Administrative Law

Divided Sixth Circuit Panel Rejects Chevron Deference for Interpretation of Criminal Statute

A long awaited decision in a challenge to the Trump Administration's "bump stock" ban tees up some interesting questions for the High Court's review.


Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit issued its long-awaited opinion in Gun Owners of America v. Garland, a challenge to the Trump Administration's "bump stock" ban. How long as this decision been awaited? Oral argument was in December 2019. Judge Batchelder wrote the opinion for the court, joined by Judge Murphy. Judge White dissented.

Judge Batchelder's opinion invalidates the ban on the grounds that the Bureau of Alcohol, Tobacco, and Firearm's interpretation was not eligible for Chevron deference because the law being interpreted was a criminal statute. Here is how she summarizes the ruling in her introduction:

The question before us is whether a bump stock may be properly classified as a machine gun as defined by 26 U.S.C. § 5845(b). But this case rests as much on who determines the statute's meaning as it does on what the statute means.

On December 26, 2018, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF" or "Agency") promulgated a rule that classified bump stocks as machine guns, reversing its previous position. See Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (to be codified at 27 C.F.R. pts. 447, 478, 479) ("Final Rule"). Plaintiffs-Appellants—three gunrights organizations, two individuals who own bump stocks, and one individual who would purchase a bump stock if not for the Final Rule—filed a motion for a preliminary injunction to prevent the Final Rule from taking effect. After finding that the ATF's interpretation was entitled to Chevron deference, the district court held that the Final Rule's classification of bump stocks as machine guns was "a permissible interpretation" of § 5845(b). Accordingly, the court concluded that Plaintiffs-Appellants were unlikely to succeed on the merits and denied the preliminary injunction.

Because an agency's interpretation of a criminal statute is not entitled to Chevron deference and because the ATF's Final Rule is not the best interpretation of § 5845(b), we REVERSE the district court's judgment and REMAND for proceedings consistent with this opinion.

And from the conclusion:

Consistent with our precedent and mandated by separation-of-powers and fair-notice concerns, we hold that an administering agency's interpretation of a criminal statute is not entitled to Chevron deference. Consequently, the district court erred by finding that the ATF's Final Rule, which interpreted the meaning of a machine gun as defined in 26 U.S.C. § 5845(b), was entitled to Chevron deference. And because we find that "single function of the trigger" refers to the mechanical process of the trigger, we further hold that a bump stock cannot be classified as a machine gun because a bump stock does not enable a semiautomatic firearm to fire more than one shot each time the trigger is pulled. Accordingly, we find that Plaintiffs-Appellants are likely to prevail on the merits and that that their motion for an injunction should have been granted.

One other tidbit: While concluding the district court should have granted the plaintiffs-appellants' request for an injunction, the court's majority expressly rules out the possibility of a nationwide objection, and declares that the scope of any injunction entered "may not exceed the bounds of the four states within the Sixth Circuit's jurisdiction."

As noted, this was a divided opinion. Judge White's dissent begins:

I respectfully disagree with the majority's conclusion that Chevron never applies to laws with criminal applications. The Supreme Court has applied Chevron in the criminal context in three binding decisions—Chevron itself, Babbitt, and O'Hagan—and has never purported to overrule those cases. Although comments in subsequent decisions may create tension with these cases, they remain binding. Thus, I would apply Chevron. And because the statutory phrase here is ambiguous and the ATF's interpretation of that phrase is reasonable, it is entitled to deference under Chevron.

Time permitting, I will have more to say about the Chevron issues later. I expect one or more of my co-bloggers may have something to say about the opinion as well.

NEXT: A New Five-Justice Block on the Supreme Court?

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  1. All executive regulations violate Article I Section 1 giving all lawmaking powers to the Congress. The non-delegation doctrine prohibits Congress from allowing the executive to take its power. Why can’t the lawyer read its plain language, and stop the insurrection against the constitution?

    The Congress can approve the 10000 page Federal Register each year, and be accountable to the voters, to have regulations. Republicans should force the Democrats to read every word out loud before any vote. If they think that is too time consuming, have fewer regulations.

    1. Why can’t you read the plain language of the Constitution? If Congress makes a law that says an agency may make implementing regulations, where does it say in the Constitution that Congress can’t do that?

      1. Well, arguably it says that in Article 1, if the authority to make implementing regulations counts as legislative powers. You are correct that the courts haven’t seen it that way.

      2. In Article I Section 1. In subsequent Supreme Court decisions, it held that power cannot be delegated. The use of the word “intelligible” in those decisions is unintelligible, lawyer gibberish to weasel out of the non-delegation doctrine.

        The constitution has provisions for the creation of executive agencies, and for their carrying out the law, but not for their rulemaking.

      3. You should not go to jail for words out of the mouth of the executive, only the legislature.

        The former is the “dictate” part of “dictator”.

        1. Rules by the executive branch are void. Lawyers refuse to accept the definition of the word, “all.” Judicial review is void for the same reason.

          If the lawyer dumbass does ot like the self evident, amend the constitution. Until that happens, comply with it.

  2. This ruling works for me. If there’s more than one reasonable interpretation of a criminal statute, the narrower one should prevail, not the one favoured by some government agency.

    1. In this case, the BATF’s interpretation wasn’t even one of several reasonable interpretations. It was unreasonable, as evidenced by the fact that no prior administration, even ones rather hostile to gun owners’ rights, had ever interpreted it that way.

      I continue to think the BATF’s initial rule reinterpreting the law was a pro-forma effort expected to be shot down by the courts, and they were probably as surprised as anybody by it having been upheld.

      1. BATF got what they needed. Bump stocks have been turned in or destroyed, and the company which produced them, Slide Fire Solutions, is gone.

