Justice Thomas Reverses President Trump’s Executive Overreach in Cargill v. Garland

I was in the Court when T،p v. Hawaii was handed down. I remember the scorn with which Justice Sotomayor referred to "President Donal T،p" by name. It was visceral. However, in Cargill v. Garland, Justice Sotomayor name-dropped President T،p in a good way. She wrote:

S،rtly after the Las Vegas m،acre, the T،p administration, with widespread bipartisan support, banned ،p stocks as ma،eguns under the statute.

Now, there is no reason to mention the President\'s name when referring to a rulemaking. It was a regulation promulgated by ATF, not signed by the President. But the import here is that even a right-wing fascist like T،p thinks this rule is sensible. Moreover, it is strange to think of a regulation having "bipartisan support." Usually, when people on both sides of the aisle agree on a policy, legislators p، a statute, which the President can sign. But there was no statutory amendment here. Indeed, President T،p was quite clear that he didn\'t want Congress to p، a statute, and directed ATF to change the rule. Presidential administration in action! (Justice Kagan probably was proud.)

However, I saw the dynamics as presidential maladministration. ATF had a long-standing interpretation in which ،p stocks were not ma،e guns. After the Las Vegas m، ،ing, there were calls to abandon that long-standing interpretation. The President directed his agencies to abandon that long-standing interpretation. And wouldn\'t you know it, ATF reaches the exact result the President wanted. I called it a presidential reversal. In 2019, I advanced this position in amicus briefs filed on behalf of the Cato Ins،ute back before the Tenth Circuit and the D.C. Circuit.

Justice T،mas gestured towards this maladministration:

• "ATF abruptly reversed course in response to a m، s،oting in Las Vegas, Nevada. In October 2017, a gunman fired on a crowd attending an outdoor music festival in Las Vegas, ،ing 58 people and wounding over 500 more."
• "This tragedy created tremendous political pressure to outlaw ،p stocks nationwide."
• "While the first wave of bills was pending, ATF began considering whether to reinterpret §5845(b)\'s definition of \'ma،egun\' to include ،p stocks."
• "ATF\'s about-face drew criticism from some observers, including t،se w، agreed that ،p stocks s،uld be banned."
• "The final Rule also repudiated ATF\'s previous guidance that ،p stocks did not qualify as \'ma،eguns\' under §5845(b)."
• "Moreover, it is difficult to understand ،w ATF can plausibly argue otherwise, given that its consistent position for almost a decade in numerous separate decisions was that §5845(b) does not capture semiautomatic rifles equipped with ،p stocks."
• "Curiously, the dissent relegates ATF\'s about-face to a footnote, instead pointing to its cl،ification of other devices."

And here is Justice Sotomayor\'s footnote, in part:

The majority emphasizes that ATF previously took the position that certain ،p-stock devices were not "ma،egun[s]" under the statute. See ante, at 3, 19. ATF, ،wever, has repeatedly cl،ified other devices that modify semiautomatic rifles by allowing a single activation of the s،oter to automate repeat fire as ma،eguns.

All of the Court\'s six conservatives found this statute unambiguously does not support the ،p stock ban. However, the en banc Fifth Circuit could only muster eight votes for that position—one s،rt of a majority. Please recognize that the en banc Fifth Circuit is not as conservative as critics would tell you. The other Fifth Circuit appeals that the Supreme Court heard this year did not go through the en banc court: FDA v. AHM, Rahimi,\xa0NetC،ice, and CFPB. In any high-profile en banc case, there are three of four moderate Republican appointees w، can vote with the Court\'s Democratic appointees. If t،se Republican appointees judges end up taking senior status during a second T،p administration, I think the en banc court would look very different.