The picayune approach to statutory interpretation and the war on the regulatory state: the case of bump stocks
Imagine that Congress wants to address some social or economic problem by prohibiting certain undesirable acts.
One approach Congress can take is to specifically describe the undesirable behavior and prohibit it. This approach sometimes works well – it is the basis of traditional criminal law – but it has two great disadvantages. First, in many fields – like drug regulation and pollution control – Congress lacks the expertise to identify which acts are undesirable. Second, the specific-prohibition approach may require Congress to frequently revise statutes in response to changing circumstances. This is a substantial problem in a complex, rapidly changing society because, as political scientist John Kingdon has astutely observed,
“Congress is easily fatigued”.
Delegation of rulemaking authority to executive branch agencies can address both of these problems with the specific-prohibition approach to regulation. At least in theory, executive branch agencies can bring expertise to bear on complicated policy problems. In addition, delegation allows agencies to adapt rules to new circumstances, rather than putting the burden of adjustment entirely on Congress. Delegation is not a magic cure-all for the problems of democratic governance, and there are reasonable criticisms that can be made of the way delegation works in practice. But extensive delegation is essential for modern governments to function.
Machineguns
In 2017, a gunman opened fire on a crowd at an outdoor music festival in Las Vegas, killing 58 people and wounding over 500. The gunman used semi-automatic weapons that had been fitted with bump stocks, devices that allowed him to fire hundreds of rounds in a few minutes. Following this slaughter of innocents, the Bureau of Alcohol, Tobacco, and Firearms ruled that bump stocks turned semi-automatic weapons into machineguns and were therefore illegal under the National Firearms Act of 1934.
Last week in Garland v. Cargill the Supreme Court held 6 to 3 that the statute did not cover bump stocks. In a brief concurrence Alito stated that if Congress did not like the result, it could simply pass a new law.
Many will find the result in this case troubling: bump stocks are now legal, and there is real doubt that Congress will be able to reverse this result. There is a deeper cause for concern, however. Congress had legislated with a considerable amount of specificity, and ATF had interpreted the statute in a perfectly reasonable way. To justify its decision overruling ATF, the Court had to adopt a crabbed and implausible approach to statutory interpretation. The implications for gun regulation and for delegation generally are ominous.
Writing for the dissenters, Sotomayer notes that the statute on its face seems to cover bump stocks, and a ban on bump stocks seems consistent with the statutory language and purpose:
Today, the Court puts bump stocks back in civilian hands. To do so, it casts aside Congress’s definition of “machinegun” and seizes upon one that is inconsistent with the ordinary meaning of the statutory text and unsupported by context or purpose. When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. A bump-stock-equipped semiautomatic rifle fires “automatically more than one shot, without manual reloading, by a single function of the trigger.” §5845(b). Because I, like Congress, call that a machinegun, I respectfully dissent.
. . .
All of the textual evidence points to the same interpretation. A bump-stock-equipped semi-automatic rifle is a machinegun because (1) with a single pull of the trigger, a shooter can (2) fire continuous shots without any human input beyond maintaining forward pressure. The majority looks to the internal mechanism that initiates fire, rather than the human act of the shooter’s initial pull, to hold that a “single function of the trigger” means a reset of the trigger mechanism.
Outlawing bump stocks is certainly consistent with the statutory purpose. In his concurrence Alito acknowledges this:
There can be little doubt that the Congress that enacted 26 U. S. C. §5845(b) would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock. But the statutory text is clear, and we must follow it.
Furthermore, Congress had clearly tried to prevent people from circumventing the purpose of the statute:
Moreover, bump stocks are not the only devices that transform semiautomatic rifles into weapons capable of rapid fire with a single function of the trigger. Recognizing the creativity of gun owners and manufacturers, Congress wrote a statute “loaded with anticircumvention devices.” Tr. of Oral Arg. 68. The definition of “machinegun” captures “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” §5845(b).
To reach its desired result, the majority focused narrowly on the words statute and adopted an implausible interpretation of the phrase “function of the trigger” that ignored the aim of the statute – banning machineguns – and the challenges facing Congress as it drafted the legislation.
This picayune approach to statutory interpretation will require Congress to do an impossible amount of legislating in a dynamic, rapidly changing society. It will make even thoughtfully drafted and unobjectionable acts of delegation vulnerable to attack by linguistically moralistic, nit-picking Justices.
What motivates this “reasoning”?
It is hard to avoid the conclusion that the conservative majority in Cargill reached the result they did simply because they wanted to reach it. The only question is why they wanted to reach it.
Two possibilities come to mind, and they are not mutually exclusive.
First, the conservative Justices are obviously predisposed to rule in favor of pro-gun plaintiffs.
Second, Cargill almost certainly reflects the deep hostility of the conservative Justices to delegation and the regulatory state.
This concern has usually been manifest in concerns about overly broad agency mandates and excessive administrative discretion. In response, the Justices have limited the ability of agencies to expand their regulatory activity into new fields without explicit Congressional authorization (the FDA cannot assert jurisdiction over tobacco, the EPA cannot regulate greenhouse gases, etc.), and they are very likely to reverse Chevron, the case that instructed judges to defer to reasonable agency interpretations of relevant statutes. But Cargill strikes down a reasonable interpretation of a narrowly drawn statute that addresses a goal of undeniable importance. Cargill shows that no regulation will be safe from the whims of the conservative court’s arrogant majority.
i dunno. it seems to me we have a Supreme Court and Republican Party determined to destroy effective government, democracy or not. this is insurrection. And our response to it is too timid.
