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July 8, 2022

Why a Supreme Court EPA Ruling Could Doom Recent ATF Rules

By Larry Keane

A recent U.S. Supreme Court ruling limiting the authority for the Environmental Protection Agency’s (EPA) ability to write their own rules without clear congressional authorization that Congress intended to delegate to the EPA could also upend rules published or pending from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

The Supreme Court struck down the EPA’s Clean Power Plan rule in West Virginia v. Environmental Protection Agency, one of the Supreme Court’s final rulings for the 2022 term. The decision wasn’t one of whether the EPA’s rule made good sense or was even achievable. The Supreme Court found that the EPA, as an administrative agency, doesn’t have the legal authority to make their own rules. That’s the responsibility of Congress – the duly elected representatives of the people. It is a matter of the separation of powers principle and legislative intent.

Major Questions

The question at stake, according to the majority decision written by Chief Justice John Roberts, was the “major questions doctrine.” Chief Justice Roberts, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, found that the EPA couldn’t point to “‘clear congressional authorization’ for the authority it claims.” The EPA, in writing the rules for the Clean Power Plan rule under the Clean Air Act, “claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler. That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself.”

The 6-3 Supreme Court ruling told the EPA it can’t make its own rules under the major questions doctrine. “Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line,’” Chief Justice Roberts wrote. “The agency instead must point to ‘clear congressional authorization’ for the power it claims.”

He later added, “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

Congress Alone

Justices Gorsuch and Alito carefully explained that Congress – and Congress alone – has the authority to pass laws representing the will of the people. Lawmaking that is delegated to unaccountable bureaucracies belies the intent of ensuring rule by executive fiat and prevents whipsaw rule-making that gets overturned by each presidential administration.

“Admittedly, lawmaking under our Constitution can be difficult. But that is nothing particular to our time nor any accident,” wrote Justices Gorsuch and Alito in their concurring opinion. “The framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty.”

“In a world like that, agencies could churn out new laws more or less at whim. Intrusions on liberty would not be difficult and rare, but easy and profuse,” they added. “Stability would be lost, with vast numbers of laws changing with every new presidential administration. Rather than embody a wide social consensus and input from minority voices, laws would more often bear the support only of the party currently in power. Powerful special interests, which are sometimes ‘uniquely’ able to influence the agendas of administrative agencies, would flourish while others would be left to ever-shifting winds. Finally, little would remain to stop agencies from moving into areas where state authority has traditionally predominated.”

In other words, it creeps toward a tyrannical administrative state.

“When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands,” Justices Gorsuch and Alito added. “But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives. In our Republic, ‘[i]t is the peculiar province of the legislature to prescribe general rules for the government of society.’”

Unilaterally Redefining

The decision to limit the EPA’s authority to promulgate rules over “cap-and-trade” schemes doesn’t seem like a direct translation to the Department of Justice (DOJ) and ATF until it’s looked at through the lens of executive agencies claiming legislative authority where it does not exist. The DOJ and ATF claimed authority to rewrite the rules defining what is a frame and receiver and define AR-pistols as short-barreled rifles under the 1968 Gun Control Act and the 1934 National Firearms Act. In both laws, however, the authority for ATF to do so doesn’t exist. In fact, defining firearms is explicitly the authority of Congress.

Congress set the definition of what constitutes a firearm in the 1968 Gun Control Act. In the case of reclassifying AR-pistols as short-barreled rifles, these definitions were created by Congress. Congress alone has the authority to rewrite them. Neither of the laws include provisions allowing agencies, including the ATF or the Attorney General, to rewrite definitions of what constitutes a firearm on their own.

The DOJ, through the ATF, appears to be overstepping their congressional authority to redefine frames and receivers differently from how Congress defined the terms in statute. Similarly, the agencies are attempting to redefine what is classified as short-barreled rifles and subject them to the NFA regulations, including taxes, photo and fingerprint submission and onerous background checks. The role of the ATF and DOJ is to enforce the 1934 NFA and 1968 Gun Control Act. DOJ and ATF have the congressionally delegated authority to faithfully implement those laws through rulemaking. But that delegated authority doesn’t authorize them to change the law on their own to match advancements in technology or their view of good public policy.

The major question with the DOJ’s proposed rules is where do they derive Congressional authority to assert this power? The rules, in light of the W.V. v. EPA ruling, appear to be out of bounds. The Supreme Court’s decision is a welcome – and necessary – check on the growth of the undemocratic “administrative state.”

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Tags: ATF DOJ Final Rules Major Questions Doctrine supreme court W.V. v. EPA

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