The Volokh Conspiracy

Pundits have tried to read the tea leaves following the argument in the Supreme Court in Garland v. VanDerStok on October 8.  In its Final Rule, ATF expanded the definition of "firearm" beyond what Congress provided in the Gun Control Act (GCA), and it expanded the definition of "frame or receiver" beyond the agency's own definition that was on the books since 1968.  In the argument, serious questions were raised about the extent to which an agency may revise a criminal statute.

That concern was expressed right at the beginning when Justice Thomas asked Solicitor General Prelogar whether the regulation "cover[s] all of Chapter 44," which is the GCA portion of 18 U.S.C. (the federal criminal code), and whether it "appl[ies] under 924," which is the GCA section that provides criminal penalties.  Prelogar's response was "yes" to both.  So whether a person is committing a felony depends on whether the more narrow definition of "firearm" enacted by Congress, or the broader definition adopted by ATF, applies.

Justice Kavanaugh probed in detail into the implications of the agency's expansion of the reach of the criminal law.  Expressing concern about mens rea, he noted that "this is an agency regulation that broadens a criminal statute beyond what it had been before."  "So what about the seller," he asked "who is truly not aware … that they are violating the law and gets criminally charged?"

Prelogar responded that the requirements of having a license and of serializing firearms are subject to a "willfulness" requirement (see § 924(a)(1)(D)), but not conducting a background check only requires "knowledge" (§ 924(a)(5)).  Under the "knowing" standard, a person need not know of a legal duty but simply knows that he didn't conduct the background check.

But not to worry, Prelogar assured the Court, "on the background check, if you have a seller out there who wants guidance about whether, with respect to particular types of products, … the person can seek a classification from ATF."  But that presupposes that you even know to ask for a "mother may I" classification letter from ATF.  And as persons in the industry are painfully aware, ATF may take up to a year to issue a letter, if it responds at all.  More fundamentally, that presupposes that the agency itself, rather than the statute, determines what is lawful.

So, Justice Kavanaugh continued, "you truly believe you're not violating the law, could you be charged under that provision?"  Prelogar responded: "As a theoretical possibility, I think only with respect to background checks, it's possible you could…. I don't think the government would be likely to charge someone in that kind of situation."

That's an extremely naive assurance.  Why would ATF not cause the prosecution of a person merely because he "truly believed" he was not violating the law?  Countless persons have been subjected to GCA prosecutions without any regard to whether they understood the requirements of the law or, even more so, ATF's complex regulations.

While many federal prosecutors use good judgment in whether to initiate prosecutions, there are plenty who are interested in their batting average.  In U.S. v. Moore, recently decided by the Eleventh Circuit, Judge Barbara Lagoa wrote that the defendants in that case "are felons for having violated a statute that no reasonable person would understand to prohibit the conduct they engaged in."  But the assistant U.S. attorney, "taking a page out of Inspector Javert's playbook," secured an indictment and got his conviction.  You'll recall the inspector from Victor Hugo's Les Misérables, who relentlessly persecuted anyone he could.

So Prelogar's assurance about persons caught up in the maze of ATF's regulations not being prosecuted rings hollow.  One more exchange with Justice Kavanaugh bears attention.  He referred to "a lot of classification letters that were out there, this was to collect everything and put everyone, as you say, on notice."  What was perhaps unknown is that, when it adopted the Final Rule, ATF repudiated the validity of all of its prior classifications, wiping out a half century's worth of interpretations on which the industry and the public relied.  As 27 C.F.R. § 478.12(f)(2) states:

Prior determinations by the [ATF] Director that a partially complete, disassembled, or nonfunctional frame or receiver, including a parts kit, was not, or did not include, a "firearm frame or receiver" … as those terms were defined prior to April 26, 2022, shall not continue to be valid or authoritative after that date. Such determinations shall include those in which the Director determined that the item or parts kit had not yet reached a stage of manufacture to be, or include, a "firearm frame or receiver"….

That alone refutes the argument that ATF was continuing to follow what it had always done.  The meanings of "firearm" and "frame or receiver" became a tabula rasa by administrative decree, uninformed by fifty-two years of usage.  And yet Prelogar asserted in her opening statement that the Final Rule is "consistent with how ATF has interpreted and implemented the Act across five decades and 11 different presidential administrations."

To Prelogar's suggestion that the Final Rule simply extended the past regulations, Justice Kavanaugh responded: "Some expansion. Some expansion."  Prelogar responded, "only with the addition of looking at jigs."  But that too was a great leap forward.  Never before had ATF considered jigs, tools, and blueprints to be among the parts from which a firearm may be fabricated.

