Executive agencies aren’t empowered to arbitrarily create new criminal laws under our system of governance. That is the proper function of the legislative branch, with enforcement powers being delegated to the executive branch. But creating new law is exactly what the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) did in 2019 by suddenly reversing established policy and changed its interpretation of the term “machinegun” to include bump firing devices, unilaterally outlawing those devices without legislative branch approval. Worse, federal courts are prone to deferring their judicial review power to agencies due to a doctrine called Chevron deference, which defers to an agency’s interpretation of a “ambiguous” law based on the dubious premise that the agency is owed “deference” due to a presumed expertise on the topic—even if the court doesn’t believe the agency’s interpretation is the best interpretation.
If Congress wanted to ban bump firing devices, it should have introduced, debated, and passed legislation doing so, and then presented that legislation to the president for a signature. But here, the ATF simply changed its interpretation, instantly creating a new criminal law and imposing a new criminal penalty on potentially hundreds of thousands of Americans. At stake in this case is the question of whether federal agencies should be allowed to create law, enforce law, and then avoid judicial review because of Chevron deference.
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Michael Cargill is an Army veteran, a gun shop owner, and a firearms instructor in Austin, Texas, who owned several bump fire devices only to find them outlawed overnight not long afterwards. Like hundreds of thousands of Americans, Mr. Cargill bought the devices based on written assurances from the ATF—assurances that were attached to the devices at the time of purchase—that they were legal to own and use.
Incensed by what he saw as an unconstitutional exercise of ATF power, which overnight turned half a million law-abiding Americans into potential felons, Mr. Cargill brought suit in the U.S. District Court for the Western District of Texas, challenging the ATF’s authority to create a new criminal law.
He filed the suit on the same day he surrendered his bump fire devices to the ATF field office in Austin.
“It doesn’t matter whether you’re a Republican, you’re a Democrat, you’re a Libertarian. It’s the fact that the federal government—an agency—actually walks into your house and says, ‘There’s something that you own, that you possess, that you legally purchased, it is now illegal. It’s banned. If you keep it, you’re a felon and we’re not going to reimburse you for it,” Mr. Cargill said in September 2020, when his case was initially heard. “The agency within the federal government does not have that power.”
In November 2020, the district court ruled against Mr. Cargill, finding that the ATF has the authority to issue the legislative rule and that it did not violate the principles of non-delegation or our constitutionally mandated separation of powers. Cargill appealed that decision and the case is currently pending before the U.S. Court of Appeals for the Fifth Circuit. Mountain States Legal Foundation’s Center to Keep and Bear Arms joined with Firearms Policy Coalition to file an amici curiae brief in favor of Mr. Cargill with the Fifth Circuit.