WASHINGTON, D.C. (August 29, 2019) — Today, attorneys for Firearms Policy Foundation, Madison Society Foundation, Florida Carry, and individuals Damien Guedes, Missouri State Rep. Shane Roden, David Codrea, Scott Heuman, and Owen Monroe have filed a petition for certiorari at the United States Supreme Court seeking review and reversal of a D.C. Circuit opinion that allowed the federal Bureau of Alcohol, Tobacco, Firearms and Explosives to impose criminal liability on potentially hundreds of thousands of Americans through executive overreach in the agency’s “bump-stock” rule. The cert. petition and appendix are available at BumpStockCase.com.

In the petition for review, Supreme Court counsel for the petitioners, Erik S. Jaffe of Washington, D.C., boutique firm Schaerr | Jaffe LLP, argues that the “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.”

In the preceding rulemaking process and resulting litigation, attorneys at the Trump administration’s Department of Justice expressly waived the application of “Chevron deference” to the rulemaking. But in spite of that explicit waiver, 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” comes from the eponymous case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., decided by the Supreme Court in 1984, which 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,” the petition explains, “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.”

“Bump-stocks” 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.

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“This litigation remains squarely directed at the broader problem of fiat law imposed by the executive branch and its dangerous aggregation of power, especially in its enforcement of statutes that have criminal implications,” said FPF Chairman Brandon Combs. “This case is a perfect vehicle for the Supreme Court to restore appropriate and constitutionally-mandated limits on the federal government’s wildly out-of-control administrative state.”

Mr. Jaffe noted that “questions surrounding Chevron deference are becoming increasingly problematic and are placing greater pressure on separation-of-powers norms as Congress shies away from exercising its legislative authority and the Executive Branch seeks to expand its powers.”  As he wrote in the Petition, quoting a recent opinion by Justice Gorsuch, this case “sounds all the alarms the founders left for us.”  The petition continued that “it is precisely the controversial nature of the subject that highlights the need to ensure proper congressional exercise of legislative power: The requirement for separation of powers ‘is a procedural guarantee that requires Congress to assemble a social consensus before choosing our nation’s course on policy questions like those implicated by’ the issues in this case.

Notably, in a January 2018 letter responding to the agency’s initial proposed rulemaking, the Firearms Policy Coalition (a separate 501(c)4 advocacy organization) told the ATF that “perhaps as a silver lining, an illegal rulemaking (such as is proposed here) would provide an excellent vehicle for the Supreme Court to revisit and eliminate the made-up judicial construct of agency deference” under cases such as Chevron.

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 2019 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 60 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.