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 good way. She wrote:
Shortly after the Las Vegas massacre, the Trump administration, with widespread bipartisan support, banned bump stocks as machineguns 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 import here is that even a right-wing fascist like Trump thinks this rule is sensible. Moreover, it is strange to think of a regulation having "bipartisan support." Usually, when people on both sides of the aisle agree on a policy, legislators pass a statute, which the President can sign. But there was no statutory amendment here. Indeed, President Trump was quite clear that he didn't want Congress to pass a statute, and directed ATF to change the rule. Presidential administration in action! (Justice Kagan probably was proud.)
However, I saw the dynamics as presidential maladministration. ATF had a long-standing interpretation in which bump stocks were not machine guns. After the Las Vegas mass killing, there were calls to abandon that long-standing interpretation. The President directed his agencies to abandon that long-standing interpretation. And wouldn't you know it, ATF reaches the exact result the President wanted. I called it a presidential reversal. In 2019, I advanced this position in amicus briefs filed on behalf of the Cato Institute back before the Tenth Circuit and the D.C. Circuit.
Justice Thomas gestured towards 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 Justice Sotomayor's footnote, in part:
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 of the Court's six conservatives found this statute unambiguously does not support the bump stock ban. However, the en banc Fifth Circuit could only muster eight votes for that position—one short of a majority. Please recognize that the en banc Fifth Circuit is not as conservative as critics would tell you. The other Fifth Circuit appeals that the Supreme Court heard 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 three of four moderate Republican appointees who can vote with the Court's Democratic appointees. If those Republican appointees judges end up taking senior status during a second Trump administration, I think the en banc court would look very different.
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