Cargill and the Regulatory Time Gap

In a 6-3 decision in Garland v. Cargill, the Supreme Court invalidated a ban of bump stocks issued by the Bureau of Alcohol, Tobacco, and Firearms (ATF) within the U.S. Department of Justice.

Bump stocks are devices that enable a shooter to fire a semiautomatic rifle at a rate approaching that of a fully automatic machine gun by using the gun’s recoil. The Cargill decision highlights how the time gap between an authorizing statute and a later-enacted regulation may influence judicial assessment of the regulation’s validity. Specifically, the 84-year gap between legislative enactment of the 1934 National Firearms Act (NFA) and ATF’s bump stock regulation pursuant to that language may have created heightened skepticism among the justices in the majority.

ATF’s rule, implemented in the wake of the deadliest mass shooting perpetrated by a single individual in United States history, defined bump stocks as devices that allow a shooter to fire more than one shot automatically by a “single function of the trigger” and classified bump stocks as “machine guns” under the NFA, which made them functionally illegal to own. The Cargill majority disagreed and determined that “a semiautomatic rifle will fire only one shot each time the shooter engages the trigger—with or without a bump stock”—and that a bump stock does not “automate” the firing process.

In a brief concurrence, Justice Samuel Alito distinguished between the language of the NFA and the underlying legislative purpose and expressed his view that Congress could now “act” to ban bump stocks.

Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, dissented. The dissenters stated that they would treat as a proverbial duck any “bird that walks like a duck, swims like a duck, and quacks like a duck.” Bump-stock rifles, the dissenters argued, share the characteristics of a machine gun, and cannot be called anything else. They argued that the “majority’s reading flies in the face of this Court’s standard tools of statutory interpretation” and allows easy evasion of the NFA.

Both the majority and dissent in Cargill struggled to resolve the apparent puzzle created by a statutory framework intended to address the risk of weapons capable of rapid, indiscriminate fire that nevertheless may not squarely cover modern bump stocks as a textual matter. In fact, Justice Alito conceded this clear legislative intent, yet found himself bound by the text.

One explanation for the puzzle is the passage of time. At oral argument, Justice Brett Kavanaugh suggested that “the language in 1934 and around that time” might not be clear because “of course, bump stocks didn’t exist around that time” and were not invented until the early 2000s. The passage of time makes it more likely that the agency will have issued conflicting guidance at some point during that intervening period, and that is a factor the Court has previously weighed when striking down rules and which the Cargill majority noted in passing. But here, I suggest that time alone may be playing a larger, independent role in administrative law cases.

The length of the time gap in Cargill is comparable to those in certain cases over the past several decades in which the Court struck down later-enacted regulations pursuant to New Deal statutes.

In 2000, a Court similarly divided along ideological lines struck down a 1995 rule issued by the U.S. Food and Drug Administration (FDA) that restricted the sale and marketing of tobacco products to children and young adults. FDA issued its rule pursuant to provisions of the 1938 Food, Drug, and Cosmetic Act (FDCA)—meaning that 57 years had passed before FDA sought to regulate tobacco and cigarettes under the statute’s provisions for “drugs” and drug delivery “devices,” respectively. A majority of the Court explained it was “confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.”

An earlier decision rejected an attempt by the U.S. Federal Communications Commission (FCC) to impose a more lenient rate-filing requirement for long-distance telephone carriers without a dominant market share pursuant to the Communications Act of 1934. The FCC had undertaken its action over 50 years after the enactment of the Commission’s claimed source of statutory authority.

In both cases, the Court gestured to the importance or public salience of the issue being regulated. In both, a group of dissenting justices—as in Cargill—interpreted the text differently and used purposive arguments to undergird its analysis.

By contrast, a number of the Court’s major administrative law decisions upholding federal regulations dealt with much shorter time gaps. For example, the Court’s landmark 1984 decision in Chevron v. NRDC validated a construction by the U.S. Environmental Protection Agency, in 1981, of language originating in the Clean Air Act Amendments of 1977. That is a gap of just four years, and the original Clean Air Act was only passed in 1963.

A more recent example is the Court’s unanimous 2021 decision endorsing FCC’s 2017 repeal of cross-ownership rules for radio and TV stations and newspapers pursuant to the 1996 Telecommunications Act and its directive that FCC periodically review those rules.

There are certainly high-profile instances of the Court striking down regulations with a short statutory-regulatory gap. One example is the Court’s recent decision invalidating President Biden’s student loan forgiveness program proposed through the U.S. Department of Education in 2022 pursuant to the 2003 HEROES Act. But such decisions often tread different ground, relying on principles of textualism or the major questions doctrine.

What might we make of the relevance of regulatory time gaps? One can easily read the opinions in Cargill as motivated by differing assessments of the time that had passed since the authorizing statute with no intervening congressional action. Under one view, a long gap presents a stronger chance of textual indeterminacy, because the original legislators are not omniscient in predicting future developments, and potentially such a gap opens the door for modern regulators and judges to substitute their own views for the missing or unclear views of the enactors. To regulatory skeptics, such time gaps may be especially pernicious because of the expansion of the administrative state writ large in the interim period.

On the other hand, the longer the time gap, the more likely it is that technological developments will overtake the entire statutory framework such that a court is compelled to construe the text more broadly to avoid statutory ineffectiveness. Reading Cargill with a focus on the passage of time suggests a similar outcome, and a similar lineup, for the Court’s next case dealing with ATF gun regulations: Garland v. VanDerStok. This case, which appears on the Court’s docket for next term, involves a recent ATF effort to define “ghost guns” as firearms under the Gun Control Act of 1968 and require serial numbers and background checks for gun-assembly kits.

When Congress has acted recently, as with the Bipartisan Safer Communities Act in 2022, regulatory challenges seem much weaker. And any subsequent action by Congress can close the gap—including, for example, by adopting a non-binding directive to reassess the sweep of the NFA.

Outside the context of gun regulation, the time gap might be an important determinant of case outcomes in administrative law cases generally—even if it is often absent from the pages of the United States Reports. The time gap concept may also illuminate disputes over how receptive the Court is to changes in popular opinion. Parties might invoke the major questions doctrine to invalidate agency action more often when the passage of time means that an issue not directly foreseen by the original legislators has taken on outsized societal importance (as with bump stocks, tobacco marketing, or solar and wind power). And the time gap framing implicates ongoing debates over whether the Supreme Court is a partisan actor highly responsive to changes in public opinion or whether it maintains a counter-majoritarian role.

Separate and apart from the major questions doctrine, which was not mentioned in Cargill, the time gap might be a proxy for changes in public opinion that cut against agency attempts to harness long-ago-enacted statutes in a certain way—for example, increasing suspicion of the reach of the administrative state when criminal penalties are involved, or increasing social acceptance of individual gun and gun-related rights. In such cases, changing social norms and views might trump even relatively clear evidence of original legislative intent, as Justice Alito’s Cargill concurrence suggests.

Indeed, the Court’s decision in Loper Bright Enterprises v. Raimondo overruling the Chevron agency deference framework explicitly suggests a greater emphasis on whether “an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute” and is thus entitled to greater “respect.” Time seems to matter to this Court.

Andrew Willinger is the Executive Director of the Duke Center for Firearms Law.