On Friday, the Supreme Court tossed out a Trump-era prohibition against “bump stocks,” which functionally make regular semi-automatic rifles into machine guns. The Court's opinion is weird and shouldn't raise much controversy even with the gun lobby, because it doesn't touch on the Second Amendment or any other Constitutional rights. Instead, it's a pretty boring opinion that only talks about how to read a 90-year-old federal statute and how the trigger mechanism on guns work. As I read the opinion in Garland v. Cargill, however, I couldn’t help but think about how the Supreme Court’s opinion made it a very bad idea for the Department of Justice to issue a Title III web accessibility regulation. This blog explains the connection.
Rule of Law and Our Common Law System
Before starting this post, it's important to establish a baseline understanding of how our legal system works. Except for Louisiana, every state in the United States follows a common law system, which means that courts must follow the prior interpretations of other courts in their decisions. Courts don't have to follow the precedents from any court, however. Instead, courts need to follow based on a hierarchical system of courts. At the top of the heap, the Supreme Court's opinions must be followed by every court in the country (including courts in Louisiana). As an American lawyer, I'm proud of this legal system because it bolsters the Rule of Law. After all, I believe that laws should apply to all individuals equally. Our common law system reinforces this idea because it helps ensure that judges stay within the constraints of statutes and earlier court decisions.
When Congress passes a statute, the result is vague and the product of compromise because of the political divisions that have always existed in our country. Congress can neither anticipate every question in interpreting its statutes nor play any role in implementing them. Instead, this job is left to federal agencies and need to create regulations to make sense of Congress's compromises. Sometimes, the agencies interpret Congress's intent too broadly, and sometimes, they interpret it too narrowly. When the courts examine how agencies interpret federal statutes, they need to do so through the lens of the Administrative Procedure Act and how earlier judicial opinions have examined other federal interpretations.
The Cargill Opinion
After the 2017 Las Vegas mass shooting, then-President Trump ordered the Bureau of Alcohol, Tobacco, and Firearms (BATF) to outlaw the ownership or use of “bump stocks” because they played a pivotal role in the shooting. The BATF had previously issued informal policy guidance during the Obama Administration that bump stocks were not illegal because the National Firearms Act of 1934 defined a “machine gun” as a gun that fired multiple rounds “by a single function of a trigger” (instead a bump stock moves the entire gun rapidly back and forth causing the shooter’s finger to effectively pull the trigger as quickly as a machine gun fires).
The Court’s opinion is straightforward. Writing for the majority, Justice Thomas gives his readers a detailed explanation of the mechanics of modern semi-automatic rifles—and why bump stocks create multiple pulls of the trigger instead of a “single function of a trigger.” Justice Thomas reasoned that if Congress wanted to prohibit devices like bump stocks, Congress could pass a law to do that. Until Congress created such a law, it wasn’t within the power of the BATF to create a regulation that extended the 1934 law to prohibit bump stocks. The dissent responded that a bump stock functionally makes a semi-automatic rifle into a machine gun because Congress intended to prohibit rapid-fire weapons.
Agency Deference and a Possible DOJ Title III Web Accessibility Rule
I don’t have a strong opinion about the outcome of the Court’s decision. I may not like that the Supreme Court made it easier for people to make rapid-firing weapons, but bump stocks have never been used in a mass shooting except for the 2017 Las Vegas shooting. To me, bump stocks seem like a dumb gimmick that makes a gun waste a lot of bullets shooting inaccurately. BATF’s bump stock ban seemed like a politically expedient solution to a problem that may not exist.
I strongly disagree, however, with how both the majority opinion and the dissent get to their positions and what each opinion doesn’t say. While I’m not a scholar in administrative law, I know that courts should defer to agency interpretations of vague laws because agencies specialize in specific subject matters and because formal rulemaking (which follows a public notice and comment process) is open and transparent. This is known as Chevron deference, after a landmark case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984).
The Supreme Court’s Chevron case prohibits courts from substituting their own interpretation of a statute as long as two conditions are met. First, the agency must be charged with administering the statute (a standard that is almost always easily met). The second step is that the agency’s interpretation must be “rational” or “reasonable.”
Unfortunately, you won’t find a single mention of the words “Chevron”, “rational”, or “reasonable” anywhere in the Cargill opinion. As I describe below, you also won’t find any explanation about when courts should defer to agency regulations. Instead, you will get Justice Thomas’s nicely illustrated lesson on firearm mechanics.
This is relevant to us because, if the Department of Justice created a web accessibility regulation for private businesses under Title III of the ADA, it would have to take a position on whether websites are covered by the ADA. Given that there is a massive split in the circuits over whether online-only businesses are “places of public accommodation,” this is dangerous territory for the DOJ to decide in a regulation. It doesn’t matter that the Justice Department has specialized expertise in the ADA or understands how important websites are for modern commerce and people with disabilities. It also doesn’t matter if the DOJ goes through a lengthy and open rulemaking process that considers the public's opinions. Instead, any (unelected) federal court judge can strike down the regulation because they disagree with DOJ’s interpretation of the ADA.
I’ve blogged before that Chevron may be discarded by the current Supreme Court and that a far-reaching private-sector web accessibility regulation could be subject to the Congressional Review Act if the Administration changes. By not even discussing cases like Chevron, the Court is signaling that Chevron is already dead and there are no guard rails preventing courts from invalidating agency regulations.
This Shouldn’t Be a Political Issue
The Court’s opinion in Cargill was perfectly divided along political lines with the conservative justices voting to strike down the regulation and the liberal justices voting to keep it—ironic because this was a Trump-era regulation that the Court was striking down.
