Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

No. 22-451

444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States

____________________

LOPER BRIGHT ENTERPRISES, ET AL.,

Petitioners,

v.

GINA RAIMONDO, SECRETARY OF COMMERCE, ET AL.,

Respondents.

____________________

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

____________________

Brief Amicus Curiae of Gun Owners of

America, Inc., Gun Owners Foundation, Gun

Owners of California, Heller Foundation,

Tennessee Firearms Association, Virginia

Citizens Defense League, Grass Roots North

Carolina, Rights Watch International,

America’s Future, DownsizeDC.org, Downsize

DC Foundation, Public Advocate of the United

States, U.S. Constitutional Rights Legal

Defense Fund, and Conservative Legal Defense

and Education Fund in Support of Petitioners

____________________

RICK BOYER

Lynchburg, VA

JOHN I. HARRIS III

Nashville, TN

*Counsel of Record

July 24, 2023

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

ROBERT J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

444444444444444444444444444444444444444444

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT

I.

THE D.C. CIRCUIT OPINION ILLUSTRATES THE

CONFUSION WROUGHT BY CHEVRON . . . . . . . . . 6

II. CHEVRON HAS UNDERMINED THE

CONSTITUTION’S SEPARATION OF POWERS . . . . . 9

A. Chevron Deference Undermines

Congressional Accountability . . . . . . . . . . . 9

B. Chevron Empowers Courts to Cede Their

Constitutional Responsibility to

Interpret the Law . . . . . . . . . . . . . . . . . . . 12

C. Chevron Allows Accumulation of Power

in the Executive Branch, to the

Destruction of the Separation of Powers,

and an Erosion of Individual Liberty . . . . 14

III. COURTS HAVE USED CHEVRON TO DEFER TO

ABRUPT POLITICAL REVERSALS OF AGENCY

POLICY, USUALLY IN VIOLATION OF

STATUTORY TEXT, AND EVEN AFTER WAIVER

OF CHEVRON BY THE AGENCY . . . . . . . . . . . . . . 16

ii

A. It Is Easier for Regulations to Be

Adopted on a Fabricated Record than for

Legislation to Be Enacted Based on

Fabrications. . . . . . . . . . . . . . . . . . . . . . . . 18

B. Gun Owners of America v. Barr . . . . . . . . 23

C. Bumpstock Decisions of Other Courts . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

iii

TABLE OF AUTHORITIES

Page

STATUTES

5 U.S.C. § 552(b)(5)) . . . . . . . . . . . . . . . . . . . . . . . . 21

16 U.S.C. § 1853(b)(14) . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. § 207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

26 U.S.C. § 5845(b). . . . . . . . . . . . . . . . . . . . . . . . . 22

Magnuson-Stevens Fishery Conservation

and Management Act. . . . . . . . . . . . . . . . . . . . . 2

REGULATIONS

83 Fed. Reg. 66,514 (Dec. 26, 2018) . . . . . . . . . 22, 23

CASES

Abramski v. United States, 573 U.S. 169 (2014). . 25

Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020) . 28

Aposhian v. Wilkinson, 989 F.3d 890

(10th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . . . 29

Arangure v. Whitaker,

911 F.3d 333 (6th Cir. 2018) . . . . . . . . . . . . . . . 9

Baldwin v. United States, 140 S. Ct. 690 (2020). . 12

Buffington v. McDonough,

143 S. Ct. 14 (2022) . . . . . . . . . . . . . . . . . . 13, 14

Burnet v. Chicago Portrait Co., 285 U.S. 1

(1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Chevron U.S.A., Inc. v. NRDC,

467 U.S. 837 (1984) . . 2-7, 9, 11-18, 23-24, 26-30

Empire Health Found. v. Azar,

958 F.3d 873 (9th Cir. 2020) . . . . . . . . . . . . . . . 8

Empire Health Found. v. Price,

334 F. Supp. 3d 1134 (E.D. Wash. 2018) . . . . . 8

Guedes v. BATFE, 920 F.3d 1 (D.C. Cir. 2019) . . . 29

iv

Gun Owners of Am. v. Barr, 363 F. Supp.

3d 823 (W.D. Mich. 2019) . . . . . . . . . . 23, 24, 30

Gun Owners of Am., Inc. v. Garland,

19 F.4th 890 (6th Cir. 2021) . . . . . . . . . 26-28, 30

Gun Owners of Am., Inc. v. Garland,

992 F.3d 446 (6th Cir. 2021) . . . . . . 24-25, 29-30

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) . . . . . . 13, 14, 17

HollyFrontier Cheyenne Refinery, LLC v.

Renewable Fuels Ass’n,

141 S. Ct. 2172 (2021) . . . . . . . . . . . . . . . . 17, 26

Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . . . 11

Pereira v. Sessions, 138 S. Ct. 2105 (2018) . . . . . . 12

Sebelius v. Cloer, 569 U.S. 369 (2013). . . . . . . . . . . 7

Staples v. United States, 511 U.S. 600 (1994). . . . 25

United States v. Alkazahg, 81 M.J. 764

(N-M Ct. Crim. App. 2021) . . . . . . . . . . . . 29, 30

United States v. Apel, 571 U.S. 359 (2014) . . . . . . 25

Valent v. Comm’r of Soc. Sec.,

918 F.3d 516 (6th Cir. 2019) . . . . . . . . . . . . . . . 9

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) . . . . . . . . . . . . . . . . . . . . . 15

MISCELLANEOUS

A. Bamzai, “The Origins of Judicial Deference to

Executive Interpretation,”

126 YALE L.J. 908 (Feb. 2017) . . . . . . . . . . . . . 15

J. Bennet, “True to Form, Clinton Shifts Energies

Back to U.S. Focus,” New York Times

(July 5, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

D. Codrea, “FBI’s Las Vegas Shooter Report

Raises Serious Unanswered Questions.