        1. Have they? It’s kind of humorous to me how much faith people have in regulations to change reality.

          I can’t even begin to imagine how many bump stocks are still out there, but certainly more than a few. I first remember them being sold in the nineties, but surely they predate that. All those decades of material won’t magically disappear because a challenged regulation from the ATF appears one day.

          The challenge with regulations is that the more arbitrary they get, the less people pay attention to them. It wouldn’t surprise me a bit if most of the people that owned them still have them. They’re probably sitting in a safe, in a wall, or at worst buried in the yard, awaiting a court ruling just like this one.

    2. Right didn’t you just lose a government over Royal Dutch Shell deference (I can hardly call it Chevron deference, so Shell will have to do)?

      PM Rutte’s government resignation statement:
      “Innocent people have been criminalised and their lives ruined,” he then told reporters, adding that responsibility for what had gone wrong lay with the cabinet. “The buck stops here.”

      Of course that would never happen here, so I have to commend him, even though he knows and we know he’ll be right back in after the election.

  3. Any explanation of how “single function of the trigger” is ambiguous?

    The bump stock is a tool with which to decrease the time between single functions of the trigger. It does not change the function of the trigger itself. It doesn’t even touch any internal parts of the weapon.

    1. Because REASONS.

      That’s really their argument.

    2. The same way “Shall not be infringed” is evidently ambiguous in its meaning.

  4. I am sour on Chevron in general, but I’d think that rejecting it in the context of criminal statutes might enjoy broad support on Scotus

  5. Don’t courts interpret and enforce criminal statutes?

    1. Federal courts should determine if an outcome is Constitutional.

      Not ‘interpret’. That is how we get ’emanations from the penumbra’ and other such codswallop.

      And no, the courts do not enforce a damned thing. Enforcement is an executive branch function.

  6. This is interesting.

    What will Barrack O’Biden *do* if the bump stock ban is thrown out? Theoretically, every police entity that destroyed a turned-in bump stock will have to (somehow) obtain a new one to return.

    That could be interesting….

    1. That’s not how that works, Ed. You don’t need to retroactively make people whole based on a Constitutional ruling, for obvious reasons of practicality.

      Nothing you think will get interesting ever will.

      1. Why do you have to add that nasty last sentence? Why make a personal attack? It detracts from this forum.

      2. “You don’t need to retroactively make people whole based on a Constitutional ruling, for obvious reasons of practicality.”

        Right. Make a phony ruling criminalizing ownership of lawfully acquired property. Force people to dispose of it without compensation or be prosecuted as felons. Then when the ruling gets overturned, throw up your hands and say, “Well, it would be impractical for us to compensate them.”

        What the hell is impractical about compensating the owners for property you’ve wrongfully forced them to dispose of?

      3. Actually you do. Its a violation of the Constitution to take something, destroy it, and have that taken be declared unconstitutional.

        Every person who turned one in is due to receive the cost back.

        1. Mind, I understand the theory: If the bump stocks really DO make rifles into machine guns, then they were illegal contraband at the time they were purchased, weren’t really lawfully acquired property, and one has no property rights in contraband.

          Whereas, if the law had permitted bump stocks, and then been changed, THAT would be a taking, due to converting lawful property INTO contraband.

          But, of course, bump stocks were legal all along, and the BATF was just induced to issue a bogus ‘reinterpretation’ of the law. All that’s happening here is that the bogus ‘interpretation’ is in the process of being rejected by the legal system.

          I wonder how many people actually DID dispose of bump stocks? Not too many, but I assume some people had to have.

          1. I turned in my two bump stocks and all three of my bump triggers to the ATF in West Palm Beach.
            As a physician I can not afford to be arrested for any violation of gun laws.
            The medical board would take a very dim view and would most likely suspend or revoke my medical license.
            The only problem is that previous Florida governor RINO Rick Scott signed a law in Florida that bans any rate increasing device on a gun.
            So even when the federal courts reject Trumps bumpstock ban, Florida will still ban them.
            So I did what any other reasonable Doctor would do and went out and bought a machine gun! And a full auto rated silencer for it.
            Another six months of waiting for the form 4 to be approved by the ATF and I can take possession.

            In the meantime I’ve been practicing bump shooting my CZ Scorpion 9 mm pistol caliber carbine using only my finger.
            I’m getting better at it, but it is nothing like using a bump stock or a bump trigger. I had the Znapfire bump trigger and it worked perfectly

            1. I’ve got the Hellfire, but can’t really afford to use it.

              Really, getting it was just part of giving my then Congressman, ‘Comrade’ Bonior, the finger.

              It was fun to use with a 100 round magazine and tracers, though.

              1. I fortunately have a ton, but I’m really wondering when ammo returns to reasonable prices.

          2. If Biden, Schumer, Pelosi and the rest of these evil traitors succeed in bribing Manchin to ban magazines larger than 10, I won’t be turning in a single one of them.

            1. $163K a year, that’s a pretty nice bribe. Comes with graft opportunities, too!

              Also pretty right out in the open. They sure are leaning into this whole, “We own the media, who needs to pretend?” theme.

              1. There’s always been graft, but this $1.9 trillion vote buying “Vote for me and I’ll give you $2,000” is the most direct and egregious in American history.

                1. Based on my neighborhood, most of it is going to tree trimmers and roofers. The sound of chainsaws and nail guns in almost continuous.

                  1. That actually doesn’t bother me, as those are at least American jobs that are staying here in America. But paying people to buy Bitcoin or iCrap annoys the hell out of me.

      4. You’re an idiot.

  7. NJ retroactively banned larger than 10 magazines in the same way. My feeling is that the government should not be allowed to require anything be destroyed until a final non-appealable adjudication on the merits, and even then, the government should have to compensate. $200 per bump stock

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