In 2018, the Trump Administration declared that possession of "bump stocks" was illegal under federal law. This was a legally questionable move, but was apparently more politically palatable than imploring Congress to enact a bump stock ban. Nonetheless, in Guedes v. Bureau of Alcohol, Tobacco and Firearms the U.S. Court of Appeals for the D.C. Circuit upheld the Trump Administration's action.

Today, the Supreme Court denied certiorari in Guedes v. BATF. There was no recorded dissent, but Justice Gorsuch wrote a brief statement on the cert denial that was quite critical of both the Administration's action and the rationale of the D.C. Circuit's opinion. Specifically, Justice Gorsuch raised an eyebrow at the abrupt change in the federal government's interpretation of the applicable statute, questioned the D.C. Circuit's conclusion that an agency could receive Chevron deference even if the agency affirmatively waived any Chevron claim, and reiterated his view that Chevron deference is inappropriate in the criminal law context.

Wrote Gorsuch:

Does owning a bump stock expose a citizen to a decade in federal prison? For years, the government didn't think so. But recently the Bureau of Alcohol, Tobacco, Firearms and Explosives changed its mind. Now, according to a new interpretive rule from the agency, owning a bump stock is forbidden by a longstanding federal statute that outlaws the"possession [of] a machinegun." 26 U. S. C. §5685(b), 18 U. S. C. §924(a)(2). Whether bump stocks can be fairly reclassified and effectively outlawed as machineguns under existing statutory definitions, I do not know and could not say without briefing and argument. Nor do I question that Congress might seek to enact new legislation directly regulating the use and possession of bump stocks. But at least one thing should be clear: Contrary to the court of appeals's decision in this case, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. 467 U. S. 837 (1984), has nothing to say about the proper interpretation of the law before us. In the first place, the government expressly waived reliance on Chevron. The government told the court of appeals that, if the validity of its rule (re)interpreting the machinegun statute "turns on the applicability of Chevron, it would prefer that the [r]ule be set aside rather than upheld." 920 F. 3d 1, 21 (CADC 2019) (Henderson, J., concurring in part and dissenting in part) (noting concession). Yet, despite this concession, the court proceeded to upholdthe agency's new rule only on the strength of Chevron deference. Think about it this way. The executive branch and affected citizens asked the court to do what courts usuallydo in statutory interpretation disputes: supply its best independent judgment about what the law means. But, instead of deciding the case the old-fashioned way, the court placed an uninvited thumb on the scale in favor of the government. That was mistaken. This Court has often declined to apply Chevron deference when the government fails to invoke it. . . . Even when Chevron deference is sought, this Court has found it inappropriate where "the Executive seems of two minds" about the result it prefers. . . . Nor is it a surprise that the government can lose the benefit of Chevron in situations like these and ours. If the justification for Chevron is that "'policy choices' should be left to executive branch officials 'directly accountable to the people,'" . . . then courts must equally respect the Executive's decision not to make policy choices in the interpretation of Congress's handiwork.

I would actually go farther than Justice Gorsuch here. Under SEC v. Chenery, an agency action may only be upheld on the rationale relied upon by the agency. Therefore if the agency did not conclude that the statute was ambiguous and did not make an affirmative decision to resolve the ambiguity in a particular fashion, then the agency's action should not be upheld on that basis.

The underlying logic of Chevron, as interpreted and expounded upon in subsequent cases such as Mead, reinforces this conclusion. As I explain in my essay "Restoring Chevron's Domain," Chevron deference is premised upon the idea that Congress has delegated to an agency the power to resolve an ambiguity in the statute at issue. Moreover, as Mead and related cases make explicit, for an agency to take advantage of such deference, it must actually exercise the power that Congress delegated in the course of reaching and declaring its interpretation of the statute. Thus it should follow that if an agency does not seek to exercise such delegated power, and disavows any reliance upon Chevron, then Chevron deference should not be available.

Gorsuch goes on:

To make matters worse, the law before us carries the possibility of criminal sanctions. And, as the government itself may have recognized in offering its disclaimer, whatever else one thinks about Chevron, it has no role to play when liberty is at stake. Under our Constitution, "[o]nly the people's elected representatives in the legislature are authorized to 'make an act a crime.'" United States v. Davis, 588 U. S. ___, ___ (2019) . . . . Before courts may send people to prison, we owe them an independent determination that the law actually forbids their conduct. A "reasonable" prosecutor's say-so is cold comfort in comparison.That's why this Court has "never held that the Government's reading of a criminal statute is entitled to any deference." United States v. Apel, 571 U. S. 359, 369 (2014). Instead, we have emphasized, courts bear an "obligation" to determine independently what the law allows and forbids. . . . That obligation went unfulfilled here.

I understand Justice Gorsuch's disquiet with the application of Chevron to statutes that impose criminal penalties, but denying Chevron deference in such cases is not so simple. The U.S. Code is filled with regulatory statutes with provisions that may be applied both civilly and criminally. It would be quite odd to conclude that these provisions can have one meaning when applied by an agency to a civil violation, but another when applied in a criminal context. Thus to deny Chevron deference where criminal sanctions are on the table would be, in effect, to deny Chevron deference across a wide range of subject matter, if not to throw Chevron out altogether. As I am not (yet) convinced Chevron deference is at the root of the problems with the administrative state, I am not convinced this is the wisest course.

Gorsuch continues:

Chevron's application in this case may be doubtful for other reasons too. The agency used to tell everyone that bump stocks don't qualify as "machineguns." Now it says the opposite. The law hasn't changed, only an agency's interpretation of it. And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency's initial interpretation of the law will be declared "reasonable"; and to guess again whether a later and opposing agency interpretation will also be held "reasonable"? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting? Despite these concerns, I agree with my colleagues that the interlocutory petition before us does not merit review. The errors apparent in this preliminary ruling might yet be corrected before final judgment. Further, other courts of appeals are actively considering challenges to the same regulation. Before deciding whether to weigh in, we would benefit from hearing their considered judgments—provided, of course, that they are not afflicted with the same problems. But waiting should not be mistaken for lack of concern.

Indeed, while the Court did not take this case, it could well take another raising similar issues, if not one actually challenging the bump stock ban itself. To be continued.