As he has done repeatedly in other cases, Justice Gorsuch was concerned about "lenity, notice."  And he called attention to the government's summary judgment brief in Syracuse v. ATF, No. 1:20-cv-06885 (S.D. N.Y. 2021), representing that "an unfinished frame or receiver does not meet the statutory definition of 'firearm.'" Prelogar responded that "ATF has always looked at whether a partially complete frame or receiver can be brought to functional condition quickly, easily, and efficiently."  But the Final Rule goes far beyond that.

One of the several elephants in the crowded room is that the definition of "firearm" in § 921(a)(3)(A) includes a weapon that "may readily be converted" to expel a projectile, but its further definition in (B) of "firearm" as "the frame or receiver of any such weapon" includes no readily-convertible language.  And there are other contrasting definitions.  As Justice Barrett pointed out, the definitions of "destructive device" and "machinegun" "reference parts in the way that this definition [firearm] does not."  This case is about the meaning of statutory text, and the textual contrast could not be more stark.

Justice Barrett also referred to Fifth Circuit Judge Oldham's "concern that because AR-15 receivers can be readily converted into machine gun receivers, that this regulation on its face turns everyone who lawfully owns an AR-15 into a criminal."  Prelogar denied "that a statutory reference to one thing includes all other separate and distinct things that might be readily converted into the thing that's listed in the statute itself."  But the problem is that "machinegun" is also defined to "include the frame or receiver of any such weapon" (26 U.S.C. § 5845(b)), and it only takes drilling two holes to convert a semiautomatic receiver into a machinegun receiver.  Prelogar added that ATF "has never suggested that AR-15s, standing alone, are regulated machine guns."  True enough, but that could change, just as the Final Rule here obliterated decades of prior understandings.

If a statute restricted shorts, Prelogar analogized, it would not regulate a pair of pants, "even though the pants could be readily converted into shorts."  And if the person possesses a pair of scissors?  The scissors would be equivalent to the tools and jig here.

Justice Jackson asked about how the government phrased the question presented in this case as whether certain items are "firearms" within the meaning of the statute. That framing "doesn't seem to account … for the actual claim that the challengers have made here, which is that the agency has exceeded its statutory authority."  And that issue reduces to whether the agency can, by regulation, criminalize conduct that Congress has not criminalized.

On behalf of the respondents, Peter Patterson posed the clear statutory argument, but as an alternative offered ATF's pre-Final Rule test of "whether critical machining operations had taken place."  Justice Barrett asked: "So would you say that it's like the ordinary usage? Now everybody just understands based on long standing practice that this critical machining test is the point at which the frame or receiver [comes into being]?"  Patterson agreed.

That scenario could be where the Court decides the case.  It will obviously focus on statutory text.  Congress defined "firearm," and just last term, in Dep't. of Agriculture Rural Dev. Rural Housing Service v. Kirtz, the Court wrote: "When Congress takes the trouble to define the terms it uses, a court must respect its definitions as 'virtually conclusive.'" But the Court may also take comfort in respondents' alternative position, which incorporates a general rule about critical machining operations that ATF followed before it adopted the Final Rule, and to which the industry and the public were accustomed.

From Kassy Akiva's X feed:

At Harvard for an event with Mosab Hassan Yousef [author of Son of Hamas].

The organizers were just forced to read a note from the Harvard administration stating that disrupters are allowed to make noise for 10 minutes before being removed.

Here's the full statement the students had to read to the audience:

"A quick note before we begin—Harvard University is committed to maintaining a climate in which reason and speech provide the correct response to a disagreeable idea. Speech is privileged in the University community. There are obligations of civility and respect for others that underlie rational discourse. If any disruption occurs that prohibits speech the disrupters will be allowed for up to 10 minutes. A warning will be issued to all disturbers at the 5-minute mark explaining that the protesters are disrupting the event and ask them to stop. Any further disruption that prevents the audience from adequately hearing or seeing the speakers will lead to the removal of the disrupters from the venue."

Glossip v. Oklahoma is a case stranger than fiction. I won't even attempt to rehash all of the details here. Rather, I will opine on the possible path forward.

Based on oral argument, several Justices indicated that the Court should vacate the lowe court opinion, and remand the case for an evidentiary hearing. But there is a threshold problem: the Court can only vacate and remand the case if the Court finds that it has jurisdiction to even entertain the case. And the jurisdictional issues are extremely complex. The Justices would have wade through the nuances of Oklahoma post-conviction law, parse a less-than-helpful decision from the Oklahoma Court of Criminal Appeals, and make a finding about whether there is an adequate and independent state law ground. Remember, any decision issued in this context would affect the scope of review in cases involving defendants not named Glossip. This is not a ticket good for one ride.

The Supreme Court does not have a magic wand to order lower courts to hold evidentiary hearings to pursue justice. The Court can only do something if it has jurisdiction. And the Court always has the obligation to determine its own jurisdiction. The Court could not issue a short per curiam order remanding the case for further proceedings without walking through the jurisdictional mine field. I suspect it may be hard to count to five for that opinion with an eight-member bench (Justice Gorsuch is recused).

