In Circuit Schism, Bump Stocks Cases Question Chevron doctrine

Splits between the 6th and 10th circuits put Chevron deference center stage

gun and bump stock
Bump stocks are a device that can change a firearm from semiautomatic to fully automatic when applied. Whether or not a government agency can declare these legal or illegal is the center of a rehearing by the 10th Circuit. / BUREAU OF ALCOHOL TOBACCO, FIREARMS AND EXPLOSIVES

The 6th Circuit Court of Appeals delivered a ruling that contradicts a 10th Circuit ruling in a similar case, setting up the possibility of the U.S Supreme Court deciding the legality of bump stocks. 

The 6th Circuit ruling, delivered March 25, found that the Bureau of Alcohol Tobacco and Firearms overstepped its authority in making the firearm attachments illegal. Bump stocks allow semiautomatic weapons to fire similarly to machine guns. The two appellate courts relied on one of the most important principles in administrative law to make their rulings.  

That principle, known as Chevron deference, also known as Chevron doctrine, grew out of the case Chevron U.S.A v. Natural Resources Defense Council. In that case, the U.S. Supreme Court set a legal test to determine when a court should defer to agency answers or interpretation of administrative actions — so long as Congress hasn’t directly addressed the issue. 

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Aaron-Andrew Bruhl, a William & Mary Law School law professor and Chevron doctrine specialist, said Chevron has been cited thousands of times in cases but has been “under siege” for about a decade. Chevron went unquestioned in the courts for a long time, Bruhl said. But over roughly the past decade, the doctrine became controversial particularly because there have been attempts to cut back, weaken or eliminate the doctrine at high levels in the U.S. courts. 

Chevron came into play in the bump stocks cases before the 6th and 10th circuits, both of which deal with challenges to the ATF’s change in stance on the attachments. Before the change in ATF stance, the bureau had said that certain bump stocks were legal to be bought and sold. However, following the 2017 Las Vegas mass shooting, in which a gun outfitted with a bump stock was used to kill 58 and injure 400, the agency produced a final rule that essentially classified bump stocks as machine guns, rendering them illegal. However, many gun owners around the country had already legally purchased bump stocks — which then included a letter from the ATF explaining their legality — and would potentially be unaware of the sudden change in legality. 

In both cases, Chevron’s application has consequences that could hold criminal penalties for people totally unaware that they’re breaking the law. According to Caleb Kruckenberg who represents the New Civil Liberties Alliance, which brought the challenges to the ATF rule to the 10th Circuit, the problem is that ATF is interpreting a criminal statute. Punishment for violating the machinegun ban could be a sentence of a decade in prison. “If someone’s a first-time offender, and they’re found with a bump stock, they could potentially be sent to prison for 10 years,” Kruckenberg said. He said he knew of at least two cases — one in Texas and another in Nebraska — where ATF and U.S. attorneys prosecuted such cases. 

Criminal Questions 

The panel of 6th Circuit judges focused on Chevron in the opinion, with Judge Alice Batchelder, who penned the opinion, noting that “this case rests as much on who determines the statute’s meaning as it does on what the statute means.” Batchelder noted that the original Chevron case did not deal with criminal law, which raised questions regarding its applicability here. “No reasonable reading of Chevron could stand for the proposition that the government’s interpretation of a criminal statute is entitled to Chevron deference,” she wrote. “Whether the Court intended to (silently) exclude the criminal-provision issue or merely did not consider the criminal provision issue that was not before it, Chevron easily falls within the Court’s proclamations in [other cases] that it has never held that the government’s reading of a criminal statute is entitled to deference.” 

However, the same opinion notes that when considered as a whole, the 6th Circuit has no precedent providing authority on whether to apply Chevron in the definition of a machinegun. The court has never held that Chevron applies to “purely” criminal statutes in an agency’s interpretation. 

The 6th Circuit has relied on Chevron for interpretation of an immigration statute with both civil and criminal penalties — however, the Supreme Court then reversed the decision on an alternative analysis and “expressly refused to decide the applicability of Chevron deference,” according to the opinion. 

“Considered altogether, if we take the Court at its word, it has never held that a court must necessarily grant Chevron deference to the government’s interpretation of an ambiguous criminal statute,” Batchelder wrote in the opinion. 

However, Judge Helene White dissented, pointing to three binding decisions where the Supreme Court applied Chevron in a criminal context and “has never purported to overrule those cases.” 

Bruhl said most regulatory laws involve civil consequences. “When criminal punishment is at issue, we’re less comfortable with agencies being able to fill in the details of statutes and change requirements over time because we want criminal law to be clear so that everybody knows what the line is between permissible conduct and the kind of conduct that could get you put in jail.”  

Resolving the Circuit Split 

Kruckenberg said he was concerned about the circuit split on bump stock legality as well as on the application of Chevron deference. “You have this situation where prosecutors are writing criminal laws,” he said, adding that’s what the 6th Circuit considered and found impermissible. 

Bruhl compared the split between the circuits on Chevron interpretation as two titans going up against each other, like Godzilla and King Kong, except in this case, the titan Chevron is weakened and the “airplanes are already circling,” he said.  

Another difference is the attitudes of judges who depend on textual interpretation, generally, and agencies that work in purpose-based or problem-solving ways, according to Bruhl. Governmental agencies and the judiciary have different missions, which are playing out in the bump stock cases. For agencies, tasked by Congress with accomplishing a goal, the readings of statutes or law will be seen through a lens of accomplishing that task. But that can come into conflict with judges who look specifically to textual interpretation, Bruhl said.   

In this instance where the ATF might be trying to follow guidance from Congress prohibiting machine guns, Bruhl said it would make sense for the ATF to also try to prohibit items that make a non-machine gun act like a machine gun. However, a textualist judge might say the language of the statute as it was written by Congress doesn’t cover bump stocks, based on specific language differences between bump stock operation and machine gun definitions. 

With a “clear” split in the circuits and multiple members of the same court questioning their opinions, Kruckenberg said the level of uncertainty between circuits just cannot continue. “I think this case is going to the Supreme Court,” he said. “I hate to make predictions, but I think one of these bump stock cases is going to have to go all the way.” 

If a bump stock case went to the U.S. Supreme Court, Bruhl said that it was possible the court could use a different test for determining the ATF’s final rule applicability or it could revisit and narrow Chevron. “It’s tricky,” he said. 

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