Amicus Curiae Brief — Merrick B. Garland, Attorney General, et al., Petitioners v. Michael Cargill

Supreme Court briefJan 29, 2024

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No. 22-976

I n the Supreme Court of the United States

__________

MERRICK GARLAND, ET AL.,

Petitioners,

MICHAEL CARGILL,

__________

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

__________

BRIEF OF THE MANHATTAN INSTITUTE AS

AMICUS CURIAE SUPPORTING RESPONDENT

__________

R. Trent McCotter

BOYDEN GRAY PLLC

801 17th St. NW,

Suite 350

Washington, DC 20006

January 29, 2024

Ilya Shapiro

Counsel of Record

Tim Rosenberger

MANHATTAN I NSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.institute

QUESTION PRESENTED

Whether a bump stock device is a “machinegun” as

defined in 26 U.S.C. 5845(b).

TABLE OF CONTENTS

QUESTION PRESENTED ................................................ i

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

INTEREST OF AMICUS CURIAE................................. 1

SUMMARY OF ARGUMENT .......................................... 1

ARGUMENT........................................................................ 2

CHEVRON DOES NOT APPLY

BECAUSE THE ATF’S RULE WAS NOT

BASED ON STATUTORY AMBIGUITY

OR AGENCY EXPERTISE BUT WAS

PURELY A POLITICAL EXPEDIENCY........... 2

II.

CHEVRON RAISES SEPARATION OF

POWERS AND POLITICAL

ACCOUNTABILITY CONCERNS,

ESPECIALLY IN THE CONTEXT OF

RULES WITH CRIMINAL

CONSEQUENCES. ................................................ 6

III. THE ATF’S ASSERTED AUTHORITY

WOULD ALLOW IT TO CRIMINALIZE

POSSESSION OF AN UNKNOWABLE

NUMBER OF FIREARMS. ................................ 11

CONCLUSION .................................................................. 13

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abramski v. United States,

573 U.S. 169 (2014) .................................................... 11

Alabama Assn. of Realtors v. HHS,

141 S. Ct. 2485 (2021) ................................................ 12

Aposhian v. Barr,

973 F.3d 1151 (10th Cir. 2020) .................................. 1

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ......................................... 11, 12

Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc.,

467 U.S. 837 (1984) .............. 1, 2, 3, 5, 6, 7, 9, 10, 11

Esquivel-Quintana v. Lynch,

810 F.3d 1019 (6th Cir. 2016) ........................... 10, 11

Guedes v. ATF,

920 F.3d 1 (D.C. Cir. 2019) .....................................1, 9

Gundy v. United States,

139 S. Ct. 2116 (2019) ........................................... 8, 10

Hardin v. Bureau of Alcohol, Tobacco,

Firearms and Explosives,

65 F.4th 895 (6th Cir. 2023) ....................................... 5

Marbury v. Madison,

5 U.S. 137, 1 Cranch 137 (1803) ................................ 9

Michigan v. EPA,

576 U.S. 743 (2015) ...................................................... 9

NFIB v. OSHA,

142 S. Ct. 661 (2022) .................................................. 12

United States v. Apel,

571 U.S. 359 (2014) .................................................... 11

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ................................................ 12

Statutes

18 U.S.C. § 921 .................................................................... 3

18 U.S.C. § 922 .................................................................... 3

26 U.S.C. § 5845 ..............................................................3, 5

Other Authorities

Application of the Definition of

Machinegun to “Bump Fire” Stocks

and Other Similar Devices, 82 Fed.

Reg. 60,929 (Dec. 26, 2017)......................................... 3

Bump-Stop-Type Devices, 83 Fed. Reg.

66,514 (Dec. 26, 2018) .................................................. 3

Rev. Rul. 55-528, 1955-2 C.B. 482 ................................ 11

Chris Dumm, Electric Cartridge

Primers: Gone But Not Lamented,

The Truth About Guns, Dec. 19,

2013, https://bit.ly/2NLkhbb .................................... 12

Thomas Griffith & Haley Proctor, Deference, Delegation, and Divination:

Justice Breyer and the Future of the

Major Questions Doctrine, 2022 Yale

L. J. Forum 693 (Nov. 21, 2022) ................................ 6

Justin (Gus) Hurwitz, Chevron’s

Political Domain: W(h)ither Step

Three, 68 DePaul L. Rev. 615 (2019) ....................7, 8

Miles, Bullpup 2016: Vadum Electronic

eBP-22 Bullpup, TheFirearmBlog,

Sept. 28, 2016, https://bit.ly/2IAieb1; ..................... 12

Neomi Rao, Administrative Collusion:

How Delegation Diminishes the

Collective Congress, 90 N.Y.U. L.

