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« Good times in the courts! | Main | Thoughts on Rahimi and on Range »

Supreme Court cert grants

Posted by David Hardy · 3 November 2023 12:07 PM

Today the US Supreme Court granted certiorari in two gun-related cases: Garland v. Cargill, which challenges the ATF "bump stock" regulation, and NRA v. Vullo, which seeks to hold NY liable for taking regulatory actions in retaliation for NRA's political stances.

Cargill will be interesting. For quite some time the courts have given "Chevron deference" to an agency's interpretation of ambiguous statutes. Some members of the Court have challenged that, as abdication of the Court's responsibilities. Cargill is a fine vehicle for challenging that, since ATF reversed its position on bump-stocks (I seem to recall more than once). How does a court defer to agency positions that are completely opposed to each other? Did the meaning of Congress's enactment somehow change, without Congress touching it?

5 Comments | Leave a comment

Fyathyrio | November 3, 2023 2:21 PM | Reply

USSC has already taken the fishing industry case they can use to kill Chevron, if they so desire. I suspect this may be a good chance to clarify APA and reign in the admin overreach from another angle. Either way, glad to see this case was chosen, and hopefully will result in a decision that can ram a stake through ATF's evil, black heart.

Fyooz | November 4, 2023 12:24 PM | Reply

FPC filed an amicus in Loper Bright, directly challenging Chevron deference.
I'd expect them to do so here too.

Pete | November 4, 2023 4:59 PM | Reply

Since possession of a bump stock presumably included criminal charges, Chevron should not apply by any standard.

M. | November 6, 2023 9:49 AM | Reply

They might treat Cargill as a companion case to Loper Bright.

I think SCOTUS is going to take door (2) in Loper Bright -- not totally abrogate Chevron deference, but hold that it only applies when Congress *explicitly* delegates policymaking authority to the agency. E.g. "The Commission may make reasonable rules and regulations setting rates in the public interest". No more 'silence = deference'. A big chunk out of Chevron.

Then in Garland they can interpret the statute without Chevron, and they can also hold categorically that Chevron *never* applies to statutory language that has criminal applications, as the NFA/GCA definition of "machinegun" does. I suspect there are five votes on the current Court for that holding. That would also be a big bite out of Chevron -- gun statutes, environmental statutes, many securities statutes ...

Put those together and you greatly cabin Chevron without having to bother with "SCOTUS Overrules Another Landmark Case" headlines. I can totally see CJ Roberts putting together a play like that -- and frankly, that'd be an acceptable result.

FW | November 7, 2023 8:17 AM | Reply

Just where in the Constitution, which is a whitelist of ALL the ALLOWED powers, is Congress delegated authority to delegate a power first delegated to Congress to any other entity?

See "Articles in addition to and amendments of" number 10. If it's not delegated, it's not allowed. There are no penumbras, emanations or implications except in the lies of the courts.

Delegate potestas non potest delegari.

The answer is NO WHERE. Powers once delegated cannot be re-delegated. This is another failure of the courts, failures that seem to occur regularly, to uphold the Constitution. It's because the justices are gutless wonders.

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