It may be that trying to stop this by ordinary democratic process is the best hope we have of not falling into tyranny by abusing democracy ourselves, but if we can’t stop insurrection without reorting to “aggressive” measures, simple survival suggests…well, “aggressive measures.
for example, if bump stocks are now legal, I am pretty sure creative local prosecutors can find ways to charge for related crimes and at the least making using, if not just owning, bump stocks too much trouble for the average gun nut.
i hate to recommend this. aggressive prosecutors are already a human rights abuse. but so is war. maybe we can find a common sense solution, i am waiting to hear suggestions, or at least see something in action.
bump stocks is just an example. it’s the pattern and the trajectory that are dangerous.
Lincoln found that to be the case in the coincidence of actions by the Court and other political actors to force legalization of slavery even in states that had outlawed it.
Of course, first he had to win election. and second, he had to maneuver the South into firing the first shot. They, being stupid, obliged.
Eric:
Congress is easily fatigued.
Now that is a great observation. Fatigued from having to decide which causes them to be responsible.
For Congress to approve this will take many sessions as Dems do not want to fight and Repubs refuse to do what is necessary. Maybe, we are better off with a court which can come to a logical decision. The only problem with this is there interference to present solutions which requires a public and their representatives to decide.
If we follow what the court would like to do, Congress will be inundated with requests for laws governing each action as to legal or illegal. How many sheets off the roll do you think are necessary?
I do not buy the “rapidly changing society” argument in many instances though.
I know nothing firearms.
But, as an example, the property of CO2 gas to more readily absorb heat wavelengths of radiation than the principle atmospheric gases has been understood a long time. Every member of Congresses in this century has likely understood that there are reasons to consider controlling the release of CO2 in to the atmosphere. Probably most members in the 1990s, too. While a bit loose, I do think the concept of “major issue” makes a lot of sense over release of non-toxic concentrations of CO2. Congress just demonstrated a capability to enact law in this general area via IRA. I also have seen examples of the “administrative state” not being very trustworthy. Consider the Labor Department’s COVID regulatory actions. OSHA released rules for worksites of more than 100 workers to either take a vaccine or test, otherwise. The Supreme Court ruling probably allowed the testing, which epidemiologically would almost certainly have been an effective step. But they seemed to have lost interest once the vaccine part of this was out. Why? They could have put in ventilation and filtration measures, which again would have likely been effective. So far, no changes.
Eric:
You better buy the rapidly changing society. As we speak, things are changing rapidly and neither you or I can keep up with the changes on “everything.”
We do not elect representatives or senators based upon their knowledge on bump stocks or the environment or carbon dioxide. The knowledge is not there. Hence, the need for the experts who are knowledge about these issues. Legislation or law making still remains in Congress. Rules covering the application of those laws are delegated to the specialists whose knowledge surpass that of the legislators, president, and the courts.
The constitution is supposed to be a living document and adaptable to today’s nation, republic, etc. It is the foundation and allows Congress to establish new laws to meet today’s modern society without taking into consideration the muskets carried in the 17th and eighth century.
There is no need for bump stocks.
By-the-way, you are off topic and high jacking a thread and post.
Bill
Eric is not off topic and not high jacking the thread. I disagree with him myself, but I can, and did, try to present my disagreement in a way that he might understand…and that agrees with you. Having a gun to settle arguments with is not a good thing. It’s why dictatorships, however benign they seem in the beginning (and many start that way) always goes bad in the end.
Eric
valid question, I think. but you have just identified why “congress is easily fatigued.” refighting every rule would drag out for years with politics and bad faith and just the ordinary slow grind of Congressional action.
I happen to think you are wrong about the Covid mismanagement*, but I am willing to assume you are right..that still leaves us with the problem of giving Congress the job of relitigating every decision by the experts hired to manage the problems identified by a previous Congress. It would be the same as having no government at all…which is what the money interests want. What this whole insurrection is about.
*not that it wasn’t mismanaged, but there is no evidence the Congress would have managed it any better, or that the mismanagement was not mostly the fault of the people presently complaining about the mismanagement. ideologically, people have a right to protect themselves by denying access to their workspace to people they suspect may expose them to serious disease…or really, expose them to anything they don’t want to be exposed to. you ought to recognize that this is the same as that “freedom” the Right is always blathering about, but has no intention of extending to the people it does not agree with. the motives of management are obvious: they want to keep making money and they don’t give a damn about the health of their workers. the motives–reponsibility–of government is to try to prevent the spread of an epidemic with the knowledge available to them at the time… and the knowledge NOT available.
As for what actually went wrong, you might want to read “The Premonition”. it rings true to me because it is in accord with what i have observed in my own life about the way people think and act.
“The Premonition” by Michael Lewis
I should add.. if it was my ox being gored I would want Congress to be able to rewrite the law, or overrule the executive agency, but it alreay has that ability. But enshrining it as routine policy would not only destroy the possibility of effective government, it would invite bad faith in Congressional debate. Congressmen would agree to laws in order to gain concessions from their opponents, with the intention of repealing or blocking the parts of the law they don’t like in the next session when they have the majority or the public is no longer watching. It is a recipe for chaos, the end of democracy, the end of government at all,
Which would not be a good thing, in spite of what maga republicans are telling you.