Rev. 1463 (2015) ............................................................ 6

Nathan Richardson, Antideference:

COVID, Climate, and the Rise of the

Major Questions Canon, 108 Va. L.

Rev. Online 174 (2022)................................................. 9

Maxwell L. Stearns, Todd J. Zywicki &

Thomas Miceli, Law and Economics:

Private and Public (2018) ........................................... 3

Donald Trump (@realDonaldTrump),

Twitter (Mar. 23, 2018, 1:50 PM),

https://bit.ly/2DPV1cY ................................................. 5

Remarks by President Trump, Vice

President Pence, and Bipartisan

Members of Congress in Meeting on

School and Community Safety (Feb.

28, 2018), https://bit.ly/2M6Mjvz...........................4, 5

INTEREST OF AMICUS CURIAE1

The Manhattan Institute for Policy Research (“MI”)

is a nonpartisan public policy research foundation

whose mission is to develop and disseminate new ideas

that foster greater economic choice and individual responsibility. To that end, MI has historically sponsored scholarship and filed briefs supporting economic

freedom against government overreach.

This case interests amicus because it involves an

agency regulation that was not explicitly authorized

by statute. Indeed, it gives the Court a chance to clarify that statutory silence does not require judicial deference, particularly in the context of rules that impose

criminal consequences.

SUMMARY OF ARGUMENT

The government in this case forgoes reliance on

Chevron deference, but numerous courts have addressed whether Chevron applies to the Bureau of Alcohol, Tobacco, and Firearms (ATF)’s Bump Stock

Rule at issue. The Fifth Circuit concluded below that

the government had forfeited reliance on Chevron and

that it would be inapplicable anyway, see

Pet.App.32a–41a, but the D.C. Circuit has concluded

that Chevron cannot be forfeited or waived in this context, see Guedes v. ATF, 920 F.3d 1, 23 (D.C. Cir. 2019);

see also Aposhian v. Barr, 973 F.3d 1151, 1151 (10th

Cir. 2020) (asking for briefing on whether Chevron can

be waived).

1 Rule 37 statement: No part of this brief was authored by any

party’s counsel, and no person or entity other than amicus and its

counsel funded its preparation or submission.

As a threshold matter, the Fifth Circuit was correct

that the government can waive and forfeit Chevron by

declining or failing to rely on it, and that alone precludes recourse to it here. See Pet.App.32a–35a. But

because disputes over the applicability of Chevron

have arisen throughout litigation over the Bump Stock

Rule, amicus explains below why this Court should decline to defer to ATF’s interpretation even if the Chevron framework were available.

First, in abruptly reversing 11 years of its own findings that bump stocks are not machine guns, ATF’s actions were not based on an alleged statutory ambiguity

or agency expertise. Instead, they were done solely as

a political expediency to avoid the need for legislation.

Second, Chevron deference raises serious separation of powers and political accountability concerns, especially in this context, where the executive branch

can single-handedly criminalize previously lawful behavior.

Third, the ATF’s asserted authority would allow it

to unilaterally criminalize possession of an unknowable number of firearms and accessories, without any

intervening change in statutory law.

ARGUMENT

CHEVRON DOES NOT APPLY BECAUSE

THE ATF’S RULE WAS NOT BASED ON

STATUTORY AMBIGUITY OR AGENCY EXPERTISE BUT WAS PURELY A POLITICAL

EXPEDIENCY

The degree of deference that courts owe to agency

interpretations is one of “the most crucial and contested legal issue[s] respecting agency decision

making.” Maxwell L. Stearns, Todd J. Zywicki &

Thomas Miceli, Law and Economics: Private and Public 767 (2018). Chevron itself stated that the main reasons for judicial deference to agency interpretations

are that agencies possess unique expertise and

knowledge, and that Congress intended agencies to address recognized statutory ambiguities. Chevron,

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.

837, 843, 865 (1984).

Here, no deference is owed to the Bump Stock Rule

for the simple reason that it was adopted without even

the pretense of satisfying those threshold Chevron

purposes.

The Gun Control Act of 1968 criminalizes the possession of a machine gun. “[I]t shall be unlawful for

any person to transfer or possess a machinegun.” 18

U.S.C. § 922(o)(1). In ten classification letters from

2008 to 2017, the ATF repeatedly excluded bump

stocks and related devices from the definition of machine gun. See, e.g., Letter for David Compton from

ATF’s Firearm Technology Branch Chief (June 7,

2010); Letter for Michael Smith from ATF’s Firearm

Technology Branch Chief (April 2, 2012).