What NFA Weapons?” Ammoland

(Oct. 2, 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

v

The Federalist (G. Carey & J. McClellan, eds.:

Liberty Press 2001) . . . . . . . . . . . . . . . . . . . 9, 14

Fox News Staff, “Dr. Deborah Birx says she

‘knew’ COVID vaccines would not ‘protect

against infection,’” Fox News (July 22, 2022) . 20

C. Holman and C. Esser, “Slowing the Federal

Revolving Door: Reforms to Stop Lobbying

Activity by Former Public Officials and States

that Lead the Way,” Public Citizen

(July 22, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . 20

M. Jacobs, “The Regulatory Capture of the FDA,”

The American Conservative (June 12, 2021) . 20

B. Kavanaugh, “Fixing Statutory Interpretation,”

129 HARV. L. REV. 2118 (June 2016) . . . . . . . . 15

H. Keene, “Internal ATF docs show ‘zero

tolerance’ guidelines for shutting down

gun stores,” Fox News (Feb. 10, 2023) . . . . . . 21

R. M. Kethledge, “Ambiguities and Agency Cases:

Reflections After (Almost) Ten Years on the

Bench,” 70 VAND. L. REV. 315 (2017). . . . . . . . 13

Sen. Mike Lee, “A1P: Ending Chevron Deference,”

(Mar. 17, 2016). . . . . . . . . . . . . . . . . . . . . . . . . 11

J. Maskell, “Post-Employment, ‘Revolving Door,’

Laws for Federal Personnel,” Congressional

Research Service (Jan. 7, 2014) . . . . . . . . . . . . 20

M. Pepson, “Chevron Deference Meets

Madison’s ‘Very Definition of Tyranny,’”

RealClearPolicy (Dec. 22, 2021) . . . . . . . . . . . 11

R. Ponnuru, “Senator Lee: Restore Separation of

Powers, End Chevron Deference,” National

Review (Mar. 17, 2016) . . . . . . . . . . . . . . . . . . 11

vi

George J. Stigler, “The Theory of Economic

Regulation,” The Bell Journal of Economics

and Management Science, vol. 2, no. 1

(Spring 1971) . . . . . . . . . . . . . . . . . . . . . . . 19, 20

J. Turley, “The Rise of the Fourth Branch of

Government,” jonathanturley.org

(May 26, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . 10

C. Walker, “Legislating in the Shadows,”

165 U. PA. L. REV. 1377 (May 2017) . . . . . . . . 14

J. Wood, “Overruling Chevron Could Make

Congress Great Again,” Regulatory Review

(Sept. 12, 2018) . . . . . . . . . . . . . . . . . . . . . . . . 10

W. Yeatman, “The Becerra Cases: How Not to Do

Chevron,” 97 CATO SUPREME COURT REVIEW,

Vol. 2021-2022 . . . . . . . . . . . . . . . . . . . . . . . . . . 8

INTEREST OF THE AMICI CURIAE1

Gun Owners of America, Inc., Gun Owners

Foundation, Gun Owners of California, Heller

Foundation, Tennessee Firearms Association, Virginia

Citizens Defense League, Grass Roots North Carolina,

Rights Watch International, America’s Future,

DownsizeDC.org, Downsize DC Foundation, Public

Advocate of the United States, U.S. Constitutional

Rights Legal Defense Fund, and Conservative Legal

Defense and Education Fund are nonprofit

organizations, exempt from federal income tax under

either section 501(c)(3) or 501(c)(4) of the Internal

Revenue Code. These entities, inter alia, participate

in the public policy process, including conducting

research, and informing and educating the public on

the proper construction of state and federal

constitutions, as well as statutes related to the rights

of citizens, and questions related to human and civil

rights secured by law.

STATEMENT OF THE CASE

On April 20, 2017, the New England Fishery

Management Council (“NEFMC”), an agency of the

U.S. Department of Commerce (“DOC”), adopted an

“omnibus amendment” which created the “industryfunded monitoring” program and, on February 7, 2020,

published a Final Rule which mandated the “industry-

1

It is hereby certified that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

funded monitoring” of on-board DOC “monitors.” See

Brief for Petitioners at 11-13.

Petitioners, “four family-owned and familyoperated companies that participate in the Atlantic

herring fishery,” filed suit in district court to challenge

the regulation. Id. at 13. Petitioners argued, inter

alia, that requiring fishing vessels to pay the costs of

onboard monitors at $710 a day per vessel was never

explicitly authorized by the Magnuson-Stevens Fishery

Conservation and Management Act (“MSA”). See id. at

47.

The district court upheld the rule based on the

MSA’s broad language allowing the NEFMC to adopt

“such other measures, requirements, or conditions and

restrictions as are determined to be necessary and

appropriate for the conservation and management of

the fishery.” 16 U.S.C. § 1853(b)(14). The court found

that the NEFMC’s claim of authority to require the

vessels to pay for onboard monitors was a permissible

construction of the MSA, and ruled against Plaintiffs.

Loper Bright Enters. v. Raimondo, 544 F. Supp. 3d 82,

125-26 (D.D.C. 2021) (“Loper Bright I”).

The D.C. Circuit affirmed holding that, under

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984), federal courts must

defer to agency interpretations where a statute is

ambiguous and an agency’s interpretation is

reasonable. Loper Bright Enters. v. Raimondo, 45

F.4th 359, 364 (D.C. Cir. 2022) (“Loper Bright II”). The

D.C. Circuit held that the DOC’s interpretation of the

3

MSA was reasonable given the “necessary and

appropriate” language of the Act. Id. at 370.

This Court granted review on the following issue:

Whether the Court should overrule Chevron or

at least clarify that statutory silence

concerning controversial powers expressly but

narrowly granted elsewhere in the statute

does not constitute an ambiguity requiring

deference to the agency.

[Petition for

Certiorari at i-ii.]

SUMMARY OF ARGUMENT

Loper Bright illustrates one of the many types of

problems that have arisen in the lower courts as they

seek to apply this Court’s Chevron decision. Clearly

there was no express authorization for payment of

monitors on board Petitioners’ fishing vessels, and the

fact they were authorized in other circumstances

should have given rise to the conclusion that they were

not authorized here. Yet even in the absence of a

classic ambiguity of language, the majority below

found that a combination of statutory silence, plus

general rulemaking authority, plus a perceived need to

have monitors, required the court to defer to the

agency’s harsh Rule under Chevron even in the

absence of a “permissible construction of the statute.”

The historic rules of statutory construction have been

dramatically altered by the Chevron Court, placing a

heavy thumb on the scales of justice to uphold decrees

of the Administrative State against the People.

