Today’s Supreme Court Decision on Bump Stock Not Being Machineguns Ducks the Chevron Issues (6/14/24)

In Garland v. Cargill, 602 U. S. ____ (6/14/24), SC here, the Supreme Court rejected the ATF regulation treating bump stocks as within the meaning of the statutory term “machinegun, “which is  statutorily defined as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U. S. C. §5845(b).

I won’t get into the fray of whether the majority correctly treats a bump stock as not a “machinegun.” The majority view is now the law of the land. Any change will have to come from Congress. (But we all know that, given the polarization over guns and other hot-button divisive political issues, the Supreme Court now determines the law of the land in the swath of decisions it alone can decide to pronounce; the Court makes the policy decisions that Congress should make.)

I do want to mention that in its opinions (majority and minority), the Court ducked any discussion or hint of the Chevron issues. Ultimately, the issue before the Court was whether the ATF regulations definition was within the reasonable scope of the statute’s text definition of “machinegun.” That sounds both within Chevron Step One (assuming that an unreasonable agency interpretation cannot get past Step One which conflates the Chevron Steps) or, at a minimum, Chevron Step Two (certainly Chevron Step Two rejects an unreasonable interpretation). The Court side-stepped any mention of Chevron by simply holding in a straight-forward manner (without mentioning Chevron), that the ATF interpretation was outside the permissible scope of a reasonable interpretation (as the majority saw it). In other words, for an unreasonable interpretation (i.e., outside the reasonable scope of any ambiguity in the statutory text), the agency interpretation cannot stand without mentioning Chevron.

The Courts below found some reason to at least mention or discuss Chevron. After all, notice and comment regulations interpreting statutory text has been the common ground for applying the Chevron two-step analysis (even before Chevron). (Most commentors don’t recognize or acknowledge that Chevron-type analysis has been a feature for testing the validity of agency rules since well before the APA in 1946. See John A. Townsend, The Tax Contribution to Deference and APA § 706 (SSRN December 14, 2023), pp. 5-23), https://ssrn.com/abstract=4665227

Another Chevron-related issue the Court did not discuss is the brouhaha (almost all of it hyperbolic) over whether agency notice and comment regulations interpreting statutory text are legislative or interpretive rules. Some of the lower courts dipped into that issue. See e.g., Fifth Circuit En Banc Reverses the Bump Stock Regulation By Wobbling Around Statutory Interpretation Issues (Including Chevron) (Federal Tax Procedure Blog 1/8/23), here; Tenth Circuit Wobbles on Legislative / Interpretive Distinction (Federal Tax Procedure Blog 5/13/20), here; Fifth Circuit Affirms Agency Best Interpretation of Statute, thus Not Applying Chevron (Federal Tax Procedure Blog 12/20/21; 12/15/22), here; and Important DC Circuit Opinion That Chevron Deference is Irrelevant if Agency Interpretation is Best Interpretation (Federal Tax Procedure Blog 8/9/22; 8/15/22), here.

Finally, in the context of the foregoing, the Court majority’s bottom-line holding is that the best interpretation of the statutory text “machinegun” does not include a “bump stock” and that, by inference, renders unreasonable (in Chevron terms) sufficient ambiguity in the statutory term “machinegun” to make the interpretive regulation that includes a “bump stock” reasonable, thus outside ATF’s authority. That is Chevron without mentioning Chevron. That is not the same as approving Chevron’s only contentious aspect—approving an agency reasonable interpretation that is not the best interpretation of the statute. The Court did not speak to that issue, probably because the presumably definitive holding on Chevron is yet to come in the soon-expected opinions in Loper Bright Enterprises v. Raimondo (SEC) (Sup. Ct. Dkt. 22-451), here); and Relentless, Inc. v. Department of Commerce (Sup. Ct. Dkt 22-1219, here). See Key Points in Oral Arguments on 1/17/24 in the Supreme Court Cases Considering the Future of Deference (Federal Tax Procedure Blog 1/18/24), here.

Stay tuned. 

An aside: One other issue that the minority (Sotomayor with Kagan and Jackson, joining) tries to engage with the majority is whether the legislative history and background should be considered in determining the meaning (or in Chevron’s terms, the reasonableness of the agency interpretation). Readers of this blog will know that there is a long-standing ebb and flow on the precise role of legislative history and background in the interpretation of statutes. The Garland v. Cargill majority ignores legislative history or its companion legislative purpose. The dissent engages it (pp. 7-9) and chides the majority, saying (pp. “The majority cannot disregard these statements as evidence of  legislative purpose.” But, of course, the majority does disregard the statements, which is certainly why the dissent makes the quoted statement.