As readers of this blog know, I have recently been considering and even obsessing over the distinction between legislative and interpretive regulations for purposes of the APA and Chevron deference. Just in the past few days, I have focused on four opinions that I think highlight the confusions in this area. The first three are decisions by three different Circuits on the issue of the validity of a recently adopted regulation including bump stocks within the statutory definition of “machineguns,” thus prohibiting their possession with potential criminal penalty consequences. Those decisions are:
- Guedes v. BATFE, 920 F.3d 1 (D.C. Cir. 2019), cert. denied, 140 S. Ct. 789 (2020), D.C. Cir. here and GS here;
- Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020), 10th Cir. here and GS here; and
- Gun Owners of Am., Inc. v. Garland, ___ F.3d ___, 2021 U.S. App. LEXIS 8713 (6th Cir. 3/25/21), 6th Cir. here; GS [not available]. [Note that the lengthy decision was published on the same day as oral argument.]
The regulation was sustained in Guedes and Aposhian as a Chevron-entitled interpretation of the ambiguous statutory text; the regulation was invalidated in Gun Owners as (i) violating separation of powers and the rule of lenity and (ii) in any event not passing Chevron analysis as a reasonable interpretation of ambiguous statutory text.
The Fourth Opinion, a truly monster opinion, was an en banc opinion in Brackeen v. Haaland, ___ F.3d ___, 2021 U.S. App. LEXIS 9957 (5th Cir. 4/6/21), 5th Cir. here; GS not available. The opinions are, in the aggregate, 325 pages long and the portions of the opinions that represent the en banc opinion are scattered in two separate opinions – that of Judge Dennis and that of Judge Duncan. Here is the Court’s description:
Dennis, J., delivered the opinion of the en banc court with respect to Parts II(B), II(C), and II(D)(2) of his opinion (except as otherwise noted in the Per Curiam opinion, supra).
Duncan, J., delivered the opinion of the en banc court with respect to Parts III(B)(1)(a)(i)–(ii), III(B)(1)(a)(iv), III(B)(2)(a)–(c), III(D)(1), and III(D)(3) of his opinion (except as otherwise noted in the Per Curiam opinion, supra).
The exercise of working through that stuff to figure out what the en banc holdings were would be daunting indeed. So, the Fifth Circuit helpfully offers the first opinion, a per curiam opinion, to provide a guide to the en banc opinions embodied in the opinions with the named authors. Fortunately, for purposes of this blog entry, I and readers interested in the legislative – interpretive distinction do not have to dig through all of that morass. In relevant part, Judge Dennis’ opinion has the en banc opinion at outline paragraph II.D.2., titled The Scope of the BIA’s Authority, on pages 138-147, beginning here.
I offer this high level summary with limited citations (I am revising my article on the subject for posting to SSRN later). I begin with what I think should be the starting point for discussing the issue—the original meaning of the APA distinction between legislative and interpretive regulations and how that original meaning played out in deference. I will then address the cases which evidence the distortions and distractions that have obscured the original meaning.
Original Meaning of the APA