State and federal agencies routinely issue "guidance" in the form of public statements and private letters that are actually veiled commands and threats of adverse consequences for failure to obey. Interpretive regulations, which supposedly only express an agency's opinion and are non-binding, may serve the same function. Such communications may be beyond the agency's legal authority or may be a way to circumvent required notice and comment procedures for formal legislative regulations. This type of coercion may violate rights under the Second Amendment and other constitutional rights, not to mention required administrative procedures.
This post assesses two cases pending in the Supreme Court in which agency guidance is being used to threaten Second Amendment rights. National Rifle Ass'n v. Vullo concerns how New York officials threatened commercial entities not to do business with the NRA in an effort to suppress Second Amendment advocacy. Garland v. Cargill involves the extent to which the executive branch may expand gun crimes beyond what Congress has enacted through supposedly non-mandatory interpretive regulations.
In addition, because agencies often insist that courts defer to their legal and factual conclusions, it is relevant to discuss the pending Loper and Relentless cases in which the Supreme Court will decide whether to tank the Chevron deference rule.
