Imagine that Congress wants to address some social or economic problem by prohibiting certain undesirable acts. One approach Congress can take is to specifically describe the undesirable behavior and prohibit it. This approach sometimes works well – it is the basis of traditional criminal law – but it has two great disadvantages. First, in many fields – like drug regulation and pollution control – Congress lacks the expertise to identify which acts are undesirable. Second, the specific-prohibition approach may require Congress to frequently revise statutes in response to changing circumstances. This is a substantial problem in a complex, rapidly changing society because, as political scientist John Kingdon has astutely observed, “Congress
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Imagine that Congress wants to address some social or economic problem by prohibiting certain undesirable acts.
One approach Congress can take is to specifically describe the undesirable behavior and prohibit it. This approach sometimes works well – it is the basis of traditional criminal law – but it has two great disadvantages. First, in many fields – like drug regulation and pollution control – Congress lacks the expertise to identify which acts are undesirable. Second, the specific-prohibition approach may require Congress to frequently revise statutes in response to changing circumstances. This is a substantial problem in a complex, rapidly changing society because, as political scientist John Kingdon has astutely observed,
“Congress is easily fatigued”.
Delegation of rulemaking authority to executive branch agencies can address both of these problems with the specific-prohibition approach to regulation. At least in theory, executive branch agencies can bring expertise to bear on complicated policy problems. In addition, delegation allows agencies to adapt rules to new circumstances, rather than putting the burden of adjustment entirely on Congress. Delegation is not a magic cure-all for the problems of democratic governance, and there are reasonable criticisms that can be made of the way delegation works in practice. But extensive delegation is essential for modern governments to function.
Machineguns
In 2017, a gunman opened fire on a crowd at an outdoor music festival in Las Vegas, killing 58 people and wounding over 500. The gunman used semi-automatic weapons that had been fitted with bump stocks, devices that allowed him to fire hundreds of rounds in a few minutes. Following this slaughter of innocents, the Bureau of Alcohol, Tobacco, and Firearms ruled that bump stocks turned semi-automatic weapons into machineguns and were therefore illegal under the National Firearms Act of 1934.
Last week in Garland v. Cargill the Supreme Court held 6 to 3 that the statute did not cover bump stocks. In a brief concurrence Alito stated that if Congress did not like the result, it could simply pass a new law.
Many will find the result in this case troubling: bump stocks are now legal, and there is real doubt that Congress will be able to reverse this result. There is a deeper cause for concern, however. Congress had legislated with a considerable amount of specificity, and ATF had interpreted the statute in a perfectly reasonable way. To justify its decision overruling ATF, the Court had to adopt a crabbed and implausible approach to statutory interpretation. The implications for gun regulation and for delegation generally are ominous.
Writing for the dissenters, Sotomayer notes that the statute on its face seems to cover bump stocks, and a ban on bump stocks seems consistent with the statutory language and purpose:
Today, the Court puts bump stocks back in civilian hands. To do so, it casts aside Congress’s definition of “machinegun” and seizes upon one that is inconsistent with the ordinary meaning of the statutory text and unsupported by context or purpose. When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. A bump-stock-equipped semiautomatic rifle fires “automatically more than one shot, without manual reloading, by a single function of the trigger.” §5845(b). Because I, like Congress, call that a machinegun, I respectfully dissent.
. . .
All of the textual evidence points to the same interpretation. A bump-stock-equipped semi-automatic rifle is a machinegun because (1) with a single pull of the trigger, a shooter can (2) fire continuous shots without any human input beyond maintaining forward pressure. The majority looks to the internal mechanism that initiates fire, rather than the human act of the shooter’s initial pull, to hold that a “single function of the trigger” means a reset of the trigger mechanism.
Outlawing bump stocks is certainly consistent with the statutory purpose. In his concurrence Alito acknowledges this:
There can be little doubt that the Congress that enacted 26 U. S. C. §5845(b) would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock. But the statutory text is clear, and we must follow it.
Furthermore, Congress had clearly tried to prevent people from circumventing the purpose of the statute:
Moreover, bump stocks are not the only devices that transform semiautomatic rifles into weapons capable of rapid fire with a single function of the trigger. Recognizing the creativity of gun owners and manufacturers, Congress wrote a statute “loaded with anticircumvention devices.” Tr. of Oral Arg. 68. The definition of “machinegun” captures “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.” §5845(b).
To reach its desired result, the majority focused narrowly on the words statute and adopted an implausible interpretation of the phrase “function of the trigger” that ignored the aim of the statute – banning machineguns – and the challenges facing Congress as it drafted the legislation.
This picayune approach to statutory interpretation will require Congress to do an impossible amount of legislating in a dynamic, rapidly changing society. It will make even thoughtfully drafted and unobjectionable acts of delegation vulnerable to attack by linguistically moralistic, nit-picking Justices.
What motivates this “reasoning”?
It is hard to avoid the conclusion that the conservative majority in Cargill reached the result they did simply because they wanted to reach it. The only question is why they wanted to reach it.
Two possibilities come to mind, and they are not mutually exclusive.
First, the conservative Justices are obviously predisposed to rule in favor of pro-gun plaintiffs.
Second, Cargill almost certainly reflects the deep hostility of the conservative Justices to delegation and the regulatory state.
This concern has usually been manifest in concerns about overly broad agency mandates and excessive administrative discretion. In response, the Justices have limited the ability of agencies to expand their regulatory activity into new fields without explicit Congressional authorization (the FDA cannot assert jurisdiction over tobacco, the EPA cannot regulate greenhouse gases, etc.), and they are very likely to reverse Chevron, the case that instructed judges to defer to reasonable agency interpretations of relevant statutes. But Cargill strikes down a reasonable interpretation of a narrowly drawn statute that addresses a goal of undeniable importance. Cargill shows that no regulation will be safe from the whims of the conservative court’s arrogant majority.