WASHINGTON, D.C. (December 19, 2019) — Today, appellate counsel Erik S. Jaffe, of Washington, D.C., boutique firm Schaerr | Jaffe LLP, filed a reply brief in Guedes, et al., v. Bureau of Alcohol, Tobacco, Firearms and Explosives, et al., No. 19-296, a case seeking review by the Supreme Court because the Court of Appeals for the D.C. Circuit applied Chevron deference, rather than the rule of lenity, in analyzing a federal government rule that put thousands of Americans it risk of serious criminal liability and fines. The Supreme Court filings and key documents from the lower courts are available at www.BumpStockCase.com.

“The government effectively concedes the importance of the questions presented, opting instead for a peculiar strategy somewhere between a cross-petition and a claim of, in effect, harmless error,” the brief says. “All parties seem to agree that the decision below is fatally flawed and cannot be sustained on its own terms,” so the Supreme Court “should grant the petition for a writ of certiorari” or “summarily reverse and remand for further proceedings in which the government could raise, and the courts below could rule on, its non-Chevron-dependent arguments.”

“What is remarkable about the government’s position,” said Mr. Jaffe, “is that the government also thinks the court of appeals got almost everything wrong, but it likes the result, so it wants to keep it. Even though the court rejected the government’s main arguments, the government apparently thinks that does not matter and presumably would be defending the result in its favor even had the court simply flipped a coin or declared that it was ruling for the government as a matter of personal preference. That is not the rule of law, it is the rule of power and gamesmanship.”

In the petition for review, Mr. Jaffe argued that the Supreme Court “should grant the Petition for three reasons: (1) the decision below conflicts with multiple decisions of [the Supreme] Court by elevating Chevron deference above the rule of lenity as applied to ambiguous criminal statutes; (2) the decision improperly finds Chevron deference to be unwaivable; and (3) the decision so grossly interprets Chevron deference as to raise the question whether Chevron should be overruled.”

Prior to the case reaching the petition stage, attorneys at the Trump Administration’s Department of Justice, helmed by Attorney General William P. Barr, expressly waived the application of “Chevron deference” to the rulemaking. Notably, in November, A.G. Barr addressed the Federalist Society in Washington, D.C., where he said in his remarks on originalism that “it is critical to our Nation’s future that we restore and preserve in their full vigor our Founding principles.” But the DOJ’s rule underlying the Guedes case, and the principles that upheld it in the Court of Appeals, are far from originalist.

In spite of the government’s waiver of Chevron in the courts below, both the trial court and the Court of Appeals for the D.C. Circuit – often referred to as the Nation’s ‘second-highest court’, especially relating to matters of the federal government – wrongly applied Chevron deference so that the government would prevail, over a strong and detailed dissenting opinion in the court of appeals by Judge Karen L. Henderson. 

Quoting a 2014 Supreme Court decision, Judge Henderson said in her dissent that when “the Government interprets a criminal statute too broadly (as it sometimes does) or too narrowly, we have an obligation to correct its error.”

Chevron deference” doctrine comes not from the Constitution or statutes, but from the eponymous case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., where in 1984 the Supreme Court established a new legal test for how courts should give deference to a government agency’s interpretation of a statute it enforces. Many argue that the Chevron case undermined the Constitution and established rules that vastly expanded the “administrative state”.

“Lenity,” as the Guedes petition explained, “is an interpretive rule that resolves ambiguity in favor of potential defendants and is part of the traditional toolkit for determining the meaning of statutory language. . . . The due process and separation-of-powers concerns that animate the rule of lenity would suffer great violence if agencies were given deference when purporting to define ambiguous terms in a criminal statute.”

“Bumpstocks” were legal under federal law and prior ATF determinations. But in February 2018, President Trump ordered the DOJ and ATF to ban the devices. (83 FR 7949.) Under the new re-interpretation of the statute and bump-stock rulemaking, owners of the devices had just 90 days to surrender or destroy their property, after which they faced federal “machinegun” charges that carry up to 10 years in prison and $250,000 in fines for each violation.

Support this critical legal work by donating today!


Attorney Erik S. Jaffe (www.schaerr-jaffe.com) is a 1990 graduate of the Columbia University School of Law and was a law clerk to Judge Douglas H. Ginsburg of the United States Court of Appeals for the District of Columbia Circuit from 1990 to 1991. Following that clerkship he spent five years in litigation practice with the Washington, D.C. law firm of Williams & Connolly. In the summer of 1996 he left Williams & Connolly to clerk for Supreme Court Justice Clarence Thomas. At the end of that clerkship he started his own practice, and was a sole practitioner from 1997 through 2018.  At the end of 2018 he teamed up with veteran Supreme Court litigator Gene Schaerr and others to form Schaerr|Jaffe LLP, a Washington, D.C. based boutique law firm specializing in high-profile trial and appellate litigation. Mr. Jaffe has been involved in over 100 Supreme Court matters, including filing over 30 cert. petitions, representing half-a-dozen parties on the merits, and filing over 70 amicus briefs at both the certiorari and merits stages.

Firearms Policy Foundation (www.firearmsfoundation.org) is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to defend the Constitution of the United States and the People’s rights, privileges, and immunities deeply rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and individual right to keep and bear arms, through research, education, legal action, and other charitable programs.