McBride Previews Potential Supreme Court Battle Over ‘Chevron’ Deference

September 5, 2019

In a Sept. 3 column for Law360, Washington, D.C., partner Andrew McBride wrote that the ongoing legal battle over the federal government’s new “bump stock” regulation could have implications for the enforcement authority of every federal agency.

McBride wrote the column after the U.S. Supreme Court was asked to take up Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, and he predicted it “could turn out to be one of this coming term’s blockbuster cases.” The case involves a new regulation that bans the sale or possession of “bump stocks” that enhance the firing speed of semi-automatic weapons.

“The issue presented in Guedes is not the merits or demerits of a bump stock ban. Rather, it is whether the ATF had the legal authority to adopt the ban by finding that a bump stock qualifies as a ‘machinegun’ under the definition contained in the National Firearms Act,” McBride wrote.

McBride noted that a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the regulation, deferring to the ATF’s interpretation of the statute under the Chevron doctrine. He also noted that the Justice Department had agreed with the petitioners that Chevron deference does not apply when agency regulations create potential criminal liability.

“Practically speaking, the Chevron doctrine gives all federal agencies a great deal of power over the meaning of their organic statutes and makes a challenge to an agency rule very difficult to maintain,” McBride explained.

Without such deference, McBride wrote, “many of these regulations would be unenforceable in a criminal and probably a civil enforcement context.”

He concluded: “Every white-collar lawyer should be raising a challenge to Chevron deference in every prosecution or civil enforcement action based on an agency regulation that purports to enforce a criminal statute. Given the position of the Department of Justice, even if Guedes is not granted, the days of Chevron deference are, in my view, likely numbered.”