Chevron Is Gone: What The Loper Bright Decision Means For Guns

Possibly the most influential Supreme Court decision of this term is much bigger of a deal than it sounds like at first. For decades, courts have been limited in their ability to review the actions of executive agencies due to a case called Chevron. That has now ended. This article will briefly explain what administrative law is, what the Chevron case did, and how the Loper Bright case has changed the landscape.

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Disclaimer: This article is not legal advice. Do not make any decisions based on this analysis. If you need advice, speak to a competent attorney licensed in your state.

Administrative Law 101

We can’t talk about a major administrative law case without covering some background on what administrative law even is. The legislative branch makes laws, which are enforced by the executive branch and its agencies. However, getting a bill through Congress to become a law takes a lot of time and effort, and there is only so much floor time during the legislative session when debates and votes can take place.

Another way that Congress addresses issues is by granting the ability to make “administrative rules” to an agency. Congress says, in essence, “This three-letter agency has the authority to define what specific acts violate this general act Congress has outlawed.” Examples would be the Environmental Protection Agency (EPA) deciding what chemicals and in what quantities constitute pollution, or the Federal Aviation Administration (FAA) laying out the specific training requirements for flight school. In both of those examples, Congress is not going to spend floor time deciding whether 5 parts per million of a specific organic chemical is actually the new safe limit based on recent research, or how far a student pilot’s cross-country solo flight needs to be. Instead, these agencies (which presumably employ scientists and experts in these fields) gather information and write their own rules that make these more technical decisions. Those rules still have the force of law, though.

What Is Chevron Deference?

Administrative law sounds simple enough, but what happens when there are borderline cases? What if Congress is not perfectly clear when it tells the agency what rules it can and can’t make? This is where the third branch of government, the judiciary, steps in. Since 1946, the Administrative Procedure Act (APA) has controlled the process by which agencies create administrative rules, as well as how people who disagree with those rules can challenge them. The APA states that “all relevant questions of law” will be decided by the courts.

The 1984 Supreme Court case Chevron v. Natural Resources Defense Council changed the way that courts review administrative actions. That case created the precedent of “Chevron deference.” Under Chevron, if an agency creates a rule, and the statute that allowed the agency to make the rule was unclear or silent on a specific issue, courts would assume that the agency’s reading was the correct one so long as it was rational or reasonable. This is an extraordinarily powerful tool for agencies that want to make rules because it makes a challenger prove in court that a rule is not rational, rather than making both sides play on an even footing.

As an example, let’s say that the FAA has statutory authority to “define the safety equipment that must be carried on commercial airliners.” FAA writes rules saying that airliners must carry a fire extinguisher and enough life vests and life rafts for all passengers. Both of those requirements seem to fall clearly within the realm of “safety equipment” and seem pretty reasonable.

Fast forward 20 years, and the FAA then creates a rule under that same statutory authority requiring all airplanes to carry a transponder that broadcasts their altitude to nearby planes to help avoid accidents. This is much more questionable because it applies to “all airplanes” when the statute says it only applies to “commercial airliners.” There is also the question of whether a piece of avionic equipment was the kind of “safety equipment” Congress was talking about when it made the law in the first place.

Under Chevron, a court that was reviewing the transponder requirement would assume that the FAA’s definition of “safety equipment” including transponders was the right one from the outset. However, the part about “all airplanes” vs. “commercial airliners” is much less clear. The court would weigh various evidence to decide if the statute was unclear, and if the FAA reading was correct. More often than not, courts would err on the side of the agency rather than the person challenging the rule.

Under the Chevron decision, courts had to assume that when there was an ambiguity in a law the legislature wanted the agency to figure it out. In my own experience with drafting laws, I can assure you that is not always the case. Errors creep in at various stages, or a floor amendment changes language and breaks the statute unintentionally.

The Loper Bright Case

The recent Supreme Court decision in Loper Bright Enterprises v. Raimondo ended Chevron deference and essentially resets the field to the way it was before that case. In that case, the National Marine Fisheries Service created a rule requiring fishing ships to carry and pay a person on board who would make sure fishing regulations were followed by the ship. This was a massive expense for the fishing ships, and the statute that was claimed to authorize the rule did not seem like it actually authorized this kind of rule.

Without getting into the nuance of the case, the bottom line is that SCOTUS decided to throw out Chevron entirely. The majority decision (the final vote was 6-3) found that there was no way to square the deference to agency interpretation provided under Chevron with the APA. If courts have to accept the agency’s definitions, then the court is not truly free to decide the case.

This makes the APA the controlling statute once more. Both the agency that made the rule and the party challenging the rule are on an even footing in court now. Rather than starting from the assumption that the agency knew what it was doing and essentially always had the right reading of a statute, both sides get to make their case and a judge will decide who is right.

Some of the media coverage of this decision has been very hyperbolic. Nothing about this decision prevents agencies from creating rules, or enforcing them. This decision really only impacts the rules that are likely to be challenged in court, and it only means that those challenges are on an even playing field rather than a slanted one. There will probably be a flurry of lawsuits challenging various administrative rules now that Chevron is gone, but rules that were enacted correctly under the authority Congress granted are unlikely to be overturned. This decision may also lead to Congress being more specific when it grants rulemaking authority, whether that means language gets more specific (so there is no doubt which things rules can be made about) or broader (so the agency has as much wiggle room as possible) remains to be seen.

What Does This Mean For Guns?

So then, what does this all mean for guns? Over the last few years, most of the battles over gun regulation have been around rules made by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). TFB’s motto is “Guns not Politics” and, without getting into the details, suffice it to say Congress has not been doing much lawmaking recently. Because Congress is not passing many laws, that also means there has been very little movement on new gun restriction laws.

When there is a political push for gun control it has fallen to the ATF to attempt to craft administrative rules that reach a desired outcome, even if the statutory authority to make those rules is tenuous at best. Even under the Chevron regime, the ATF was on a serious losing streak in the courts. The bump stock case, Garland v. Cargill, is a good example. SCOTUS decided that case by looking at the text of the statute and how it differed from ATF’s rule. Chevron was raised in the lower courts but ultimately was not a factor in the SCOTUS decision. Check out this decision from the Fifth Circuit for a summary of the various arguments raised regarding Chevron around the country. The ultimate outcome of the Cargill case would not have changed had it been decided after Loper Bright.

Another case that will soon be before SCOTUS is Garland v. VanDerStok, aka the 80% receiver rule case. Much like Cargill, the issues in VanDerStok that warrant Supreme Court review do not involve Chevron arguments. The underlying language was not unclear, so there was no need to resort to Chevron deference.

This trend continues in Mock v. Garland, the arm brace rule case. While Chevron is mentioned in some of the early filings at the district court level, it was mostly to say that it was not at issue because the underlying statute was clear. That litigation involves many arguments around the APA, but not Chevron. In all three of these big administrative rule cases, removing Chevron deference will not really change much because the statute language is not ambiguous. Courts were not looking to Chevron in those cases because there was not an ambiguity to resolve.

Conclusion

Loper Bright is not likely to impact some of the major gun cases currently working their way through the courts. Challenges to ATF rules have not turned on ambiguities in language that could have triggered Chevron but on the plain reading of the underlying law. The Loper Bright decision may impact future cases though, as it removed one of the major tools used to defend administrative rules that are challenged. The ATF will continue to make rules, but it will have a harder time keeping those rules alive when there are lawsuits fighting them.