Lawmakers Make Our Laws, Not Freelancing Federal Agencies

Denver, ColoradoMarch 18, 2021 — Executive branch agencies cannot arbitrarily create new criminal laws.  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.

This week, Mountain States Legal Foundation’s Center to Keep and Bear Arms joined with Firearms Policy Coalition to file an amici curiae brief with the U.S. Court of Appeals for the Fifth Circuit in Cargill v. Garland, arguing against the ATF’s overreach of its power and urging the Court to refrain from deferring to the agency.

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 an “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.

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.  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.

“This case is about so much more than bump fire devices, this underlying question in this case is whether we’re going to allow executive agencies, which control nearly all aspects of our lives, the ability to make new criminal laws via new ‘interpretations,’ enforce those newly created criminal laws against law abiding Americans, and then escape any accountability in the courts,” said Cody J. Wisniewski, Director of MSLF’s Center to Keep and Bear Arms.

“The rule of lenity, at issue here, is a deeply rooted constitutional principle that ensures legislatures­­—not executive branch agencies—define criminal laws, and that the people have a fair warning of what conduct is prohibited,” said Joseph Greenlee, Director of Constitutional Studies with Firearms Policy Coalition. “By contrast, the application of Chevron deference in the criminal context would violate several constitutional safeguards, including the separation of powers. We hope that the Fifth Circuit will apply the rule of lenity and rule in favor of Mr. Cargill.”

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. Mr. Cargill appealed that decision and the case is currently pending before the U.S. Court of Appeals for the Fifth Circuit.

Follow this link for a case summary.

Follow this link for the filing.