On June 30, 2022, the United States Supreme Court issued its 6-3 opinion (Roberts) in West Virginia, et al., v. Environmental Protection Agency et al., Supreme Court 20-1530 (note: Tennessee did not participate as a party or amicus in the case). At issue in this case were regulations that were adopted by the Environmental Protection Agency which regulations were intended by it to move the nation’s power generation capacity, nationally, away from coal and gas and to green renewable energy sources. The Court noted that the regulations were so extensive that few existing coal or gas generation system would survive the transition to other technologies under this green energy plan.
But what does this have to do with our rights as protected by the Second Amendment? Potentially, a lot.
Distilling the issue in the opinion down, the issue that was being examined is to what extent a regulatory agency, a part of the administrative branch of government, would adopt, interpret or establishment by rules or regulations policies which Congress did not adopt and which Congress did not clearly and specifically delegate to the agency to adopt. That question is at the core of the legal issues involving the ATF’s regulatory bans or proposed bans targeting bump stocks (as Trump told them to do), AR pistols, force reset triggers and even expansive and aggressive “zero tolerance” policies that are now being used in efforts to choke off the supply chain of items protected by the Second Amendment by reducing the number of licenses issued or held by manufacturers, wholesalers, and retail dealers.
In the concluding paragraph that struck down the overwhelmingly abusive EPA regulations, Justice Roberts wrote:
Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible “solution to the crisis of the day.” New York v. United States, 505 U. S. 144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.The judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion.
Opinion at p. 31 (emphasis added)
Justices Gorsuch and Alito issued a concurring opinion with further clarification on the “major questions” doctrine:
To resolve today’s case the Court invokes the major questions doctrine. Under that doctrine’s terms, administrative agencies must be able to point to “ ‘clear congressional authorization’ ” when they claim the power to make decisions of vast “ ‘economic and political significance.’ ” Ante, at 17, 19. Like many parallel clear-statement rules in our law, this one operates to protect foundational constitutional guarantees. I join the Court’s opinion and write to offer some additional observations about the doctrine on which it rests.
Concurrence at p. 1.
And what Justices Gorsuch and Alito had to say, when coupled with the analysis by Roberts in the majority opinion, indicates that this “Trump” court may be far less willing to tolerated abuses by administrative agencies, like the ATF, particularly when those abuses directly impact core rights that are protected by the Constitution. The concurrence talked about the fact that the “major questions” doctrine is a doctrine that goes to the very core of the constitutional separation of powers which puts the policy decisions (within limited of enumerated powers) in the hands of Congress and the executive/administrative branch has only the duty to execute the laws passed by Congress.
The major questions doctrine works in much the same way to protect the Constitution’s separation of powers. Ante, at 19. In Article I, “the People” vested “[a]ll” federal “legislative powers . . . in Congress.” Preamble; Art. I, § 1. As Chief Justice Marshall put it, this means that “important subjects . . . must be entirely regulated by the legislature itself,” even if Congress may leave the Executive “to act under such general provisions to fill up the details.” Wayman v. Southard, 10 Wheat. 1, 42–43 (1825). Doubtless, what qualifies as an important subject and what constitutes a detail may be debated. See, e.g., Gundy v. United States, 588 U. S. , –_ (2019) (plurality opinion) (slip op., at 4–6); id., at – (GORSUCH, J., dissenting) (slip op., at 10–12). But no less than its rules against retroactive legislation or protecting sovereign immunity, the Constitution’s rule vesting federal legislative power in Congress is“vital to the integrity and maintenance of the system of government ordained by the Constitution.” Marshall Field & Co. v. Clark, 143 U. S. 649, 692 (1892).
Concurrence at pp. 3-4
It is vital because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable “ministers.” The Federalist No. 11, p. 85 (C. Rossiter ed. 1961) (A. Hamilton). From time to time, some have questioned that assessment. But by vesting the lawmaking power in the people’s elected representatives, the Constitution sought to ensure “not only that all power [w]ould be derived from the people,” but also “that those [e]ntrusted with it should be kept in dependence on the people.” Id., No. 37, at 227 (J. Madison). The Constitution, too, placed its trust not in the hands of “a few, but [in] a number of hands,” ibid., so that those who make our laws would better reflect the diversity of the people they represent and have an “immediate dependence on, and an intimate sympathy with, the people.” Id., No. 52, at 327 (J. Madison). Today, some might describe the Constitution as having designed the federal lawmaking process to capture the wisdom of the masses. See P. Hamburger, Is Administrative Law Unlawful? 502–503 (2014).
The question now to be considered by Second Amendment advocates and particularly in light of Justice’s Thomas’ majority opinion just last week in the New York State Rifle and Pistol Association case is whether and if so when will the U.S. Supreme Court take up those cases which are already in the appellate pipeline that address ATF actions and powers that are based entirely on regulatory enactments or even worse “policies” or “procedures” that are not even public records. It is critical that lawsuits challenging not only ATF rules, regulations and policies but lawsuits perhaps challenging state agencies (like TBI and TDOS that impact 2nd Amendment rights) must be filed and pushed through the appellate court systems to perhaps get judicial opinions to stop regulatory misconduct when elected governors and legislators fail to do so.
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