In the normal course, where the Justices find that a factual record is incomplete, the result is a DIG: dismiss the writ as improvidently granted. The Supreme Court is not a Court of error correction or record supplementing. I can't recall any other case where such an unclear record came to the Court, and the remedy was to order more fact finding! The parties made their record, and they have to live (or die) with it.

But there is still hope for Glossip. Footnote five of the Court Appointed Amicus brief pointed out the obvious:

Petitioner remains free to assert his Brady and Napue claims in a subsequent federal habeas petition, subject to applicable limitations.

If the Court were to DIG this petition, Glossip could bring (yet another) federal habeas petition, raising the exact same issues. And I suspect a federal district court would hold a full evidentiary hearing to interpret the notations about "Dr. Trumpet?" and "Lithium?" The two prosecutors likely would give fulsome testimony. That case will eventually reach the Supreme Court, yet again. By that point, Oklahoma may adopt the Swiss death pod as a method of execution. Of course, the standard of review on a habeas is more stringent than on direct appeal. But if there are such clear Napue and Brady violations, the conviction will be almost certainly be vacated--especially if the Attorney General does not oppose Glossip's federal habeas petition.

There is another option, which the Court-appointed Amicus raised at oral argument: clemency.

This Court should accordingly dismiss the case for lack of jurisdiction, leaving Petitioner free to pursue state law clemency or other available relief.

Previously, the clemency vote tied 2-2, with one recusal. (The fifth member was married to the prosecutor). Now, there are new members of the board, and the vote may come out differently. Indeed, it would not be difficult for the clemency board to hold a hearing on these issues. That would be a heckuva lot simpler than going through AEDPA. And if, after the hearing, the board finds that clemency is appropriate, politically-accountable actors, and not judges, can make that decision.

In the classic Case of the Speluncean Explorers by Lon L. Fuller, the fictional Supreme Court of Newgarth considers whether to affirm the death sentence of hikers who were trapped in a cave, and resorted to cannibalism. Chief Justice Truepenny finds imposing the death sentence was required by law, but asked the Executive to commute the sentences. Ironically enough, Trupenny does not think it appropriate for the Executive to hold hearings!

In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive. There is every reason to believe that these requests for clemency will be heeded, coming as they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for three months. The holding of such hearings (which would virtually amount to a retrial of the case) would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.

Then again, Justice Keen faults the Chief Justice for transcending the role of the courts:

The first of these is whether executive clemency should be extended to these defendants if the conviction is affirmed. Under our system of government, that is a question for the Chief Executive, not for us. I therefore disapprove of that passage in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executive as to what he should do in this case and suggests that some impropriety will attach if these instructions are not heeded. This is a confusion of governmental functions - a confusion of which the judiciary should be the last to be guilty.

Truepenny's approach has never appealed to me personally, but whenever I teach the case, some students find it better than the other alternatives of stretching the law to reach a just result.

If the Court does DIG the case, there could be concurrence spelling out what could happen going forward--both in terms of whether a federal court should hold an evidentiary hearing, or leaving the door open for clemency.

It takes five votes to DIG. There is an alternative. A 4-4 split would affirm the lower court by an equally divided margin. A 4-4 affirmance would have the same practical effect as a DIG. The lower court affirms, and Glossip gets a few more bites of the apple. With either a DIG, or a 4-4, Glossip will get another clemency vote, and have a shot at an evidentiary on post-conviction relief. I don't see any compelling reason for the Court to decide this case, and it cannot do a drive-by remand without wading through the tough jurisdictional issues.

Life-tenured judges play the long game. Last spring, the Judicial Conference adopted, without any debate, a "binding" policy that would force reassignment of cases seeking nationwide relief. After some controversy, the mandatory policy suddenly became "optional guidance." And over the past few months, a handful of districts have adopted this policy. The overwhelming majority have done nothing. And other districts, including the U.S. District Court for the Northern District of Texas, rejected the policy. This process played out exactly as Congress intended: 28 U.S.C. 137 expressly delegated rules concerning case assignment to "the rules and orders of the court." Each District Court can decide these matters for itself.

But if at first you don't succeed, try, try again. Or in the world of the federal judicial bureaucracy, send it to a committee! Tomorrow, the Rules Committee will consider the issue of case assignment. And they will consider whether to adopt the Judicial Conference's reassignment policy by virtue of modifying the Federal Rules of Civil Procedure. If you read Page 415 of the agenda (and who hasn't!), you will find that the committee expressly recognizes that this might be contrary to federal law!

There is also a strong argument that assignment of cases among the judges in a district is within the Congress's jurisdiction. Since the Judiciary Act of, Congress has statutorily provided for case assignment to be left to the districts in the first instance, and this remains the case today. 28 U.S.C. § 137(a) provides that, "[t]he business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court.

