Imagine if the ATF decided that gun makers had to pay for their agents to monitor compliance in every firearms manufacturer and gun store in the country…and the gun makers and retailers would have to foot the bill. That’s the kind of thing that the National Marine Fisheries Service did when it ruled that fishermen had to pay for its at-sea inspectors to monitor the herring harvest on the eastern seaboard.
The cost of that to fishermen was about $710 dollars a day per boat. The fishing companies sued, arguing that the law (the Magnuson-Stevens Fishery Conservation and Management Act of 1976), as written by Congress, doesn’t authorize the regulator to levy fees like that at their discretion. In their case, known as Loper Bright Enterprises v. Raimondo, they argued that executive branch regulatory agencies have too much latitude to, in effect, write their own laws outside and apart from the legislative branch and the laws they’ve written and passed.
Courts have traditionally deferred in these cases, allowing the agencies a lot of room in their rulemaking under the assumption that they have “expertise” in the businesses and areas of the law they’re responsible for regulating. That’s commonly known as Chevron deference and it’s something the agencies have used to great effect to expand their reach, legislate from the executive branch, writing their own laws, and becoming their own prosecutors, judges, and juries.
As it moved through the courts, Loper Bright gave the conservative Justices the perfect opportunity to take a significant bite out of three-letter executive agencies writing and enforcing their own laws, separate and apart from the legislative branch. Today, the Court did just that, overruling Chevron and eliminating the regulatory deference in created. The justices split along the usual ideological lines.
This represents a regulatory earthquake that will severely limit what executive branch agencies can do on their own. The Court has ruled that the Administrative Procedures Act requires the judicial branch to decide whether agencies — such as ATF — are acting within their statutory authority as laid out by Congress.
You can read the Court’s ruling here.
Chief Justice Roberts wrote the majority opinion and summed it up this way . . .
The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.
Cue the cheering and huzzahs. Also . . .
Chevron has proved to be fundamentally misguided. It reshaped judicial review of agency action without grappling with the APA, the statute that lays out how such review works. And its flaws were apparent from the start, prompting the Court to revise its foundations and continually limit its application.
Experience has also shown that Chevron is unworkable. The defining feature of its framework is the identification of statutory ambiguity, but the concept of ambiguity has always evaded meaningful definition. Such an impressionistic and malleable concept “cannot stand as an every-day test for allocating” interpretive authority between courts and agencies. The Court has also been forced to clarify the doctrine again and again, only adding to Chevron’s unworkability, and the doctrine continues to spawn difficult threshold questions that promise to further complicate the inquiry should Chevron be retained. And its continuing import is far from clear, as courts have often declined to engage with the doctrine, saying it makes no difference.
Nor has Chevron fostered meaningful reliance. Given the Court’s constant tinkering with and eventual turn away from Chevron, it is hard to see how anyone could reasonably expect a court to rely on Chevron in any particular case or expect it to produce readily foreseeable outcomes. And rather than safeguarding reliance interests, Chevron affirmatively destroys them by allowing agencies to change course even when Congress has given them no power to do so.
Ouch.
Loper Bright, along with yesterday’s ruling in SEC v. Jarkesy, has dealt a body blow to the ATF’s firearms regulatory regime. No longer will gun laws be whatever regulators want them to be, just because unelected bureaucrats say so. Regulators will still be able to make rules…but they’ll now have to defend them in court and convince judges that their rules are consistent with black letter law.
The regulatory deck is no longer stacked in the bureaucrats’ favor.
All the right people will express hair-tearing outrage at this and will, of course, be predicting that cats will be sleeping with dogs and that life as we know it will soon end as a result of this sea change.
Legal contributor LKB is reading the opinion and will be writing an informed analysis of what these rulings will mean in practical gun-related terms going forward. We’ll have that posted soon. Watch this space.
🚨CHEVRON IS OVERTURNED 🚨 pic.twitter.com/Msnmn6VYY8
— New Civil Liberties Alliance (@NCLAlegal) June 28, 2024
36 Responses
I’ll be doing a longer post, but the impact of the Jarkesy + Loper Bright decisions cannot be understated.
This is the biggest constitutional earthquake in decades, and is going to turn DC inside out. This is HUGE!
