{"id":452080,"date":"2021-03-05T17:43:08","date_gmt":"2021-03-05T22:43:08","guid":{"rendered":"http:\/\/www.marketnewsdesk.com\/?p=452080"},"modified":"2021-03-05T17:43:08","modified_gmt":"2021-03-05T22:43:08","slug":"chevron-is-admin-laws-lord-voldemort-say-tenth-cir-en-banc-dissenters-in-bump-stock-ban-case","status":"publish","type":"post","link":"https:\/\/www.marketnewsdesk.com\/index.php\/chevron-is-admin-laws-lord-voldemort-say-tenth-cir-en-banc-dissenters-in-bump-stock-ban-case\/","title":{"rendered":"Chevron Is Admin. Law\u2019s \u201cLord Voldemort\u201d Say Tenth Cir. En Banc Dissenters in Bump Stock Ban Case"},"content":{"rendered":"

\nAposhian v. Wilkinson, et al.
\n<\/h2>\n
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Washington, D.C., March 05, 2021 (GLOBE NEWSWIRE) — A majority\u00a0en banc<\/em>\u00a0panel in the U.S. Court of Appeals for the Tenth Circuit\u00a0voted<\/a>\u00a06-5 today to vacate the court\u2019s Sept. 4, 2020 order granting\u00a0en banc<\/em>\u00a0rehearing of\u00a0Aposhian v. Wilkinson<\/em>. It also reinstated the court\u2019s deeply flawed May 7, 2020 opinion, which invoked the\u00a0Chevron<\/em>\u00a0doctrine to\u00a0deny<\/a>\u00a0NCLA client Clark Aposhian\u2019s\u00a0appeal of his challenge to the bump stock ban imposed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in March of 2019.<\/p>\n

As a result, Chief Judge Tymkovich, writing for himself and four other dissenting members of the Court, compared\u00a0Chevron<\/em>\u00a0to \u201cLord Voldemort\u201d\u2014a character from the Harry Potter series considered to be the most powerful and dark wizard of all time\u2014because litigants must now be afraid of even mentioning the case. \u201cUnder the panel majority\u2019s theory, a party that challenges an agency\u2019s interpretation of a rule is forced to dance around\u00a0Chevron<\/em>, even where the government has not invoked it.\u00a0Chevron<\/em>\u00a0becomes the Lord Voldemort of administrative law, \u2018the-case-which-must-not-be-named.\u2019 And litigants bold enough to expressly oppose\u00a0Chevron<\/em>\u00a0in their briefing will be left guessing whether their reference to the case was fleeting or perfunctory enough to avoid making an invitation. All the while, courts are given a troubling amount of freedom when deciding whether to use\u00a0Chevron<\/em>\u2014discretion that will dictate the outcome in many cases.\u201d<\/p>\n

In his appeal, Mr. Aposhian asked whether the\u00a0Chevron\u00a0<\/em>doctrine applies when the agency does not invoke it and whether the\u00a0Chevron\u00a0<\/em>doctrine may apply to criminal regulations given that the rule of lenity requires courts to construe ambiguous laws away from imposing criminal liability.\u00a0By allowing ATF to create new criminal liability here, according to the dissenting judges, \u201cthe Final Rule violates the separation of powers\u201d and the \u201cdelegation [of Congressional power] raises serious constitutional concerns by making ATF the expositor, executor,\u00a0and<\/em>\u00a0interpreter of criminal laws.\u201d<\/p>\n

The case also raised key issues about whether an agency can rewrite a federal criminal law. Mr. Aposhian argues that the National Firearms Act is\u00a0not<\/em>\u00a0ambiguous and bump stocks are not machineguns, which is the same position the Department of Justice had taken in every prior machine gun possession case it has prosecuted in the last 30+ years. The dissenting judges agree,\u00a0\u201cThe statute\u2019s plain meaning unambiguously excludes bump stocks.\u201d\u00a0 ATF\u2019s rule, however, rewrites the federal law and declares that every person who lawfully purchased a bump stock is now a federal felon.<\/p>\n

NCLA will continue to litigate this case, which may include seeking review in the U.S. Supreme Court.<\/p>\n

On March 8, NCLA will file its opening brief in another case challenging the bump stock ban,\u00a0Cargill v. Wilkinson, et al.<\/em>, in the U.S. Court of Appeals for the Fifth Circuit.<\/p>\n

\n NCLA released the following statements:<\/strong>\n <\/p>\n

\u201cFive members of the Tenth Circuit recognized that not only was the bump stock ban an invalid rule, but also that it violated the basic structure of the Constitution by empowering a prosecutorial agency to rewrite the federal criminal law. The majority\u2019s dangerous and misguided decision must not stand.\u201d<\/p>\n

\n \u2014 Caleb Kruckenberg, Litigation Counsel, NCLA<\/strong>\n <\/p>\n

\u201cRather than bring clarity to a deeply confused area of administrative law, a majority of the Tenth Circuit has decided to wave its magic wand and Vanish this case from the docket. However, the manifold problems with\u00a0Chevron<\/em>\u00a0deference have not disappeared. If anything, today\u2019s antics have further underscored the mischief that this doctrine causes.\u201d<\/p>\n

\n \u2014 Mark Chenoweth, General Counsel, NCLA<\/strong>\n <\/p>\n

\n For more information about this case visit<\/strong>\u00a0here<\/a>.<\/p>\n

\n ABOUT NCLA<\/strong>\n <\/p>\n

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar\u00a0Philip Hamburger\u00a0<\/a>to protect constitutional freedoms from violations by the Administrative State. NCLA\u2019s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans\u2019 fundamental rights.<\/p>\n

For more information visit us online at\u00a0NCLAlegal.org<\/a>.\u00a0<\/p>\n

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