In the wake of the Judicial Conference guidance, Senators McConnell, Cornyn, and Tills stated their views in a letter to the Chief Judge for the Eastern District of Kentucky: It is Congress that decides how cases should be assigned in the inferior courts and Congress has already spoken on this issue in an enacted statute: Congress gave that power to the individual district courts. Whatever the Judicial Conference thinks you ought to do, what you actually choose to do is left to your court's discretion under the law.7

A Federal Rule of Civil Procedure could potentially supersede this statute if it complies with the strictures of the Rules Enabling Act and is approved by Congress. It would require consideration of whether a rule regarding case assignment is within the Enabling Act's delegation of authority to "prescribe general rules of practice and procedure," 28 U.S.C. § 2072(a). One could assert that a rule governing the assignment of cases is one of practice and procedure, as it does not implicate the merits of any claim. Such a judgment must be considered in the context of the history of the Congressional delegation of power to divide judicial business to the districts themselves. This issue will remain on the Advisory Committee's agenda as the districts continue to react to the Judicial Conference guidance. The Reporters will continue to monitor the situation as it develops.

Let's be very clear here what is going on. Senator Schumer and some law professors complained about a handful of federal judges. The judges and private members of this committee seem poised to accede to that criticism, even if it means adopting a potentially unlawful rule of Civil Procedure. And who would adjudge whether that reassignment policy is lawful? The same judges who authorized the rule.

Senator McConnell harpoons this proposal in National Review:

Simple statutory interpretation shows why the judicial bureaucrats have it wrong. The case-assignment statute has its roots in the Judicial Code of 1911. Two decades later, in 1934, Congress enacted the Rules Enabling Act, which governs the civil rules. Against that backdrop, Congress then enacted the case-assignment statute in 1948, directing that cases "shall be divided" among the judges in a district as the court sees fit.

Knowing full well that the Rules Enabling Act was out there, Congress gave a directive — not a suggestion — to the district courts, over which it has constitutive authority, as to how they must administer their dockets.

The Justice Department is skeptical. It says if this were the case, surely Congress "would have left some evidence in the statute's text or legislative history." Legislative history — the last refuge of a textual scoundrel.

The statute's text is the evidence: Congress mandated how the courts must manage their dockets. We should all take that at face value and not look for some broad, amorphous grant of legislative power to the judicial bureaucracy.

Indeed, the Supreme Court has warned against assuming that Congress has delegated broad legislative authority to other branches of government. Usually that's in the context of the executive branch, but it ought to apply to the judiciary, too. We can't assume that Congress gave the judicial bureaucracy a roving commission to rewrite the case-assignment statute through the Rules Enabling Act.

Why? Why do this? Remember, under the Rules Enabling Act, unless Congress passes a statute, through bicameralism and presentment, to disapprove of a rule, it goes into effect. And that process is subject to a filibuster. It cannot be that a handful of federal judges can override a federal statute unless Congress enacts a new statute.

And while we're at it, I've long thought that the Rules Enabling Act violates the Non-Delegation Doctrine. Relatedly, Ethan Leib recently wrote that the Federal Rules of Evidence are unconstitutional.  If the Rules Enabling Act actually gives the federal judiciary the power to override a federal statute, unless Congress disapproves, then the Non-Delegation Doctrine may have another very good year. Tread carefully. Or better yet, let five members of the Supreme Court give some clear guidance on nationwide injunctions and universal vacatur, so we can settle this madness in a way that is fair to all sides--not unilateral disarmament.

Yesterday's argument in Garland v. VanDerStok was about a statutory interpretation by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. At issue is whether the statute allows the ATF to regulate "ghost guns," which are made from do-it-yourself kits and which allow users to evade serial number and background check requirements. Given the tenor of oral argument, the Court seems likely to side with the ATF.

Solicitor General Prelogar made a reference to an "anti-circumvention" principle, and there is a good basis for that principle in a traditional statutory interpretation doctrine. In The Mischief Rule, I describe two functions of the mischief rule: providing a stopping point (a phrase borrowed from Richard Re) and preventing evasion close to the line. The first function predominates and the second is rare. The first function prevents the executive or the courts from taking an old statute and applying it to a new mischief. The second function lets the executive or the courts keep someone from circumventing an old statute with respect to the old mischief.

The ghost guns case, and perhaps most of the recent spate of cases involving expansive agency definitions of gun terms in statutes, can be thought of as instances of the second, less common function of the mischief rule. A ghost gun kit is an obvious circumvention of the tracing related rules (serial numbers, background checks, etc.). The anti-circumvention idea the Solicitor General mentioned is well within the mischief rule, a traditional principle of statutory interpretation.