Supreme Court EPA Decision may Apply to ATF Rules

Supreme Court EPA Decision may Apply to ATF Rules IMG NRA-ILA

U.S.A.-(– On June 30, 2022, the Supreme Court issued its decision on the West Virginia v. EPA case. The decision reinforced earlier precedent on the non-delegation doctrine. It is a welcome start to roll back the lawlessness of the administrative state. Might the EPA case signal a willingness to strike down arbitrary rule changes in the ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives) agency?

The architects of the administrative state understood very well it was a critical way to undermine the Constitution:

The reason for this is that the ideas that gave rise to what is today called “the administrative state” are fundamentally at odds with those that gave rise to our Constitution. In fact, the original Progressive-Era architects of the administrative state understood this quite clearly, as they made advocacy of this new approach to government an important part of their direct, open, comprehensive attack on the American Constitution.

In the decision, on page 4 of Justice Gorsuch’s concurrence, in footnote 1, Justice Gorsuch points out the Progressive disdain for power in the hands of the people:  

1. For example, Woodrow Wilson famously argued that “popular sovereignty” “embarrasse[d]” the Nation because it made it harder to achieve “executive expertness.”

In the EPA decision, the Court explains it is defending the Constitutional protections of separation of powers. It shows there is a long history of court decisions preventing the agglomeration of powers from one of the three governmental branches to another by improper delegation. From the decision p. 17-18:

Despite its textual plausibility, we noted that the Agency’s interpretation would have given it permitting authority over millions of small sources, such as hotels and office buildings, that had never before been subject to such requirements. Id., at 310, 324. We declined to uphold EPA’s claim of “unheralded” regulatory power over “a significant portion of the American economy.” Id., at 324. In Gonzales v. Oregon, 546 U. S. 243 (2006), we confronted the Attorney General’s assertion that he could rescind the license of any physician who prescribed a controlled substance for assisted suicide, even in a State where such action was legal. The Attorney General argued that this came within his statutory power to revoke licenses where he found them “inconsistent with the public interest,” 21 U. S. C. §823(f ). We considered the “idea that Congress gave [him] such broad and unusual authority through an implicit delegation.

In the recent case involving the CDC, SCOTUS told the CDC it had overstepped its authority. The quote is on page 18:

Extraordinary grants of regulatory authority are rarely accomplished through “modest words,” “vague terms,” or “subtle device[s].” Whitman, 531 U. S., at 468. Nor does Congress typically use oblique or elliptical language to em-power an agency to make a “radical or fundamental change”to a statutory scheme.

This seems to apply to changes in the ATF’s changing regulatory stance on pistol braces. The ATF  reversed what it said about pistol braces previously. The ATF is changing their definition and changing the law. The ATF estimates three million stabilizing braces have been sold:

It is estimated that manufacturers of stabilizing braces have sold 3 million stabilizing braces since 2013. ATF has observed that the development and production of rifled barrel weapons with “stabilizing braces” has become more prevalent in the firearms industry and that, consequently, requests for classifications for this kind of firearm design have also increased.

In a dissent by Justice Gorsuch on a decision of the Supreme Court not to accept a bump stock case, he makes a plea for the rule of law, rather than a rule by the administration.

Justice Gorsuch on bump stocks:

Chevron’s application in this case may be doubtful for other reasons too. The agency used to tell everyone that bump stocks don’t qualify as “machineguns.” Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it. And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations.

Then, on page 19 of the EPA concurrency by Justice Gorsuch, he makes this point:

The Court acknowledges only that, under our Constitution, the people’s elected representatives in Congress are the decision makers here—and they have not clearly granted the agency the authority it claims for itself.

It is difficult to know how the Supreme Court will rule. It appears several justices are willing to rein in administrative agencies. The BATFE is not a popular agency. Some justices on the court are concerned with the rule of law. People subject to the law cannot be expected to follow the law if it changes willy-nilly, without Congressional debate and voting.


Several justices on the Supreme Court are willing to rein in the administrative state’s power. It is easier for the Court to keep the status quo instead of subjecting the country to radical change. Striking down regulations that propose radical change before they have gone into effect has a reasonable chance. In addition, the BATFE regulations directly impact the Second Amendment. This gives proponents of the status quo two separate but reinforcing arguments to strike down the proposed changes.

There is no certainty the Supreme Court will decide to hear the cases challenging the ATF regulatory changes. The chance for the Supreme Court to hear a case increases if there is a split in the circuit courts of appeal.

This correspondent believes the EPA case makes it significantly easier for the courts to strike down ATF regulations as unconstitutional under either the non-delegation principle or the Second Amendment.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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Roland T. Gunner

SCOTUS should not decide what cases it hears; the courts below them should decide that.


