firearm, and delivered to your home address.

  16. avatar Rocketman says:

    Better understand that tyranny once firmly established is not going away. It will only disappear if ripped out of the ground by the root. At nearly 70, I’m just too damn old for this $hit so I’m leaving for good. For those of you that have decided to stay the best of luck to you because you’re going to need it. Show no mercy because they are not going to if the situation is reversed.

    1. avatar Someone says:

      I agree with you, but before you leave, tell me where are you going to go? Where on this Earth is it better? It seems like we have run out of places to run to. We gotta take a stand on this last piece of liberty we have left and push back hard for what we lost while we still can.

  17. avatar Southern Cross says:

    Laws made by bureaucrats? Easy. Law says “see regulation”. Regulation can be changed at any time without involvement of government, although there is supposed to be a consultative process that in reality is a rubber stamp.

  18. avatar Greg says:

    Wickard V. Filburn was the turning point in 1943. It was the first time the court allowed an Agency to have a “Title of Nobility,” to perform “Bills of Attainder.” The Administrative Procedures Act (super perverted now), was created to squelch the outrage of folk who were being attained by the agencies. Next time you hear about the EPA bringing something into Attainment, that’s what it means.

    https://en.wikipedia.org/wiki/Wickard_v._Filburn

  19. avatar J says:

    Good article. It is right on a lot of points. The President could help us out, but has done little for us in almost 3 years in office. The Republicans have also done nothing for us. Where does that leave us? Well, everyone will says it could be worse if the other side was in power. A so called pro-2A congress was in power for 2 years and we did not see anything, but a bump stock ban. The only thing positive was the appointment of federal judges and 2 Supreme Court judges to balance the Democratic appointments over the years. We as a 2nd Amendment supporting community can not place all of our hope on the appointment of judges. You do not know for sure how the really feel about the Second Amendment when they are appointed. Solution, is to get ride of the states crazy redistricting lines to bust up Democratic control states like NY, CA, IL, MA and others. In North Carolina, the state was forced to redistrict recently before the 2020 elections. A lot of congressional districts are the shape of a peninsula or other oddities to capture Democratic voters. This is were we should target some of our energies to get more pro-2A congressional and state level legislators elected. If the Democrats can do this in North Carolina, it can be done in these Democratic states that have redistricted badly to oust pro-2A legislators. Let us force the Democrats hand for once and get these states to adopt a nonpartisan map to elect state level and federal level legislators. District maps are redrawn every 10 years after the US Census is taken. Every 10 years is an important mark for elections in the US. Whomever wins on the 10 year Census draws the new district maps for the state.

    https://www.citizen-times.com/story/news/local/2019/09/03/nc-gerrymandering-case-north-carolina-redistricting-maps-supreme-court/2202734001/

  20. avatar Nanashi says:

    Remember the highest ranking unelected bureaucrat of all time, Gerald Ford, is responsible for ITAR.

  21. avatar Specialist38 says:

    Agencies like the EPA regularly create law through policy.

    The EPA changes what a pesticide label is required to say. Since a pesticide label is law, they change the law without any other approval.

    They have overstepped their bounds much like the BATF.

  22. avatar enuf says:

    How we got here is pretty straightforward.

    First, Representatives in the House spend enormous amounts of time raising money for their next campaign. Not much time for working on bills, or even reading the ones they vote on. Mostly they get a synopsis from their staff or from lobbyists or just vote as the party leadership tells them to. The Senate is not quite as bad but the same factors remain, made only slightly less severe by the six year term they enjoy.

    The other part is a combination of laziness and ass covering. Pass off work on the civil servants and you have more time. This has a secondary benefit, you can always claim the law is being wrongfully applied, as in not the way you meant it to be. This is a lie of course, if you did not write the details how can you blame the bureaucracy you pawned the work off on?

    So, not enough time in the first place, too damned much money distorting the system, making everyone run around begging for dollars.

    The time they do have, they decline to do the hard work anyway.

    Luckily this never applies to your Congressman, it is always all those other Congressmen from other districts, other states.

    Term limits anyone?

    1. avatar PMinFL says:

      THIS ! That post should be a response to all opinions here until we all can express it’s content verbatim. Every day we must see it to comprehend our current governmental state. Well written ENUF. Our reps have become self serving, they go along to get along ignoring the voters.

  23. avatar Gene Ralno says:

    Can you feel the grip of government yet? Fortunately, I cannot feel it yet. If this nonsense isn’t stopped in the democrat states, e.g., Connecticut and New York, the grip will take us all.

  24. avatar jbob says:

    If gun rights matter then we need to convince the 45% of the population that supports gun control that pursuing it is a waste of time and a mistake because they’re too deluded to ever believe it’s against their best interest.

  25. avatar RustyTheBoyRobot says:

    This was well written. Thank you for penning it.

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