4

During the nearly four decades since it was

handed down, Chevron has had the perverse effect of

not only encouraging Congress to delegate legislative

rulemaking power to the Executive, but also

encouraging the Judiciary to delegate its judicial

interpretative powers. Infused with the trifecta of

executive, legislative, and judicial power, the

Executive branch agencies have undermined the

liberties of the American people almost entirely

without redress. The problems wrought by Chevron

have not been limited to undermining the separation

of powers understood by the Framers to be essential to

the preservation of a federal government of limited

powers. Chevron also compromises due process and

equal protection protections. Congress has not only

failed to guard against the Executive’s seizure of

legislative power, it has found Chevron to be helpful

in having the administrative state do the dirty work of

imposing unpopular controls on Americans. But even

if powerful incumbent Congressmen benefit from

Chevron, that is no excuse for this Court to allow it to

continue to contaminate our Constitutional Republic.

Loper Bright provides this Court with an

illustration of only some of the ways that Chevron has

compelled unjust decisions, and these Amici seek to

provide additional illustrations in an area many of

them have been litigating for some years — the ATF

Rule

deeming bumpstocks to be machineguns,

reversing a long-standing policy and series of rulings

to the contrary.

The bumpstock rulemaking

demonstrates that agencies are capable of

promulgating rules based on uncertain, even

fabricated, records, while disregarding tens of

5

thousands comments made by the public, to achieve

their goal. The legislative process designed by the

Framers is different, where Congressmen and

Senators, persons in positions of authority, have the

opportunity to publicly challenge and expose phony

facts.

Chevron implicitly assumes that agency

rulemaking occurs in pursuit of the “public interest,”

when the truth is that many agencies have been

captured by those they purport to regulate, while other

agencies are misused to punish a disfavored industry.

The bumpstock litigation also provides a revealing

case study, with judges serving on various district and

circuit courts coming to diametrically opposite

understandings of what Chevron requires. Some

judges believe that Chevron deference may be waived,

while others believe it is a rule of statutory

construction that court’s must apply. Some judges

believe that Chevron deference may be used to support

the creation of new federal crimes by agencies, while

others believe that the job of interpreting criminal

laws is vested only in the judiciary.

These Amici urge this Court to use this case to end

the rule of the Administrative State over the People,

by reversing the D.C. Circuit, and overruling Chevron

once and for all.

6

ARGUMENT

I.

THE D.C. CIRCUIT OPINION ILLUSTRATES

THE CONFUSION WROUGHT BY CHEVRON.

The D.C. Circuit stated the rule of Chevron as

follows: “[a]t Chevron Step One, the court, employing

traditional tools of statutory interpretation, evaluates

whether Congress has directly spoken to the precise

question at issue.... If the statute considered as a

whole is ambiguous, then at Chevron Step Two the

court defers to any permissible construction of the

statute adopted by the agency.” Loper Bright II at 365

(cleaned up) (emphasis added). Certainly Judge

Walker was correct when he noted in dissent that

“Congress unambiguously did not” authorize “the

National Marine Fisheries Service to make herring

fishermen in the Atlantic pay the wages of federal

monitors.” Id. at 372 (Walker, J., dissenting). The

majority below found no express delegation of

authority, rather asserting that the statute “leaves

unanswered whether the Service must pay for those

monitors or may require industry to bear the costs....”

Id. at 365. However, because “the Act considers

monitoring ‘necessary and appropriate’ to further the

Act’s conservation and management goals,” the

majority concluded there is a “reasonable basis for the

Service to infer that the practical steps to implement

a monitoring program, including the choice of funding

mechanism and cost-shifting determinations, are

likewise ‘necessary and appropriate.’” Id. at 369. In

essence, the court below believed that “Chevron

instructs that judicial deference is appropriate ‘if the

statute is silent or ambiguous with respect to the

7

specific issue.’” Id. However, what Chevron actually

states is that, “if the statute is silent or ambiguous

with respect to the specific issue, the question for the

court is whether the agency’s answer is based on a

permissible construction of the statute.” Chevron,

467 U.S. 837, 843 (1984) (emphasis added). Courts

cannot presume a grant of authority from silence or

even from Congress including a standard provision

granting rulemaking authority.

As Judge Walker wrote in dissent: “It is hard to

believe that, when Congress decided to explicitly allow

industry-funding for observers in one way (fees) in one

place (the North Pacific), it also decided to silently

allow all fisheries to fund observers in any other way

they choose.” Loper Bright II at 378 (Walker, J.,

dissenting). This Court has long recognized that same

principle: “[w]e have long held that where Congress

includes particular language in one section of a statute

but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.”

Sebelius v. Cloer, 569 U.S. 369, 378 (2013) (cleaned

up).

Therefore, without either an explicit or implicit

congressional grant of authority to impose the costs on

the industry, Judge Walker’s dissent was certainly

correct: “[w]ere courts to presume a delegation of

power absent an express withholding of such power,

agencies would enjoy virtually limitless hegemony, a

result plainly out of keeping with Chevron and quite

likely with the Constitution as well.” Loper Bright II

at 374 n.23 (Walker, J., dissenting) (quoting Railway

8

Labor Executives’ Ass’n v. National Mediation Bd., 29

F.3d 655, 671 (D.C. Cir. 1994)). Nevertheless, the

majority below believed that, since an asserted power

was not expressly withheld by Congress, the agency

asserting the power should be granted deference.

“Under Chevron, such silence in the context of a

comprehensive statutory fishery management program

for the Service to implement ... is a lawful

delegation....” Loper Bright II at 370 (emphasis

added). Thus, the first flaw with Chevron is that it is

susceptible to being applied as the majority below

applied it.

The D.C. Circuit is not alone, as its approach was

used by the district court in Empire Health Found. v.

Price, 334 F. Supp. 3d 1134 (E.D. Wash. 2018), rev’d on

other grounds by Empire Health Found. v. Azar, 958

F.3d 873 (9th Cir. 2020). As one commentator

observed, there:

[r]ather than asking whether the agency’s

interpretation is reasonable under the statute,

which is how this second step [of Chevron] is

supposed to operate, the district court asked

whether the statute “precludes” the agency’s

reading. The result is to condone any

interpretation that isn’t expressly

forbidden by the law, which is far more

generous to the government than standard

Chevron deference. Indeed, the district court

deferred despite having conceded that the

agency’s interpretation “does not appear

entirely reasonable.”

