The Supreme Court of the United States has a duty to \u201cinterpret\u201d the laws passed by Congress. The Court also determines whether those laws are consistent with the United States Constitution.\u00a0\u00a0\u00a0All of that seems pretty cut and dried \u2013 but of course, it\u2019s not.\u00a0\u00a0The \u201ccut and dried\u201d cases are all determined at the lower court levels.\u00a0\u00a0It\u2019s always the hard ones, the fifty-fifty cases, that reach the highest court in the land.<\/p>\n\n\n\n
Trying to guess how the nine Justices will come down on any of the \u201cfifty-fifty\u201d cases is always tough.\u00a0\u00a0And one area that is most difficult to call, is the one involving \u201cadministrative law\u201d.\u00a0\u00a0When Congress creates laws, they often include creating some agency to figure out the details.\u00a0\u00a0How far can the agency can go, how much authority it has, what limits are applied? What determines the\u00a0\u00a0extent of that agency\u2019s power often is decided by the Supreme Court.\u00a0\u00a0But one thing is sure \u2013 normally the Court deals in \u201claw\u201d, not in \u201cfacts\u201d,<\/p>\n\n\n\n
Last week, we saw two examples of this process. The first was about the power of the Food and Drug Administration (FDA). The second is the authority of the Bureau of Alcohol and Tobacco and Firearms (ATF).<\/p>\n\n\n\n
It\u2019s actually pretty simple. Congress didn\u2019t want to be in a position of approving every single drug created in our changing world. They neither had the time, nor more importantly, the expertise, to make those decisions. Citing their Constitutional power to control interstate commerce, Congress wrote the Pure Food and Drug Act at the beginning of the 20th<\/sup> century. They delegated those powers to the FDA, created in 1906. The administration ended the era when drugs like cocaine were in soft drinks and \u201celixirs\u201d: the original \u201ccoca\u201d in Coca Cola. <\/p>\n\n\n\n So instead of every new drug, cancer treatment, weight loss breakthrough or blood pressure medication going through Congress, decided on by 535 non-experts; it\u2019s the FDA\u2019s job. Imagine the Pfizer Covid vaccine undergoing the \u201clegislative process\u201d. Instead, it went through a careful scientific process of evaluation, and final approval by the FDA. <\/p>\n\n\n\n So it was a shock when \u201crogue\u201d Federal\u00a0District Judge Matthew Kacsmaryk\u00a0 in Amarillo, Texas, ruled the abortion drug\u00a0Mifepristone was dangerous, even though it was FDA approved more than two decades before.\u00a0\u00a0Kacsmaryk is an avowed \u201canti-abortion\u201d judge, and the only Federal judge located in Amarillo. As such, his is the target court for those trying to get Federal anti-abortion rulings.\u00a0\u00a0And it worked.\u00a0\u00a0The surprise wasn\u2019t his ruling, but that on appeal the 5th<\/sup>\u00a0Circuit Court of Appeals agreed with him. It brought into question the entire FDA drug approval process.<\/p>\n\n\n\n The case went to the Supreme Court, where the majority ruled to keep the FDA decision in place. If you are in favor of access to Mifepristone, that\u2019s the good news. But, they also based their ruling on a legal technicality, declaring that the group that brought the case in the first place, \u201cthe Alliance for Hippocratic Medicine\u201d, failed to prove that they should have standing in the case. That\u2019s the bad news. Practically, this kept Mefepristone on the market for the moment. But the Court did not get to the basic question of the role of Federal agencies, and they didn\u2019t preclude other groups from raising the question (probably in Amarillo) in a different way. In the end, the decision only decided that \u201cthe Alliance\u201d couldn\u2019t sue, not that the FDA could decide.<\/p>\n\n\n\n The other question the Supreme Court decided last week is a technical one:\u00a0\u00a0what is a machine gun.\u00a0\u00a0Again, Congress created an agency, the Alcohol, Tobacco and Firearms Administration in 1972, under the Department of Treasury (taxing all three items).\u00a0\u00a0After 9-11 and the reorganization of the National Security agencies, the regulatory actions were transferred to Homeland Security, while the taxing authority remained in Treasury.\u00a0\u00a0<\/p>\n\n\n\n The Firearms division is responsible for regulating legal guns, and controlling illegal weapons in the United States. ATF defines generally what is and is not a legal firearm. But it was back in 1934 that the Congress banned machine guns (and sawed-off shotguns). What is a machine gun or \u201csawed-off\u201d shotgun? That was left to the ATF, just as Mefepristone and other drugs were left to the FDA. And the ATF has a further restriction, the Second Amendment to the Constitution\u2019s mandate to \u201cthe right to bear arms\u201d. ATF balances that \u201cright\u201d with the reality of advancing gun development (and marketing).<\/p>\n\n\n\n Unlike the Mefepristone case, in this one the Supreme Court dove into the technical \u201cweeds\u201d of how does a machine gun work, and what is the actual definition. In fact, the Court majority ignored the fact the \u201cbump stocks\u201d allowed ninety rounds or more to be fired from a supposedly semi-automatic rifle in a minute. It was the weapon of choice of the Las Vegas shooter, who killed sixty and wounded over 400 more \u2013 that\u2019s one man, shooting over a thousand rounds from one window at a crowded concert venue, in less than ten minutes.<\/p>\n\n\n\n The majority determined that since \u201ctechnically\u201d, the trigger of the gun was being \u201cpulled\u201d multiple times by the bump stock, it was not \u201cfully\u201d automatic, and therefore did not meet their definition of a machine gun as \u201c\u2026a gun that could fire multiple rounds with one pull of the trigger\u201d. It\u2019s the kind of \u201cin the weeds\u201d definition that administrative law is made for, and usually made by agencies just like the ATF. But, because the Court majority seems so deeply wedded to the supporters of the Second Amendment, they became the \u201cfact\u201d experts as well as the determiners of legality.<\/p>\n\n\n\n But the Court gave Congress a \u201cway out\u201d. Re-define a bump-stock equipped semi-automatic rifle as a machine gun; pass a law saying so, and the Supreme Court, for the moment, might acquiesce. At least until they decided that the whole process violates the Second Amendment.<\/p>\n\n\n\n That\u2019s not going to happen in Congress this election year. It certainly isn\u2019t going to happen in the current era of partisan divide. And it\u2019s not going to happen in a time when we can so quickly forget the death of so many, so quickly. So bump-stocks are legal \u2013 again. And everyone can have their own \u201cnot\u201d a machine gun that fires ninety shots a minute.<\/p>\n\n\n\n Feel safer?<\/p>\n","protected":false},"excerpt":{"rendered":"Judges with Agendas<\/h3>\n\n\n\n
What\u2019s a Machine Gun<\/h3>\n\n\n\n
Into the Weeds<\/h3>\n\n\n\n
Way Out<\/h3>\n\n\n\n