For decades, the DC bureaucracy has been allowed to run amock. They could “interpret” federal law to suit their own views, and under Chevron and Auer, the courts were generally required to defer to the bureaucrats’ interpretations of the law and regulations the bureaucrats created. Plus agencies could function as their own police, prosecutor, judge, jury, and executioner if you violated their rules / regulations. And as the bureaucrats aggregated more and more power, they got drunk on it, expanding their remit constantly . . . leaving us with the Deep State mess we have.
No more. Auer deference was quietly killed a few years ago, and Chevon has been dead law walking for a while. Now Chevron’s officially dead, with a very nice sweetener of Jarkesy thrown in. The bureaucrats in DC will be going absolutely nuts as reality sinks in.
Phillip Hamburger, a law professor, was one of the first to shout very clearly and persuasively that this emperor has no clothes — the modern administrative state has no constitutional basis, and in fact violates numerous constitutional provisions. But he did more than just write . . . he put together the organizations that brought the test cases that have now smashed the modern administrative state.
I communicated with Phil yesterday, and he acknowledges the feds will fight tooth and nail to keep their power, so the fight isn’t over. But as we’ve seen in the post-Bruen world, the right has learned the left’s old tactic of how to forum shop test cases into friendly venues and circuits. Look for lots of them to now be filed in the usual places.
Looking forward to your later comments, and how best to un-do the damage already done, like the pistol brace bullshit…
I find it noteworthy that Roberts explicitly stated “Chevron is overruled.” The AFT politburo must be throwing their staplers across the room.
More awesome *Breaking News*! –
The HUNDREDS of Jan 6 protesters and Trump just won their SCotUS case concerning obstruction charges…
Yay! 😉
The video explaining the news just above :
https://www.youtube.com/watch?v=riVl2LX_o9Y
What a glorious Friday this is. Between these rulings, Bidens pants-shitting implosion and the gorgeous weather here it should be a holiday.
It ain’t ‘Good Friday’ but it is A Good Friday.
They save the best for a Friday, like they did two years ago. Now imagine Hillary’s picks making these rulings.
This is really great news. It means that there likely won’t be any replacement for the hated pistol brace rule. With last nights performance in the debate I am fairly optimistic that Biden only has until January 20 to skr3w the country.
I sat there watching that… That… Complete train-wreck of a debate and kept asking myself, why did they deliberately go through with putting him through that? That was elder-abuse, full-stop.
Then this morning, reading about how the DNC is going to have a serious problem even trying to replace him this late in the game, due to their arcane ‘rules’.
I am glad it happened though, and combined with those 2 SCotUS rulings sticking it to ‘the man’ in general, it’s a nice way to end the week… 😉
Make that 3 rulings, when you add City of Grants Pass, Oregon v. Johnson. Fining people who set up homeless camps in public spaces is not necessarily a violation of the 8th amendment “cruel and unusual punishment” clause. More decisions to come.
I believe this is all by design at this point, now that previous options to remove Trump have been exhausted and/or failed. If Biden bows out from his re-election campaign a few weeks from now, that’ll open the path for Newsom, Big Mike, or some other replacement candidate to step in. Due to the delayed timeframe in the calendar year, the usual primary and debate hoops won’t be applicable, and (let’s say it’s Newsom) won’t have to publicly defend his horrible record in a toe-to-toe with Trump, which he’d otherwise lose.
They’ve already been busy trying to lock in policies in case they lose the presidency. Biden losing in Nov probably wouldn’t mean as much as people think it would. They’ve already shown how easy it is to hamper an administration and #Resist. They’ll stall any return to the pre-Covid life while pushing their hoaxes and investigations. Then, when they eventually win again, there will always be just enough Republicans available to enable them. Rinse and repeat. The overall trajectory stays the same.
Like Obama said, there has to be a fundamental transformation of the USA. They’ve proven to be much better at transforming the country than the so-called right wing. Here’s why: “right wingers” don’t care about it like left wingers do.
Does Paul Ryan seem concerned about Trump losing? Paul Ryan isn’t an anomaly. Heck, there are more than a few people on that other site that have said they wouldn’t vote for Trump.