Under a “normal”

Chevron step two, HHS’s unreasonable

9

interpretation would have failed. Yet under

the district court’s souped-up version of the

Chevron doctrine, the government prevailed.

The district court’s Chevron shenanigans went

unadmonished by the Ninth Circuit. [W.

Yeatman, “The Becerra Cases: How Not to Do

Chevron,” 97, 105-106 CATO SUPREME COURT

REVIEW, Vol. 2021-2022 (emphasis added).]

As Judge Raymond Kethledge has warned, “the

federal courts have become habituated to defer to the

interpretive views of executive agencies, not as a

matter of last resort but first. In too many cases,

courts do so almost reflexively, as if doing so were

somehow a virtue, or an act of judicial restraint — as

if our duty were to facilitate violations of the

separation of powers rather than prevent them.”2

II. CHEVRON HAS UNDERMINED THE

CONSTITUTION’S SEPARATION OF

POWERS.

A. Chevron

Deference

Undermines

Congressional Accountability.

The Framers of our Constitution anticipated that

each branch of government would defend its own

powers and, pitting ambition against ambition, the

2

Valent v. Comm’r of Soc. Sec., 918 F.3d 516, 525 (6th Cir. 2019)

(Kethledge, J., dissenting); see also Arangure v. Whitaker, 911

F.3d 333, 336 (6th Cir. 2018) (“[A]ll too often, courts abdicate

th[eir] duty [to say what the law is] by rushing to find statutes

ambiguous, rather than performing a full interpretive analysis.”).

10

separation of powers would be preserved.

See

Federalist No. 51, The Federalist (G. Carey & J.

McClellan, eds.: Liberty Press 2001). Unfortunately,

political factors have worked to undermine this model,

several of which have been exacerbated by Chevron

deference.

First, the Framers did not anticipate the creation

of the administrative state — what is sometimes called

the fourth branch of government.3 Those powerful

agencies serve the interests of incumbents, as they

enable Congress to duck accountability to the

electorate. Having created an agency with authority

to address a public policy problem, the Congressman

is immunized from criticism.

Responding to a

constituent who criticizes an agency action, the

Congressman can reply, “I didn’t do it,” and deflect the

blame. Yet responding to a constituent who praises an

agency action, the Congressman can reply, “We

created that agency,” and take the credit.

As one legal author noted:

[If] Chevron is overruled ... a happy

consequence of the change will be to shift more

policy responsibility back to Congress. Elected

3

“In 1790, [the federal government] it had just 1,000 nonmilitary

workers. Today, we have 2,840,000 federal workers in 15

departments, 69 agencies and 383 nonmilitary sub-agencies.

[These numbers can be themselves misleading since much federal

work is now done by contractors as part of “downsizing” but the

work of the agencies has continued to expand.]” J. Turley, “The

Rise of the Fourth Branch of Government,” jonathanturley.org

(May 26, 2013)

11

representatives have been all too happy to stay

out of the business of governing, punting tough

decisions to the vicissitudes of presidential and

agency politics... [Often,] Congress is more

than happy to accept an inferior solution so

long as the blame falls on agencies. [J. Wood,

“Overruling Chevron Could Make Congress

Great Again,” Regulatory Review (Sept. 12,

2018).]

Some in Congress have admitted this scheme:

“[f]or decades, Congress has ducked its constitutional

responsibilities, passing vague laws and leaving the

real lawmaking up to unaccountable Executive Branch

bureaucrats,” argued Sen. Mike Lee (R-UT) in 2016.

“Under Chevron, Congress and the Supreme Court

have conspired to give the Administrative State

powers — unaccountable powers — no one branch of

government should ever have.”4

Senator Lee

continued:

“Chevron deference empowers this

government-without-consent. It conveniences lazy and

accountability-resistant politicians and power-hungry

bureaucrats at the expense of the American people’s

rights. And so Chevron must go....”5

4

Sen. Mike Lee, “A1P: Ending Chevron Deference,” (Mar. 17,

2016).

5

R. Ponnuru, “Senator Lee: Restore Separation of Powers, End

Chevron Deference,” National Review (Mar. 17, 2016); see also M.

Pepson, “Chevron Deference Meets Madison’s ‘Very Definition of

Tyranny,’” RealClearPolicy (Dec. 22, 2021).

12

B. Chevron Empowers Courts to Cede Their

Constitutional Responsibility to

Interpret the Law.

Chevron has a similar pernicious effect on the

judiciary. As multiple justices of this Court have

noted, Chevron deference allows the courts to avoid

their key Article III duty to “say what the law is,”6

instead deferring that role to the “fourth branch.”

Numerous current and recent justices of this Court

have pointed out the constitutional infirmity of

Chevron. Justice Kennedy noted that “[t]he type of

reflexive deference exhibited [by Courts of Appeal] in

some of these cases is troubling,” and “suggests an

abdication of the Judiciary’s proper role in interpreting

federal statutes.” Pereira v. Sessions, 138 S. Ct. 2105,

2120 (2018) (Kennedy, J., concurring).

Justice Thomas has explained that “Chevron

compels judges to abdicate the judicial power without

constitutional sanction.” Baldwin v. United States,

140 S. Ct. 690, 691 (2020) (Thomas, J., dissenting from

denial of certiorari). Criticizing this toxic mixture,

Justice Thomas noted that:

Chevron also gives federal agencies

unconstitutional power. Executive agencies

enjoy only “the executive Power.” Art. II, §1.

But when they receive Chevron deference, they

arguably exercise “[t]he judicial Power of the

6

Marbury v. Madison, 5 U.S. 137 (1803).

13

United States,” which is vested in the courts.

Chevron cannot be salvaged by saying instead

that agencies are “engaged in the ‘formulation

of policy.’” If that is true, then agencies are

unconstitutionally exercising “legislative

Powers” vested in Congress. [Id. at 691

(citations omitted).]

Then-Judge Gorsuch has opined that

“[t]ransferring the job of saying what the law is from

the judiciary to the executive unsurprisingly invites

the very sort of due process (fair notice) and equal

protection concerns the framers knew would arise if

the political branches intruded on judicial functions.”