The Courts, (The Inferior Courts), do decide cases that are then appealed to the Supreme Court. Because there are literally hundreds, if not thousands of them, the Supreme Court has to decide which of those that are appealed to them are suitable for hearing at that level. I am not sure where you looked at Government Roland, and I know that the structure of government is no longer taught in schools, but it is easy enough for you to look at the structure of government and see how it is operated in many places, one of the best and most… Read more »


I danced a [spiritual] jig when I heard this decision. With any luck this sets the stage for overturning, or at least reigning in, Chevron Deference. Rat-a-tat-tat BATFE, as your regulations get shot full of holes.


The Republican Party is a progressive party. The once-democratic party is a New Left Progressive party. The only difference is a large dose of cultural marxism in the latter. Both hold popular sovereignty in contempt while at the same time loving big government and big government power. And that is the problem. Conservatives have no political home. When I say Conservatives I am talking of the folks like me who seek to conserve and preserve and advocate for our founding principles. The administrative state has no part in that scheme of things. We need a true Conservative party based upon… Read more »


You can probably count on one hand the congress-critters who might side with you. Senator Hawley of MO. Perhaps Senator Lee of Utah. Jim Jordan of Ohio. Any others?


Considering, Congress DID NOT form the “atf”. The Bureaucracy of the atf was formed by an ADMINISTRATING DIRECTOR in the irs. This in itself, make the entire bureaucracy of the atf an ILLEGAL department. Thus the entire atf bureaucracy MUST be DISBANDED. Thus, ALL if its past and current “rules and regulation” ARE ILLEGAL and MUST BE CANCELLED and THROWN OUT!

Wild Bill

I don’t think that it is illegal for a cabinet level member of the president’s staff to form working groups within their departments, as the Sec. Treas. did. But treating that working group as if it were an agency created by Congress surely is questionable. Transferring that group to another department is eyebrow raising. And finally, letting that group make rules with the force and effect of law is clearly unconstitutional.


Does anybody here know how the FDA was created? I don’t and at my age, if I ever did know, I forgot. This brings to mind what I heard today from a neighbor (a gleaner helping to hook up folks in need with food), that Costco has a super large, sub zero warehouse in Utah, where they store meats and other frozen foods to augment delivery to their stores nationwide. I can’t confirm this because I haven’t heard it firsthand. But apparently this massive freezer lost power for three hours, and then it was restored. Supposedly, the FDA came in… Read more »

Wild Bill

Wikkipedia has an article about the FDA that is too long to reproduce here. Very in-depth.

Wild Bill

Nothing on the FDA website about action against Costco.


I would be surprised if the FDA put it on their own website, assuming it is true. Part of the Marxist takeover provided it IS true. Raise gas prices, raise food prices, start ranting about going back to the mask mandate all in an election year, again. After all, allowing businesses to sell their farmland to china and letting china get away with developing pandemic causing lethal viruses in the name of Science? We don’t have much time left as a Republic, IMO.


ive been holding costco stock for almost 5 years and nothing from corporate indicates a problem as you are describing. no fda contact, no major warehouse liquidation in utah.
and you are correct, three hours is nothing inside a commercial subzero freezer.


Thank you. Just another nice guy being hoodwinked by another doomsday story. (me and the guy who told it to me)

Wild Bill

These are dangerous times. Lots of rumors go around in dangerous times. We’ll all keep our noses to the ground and keep on prepping.


Bill,very well put.


Great. A “pro-gunner” directly investing in an anti-gun company, 99% of whose donations go to gun grabbers.


there are a lot of things that happened before the instant news cycle, readily available information of today. the government got away with things like creating batf&e because people did not have access to see if things were constitutional the relied on government to be honest they were so why would someone lie ………..A lawsuit needs to be filed challenging the existence of batfe and its formation


it is way past time for members of batfe to be arrested and jailed


Chevron only applies to cases where congress is silent, and is barred from use in criminal law. Well, congress already defined rifle, firearm, suppressor, receiver, and readily, legally preventing BATFE from changing those statutory definitions, and further, BATFE seeks to criminalize the public for legally purchased goods. They have NO SUCH POWER.




Green Mtn. Boy

You bet your biffy it does as well as all the other alphabet agencies attempting to write law, all un Constitutional as well as the agencies are not Constitutionally authorized.

Patriot Solutions

Correctly interpreted plain English text is returning and it’s gonna leave a mark.

Last edited 29 days ago by Patriot Solutions

Though I completely agree with what you said I must correct you on one statement: It’s “You bet your bippy” not biffy (see: Rowan and Martins’ Laugh In).


And in furtherance of inconsequential minutia, it was “you bet your SWEET bippy “ There, fixed it for ya .