When President Trump ordered the ATF to reverse its ruling on bump fire stocks and magically designate them as machine guns (yes, that would be funny if it weren’t so arbitrary, ludicrous and dangerous), he had to know that the Department of Justice would be sued as a result. The Firearms Policy Coalition along with three other plaintiffs did exactly that literally within hours.
Now the FPC has filed a new lawsuit directed at the authority of acting Attorney General Matthew Whitaker. They’re arguing that by issuing the rule change under Whitaker’s signature, Trump violated the Constitution’s appointment clause. Here’s their press release:
WASHINGTON, D.C. (December 26, 2018) — Firearms Policy Coalition (FPC) announced today that attorneys Thomas C. Goldstein and Daniel Woofter of Goldstein & Russell, P.C., have filed a new federal lawsuit challenging the Trump Administration’s “bump-stock” ban, and Acting Attorney General Matthew Whitaker directly. A copy of the court filings can be viewed at www.whitakercase.com. Goldstein, widely known as one of the nation’s foremost appellate and Supreme Court practitioners, is lead counsel in the matter.
FPC, which owns a “bump-stock” device, seeks a preliminary injunction, a permanent injunction, and declaratory relief preventing Matthew G. Whitaker from exercising any authority as Acting Attorney General, and preventing from going into effect the ATF’s Final Rule on “Bump-Stock-Type Devices” (Docket No. ATF-2017R-22).
The case and motion argue that Acting Attorney General Mathew Whitaker, who President Trump placed into the role after the resignation of then-Attorney General Jeff Sessions, has no authority to issue the rule because the President failed to adhere to the Constitution’s Appointments Clause and federal laws regarding succession and vacancies in the office.
“Mr. Whitaker’s designation as Acting Attorney General violates both the Constitution’s Appointments Clause . . . and the applicable statutes,” the motion argues. “Thus, he was not authorized to sign the Rule, and the Rule cannot go into effect without violating the Administrative Procedure Act (APA) and irreparably harming Plaintiff and its members.”
“Whatever President Trump’s policy preferences, we believe that the Constitution and federal statutes require that the bump-stock rule be enjoined,” said FPC President Brandon Combs. “The American people deserve a government that respects their rights, property, and the rule of law.”
Mr. Goldstein is one of the nation’s most experienced Supreme Court practitioners, having served as counsel to a party in well over 100 merits cases at the Court, and personally arguing 42. Only 3 lawyers in the Court’s modern history have argued more cases in private practice. He has been counsel on more successful petitions for certiorari over the past decade than any other lawyer in private practice. Over the past fifteen years, Goldstein & Russell, P.C.’s petitions for certiorari have been granted at a higher rate than any private law firm or legal clinic.
In addition to practicing law, Tom has taught Supreme Court Litigation at Harvard Law School since 2004, and previously taught the same subject at Stanford Law School for nearly a decade. Tom is also the co-founder and publisher of SCOTUSblog – a web-site devoted to comprehensive coverage of the Court – which is the only weblog ever to receive the Peabody Award.
Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to protect and defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms. FPC advocates on a wide variety of important constitutional, legal, policy, and social issues, including free speech, due process, separation of powers, limitations on government action, and others. FPC works to advance individual liberty through programs including strategic litigation, legal efforts, direct and grassroots advocacy, research, education, and outreach.
Summary: FPC v. Whitaker is a federal constitutional, statutory, and APA challenge to the DOJ/ATF ban on “bump-stock” devices brought President Trump’s ban on “bump stock” devices by executive fiat
- The President’s Designation of Matthew Whitaker Violated the Constitution’s Appointments Clause
- The President unconstitutionally assigned the Attorney General’s responsibilities to a non-officer
- The President’s designation of Mr. Whitaker violated the Appointments Clause because he is serving as a principal officer
- The Government’s arguments defending Mr. Whitaker’s service under the Appointments Clause are non-responsive
- Applying the canon of constitutional avoidance, the Vacancies Act is fairly read not to give the President the power to appoint a non-confirmed official in these circumstances
- The AG Act automatically designates the Deputy Attorney General as the Acting Attorney General
- The Government’s contrary arguments are unpersuasive
Plaintiffs: Firearms Policy Coalition
Defendants: Bureau of Alcohol, Tobacco, Firearms and Explosives, Acting Attorney General Matthew Whitaker, ATF Acting Director Thomas Brandon, United States of America
Tom Goldstein is an appellate advocate, best known as one of the nation’s most experienced Supreme Court practitioners. In addition to practicing law, Tom has taught Supreme Court Litigation at Harvard Law School since 2004, and previously taught the same subject at Stanford Law School for nearly a decade. Tom is also the co-founder and publisher of SCOTUSblog – a web-site devoted to comprehensive coverage of the Court – which is the only weblog ever to receive the Peabody Award.
Daniel Woofter joined Goldstein & Russell after completing clerkships for the Honorable Pamela A. Harris of the United States Court of Appeals for the Fourth Circuit and the Honorable Judith E. Levy for the United States District Court for the Eastern District of Michigan. Before his clerkships, Daniel was an associate at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, where he worked on commercial litigation, as well as civil rights and asylum cases. Daniel graduated from Georgetown University Law Center. At Georgetown, he served as an Executive Editor of the Georgetown Journal of Legal Ethics.