What if the Left thought like that? Does anyone think they wanted Biden as their leader in 2020? They understand that the name of the game is to constantly move the ball. There might be some small setbacks, but the overall trajectory is one of progress for the Left. Too many right wingers allow perfect to be the enemy of good. Want to win and keep on winning? Then notice how others do it.
“Like Obama said, there has to be a fundamental transformation of the USA.”
Obama fucked-up. he ‘shot his wad’ getting the “(Un)affordable Care Act” rammed through. He burned trough every last drop of political capital he had doing that, so he couldn’t do anything else.
“There might be some small setbacks, but the overall trajectory is one of progress for the Left.”
I used to think like that, but thanks to the Latino influx of new Americans, not any more.
A Dirty little Secret – The Latino vote has moved over *20 points* in our direction, and that trend is picking up speed. By next election cycle or 2, they will be solidly voting Republican, and will start demanding the wall be built. A recent poll showed something like over 70 percent want illegals deported.
What the Leftist Scum ™ fail to realize is, those coming from the south want to be Americans, chasing that dream, not be whiney Democrat Scum ™. They are also devoutly religious (Catholic) and espouse traditional conservative values. So every time you read of them laughing at ‘sky daddy’, they are also seeing that as well, and taking notes.
Up until recently, I was convinced we were doomed by the inevitable changing demographics, it ends up they will be be burying the Left in a shallow grave in the desert (so to speak).
Chill the fuck out, it’s gonna be OK.
Upcoming Baldwin trial Update –
Check out this evidentiary hearing for the Baldwin trial, the same judge and prosecutor that convicted the armorer are going to run Baldwin’s trial. Baldwin is totally and royally fucked by the evidence the prosecutor is laying out in this video :
https://www.youtube.com/watch?v=JvJItmC8SyI
“The Latino vote has moved…”
So has the black male vote. A demographic realignment is good news, but we can’t rely on that alone to change things. Also, there’s a difference between first and third generation citizens. We have decades of data for this. It has always favored Democrats. It turns out, there’s an unlimited supply of first generation immigrants.
Unfortunately, white women seem to be becoming more liberal, especially if they’re young. Dems are working overtime to brainwash children into becoming a member of the intersectional coalition (AKA victim alliance, AKA Democrat activist). Some of the fence-sitting white libs might give up on Joe after his senile performance, but put a slick talking Democrat on the ticket, and they’ll be in love all over again. We need a winning strategy.
“So has the black male vote.”
That’s showing a similar switch, but currently isn’t threatening as the Latino switch. It will likely be in 10 years or so.
I’m convinced a big part of that is their constant screech of ‘Racist!’ beginning to bite them in the ass.
Trump was a genius in hitting the Black congregations with his pitch of “You’ve been voting for them for the last 60 years, and what has that gotten you? Just give me a chance”. That really made an impact on the community with Trump’s booming economy putting many of them to work. Also, Blacks are far more likely to attend church. That’s gonna double burn them when they talk down to them.
So. Much. *Seriously* good stuff is now starting to happen, and they don’t see it coming… 😉
“I’m convinced a big part of that is their constant screech of ‘Racist!’ beginning to bite them in the ass.”
I think so. Some are realizing that was a lie designed to keep Dems in power.
Sure he’s a liar, drunk, womanizer, abuser and a thief but he’s also a Kennedy. :swoon:
I’ll also add that part of their open border strategy is to get the “newcomers” to have a ballot. Democrats like loose rules, without proof of voter ID, for a reason. More people equals more potential ballots to count. Blue states want to send everyone an unsolicited ballot. Add in no ID, and you can see where this is headed. The “newcomers” are pro-Biden. The non-white demos leaving the Democrat party are legal citizens. There’s a distinction.
“Democrats like loose rules, without proof of voter ID, for a reason.”
Care to explain why border counties in Texas with strong voter ID laws are nearly all red? 😉
Strong voter ID laws make it more difficult to cheat. I don’t know, but I doubt Texas tries to mail out ballots to everyone like some other states have started doing.
That leaves some Hispanic counties legitimately flipping red very recently, as in only four years ago. The way I understand it, your logic is that if those particular Hispanic people have flipped their votes, then the incoming illegal immigrants will also vote Republican when they are able to.
