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Beyond the Statute: Government "Logic" and the Cargill Case

Zhonette Brown
General Counsel and Senior Litigation Counsel

February 1, 2024

Later this month, NCLA’s second of three cases before the Supreme Court this term will be argued, Garland v. Cargill. Like the Relentless v. Department of Commerce case heard last month, Cargill follows an all too familiar plot in the Administrative State: the evolution of a federal agency’s statutory interpretation when the agency decides it should regulate more conduct than it previously had under a statute. The government’s Cargill brief provides an example of how federal agencies may use different arguments to support ever-expanding powers if they fail. One of these arguments, the “presumption against ineffectiveness,” sounds innocuous and logical, but as framed by the government it becomes a lever that most often would “presume” more regulatory power and less liberty. Hopefully, the Court recognizes and rejects this gambit.

In Cargill, the agency claims that it has now properly interpreted a statute even though it had interpreted the statute more narrowly in years prior. Specifically, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) decided that the National Firearms Act allowed it to regulate certain types of bump stocks as machineguns. This decision took shape less than three months after a mass shooting involving a bump stock device when, frustrated by Congressional inaction, the ATF issued an advance notice of rulemaking seeking comments on whether it should treat bump stocks as machineguns. For years before that, however, the ATF had determined that it could not regulate non-mechanical bump stocks because they did not “automatically” shoot more than one round of ammunition for each pull of the trigger, as is required to meet the Act’s definition of “machinegun.” Basically, as happens over and over, the agency wanted to regulate conduct it previously saw as beyond its reach, so the agency changed what it claimed the statute meant.

Having reversed its own interpretation of the statute and likely having a basic understanding of common American English, the agency apparently recognizes that its textual arguments are weak. The government argues, for example, that the term “single function of the trigger” found in the statute, should be read to mean “single volitional movement [of the person]” or “single initiation of the firing sequence by some act of the shooter.” In other words, the agency would change the focus of what is regulated from the “function [action] of the trigger” to the action of the shooter.

What’s an agency to do when “we’re all textualists now” and its textual arguments are faulty? It argues that the power the agency seeks to wield must exist to accomplish the purpose of the statute to save the public from danger. But the agency can’t say that directly because flexible purposivist arguments have fallen out of favor. So, the agency takes another step and dresses the argument up in reasoning offered by a venerated conservative jurist. Thus, we find the government arguing in Cargill that, the “presumption against ineffectiveness,” an interpretive tool explained by Justice Scalia, should drive the Court to interpret the statute to suit a purpose, particularly the purpose the agency identifies.

Quoting from Justice Scalia’s Reading Law: The Interpretation of Legal Texts, the government argues that: (1) interpretation of a statute must depend on its context; (2) context of a statute always includes its purpose; and (3) Congress always intends for statutes to effectively achieve their purpose. Standing alone, these statements have logical force. The fault, however, lies in the government’s misapplication.
Most fundamentally, the government distorts Justice Scalia’s reasoning. Justice Scalia stated that “Congress presumably does not enact useless laws.” See U.S. v. Castleman, 572 U.S. 157, 178 (2014). But a statute that clearly regulates some conduct, just not the additional conduct the agency is aiming for, is not useless. Moreover, Justice Scalia did not, as the government would, implement the presumption as a means to regulate conduct covered by Congressional intent not apparent in statutory text. In particular, the government seems to invoke this “presumption” as a means to modernize statutes, allowing statutes to evolve to reach innovations not covered or anticipated by statutory language.

Further, the government’s argument for a purposivist statutory interpretation is seemingly in tension with the argument it made in Relentless, that courts should steer clear of deciding policy in the process of declaring the law. Allowing courts and administrative agencies to resort to purposes not stated in a statute opens the door to aligning the law with their views of appropriate government means and ends. The Supreme Court has recently been clear that the text of a statute is the best and only proper indication of Congress’s purpose. “Congress expresses its intentions through statutory text” and the Court must modestly presume that “the legislature says what it means and means what it says.” See Oklahoma v. Castro-Huerta, 597 U.S. 629, 642 (2022).

The government’s argument is also troubling for its broader implications. In essence, the government argues, and therefore apparently believes, that agency enforcement power must evolve, even when an enabling statute does not. The government argues that “Congress’s ‘regulatory objectives’” must prevail, even when “technological distinctions” exist between what is addressed by a statute and what the agency seeks to regulate. This type of argument can weigh only in favor of the government, as a regulating entity, not in favor of regulated populace. And this is exactly the sort of “government logic” that leads to the trammeling of civil liberties, a wrong the New Civil Liberties Alliance exists to correct and prevent.

Agency interpretation and reinterpretation of statutory purpose cannot justify regulating beyond the text of a controlling statute and the government’s arguments should fail. We’ll see what sort of reception they receive at the Court during the argument later this month.