After the 2017 Las Vegas mass shooting, and in response to significant public pressure, the ATF abruptly reversed course and promulgated the Bump

Stock Rule, which extended the prohibition on machine guns to bump stocks. See Application of the Definition of Machinegun to “Bump Fire” Stocks and

Other Similar Devices, 82 Fed. Reg. 60,929 (Dec. 26,

2017); Bump-Stop-Type Devices, 83 Fed. Reg. 66,514

(Dec. 26, 2018); 18 U.S.C. §§ 922(o)(1), 921(a)(23); 26

U.S.C. § 5845(b).

What prompted ATF’s reversal on whether a bump

stock was a machine gun? The ATF’s actions were not

based on agency expertise or a purported statutory

ambiguity. The statute had been uniformly interpreted for over a decade. Nor is there any evidence the

ATF brought scientific expertise to bear on the matter.

Instead, the Bump Stock Rule was issued solely as a

political expediency.

For example, on February 28, 2018, President

Trump hosted a meeting with members of Congress to

discuss school and community safety. Senator John

Cornyn, the majority whip, suggested that Congress

could pass legislation “on a bipartisan basis” to deal

with “the bump stock issue.” Remarks by President

Trump, Vice President Pence, and Bipartisan Members of Congress in Meeting on School and Community

Safety (Feb. 28, 2018), https://bit.ly/2M6Mjvz. President Trump interjected that there was no need for legislation because he would deal with bump stocks

through executive action:

And I’m going to write that out. Because

we can do that with an executive order.

I’m going to write the bump stock; essentially, write it out. So you won’t have to

worry about bump stock. Shortly, that

will be gone. We can focus on other

things. Frankly, I don’t even know if it

would be good in this bill. It’s nicer to

have a separate piece of paper where it’s

gone. And we’ll have that done pretty

quickly. They’re working on it right now,

the lawyers.

Id. Later during the meeting, Rep. Steve Scalise, the

House majority whip, proposed other gun-control

measures that Congress could vote on. Again, the

President reiterated that there was no need to legislate on bump stocks, because his administration would

prohibit the devices through executive action:

And don’t worry about bump stock, we’re

getting rid of it, where it’ll be out. I mean,

you don’t have to complicate the bill by

adding another two paragraphs. We’re

getting rid of it. I’ll do that myself because I’m able to. Fortunately, we’re able

to do that without going through Congress.

Id.

Moments before the Bump Stock Rule was announced, President Trump tweeted: “Obama Administration legalized bump stocks. BAD IDEA. As I

promised, today the Department of Justice will issue

the rule banning BUMP STOCKS with a mandated

comment period. We will BAN all devices that turn legal weapons into illegal machine guns.” Donald Trump

(@realDonaldTrump), Twitter (Mar. 23, 2018, 1:50

PM), https://bit.ly/2DPV1cY.

Twenty-five federal appellate judges have written

that section 5845(b) is best read as excluding non-mechanical bump stocks from the definition of machineguns. And the Sixth Circuit recently noted “the

myriad and conflicting judicial opinions on this issue,

but also the ATF’s own flip-flop in its position.” Hardin

v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 65 F.4th 895, 898 (6th Cir. 2023). That “flip-flop,”

further worsened by the ATF’s failure bring its expertise to bear on the matter, undercuts the stated purpose of Chevron. See Pet.App.39a–41a (“[A]n agency

interpretation that ‘conflicts with the agency’s earlier

interpretation is entitled to considerably less deference than a consistently held agency view.’”) (quoting

INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30

(1987)).

Because the Bump Stock Rule was promulgated

solely as a political expediency, Chevron does not apply.

II. CHEVRON RAISES SEPARATION OF POWERS AND POLITICAL ACCOUNTABILITY

CONCERNS, ESPECIALLY IN THE CONTEXT OF RULES WITH CRIMINAL CONSEQUENCES.

1. Article I of the United States Constitution provides that “[a]ll legislative powers . . . shall be vested

in . . . [C]ongress.” U.S. Const. art. I. Increasingly,

agency overreach, aided and abetted by the concept of

Chevron deference, means that Congress’s ability to

legislate is either usurped or gladly handed over to the

executive branch. See, e.g., Neomi Rao, Administrative

Collusion: How Delegation Diminishes the Collective

Congress, 90 N.Y.U. L. Rev. 1463 (2015); Thomas Griffith & Haley Proctor, Deference, Delegation, and Divination: Justice Breyer and the Future of the Major

Questions Doctrine, 2022 Yale L. J. Forum 693, 693

(Nov. 21, 2022).

Deferring to agency interpretations as here with

the ATF’s redefinition of “machinegun” short-circuits

the legislative process and lessens political accountability. Banning bump stocks was hardly out of congressional reach. Instead, as discussed above, the executive branch pushed the ban through for political expediency, even discouraging Congress from taking up the

issue. Although the president’s approach may have

been quicker and required fewer compromises than going through the proper channels of bicameralism and

presentment, there are good reasons to be wary of this

method of policymaking.