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152 (10th

Cir. 2016) (Gorsuch, J., concurring). Justice Gorsuch

also noted that:

In this country, we like to boast that persons

who come to court are entitled to have

independent judges, not politically motivated

actors, resolve their rights and duties under

law. Here, we promise, individuals may appeal

to neutral magistrates to resolve their disputes

about “what the law is....” Everyone, we say,

is entitled to a judicial decision “without

respect to persons,” 28 U.S.C. § 453, and a

“fair trial in a fair tribunal....” Under a broad

reading of Chevron, however, courts often fail

to deliver on all these promises.... [Buffington

v. McDonough, 143 S. Ct. 14, 18 (2022)

(citations omitted).]

14

Thus, Chevron empowers the judiciary to avoid the

sometimes taxing job of statutory interpretation, and

the often unpalatable prospect of having to weigh in on

politically divisive issues. It is no wonder, then, that

Sixth Circuit Judge Kethledge has quipped that

“[t]here is nothing so liberating for a judge as the

discovery of an ambiguity.”

R. M. Kethledge,

“Ambiguities and Agency Cases: Reflections After

(Almost) Ten Years on the Bench,” 70 VAND. L. REV.

315, 316 (2017).

C. Chevron Allows Accumulation of Power

in the Executive Branch, to the

Destruction of the Separation of Powers,

and an Erosion of Individual Liberty.

As James Madison warned in Federalist No. 47

“[t]he accumulation of all powers, legislative,

executive, and judiciary, in the same hands ... may

justly be pronounced the very definition of tyranny.”

The Federalist (G. Carey & J. McClellan, eds.: Liberty

Press 2001) at 249. Far preferable is: “[a] government

of diffused powers, [which] is a government less

capable of invading the liberties of the people.”

Gutierrez-Brizuela at 1149 (Gorsuch, J., concurring).

As Justice Gorsuch has noted, Chevron

“encourages executive officials to write ever more

ambitious rules on the strength of ever thinner

statutory terms, all in the hope that some later court

will find their work to be at least marginally

reasonable.” Buffington at 20 (Gorsuch, J., dissenting

from denial of certiorari). And, as Justice Gorsuch

suggests, Chevron’s effect in accumulating power in

15

the “fourth branch” is not merely a hypothetical

academic exercise. Rather, in one survey, fully 80% of

federal agency rule drafters admitted “that a federal

agency is more aggressive in its interpretive efforts

[more inclined to expand its own powers] if it is

confident that Chevron deference ... applies.”7

Since its inception, Chevron represented a radical

departure from the structure designed by the Founders

to carefully separate power among the branches.

Indeed, at least until 1932, this Court still declared,

“[t]he Court is not bound by an administrative

construction, and if that construction is not uniform

and consistent, it will be taken into account only to the

extent that it is supported by valid reasons.” Burnet v.

Chicago Portrait Co., 285 U.S. 1, 16 (1932). As Justice

Kavanaugh has noted, Chevron is “an atextual

invention by courts.”8 Professor Aditya Bamzai

agreed: “there was no rule of statutory construction

requiring judicial deference to executive interpretation

qua executive interpretation in the early American

Republic.”9

Chevron enables the slow drift toward

concentrated power, and therefore toward tyranny:

“The accretion of dangerous power does not come in a

7

C. Walker, “Legislating in the Shadows,” 165 U. PA. L. REV.

1377, 1418-1419 (May 2017).

8

B. Kavanaugh, “Fixing Statutory Interpretation,” 129 HARV. L.

REV. 2118, 2150 (June 2016).

9

A. Bamzai, “The Origins of Judicial Deference to Executive

Interpretation,” 126 YALE L.J. 908 (Feb. 2017).

16

day. It does come, however slowly, from the generative

force of unchecked disregard of the restrictions” of the

Constitution. Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J.,

concurring).

III. COURTS HAVE USED CHEVRON TO

DEFER TO ABRUPT POLITICAL

REVERSALS OF AGENCY POLICY,

USUALLY IN VIOLATION OF STATUTORY

TEXT, AND EVEN AFTER WAIVER OF

CHEVRON BY THE AGENCY.

When this Court granted review on only the second

issue sought by Petitioners as to whether Chevron

should be overruled or limited, it indicated a broader

inquiry than merely the question of how a single

fisheries regulation was to be viewed under the

Chevron framework. To be sure, Loper Bright raises

thorny issues that this Court must address, such as

whether statutory silence concerning a power

expressly but narrowly granted elsewhere in the

statute constitutes an ambiguity requiring Chevron

deference. However, this case is far from the only time

that Chevron has been abused in recent memory,

having caused thorny factual and legal problems in the

course of other litigation, including some in which

some of these amici have been involved for years.

For example, numerous challenges were brought to

the 2018 rule promulgated by Bureau of Alcohol,

Tobacco, Firearms and Explosives (“ATF”), reversing

longstanding agency policy and suddenly declaring a

firearm accessory known as a “bumpstock” to be a

17

machinegun under the National Firearms Act (“NFA”).

These bumpstock cases demonstrate other

constitutional, statutory, and procedural complexities

faced by judges seeking to utilize Chevron, including:

(i) May Chevron deference be waived by the

government, or must courts apply it as a rule of

construction even when the government asks that

it not be applied?10

(ii) Should Chevron deference be granted when

an agency is reversing long-standing positions as

the result of purely political presidential

decisions?11

(iii) May Chevron deference be given to

agencies when they interpret statutes to create

new federal crimes and, if so, how does the

application of Chevron interact with the Rule of

Lenity?

(iv) Should courts consider Congress’s failure

to enact bills that have been submitted to

accomplish the same end that an agency later

implements through regulation, when deciding to

apply Chevron?

10

See HollyFrontier Cheyenne Refinery, LLC v. Renewable Fuels

Ass’n, 141 S. Ct. 2172, 2180 (2021) (although the government

“asked the court of appeals to defer to its understanding under

Chevron ... the government does not ... repeat that ask here.... We

therefore decline to consider whether any deference might be

due....”).

11

See Gutierrez-Brizuela at 1152 (Gorsuch, J., concurring)

(criticizing the ever-present “possibility that[, under Chevron,] the

agency will reverse its current view 180 degrees anytime based

merely on the shift of political winds and still prevail.”).

18

A. It Is Easier for Regulations to Be Adopted

on a Fabricated Record than for

Legislation to Be Enacted Based on

Fabrications.