While the Court made this a political issue, it should never have been one. Whether you are a liberal or a conservative, you should be concerned about the courts not giving substantial deference to agency regulations. The BATF’s mission is to regulate firearms. The BATF’s bump stock regulation went through the usual process of providing notice to the public and receiving (and processing) mountains of comments from the public. This is a lot more transparent and democratic than our legislative process. Opinions like Cargillmean that an unelected judge can replace her opinions for the agency and the public. This is undemocratic and makes our system of government unpredictable.
This is an issue that politically cuts both ways. After all, the Supreme Court’s Chevron opinion served the needs of conservatives, not liberals. After President Reagan came into office, the Environmental Protection Agency issued new regulations to loosen the Clean Air Act for polluters. These regulations were challenged by environmental groups, who lost because the EPA had gone through a proper rulemaking process and its regulations were reasonably based on its statutory mandate.
Other Principles that the Supreme Court Ignored
Again, I’m no expert in administrative law, but there are a few other concepts that the Supreme Court failed to discuss in its opinion. A few of them include:
- “Hard Look” Review. Under the Administrative Procedure Act (APA), another way that a court can set aside an agency regulation if it is “arbitrary and capricious.” In Motor Vehicles Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983), the Supreme Court explained, “[n]ormally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id at 42-43. The “hard look” standard is supposed to be used if an agency changes its position with a new regulation that contradicts an older one. If Justice Thomas thought that BATF’s regulation was so incongruent with federal statutes that it needed to be struck down, his opinion should have explained how the Chevron or State Farm are still useful for analyzing agency regulations.
- Rule of Lenity. Chevron has an opposite doctrine when laws or regulations impose criminal liability. Under this doctrine, courts are supposed to interpret laws and regulations against the government if they are vague or ambiguous. The core idea is that we shouldn’t toss people in jail unless the law (or regulations) is absolutely clear. This is the principle used by the Fifth Circuit in Cargill, because violating the BATF regulation is a criminal offense (punishable by up to ten years in prison). I would have been much happier if the Supreme Court followed the Fifth Circuit’s reasoning and explained how to balance Chevron against the Rule of Lenity.
- Skidmore Deference. Before the Supreme Court decided Chevron, it relied on Skidmore v. Swift, 323 U.S. 134 (1944), which gave deference to agency interpretations in proportion to their persuasive reasoning. In 2001, in United States v. Mead Corp., 533 U.S. 218. (2001), the Supreme Court clarified that Chevron should be used by used for agency regulations created by formal notice and comment, while Skidmore was the standard for other informal agency actions or opinions. This comes into play in Cargill because the BATF had issued lots of informal interpretations for bump stocks before its regulation.
Along with the Chevron decision, the three principals outlined above create guard rails that prevent judges from randomly rejecting regulations from federal agencies. Ignoring these guard rails and make it too easy for any court to override agency regulations.
What the Court (and Dissent) Should Have Said
The main role of the Supreme Court is to give clear guidance to lower courts about how they should decide cases and not to treat a case like Cargill as one of first impression.
The majority opinion should have used the Fifth Circuit’s analysis using the Rule of Lenity. This would have been a great opportunity for the Court to explain why regulations with criminal consequences are different and can be examined with less deference to agency interpretation. As the Fifth Circuit opinion in Cargill makes clear, the Rule of Lenity relies on ancient and abstract precedents that need updating in this age of the administrative state.
On the other hand, the dissenting opinion should have focused on existing case law. Courts should use the Mead Corporation analysis: if the agency’s guidance was subject to the open notice-and-comment process in the APA, then follow Chevron and, otherwise, follow Skidmore.
This division between the majority and dissent would have allowed the majority to make inroads against Chevron in criminal cases while preserving the opportunity to chip away at Chevron further down the road. It would also be more logically consistent with past decisions.
Why the DOJ Title II Web Accessibility Regulation is Safe and What DOJ Should Do Next
None of this will affect the DOJ’s Title II web accessibility regulation. No court has ever questioned that Title II covers “programs, services, and activities” offered by state and local government, including those offered over the Internet or through other digital technology. Also, as I explained in my earlier post, DOJ managed to get it done outside the window in which it was subject to the Congressional Review Act.
It's too late now to start any rulemaking. After all, the Congressional Review Act is a mighty political weapon, and should the Republicans win the Congress, Senate, and White House, then any regulations issued now could be thrown out by a simple majority—and can’t be revisited for five years. This makes it too risky to do right before a presidential election.
After the next election, the DOJ should focus on updating its Section 504 regulation to match HHS’s new Section 504 regulation. Because Section 504 obligations are conditioned on receipt of federal funds, it shouldn’t ruffle too many feathers and should be even less controversial than DOJ’s Title II web accessibility rule. But, because Section 504 affects so much of the private sector, it could make a big difference for people with disabilities in this country. It could also be a boost for any Administration to suggest their commitment to people with disabilities.
Disclaimer
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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Good article with one disagreement/clarification/added opinion. It’s not the ATF’s job to “regulate firearms”. The ATF’s job is to enforce firearms regulations which Congress has passed. Trump essentially asked the ATF to ban bump stocks, and they did so. Biden then asked the ATF to ban pistol braces which they also did, going back on their previous decision that they didn’t make a gun fit the definition of a short-barreled rifle. So the bottom line problem we have here is Presidents are bullying agencies into creating “laws” they can’t get passed, by decree, to advance a political agenda. And that is dangerous and unconstitutional.