Supreme Court watchers will tell you that even though many people wait with bated breath until June of each year when the high court unveils its decisions involving controversial cases, some of the most important work done by justices during their annual sessions happens quietly.
In fact, a case with very far-reaching implications involving federal agencies cleared the high court just this week that could spell the end of the government’s vast regulatory powers.
As reported by The Truth About Guns, that could include impacting major firearms regulations issued or implemented by the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
The website noted that the Supreme Court granted writ of certiorari in a case, Kisor v. Wilkie, involving a challenge to a previous legal precedent established in Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., both of which “direct courts to defer to an agency’s reasonable interpretation of its own ambiguous rule,” the SCOTUS Blog noted.
Granting of a writ does not necessarily mean that the high court disagrees with a lower court’s decision. What it does mean is that at least four of the justices believe that the circumstances of a case are worth a review by the high court.
The Truth About Guns (TTAG) noted further:
Under what is known as Auer deference, named for a Supreme Court case, Auer v. Robbins, courts must defer to the agency’s interpretation of that agency’s own regulations unless such interpretation is plainly erroneous. Under a related doctrine, known as Chevron deference, where a statute implicitly gives an agency the power to promulgate regulations, the courts are not to substitute their interpretation of a statute for a reasonable one that has been made by the bureaucrats.
Regulations have the rule of law even if it’s not what Congress intended
Few Americans are aware of how the regulatory process works, but it’s important to understand it in order to understand the relevance of the high court’s granting of cert in the Kisor v. Wilkie case.
Most of the time when Congress crafts a bill that eventually becomes law, the Legislative Branch leaves it up to the various federal agencies to write their own rules as to how the law will be carried out. The law itself is essentially a guideline providing the appropriate federal agency with broad policy objectives Congress seeks to achieve.
For instance, the National Firearms Act of 1934 “imposed a tax on the manufacture and sale of machine guns, suppressors, SBS/SBR’s, etc., and required them to be registered with the federal government,” TTAG reported. But the law did not actually specify how that was to be done. It wasn’t clear how Congress intended for Americans to specifically comply with the law’s new requirements. (Related: Concealed carry permits in DC go BOOM as unconstitutional ‘good reason’ mandate is removed.)
As such, the Legislative Branch left it up to federal bureaucrats to devise rules regarding the implementation of the law. And in many ways this process is appropriate, given that it is unreasonable to expect every piece of legislation to detail how proposed new laws are to be carried out, especially when today’s legislation is complex and references hundreds or thousands of existing rules, regulations, and laws upon passage.
But on the other hand, many of the regulatory measures implemented by federal agencies are themselves cumbersome, nonsensical, impractical, and expensive. And yet, they have the rule of law: You can’t simply ignore a federal regulation even if you don’t think that the rule is a faithful execution of congressional intent.
That said, federal regulations also give lawmakers cover. They can argue, and have argued, that they didn’t intend for their law to be carried out in the manner the federal agency prescribed, so they aren’t to blame for any negative impacts or consequences. And yet, they are ultimately responsible because they passed the legislation in the first place without adequate instruction to the corresponding federal agency as to how the new law should be carried out.
“What happens when someone disagrees with a regulation or the agency’s interpretation of it, and argues that the regulation/interpretation is inconsistent with the law passed by Congress…or maybe isn’t even authorized by the law in the first place” TTAG asked?
The fourth branch of government?
You might think that federal courts are charged with deciding such issues, and that’s true to an extent. But things can and do get tricky at this point.
That’s where the principle of Auer deference comes in; federal courts must usually defer to a government agency’s interpretation of its own rule. But recently, there has been an effort from some to revisit the principles of Auer deference and Chevron as well as additional aspects of the administrative law state with the objective of overturning many of them as blatantly unconstitutional.
And this is where gun rights come into play or, rather, the lack of them.
If those pushing to reverse Auer and Chevron are successful, the present ‘administrative state’ — which constitutional expert and talk show giant Mark Levin has called the “fourth branch of government” — would be ripe for dismantling.
Justice Clarence Thomas has made some noise about this, but few others on the high court have. That may all change now that the Supremes have granted cert in a case specifically challenging the constitutionality of Auer deference.
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