Before addressing the Chevron-related legal issues

litigated in the bumpstock cases, it is worth noting

that the bumpstock rulemaking demonstrates the way

in which Chevron deference contaminates the factual

predicate for administrative action. The Brief for

Petitioners correctly explains that Chevron has altered

the role of the legislative and executive branches as

designed by the Framers:

Chevron has seriously distorted how the

political branches operate.

Thanks to

Chevron, Congress does far less than the

Framers envisioned and the executive

branch does far more, as roughly half of

Congress can count on friends in the executive

branch to tackle controversial issues via

executive action without the need for

compromise, bicameralism, or presentment.

That creates a dynamic where the “law” on

important and divisive issues changes

radically with every change of

administration, with the latest executive

action predictably challenged.... [Brief for

Petitioners at 16 (emphasis added).]

By encouraging administrative actions in lieu of

legislation, decisions can be made based on incomplete

or incorrect facts. With the exception of the occasions

that provisions are slipped into bills in the dark of

19

night, generally when Congress passes a law, there are

procedural hurdles that first must be cleared.

Beginning with the drafting of bills by legislative

counsel, the public criticism of submitted bills,

committee hearings, committee markup, floor

consideration, conference committee review, and

presentment provide multiple opportunities for those

with powerful voices to examine and challenge the

facts undergirding the bill.

On the other hand, administrative agencies face

fewer steps in rulemaking, sometimes involving only

those inside the current administration. In the case of

bumpstocks, the reversal of agency policy was not the

result of any new factual findings or thoughtful reexamination of the statute, but instead was ordered by

one person — the President. The temptation to claim

credit for addressing pressing public policy concerns by

executive action has been yielded to by both parties.

Former advisor to President Bill Clinton, Paul Begala,

described Executive Orders in this memorable way:

“Stroke of the pen. Law of the land. Kind of cool.”12

Even when the change bubbles up through the

bureaucracy, the law Congress wrote can be

disregarded because other agendas are present. On

the one hand, as many economists have explained,

agencies often have been captured by the industry or

businesses they regulate. See, e.g., George J. Stigler,

“The Theory of Economic Regulation,” The Bell

Journal of Economics and Management Science, vol. 2,

12

J. Bennet, “True to Form, Clinton Shifts Energies Back to U.S.

Focus,” New York Times (July 5, 1998).

20

no. 1 (Spring 1971) (Many believe that regulations are

“instituted primarily for the protection and benefit of

the public at large...” but “[a] central thesis of this

paper is that, as a rule, regulation is acquired by the

industry and is designed and operated primarily for its

benefit.”) Exacerbating the problem with the

assumption that agency action protects the public is

the federal conflict of interest law, 18 U.S.C. § 207,

which is generally considered to be weak, requiring

only a 12-month “cooling off” period for certain “senior”

officials to return to influence persons in their former

agency.13

On the other hand, the Bureau of Alcohol, Tobacco,

Firearms, and Explosives has been used by anti-gun

administrations to hammer a politically disfavored

firearms industry. See, e.g., H. Keene, “Internal ATF

13

See J. Maskell, “Post-Employment, ‘Revolving Door,’ Laws for

Federal Personnel,” Congressional Research Service (Jan. 7, 2014).

This problem has been exposed by voices across the political

spectrum. See generally C. Holman and C. Esser, “Slowing the

Federal Revolving Door: Reforms to Stop Lobbying Activity by

Former Public Officials and States that Lead the Way,” Public

Citizen (July 22, 2019); M. Jacobs, “The Regulatory Capture of the

FDA,” The American Conservative (June 12, 2021). Former White

House COVID response coordinator Dr. Deborah Birx pushed

COVID-19 vaccines on the nation, but recently admitted: “I knew

these vaccines were not going to protect against infection.... And

I think we overplayed the vaccines....” Fox News Staff, “Dr.

Deborah Birx says she ‘knew’ COVID vaccines would not ‘protect

against infection,’” Fox News (July 22, 2022). After the

pharmaceutical companies made untold billions, the

pharmaceutical industry has honored her service, as Dr. Birx has

been hired as Chief Executive Officer of Armata Pharmaceuticals.

See “Management” Armata Pharmaceuticals website.

21

docs show ‘zero tolerance’ guidelines for shutting down

gun stores,” Fox News (Feb. 10, 2023) (“The [ATF]

guidance says the ATF can ‘use inspection reports to

establish willfulness even if the inspection found no

violations’”).

Agencies can act based on purely internal

memoranda shielded from public examination under

FOIA (Exemption 5 governing “inter-agency or intraagency memorandums or letters”; 5 U.S.C. § 552(b)(5)),

and public comments can be reviewed quickly and

dissenting voices having only the power of persuasion

can be disregarded by the agency. In that way, the

rule can be adopted based on an incorrect or even

fabricated factual record. That may have happened

with the bumpstock rulemaking.

After the nation’s deadliest shooting in Las Vegas

on October 1, 2017, bumpstocks were found in the

hotel room of Stephen Paddock, and many simply

assumed they were used in that shooting, even though

no law enforcement agency has reported such. To the

contrary, there was an FBI report stating that

Paddock “illegally possessed prohibited firearms in

violation of 26 U.S.C. Section 5841 [the National

Firearms Act]” and “utilized prohibited firearms in

the mass shooting incident....”14

At that time

14

See FBI memorandum dated October 2, 2017, reproduced in D.

Codrea, “FBI’s Las Vegas Shooter Report Raises Serious

Unanswered Questions. What NFA Weapons?” Ammoland (Oct.

2, 2022) (emphasis added). See also Amicus Curiae Brief of Gun

Owners of America, et al. in Damien Guedes v. ATF, U.S. Supreme

Court No. 22-1222 at 12-14 (July 20, 2023).

22

bumpstocks were not regulated as machineguns, and

thus the FBI report indicates that some of the rifles in

Paddock’s room may have been converted to fully

automatic fire. If this is the case, it is conceivable that

the Las Vegas shootings were not facilitated by the use

of bumpstocks.

