A recent federal judge's ruling against the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) condemned the trend of an ever-expanding Executive Branch usurping the legislative power of Congress. Federal District Judge Reed O'Connor excoriated the ATF in his decision in favor of the plaintiffs in National Association of Gun Rights v. Garland.
Judge O'Connor's decision dealt specifically with the ATF's designating the Rare Breed FRT-15 (Forced Reset Trigger-15) a “machinegun” under the National Firearms Act of 1934. The designation followed in the wake of ATF's rule redefining bump stocks as “machineguns” following the 2017 Las Vegas shooting which killed 60 people and wounded hundreds more. This despite previously declaring bump stocks lawful on numerous occasions.
The ATF acted unilaterally, enacting a rule carrying the weight of federal law with punishments of 10 years in prison and up to a $250,000 fine. Congress was not involved, even though the Constitution clearly reserves the power to make law to the Legislative Branch.
The Supreme Court, in Cargill v. Garland, recently ruled the ATF's bump stock ban to be unconstitutional, opening the door for this suit. The high court found that the ATF acted beyond its authority and violated the Administrative Procedures Act (APA). Judge O'Connor's decision regarding Forced Reset Triggers is indeed correct, but his conclusion speaks to a growing problem within the Constitutional realm: separation of powers and the expansion of executive and judicial action at the expense of the legislature.
Separation of Powers is a Fundamental Principle
The Framers of the United States Constitution established three separate but co-equal branches of government. The Constitution expressly grants certain powers to each branch, while also spelling out certain restrictions. The three branches possess the power to check one another, as with the presidential veto, Senate confirmation of presidential appointees and judicial review, among others. The states formerly enjoyed a check on the federal government, through the Senate, but that power was removed by the 17th Amendment, which is another subject entirely.
Most of us know, hopefully, that the Legislative Branch makes the laws, the Executive Branch enforces those laws, and the Judicial Branch interprets the laws under the Constitution. The Framers deliberately endeavored to keep one branch from growing too powerful, lest the entire federal government become an instrument of tyranny.
Legislative Erosion
But the Judicial and Executive Branches have increasingly encroached on the legislative realm. The Supreme Court acted beyond its Constitutional purview with the landmark Roe v. Wade in 1973. Roe was de facto federal law for nearly five decades before being overturned in 2022. Yet the Constitution does not grant legislative power to the Supreme Court.
Undeclared wars in Korea, Vietnam, Iraq and Afghanistan greatly expanded the president's role as commander-in-chief of the military. Even the War Powers Act, also in 1973, passed to reign in presidential authority after Vietnam, seems like a toothless tiger.
The growing federal bureaucracy routinely makes rules that are identical to federal law, including punishment regimes resulting in federal prison terms and crippling fines. Yet no one has elected these bureaucrats to their offices, nor are they accountable to the public in any way.
Incredibly, Congress seems willing to allow these incursions, especially from the Executive via the federal agencies. These agencies often operate in the background, their policies too esoteric and seemingly mundane to merit major media coverage. Members of Congress no doubt influence agency rules through the administration, at least when their party is in the White House. But enacting rules through those agencies allows those legislators to avoid publicly voting for controversial issues that might cost them at the polls.
It also saves them from having to do real policy work so they can instead focus on public relations efforts for the next media cycle. In other words, many legislators are quite willing to let the faceless bureaucrats do their work for them. Never mind that doing so erodes legislative independence from the Executive Branch, thus weakening the constitutional order. But far be it from the average congressman to endanger his reelection chances by tackling tough issues and preserving fundamental institutions.
To be fair, not all lawmakers fit that description, at least not all the time. The federal bump stock ban resulted from then-President Trump's knee jerk reaction to the Las Vegas murders. Several bump stock ban bills had been filed in Congress when the ATF rule took effect, not having had the time to negotiate the legislative process. On the other hand, no one in Congress protested when the ATF ban superseded those efforts.
The Court's Admonishment
Judge O'Connor's decision acknowledged the Las Vegas murders' tragic nature and the desire to act in their wake. “But” he wrote, “no matter how terrible the circumstances, there is never a situation that justifies a court altering statutory text that was democratically enacted by those who are politically accountable. That responsibility belongs exclusively to Congress. The Constitution assigns such legislative choices to the appropriate elected officials not life-tenured judges and unelected bureaucrats (emphasis in original).”
O'Connor strangely mentioned courts, instead of executive agencies, but he is nonetheless correct, and he does include “unelected bureaucrats” later on. He also notes that Chief Justice John Marshall wrote, in the landmark Marbury v. Madison, that the judiciary's job is to say what the law is and nothing more.
The judge then excoriated the ATF, writing that “By jumping the gun, Defendants robbed Congress of the ability to capitalize on political support to alter the statutory language following the Las Vegas shooting. Indeed, multiple bills on this exact issue were pending in Congress when Defendants decided to act. None of these bills were given the chance to become law. As is often the case, public attention waned, taking with it the momentum for legislative action. But this result is even more pernicious than the mere inability to enact legislative change. Each time an agency circumvents the legislative process it chips away at the most prudent reason for the separation of powers – that is, ensuring unelected and unaccountable individuals do not make the law. This reason alone compels the Court's decision today.”
Separation of Powers is a Fundamental Constitutional Concept
Finally, Judge O'Connor emphasized the importance of separation of governmental powers. “Every year,” he wrote, “our country commemorates the revolution waged against a tyrannical executive. To safeguard against future tyranny, our founding documents designed a system that prevents undue concentrations of power in order to protect important rights and to ensure that a legislative consensus is reached before enacting laws on the most important issues in society. Such foresight is especially prudent in cases like this one. Indeed, while this case may seem focused on firearms, it represents so much more. It is emblematic of a devastating problem that increasingly rears its head in federal courts: rampant evasion of the democratic process. Few issues more acutely underscore this problem than the present case. Our nation would do well to remember the very reasons and spirit that inspired our democratic system of governance in the first place.”
We would do well, indeed.
The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.
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