Navigating Agency Interpretive Regulations and the Chevron Doctrine

Federal and state agencies typically release “guidance,” such as public statements and private letters, which can be seen as veiled commands and threats of adverse consequences for not adhering. These interpretive regulations, which are supposedly non-binding, may serve the same purpose. The coercion from these communications may violate rights protected by the Second Amendment, amongst other constitutional rights, and summoned administrative procedures. Current cases being reviewed by the Supreme Court involve how agency guidance is used to threaten Second Amendment rights.
These cases include National Rifle Ass’n v. Vullo, which concerns how New York officials threatened commercial entities not to do business with the NRA, and Garland v. Cargill, which discusses the extent to which the executive branch can expand gun crimes beyond existing legislation through non-mandatory interpretive regulations. Another current issue is whether the Chevron deference rule will be tanked in the pending Loper and Relentless cases.
In NRA v. Vullo, the Supreme Court is questioning the legality of government officials threatening regulated entities with adverse regulatory action if they do business with an advocacy organization. The NRA’s allegations have been taken as true, with specific concerns raised about a press release urging insurance companies and banks to stop doing business with the NRA.
In relation to federal agencies, the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) has a long-standing history of issuing “guidance” which, despite not being law, carries possible risks if ignored. This coercive practice led to the Attorney General’s issuance of a Prohibition on Improper Guidance Documents in 2017, with President Biden revoking the executive order in 2021.
The ATF recently issued an interpretive rule expanding the definition of a “firearm” in the National Firearms Act (NFA) without legislative support, causing legal disputes. Courts should be wary of such “guidance” documents masquerading as non-mandatory rules and regulatory authority. The Supreme Court will have to clarify the legality and authority of such non-binding guidance in these cases.