Although Congress considered legislation to ban

bumpstocks, those bills failed. Had ATF’s rulemaking

not cut short congressional consideration of bills to

deem bumpstocks machineguns, it is likely that the

facts as to whether bumpstocks were used (rather than

merely present) in Las Vegas would have been more

fully examined.15 Yet in an obvious political response

to the shooting, President Trump simply publicly

directed ATF to reverse its longstanding policy and to

ban non-mechanical bumpstocks.16 In response, ATF

promulgated a regulation to reinterpret the statutory

term “machinegun” found in 26 U.S.C. § 5845(b) to

include popular “bump stock” accessories used on

semi-automatic rifles. See 83 Fed. Reg. 66,514 (Dec.

26, 2018).

The ATF Rule was expressly predicated on the

notion that bumpstocks had been used in the Las

Vegas shooting which, as noted above, appears never

to have been established. Nevertheless, the ATF Rule

substantially revised key terms in the statutory

15

The FBI later reported it had no records whatsoever that

demonstrated the use of bumpstocks in the crime. See id. at 14

and 14 n.13.

16

Id. at 7-12.

23

definition of machineguns in a way that is at odds with

the statute, and then additionally added — in so many

words — regulatory language that bumpstocks are

now classified as machineguns. In sum, in enacting

perhaps its most inflammatory rulemaking in recent

history, ATF may have acted on an incomplete,

incorrect, or perhaps even fabricated record, banning

possession of an estimated 519,927 bumpstocks,

ordering their surrender or destruction and

threatening criminal sanction for their continued

possession. Id. at 66,514, 66,546.

B. Gun Owners of America v. Barr.

The legal problems raised in the application of

Chevron to the bumpstocks rulemaking were equally

troublesome. Three of these amici brought a challenge

to the Rule in the U.S. District Court for the Western

District of Michigan, which applied Chevron deference

and denied plaintiffs’ motion for preliminary

injunction, as follows:

1. Even though all parties agreed Chevron

deference did not apply, and although the

court did not expressly discuss whether it

could be waived, nevertheless the court

asserted:

“this Court cannot ... avoid

Chevron....”17 Gun Owners of Am. v. Barr, 363

F. Supp. 3d 823, 830 (W.D. Mich. 2019).

17

The district court referred to the doctrine as “‘alreadyquestionable,’” noting that “‘[m]any members of the Supreme

Court have called Chevron into question.’” Id. at 830, n.2.

24

2. The court believed Congress’s routine

grant to the Department of Justice of

“authority to prescribe necessary rules and

regulations” showed “inten[t] th[at] ATF speak

with the force of law when addressing

ambiguity or filling a space in the relevant

statutes,” and thus “the Court should apply

the Chevron analysis.” Id.

3. Purporting to “apply[] the ordinary

tools of statutory construction,” the court

concluded that each of ATF’s 180-degree

reinterpretations constituted “a permissible

interpretation” of the statute. Id. at 831-32.

4. The district court never addressed

whether an agency is owed deference when

interpreting a criminal statute or how the rule

of lenity might affect the Final Rule.

On appeal, a Sixth Circuit panel reversed the

district court’s denial of plaintiffs’ preliminary

injunction motion. See Gun Owners of Am., Inc. v.

Garland, 992 F.3d 446 (6th Cir. 2021). Writing for the

court, Judge Batchelder extensively addressed the

issue disregarded by the district court, as to whether

Chevron should apply to ATF having created a new

federal crime, concluding that “Chevron deference

categorically does not apply to the judicial

interpretation of statutes that ... impose criminal

penalties,” relying on this Court’s “‘clear, unequivocal,

and absolute’” statements in United States v. Apel, 571

U.S. 359, 369 (2014), and Abramski v. United States,

573 U.S. 169, 191 (2014). Id. at 454, 455.

25

First, noting “ATF’s frequent reversals on major

policy issues,” the Sixth Circuit panel explained that

“only the people’s representatives in Congress may

enact federal criminal laws” that “subject ... heretofore

law-abiding citizens ... to substantial fines,

imprisonment, and damning social stigmas....” Id. at

461, 462.

Second, observing that “‘judges are experts on one

thing — interpreting the law,’” the panel concluded

that delegating the duty to “‘say what the law is’” to

“unaccountable bureaucrats” “would violate the

Constitution’s separation of powers and pose[] a severe

risk to individual liberty....” Id. at 462, 464, 465, 466.

Third, the panel noted that “ambiguities in

criminal statutes have always been interpreted

against the government,” and held that “deference in

the criminal context conflicts with the rule of lenity

and raises serious fair-notice concerns.” Id. at 466467.

The panel then proceeded to “decide the best

meaning of the statute without putting a thumb on the

scale in the government’s favor” (id. at 470) and

rejected the rule as being inconsistent with the

statutory definition of machinegun and this Court’s

decision in Staples v. United States, 511 U.S. 600, 602

n.1 (1994).

This panel decision did not stand, however, as on

June 25, 2021, the Sixth Circuit granted the

government’s Petition for Rehearing En Banc, vacating

the panel’s decision. After further briefing and

26

argument, the en banc court “divided evenly, with

eight judges voting to affirm the judgment of the

district court and eight judges voting to reverse.” Gun

Owners of Am., Inc. v. Garland, 19 F.4th 890, 896 (6th

Cir. 2021). That split in the Sixth Circuit generated

several opinions which demonstrate the difficulty of

applying Chevron.

1. En Banc Opinions Supporting Affirmance.

Judge White, joined by four judges, concluded that

“Chevron provides the standard of review,” that

the statute “remains ambiguous ... after exhausting

the traditional tools of statutory construction,”18 and

that “ATF’s interpretation ... is a permissible

construction ... and is reasonable....” Id. at 898

(emphasis added).19 Although concluding that “neither

party’s interpretation of either term is unambiguously

compelled by the statute,” Judge White also

determined that, “ignoring all deference, ATF’s

interpretation of the statute is the best one.” Id. at

906, 908.

18

Judge White continued to reject the rule of lenity as grounds for

invalidating the Final Rule, acknowledging it to be “a canon of

construction,” but one to be applied only at “the end of the

Chevron analysis.” Id. at 904, n.10.

19

Judge White rejected other reasons for dispensing with

Chevron, reiterating the conclusion from her panel dissent that

the government may not waive Chevron, and claiming that this

Court’s decision in HollyFrontier Cheyenne Refinery, LLC at 2180

“does not alter this conclusion.” Id. at 899, n.5. Judge White

found no separation-of-powers concern because “legislative

delegation” in the criminal context “is a reality.” Id. at 902.

