One of the biggest problems with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) isn’t that it enforces the law. I mean, it exists explicitly for that purpose, so that’s kind of what it’s supposed to be doing.
No, the biggest problem is that in addition to enforcing those rules, it also gets to make them up as it goes. The ATF is also tasked by Congress to interpret the law and create regulatory policies on the subject that it then gets to turn around and enforce.
It doesn’t take a rocket scientist to see all the many ways this creates problems.
Then top it off with the fact that the courts have taken a hands-off approach to this, known as Auer and Chevron deference, and you have a disaster in the making.
However, it seems there’s a chance that those days are numbered.
Recently, there has been a push from some quarters to reconsider Auer deference, Chevron deference, and other aspects of the modern administrative law state, and overturn them as being inherently unconstitutional; specifically, that such deference to bureaucratic decisions violates the required Separation of Powers.
Were that to happen, the current administrative state would be rocked to its core. While there have been some rumblings from Justice Thomas and others in this regard, there did not appear to be a majority on the Supreme Court interested in potentially unleashing this kind of political earthquake. (Scalia and Kennedy were, at best, squishy on the issue.)
Today, however, the Supreme Court granted cert in a case, Kisor v. Wilkie, that specifically challenges whether Auer deference is constitutional. With the addition of Justices Gorsuch and Kavanaugh — both of whom have expressed reservations about the current state of administrative law — there may now indeed be the five votes needed to begin to undo the decades-long abdication of power to the vast federal bureaucracy, including BATFE.
This is a good thing for all of us because Auer deference specifically keeps the courts from calling down regulatory bodies overstepping their bounds unless they’re particularly egregious. You know, things like the ATF potentially declaring things like bump stocks as machine guns despite them not having anything to do with how many rounds can be fired with a single pull of the trigger.
The courts have routinely allowed bureaucrats to do pretty much whatever they want, and as a result, we have unelected officials who are able to change federal law with a stroke of a pen. There’s no way that should ever be allowed to happen in this country.
If this court case overturns Auer deference, then the ATF needs to take a step back and recognize that it isn’t going to get away with just passing new rules. It has to stick to the mandates handed down by Congress.
It would sure be a nice change of pace.