More specifically, the administration changed the long‐held interpretation of the word “machineguns” in a federal statute to include bump stocks. This expansion of regulatory authority, motivated by political expediency, shouldn’t be allowed, regardless of whether bump stocks are particularly dangerous. Congress passes the laws, and the executive branch should not be permitted to rewrite them, especially when they carry criminal penalties.
The new rule took effect on March 26, 2019, making felons of an unknowable number of Americans. In order to avoid criminal liability for a bump stock he’d legally purchased, Michael Cargill, with the assistance of the New Civil Liberties Alliance, filed suit in a federal district court in Texas, seeking to stop the new rule. After the district court and a panel of the Fifth Circuit denied the claim, Mr. Cargill requested and was granted a rehearing before all Fifth Circuit judges (called “en banc” review).
Building on our participation in Mr. Cargill’s first appeal to the Fifth Circuit panel, the Cato Institute has again filed a brief in support of Mr. Cargill. We argue that the agency’s rule is not entitled to Chevron deference by the court. Chevron deference is when an executive agency is given deference by courts in how it interprets a law. But the agency has waived any right to it in this case, and the standard rules of waiver apply to questions of Chevron deference. And the agency’s waiver, along with the administrative record, indicate that the justifications courts use to grant deference to agency interpretations are missing.
Because of Chevron deference, the law often means whatever the current administration decides it should mean. But at the very least, the Fifth Circuit court in this case must provide Mr. Cargill with an independent determination of what the law is. In situations like this, interpreting the law is the job of courts, not agencies.