27

Judge Gibbons did not join Judge White’s opinion

or its application of Chevron deference, writing

separately that “Chevron application is

unnecessary here” because “ATF’s interpretation ...

is unambiguously the best interpretation ... using

ordinary tools of statutory construction.” Id. at 909

(emphasis added). Judge Gibbons explained that, to

conclude “otherwise would allow gun manufacturers to

circumvent Congress’s longtime ban on

machineguns....” Id. at 910.

Judges White, Moore, Cole, and Stranch joined

both opinions in favor of upholding the Final Rule,

thus opining both that “Chevron provides the standard

of review” and that “Chevron application is

unnecessary here.” Id. at 898, 909.

2. En Banc Opinion Supporting Reversal.

Supporting reversal, Judge Murphy and seven others

agreed with Judge White that the Final Rule “creates

a new regulatory crime,” expressing “concern[] with

the way in which the federal government has enacted

that policy into law.” Id. at 918, 911. Noting that,

“[a]t bottom, [this case] raises a pure question of

statutory interpretation” which is “not ... particularly

difficult to answer,” Judge Murphy explained that this

case also “implicates administrative-law questions

with significance for many statutes.” Id. at 911.

Addressing the serious problems with affirmance,

Judge Murphy explained that, if Congress wishes to

allow agencies to create federal crimes, it must speak

clearly and explicitly while, on the other hand,

Chevron only “comes into play when a statute lacks an

28

express delegation,” such as is the case here. Id. at

917. Second, Judge Murphy questioned the district

court’s finding of implied delegation, because the NFA

and GCA “merely ... gave ... general authority to

enact regulations.” Id. at 916 (emphasis added).

Even so, Judge Murphy explained, “Congress does not

impliedly delegate ... [the courts’] duty to interpret the

criminal laws,” which would violate the rule of lenity

and permit an agency to “adopt[] the ‘harsher

alternative’ without the ‘clear and definite’ statement

that we usually expect.” Id. at 921-22. Finally, Judge

Murphy criticized application of Chevron through

“‘reflexive deference’” “without even attempting to

interpret the statute....” Id. at 925-26.

C. Bumpstock Decisions of Other Courts.

Interestingly enough, the Sixth Circuit’s multi-way

fracture on the application of Chevron is merely a

microcosm. Indeed, other circuits have considered

bumpstock challenges and applied Chevron in different

ways, including the following:

In Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020),

a Tenth Circuit panel concluded that precedent

required application of Chevron, with Judge Carson

dissenting. Id. at 991. Thereafter, the Tenth Circuit

granted rehearing en banc, but then decided that it

had “improvidently granted” the petition, reinstating

the panel opinion. Aposhian v. Wilkinson, 989 F.3d

890, 891 (10th Cir. 2021). Five judges dissented in

four separate opinions, each joined by the other

dissenters. Id. at 891, 903, 904, 906.

29

In United States v. Alkazahg, 81 M.J. 764 (N-M Ct.

Crim. App. 2021), the U.S. Navy-Marine Corps Court

of Criminal Appeals overturned a Marine’s conviction

for possession of a bumpstock, accepting the

government’s waiver of reliance on Chevron deference,

and concluding that a bumpstock does not meet either

criterion under the statute to be a machinegun. The

government did not appeal that decision.

Initially, in Guedes v. BATFE, 920 F.3d 1 (D.C.

Cir. 2019), the D.C. Circuit upheld the Final Rule,

determining the statute to be ambiguous, finding itself

bound to apply Chevron deference, and finding the

Final Rule to be a “reasonable” interpretation. Judge

Henderson dissented. Id. at 35. On subsequent

review, the D.C. Circuit avoided Chevron altogether by

holding that the bumpstock rule was the “best

construction of the statute.” See Guedes v. BATFE, 45

F.4th 306, 313 (D.C. Cir. 2022).

In Cargill v. Garland, 57 F.4th 447 (5th Cir. 2023),

the Fifth Circuit en banc struck down the bumpstock

rule, refusing to apply Chevron for several reasons:

“First, Chevron does not apply for the simple reason

that the Government does not ask us to apply it.” Id.

at 465. It then applied “a second, independent reason:

the statute ... imposes criminal penalties.” Id. at 466.

Finally, it determined that Chevron did not apply in

the context of a statute with criminal liability

implications where the agency “has adopted an

interpretive position that is inconsistent with its prior

position.” Id. at 468.

30

Thus, the bumpstock litigation has resulted in

cases in which judges took the following inconsistent

positions on Chevron:

1.

Chevron deference was required.

Guedes v. BATFE, 920 F.3d 1 (D.C. Cir. 2019).

2. Chevron deference was not required.

Gun Owners of Am., Inc. v. Garland, 992 F.3d

446 (6th Cir. 2021).

***

3. The government may waive reliance on

Chevron. United States v. Alkazahg, 81 M.J.

764 (N-M Ct. Crim. App. 2021).

4. The government may not waive reliance

on Chevron. Gun Owners of Am. v. Barr, 363

F. Supp. 3d 823, 830 (W.D. Mich. 2019).

***

5. Chevron deference may be used to

support administrative creation of new federal

crimes. Gun Owners of Am., Inc. v. Garland,

19 F.4th 890, 902 (6th Cir. 2021).

6. Chevron deference may not be used to

support administrative creation of new federal

crimes. Gun Owners of Am., Inc. v. Garland,

992 F.3d 446, 466-467 (6th Cir. 2021).

CONCLUSION

For the foregoing reasons, the decision of the court

below should be reversed, and this Court’s Chevron

decision, along with its scheme of judicial deference to

the administrative state, should be overruled.

31

Respectfully submitted,

RICK BOYER

WILLIAM J. OLSON*

INTEGRITY LAW FIRM JEREMIAH L. MORGAN

P.O. Box 10953

ROBERT J. OLSON

Lynchburg, VA 24506 WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

JOHN I. HARRIS III

Vienna, VA 22180

SCHULMAN, LEROY, & (703) 356-5070

BENNETT, P.C.

wjo@mindspring.com

3310 West End Ave. Attorneys for Amici Curiae

Suite 460

Nashville, TN 37203 *Counsel of Record

July 24, 2023