Here’s why that’s not how it works: We can look at how other Hispanics were voting in 2020. The ones who weren’t directly impacted by illegal immigration continued to vote for Democrats. Now, in 2024, we have even more probably voting R, maybe even a majority. Why? Their life experiences have changed. Illegal immigration is so crazy right now, that every state is a border state. (I have a theory for another reason. I think the spell Dems have had Hispanics and blacks under is faltering, like you mentioned above. I think they realized Orange Hitler wasn’t the racist they were told he was, etc.)
In other words, despite looking and sounding similar, they had very different life experiences (until it became more similar under the Puppet Admin). Likewise, second and third generation Hispanic American citizens have very different life experiences compared to the incoming illegals.
Si
Thank you, Gina Raimando, for doing to Chevron Deference what you spent years doing to the State of Rhode Island.
Thanks for placing credit where it’s due.
Dan, when she was governor, what was her position on guns, being a D herself?
I just heard her name floated as a potential Biden replacement.
Wonder if we can finally get rid of the retarded prohibition on straight blowback open bolt semi autos now that the ATF doesnt get to freely interpret stuff
Their previous ‘decrees’ stay in place, if I understood LKB’s comments on that.
Each and every one will have have to be litigated…
But each lacks the authority to exist as a regulation based pseudo law or text and tradition analog so….. yeah have fun free states I envy your not having to go through state level lawsuits first.
I’ve sent Dan my draft of a longer piece; hopefully it will be up soon.
To answer your instant question, where a regulation has been challenged in the past, but was judicially upheld under Chevron deference, Roberts’ opinion says those court decisions still stand under the principle of stare decisis. It’s not unusual for SCOTUS to say “this is the new rule going forward,” and indeed giving a decision retroactive effect is disfavored and usually reserved only for cases involving fundamental constitutional rights.
What the death of Chevron means that any new regs, or old ones that nobody challenged in court because Chevron meant doing so would have been a fool’s errand, are now fair game. And goofiness like the proposed gas stove bans or efforts to regulate CO2 emissions under the Clean Air Act are going to face very tough sledding, as test cases will be forum shopped into districts where they’ll get killed (remember, the remedy when you challenge a regulation is to have the court order it vacated — thus if one challenger wins, we all do).
Again, it is hard to fully emphasize just how big a deal the 1-2 punch of Jarkesy + Loper Bright is. Biden stinking up the joint Thursday night has sucked all the air from the room, but the media is starting to get the message (from the bureaucrats) about exactly what this means . . . and they are shrieking!
Interesting question. Since 1982, ATF has treated open-bolt semis as MGs (and thus effectively banning them, although they grandfathered in existing ones), based on ATF’s determination that open-bolt semis can be “readily converted” to MG’s. Nobody ever bothered to challenge this, as such would have been exactly the kind of determination that would have been given Chevron deference.
No longer. Now, if challenged, ATF would have to *actually* show that particular open bolt semis are more “readily convertible” to MG’s than other semis. While this may be the case for some (apparently, it *was* very easy to convert an open-bolt Uzi or MAC-10 semi to FA), I can envision a manufacturer designing an open-bolt semi with features that make it difficult to convert to FA, and thus challenge the ATF’s ruling as improper as applied.
(Why anyone would actually WANT an open-bolt semi is another question.)
Possibly not but every improvement to issued gear I saw for the better part of a decade came from the private sector and often individual tinkerers so having the option open could only help with addressing some of the feed issues I found with the M249 and I am sure there are cheaper ways to do some things with open bolt.
Hmmmmm. Yeah, I guess I can imagine an open bolt, belt-fed, AR upper that would be a lot simpler than a closed bolt belt fed system.
Or for that matter, a belt-fed blowback .22 LR that fires from an open bolt. Now *that* could be fun.
Really any belt fed system and more than a few large frame pistols but agree the 22 would be a lot of silly fun.
Well, if you have a spare $5k to burn, there’s always this:
https://tippmannordnance.com/22lr-gatling-gun/
It’s not even covered by the NFA (unless you attach a motor to the crank and turn it into a Poor Man’s Illegal Minigun).
Not going to lie I did consider that one but unfortunately the belt fed part is probably a killer even in manual action for NY SAFE act re capacity (even with cut 10 round belts). Would be an interesting legal fight but a bit beyond my budget.