I was in the Court when Trump v. Hawaii was handed down. I remember the scorn with which Justice Sotomayor referred to “President Donald Trump” by name. It was visceral. However, in Cargill v. Garland, Justice Sotomayor name-dropped President Trump in a positive light. She wrote:
Shortly after the Las Vegas massacre, the Trump administration, with widespread bipartisan support, banned bump stocks as machine guns 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 significance here is that even a right-wing figure like Trump found this rule sensible. Moreover, it is unusual to think of a regulation receiving “bipartisan support.” Typically, when there is agreement across party lines, legislators pass a statute that the President can sign. However, there was no statutory amendment in this case. In fact, President Trump made it clear that he did not want Congress to pass a statute and directed ATF to change the rule. This showcases presidential administration in action! (Justice Kagan probably felt proud.)
However, I viewed the situation as presidential maladministration. ATF had a longstanding interpretation where bump stocks were not considered machine guns. After the Las Vegas tragedy, there were calls to abandon that interpretation. The President instructed his agencies to do so, resulting in ATF reaching the exact outcome the President desired. I labeled it a presidential reversal. In 2019, I presented this argument in amicus briefs filed on behalf of the Cato Institute before the Tenth Circuit and the D.C. Circuit.
Justice Thomas alluded to this maladministration:
- “ATF abruptly reversed course in response to a mass shooting in Las Vegas, Nevada. In October 2017, a gunman fired on a crowd attending an outdoor music festival in Las Vegas, killing 58 people and wounding over 500 more.”
- “This tragedy created tremendous political pressure to outlaw bump stocks nationwide.”
- “While the first wave of bills was pending, ATF began considering whether to reinterpret §5845(b)’s definition of ‘machinegun’ to include bump stocks.”
- “ATF’s about-face drew criticism from some observers, including those who agreed that bump stocks should be banned.”
- “The final Rule also repudiated ATF’s previous guidance that bump stocks did not qualify as ‘machineguns’ under §5845(b).”
- “Moreover, it is difficult to understand how 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 bump stocks.”
- “Curiously, the dissent relegates ATF’s about-face to a footnote, instead pointing to its classification of other devices.”
And here is an excerpt from Justice Sotomayor’s footnote:
The majority emphasizes that ATF previously took the position that certain bump-stock devices were not “machinegun[s]” under the statute. See ante, at 3, 19. ATF, however, has repeatedly classified other devices that modify semiautomatic rifles by allowing a single activation of the shooter to automate repeat fire as machineguns.
All six conservative Justices on the Court found the statute unambiguously did not support the bump stock ban. However, the en banc Fifth Circuit could only gather eight votes in favor of that stance—one short of a majority. It’s important to note that the en banc Fifth Circuit is not as conservative as critics may suggest. The other Fifth Circuit appeals heard by the Supreme Court this year did not go through the en banc court: FDA v. AHM, Rahimi, NetChoice, and CFPB. In any high-profile en banc case, there are typically three or four moderate Republican appointees who may align with the Court’s Democratic appointees. If these Republican appointees judges transition to senior status during a potential second Trump administration, the en banc court’s composition could change significantly.