Allowing an agency to reinterpret existing statutes

in ways that directly contradict past legal interpretation to achieve new policy goals leads to bad law and

bad politics. The executive branch is designed to execute existing laws, not write new ones. Its powers are

limited by the language of the statutes that it is interpreting and enforcing. When an existing statute is

stretched to accomplish a policy objective it wasn’t

meant to address, it leads to law that has been wholly

created by the executive branch rather than by Congress.

This dynamic also disincentivizes Congress from

acting. Government actions are rarely if ever universally loved. There will always be some level of political

opposition. Executive policy-making gives members of

Congress an out by “solving” a policy problem without

political accountability for members. “Chevron effectively allows, and indeed encourages, Congress to abdicate its role as the most politically-accountable

branch by deferring politically-difficult questions to

agencies in ambiguous terms.” Justin (Gus) Hurwitz,

Chevron’s Political Domain: W(h)ither Step Three, 68

DePaul L. Rev. 615, 618 (2019).

One role of the judiciary is to police the constitutional lines between the other branches and thereby

limit the extent to which Congress can pass the buck.

If courts don’t step in, members of Congress grow more

dependent on the executive branch to do their job for

them and less willing to deal with national issues.

Congress is also far more accountable to the people

than is the executive branch. The president and vice

president are elected, to be sure, but they represent

fewer distinct views than Congress does—and their

millions of agents across the federal bureaucracy are

even further removed from the people. Holding a president responsible for every decision his administration

makes is impractical. Members of Congress, by contrast, are elected by smaller constituencies that can

hold them accountable for their speeches, bills, and

votes on a variety of topics.

Getting a bill through Congress is difficult. In fact,

“the framers went to great lengths to make lawmaking

difficult” in order to protect liberty and “promote deliberation.” Gundy v. United States, 139 S. Ct. 2116, 2134

(2019) (Gorsuch, J., dissenting). The lawmaking process was “also designed to promote fair notice and the

rule of law, ensuring the people would be subject to a

relatively stable and predictable set of rules.” Id. The

number of elected officials and governmental bodies

required to pass a new statute ensure that the process

can’t be undone on a whim. By contrast, “if laws could

be simply declared by a single person, they would not

be few in number, the product of widespread social

consensus, likely to protect minority interests, or apt

to provide stability and fair notice.” Gundy, 139 S. Ct

at 2135 (Gorsuch, J., dissenting). Instead, they would

create an unsteady legal environment and an unconstitutional arrangement of government power.

The Bump Stock Rule is an excellent example. A

previously legal device become illegal overnight, without any new bill being passed into law. “The ATF’s interpretation of ‘machinegun’ gives anything but fair

warning—instead, it does a volte-face of its almost 11-

years’ treatment of a non-mechanical bump stock as

not constituting a ‘machinegun.’” Guedes, 920 F.3d at

41 (Henderson, J., concurring in part and dissenting in

part).

The Bump Stock Rule thus “bring[s] into bold relief

the scope of the potentially unconstitutional delegations we have come to countenance in the name

of Chevron deference.” Michigan v. EPA, 576 U.S. 743,

763 (2015) (Thomas, J., concurring).

2. Chevron deference also raises serious separation

of powers concerns for the judiciary itself. When the

judiciary defers to an agency interpretation, it effectively cedes a portion of judicial power to the executive

branch and prevents the judiciary from fulfilling its

“duty . . . to say what the law is.” Marbury v. Madison,

5 U.S. 137, 177, 1 Cranch 137 (1803).

Chief Justice Marshall famously wrote that “[i]t is

emphatically the province and duty of the judicial department to say what the law is.” Marbury, 5 U.S. at

177. Less frequently quoted is the next sentence:

“Those who apply the rule to particular cases, must of

necessity expound and interpret that rule.” Id. Expound and interpret, not defer.

Chevron and its progeny have thus shifted “interpretive authority from courts to agencies—it was a

‘counter-Marbury for the administrative state.’” Nathan Richardson, Antideference: COVID, Climate, and

the Rise of the Major Questions Canon, 108 Va. L. Rev.

Online 174, 176 (2022). Chevron deference, especially

for laws that carry criminal penalties, is plainly inconsistent with the duties of the judiciary under the Constitution. A doctrine that requires the courts to subjugate their own legal and constitutional determinations

of the meaning and limits of executive power is incompatible with the principle of judicial review. It would

make little sense for the Constitution to give the judiciary the duty to determine the constitutional limitations of the other branches while also permitting the

judiciary to fulfill that duty through deference to the