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` Cite as: 589 U. S. ____ (2020)
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`Statement of GORSUCH, J.
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`SUPREME COURT OF THE UNITED STATES
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` DAMIEN GUEDES, ET AL. v. BUREAU OF ALCOHOL,
` TOBACCO, FIREARMS AND EXPLOSIVES, ET AL.
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`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
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`STATES COURT OF APPEALS FOR THE DISTRICT
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`OF COLUMBIA CIRCUIT
` No. 19–296. Decided March 2, 2020
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`The petition for a writ of certiorari is denied.
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` Statement of JUSTICE GORSUCH.
`Does owning a bump stock expose a citizen to a decade in
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`federal prison? For years, the government didn’t think so.
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`But recently the Bureau of Alcohol, Tobacco, Firearms and
`Explosives changed its mind. Now, according to a new in-
`terpretive rule from the agency, owning a bump stock is for-
`bidden by a longstanding federal statute that outlaws the
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`“possession [of] a machinegun.” 26 U. S. C. §5685(b), 18
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`U. S. C. §924(a)(2). Whether bump stocks can be fairly re-
`classified and effectively outlawed as machineguns under
`existing statutory definitions, I do not know and could not
`say without briefing and argument. Nor do I question that
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`Congress might seek to enact new legislation directly regu-
`lating the use and possession of bump stocks. But at least
`one thing should be clear: Contrary to the court of appeals’s
`decision in this case, Chevron U. S. A. Inc. v. Natural Re-
`sources Defense Council, Inc. 467 U. S. 837 (1984), has noth-
`ing to say about the proper interpretation of the law before
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`us.
`In the first place, the government expressly waived reli-
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`ance on Chevron. The government told the court of appeals
`that, if the validity of its rule (re)interpreting the ma-
`chinegun statute “turns on the applicability of Chevron, it
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`would prefer that the [r]ule be set aside rather than up-
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` GUEDES v. BUREAU OF ALCOHOL, TOBACCO,
` FIREARMS AND EXPLOSIVES
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`Statement of GORSUCH, J.
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`held.” 920 F. 3d 1, 21 (CADC 2019) (Henderson, J., concur-
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`ring in part and dissenting in part) (noting concession).
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`Yet, despite this concession, the court proceeded to uphold
`the agency’s new rule only on the strength of Chevron def-
`erence. Think about it this way. The executive branch and
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`affected citizens asked the court to do what courts usually
`do in statutory interpretation disputes: supply its best in-
`dependent judgment about what the law means. But, in-
`stead of deciding the case the old-fashioned way, the court
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`placed an uninvited thumb on the scale in favor of the
`government.
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`That was mistaken. This Court has often declined to ap-
`ply Chevron deference when the government fails to invoke
`it. See Eskridge & Baer, The Continuum of Deference: Su-
`preme Court Treatment of Agency Statutory Interpreta-
`tions From Chevron to Hamdan, 96 Geo. L. J. 1083, 1121–
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`1124 (2008) (collecting cases); Merrill, Judicial Deference to
`Executive Precedent, 101 Yale L. J. 969, 982–984 (1992)
`(same); see BNSF R. Co. v. Loos, 586 U. S. ___ (2019). Even
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`when Chevron deference is sought, this Court has found it
`inappropriate where “the Executive seems of two minds”
`about the result it prefers. Epic Systems Corp. v. Lewis, 584
`U. S. ___, ___ (2018) (slip op., at 20). Nor is it a surprise
`that the government can lose the benefit of Chevron in sit-
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`uations like these and ours. If the justification for Chevron
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`is that “‘policy choices’ should be left to executive branch
`officials ‘directly accountable to the people,’” Epic Systems,
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`584 U. S., at ___ (slip op., at 20) (quoting Chevron, 467 U. S.,
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`at 865), then courts must equally respect the Executive’s
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`decision not to make policy choices in the interpretation of
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`Congress’s handiwork.
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`To make matters worse, the law before us carries the pos-
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`sibility of criminal sanctions. And, as the government itself
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`may have recognized in offering its disclaimer, whatever
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`else one thinks about Chevron, it has no role to play when
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` Cite as: 589 U. S. ____ (2020)
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`Statement of GORSUCH, J.
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`liberty is at stake. Under our Constitution, “[o]nly the peo-
`ple’s elected representatives in the legislature are author-
`ized to ‘make an act a crime.’” United States v. Davis, 588
`U. S. ___, ___ (2019) (slip op., at 5) (quoting United States
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`v. Hudson, 7 Cranch 32, 34 (1812)). Before courts may send
`people to prison, we owe them an independent determina-
`tion that the law actually forbids their conduct. A “reason-
`able” prosecutor’s say-so is cold comfort in comparison.
`That’s why this Court has “never held that the Govern-
`ment’s reading of a criminal statute is entitled to any def-
`erence.” United States v. Apel, 571 U. S. 359, 369 (2014).
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`Instead, we have emphasized, courts bear an “obligation” to
`determine independently what the law allows and forbids.
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`Abramski v. United States, 573 U. S. 169, 191 (2014);
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`see also 920 F. 3d, at 39–40 (opinion of Henderson, J.);
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`Esquivel-Quintana v. Lynch, 810 F. 3d 1019, 1027–1032
`(CA6 2016) (Sutton, J., concurring in part and dissenting in
`part). That obligation went unfulfilled here.
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`Chevron’s application in this case may be doubtful for
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`other reasons too. The agency used to tell everyone that
`bump stocks don’t qualify as “machineguns.” Now it says
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`the opposite. The law hasn’t changed, only an agency’s in-
`terpretation of it. And these days it sometimes seems agen-
`cies change their statutory interpretations almost as often
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`as elections change administrations. How, in all this, can
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`ordinary citizens be expected to keep up—required not only
`to conform their conduct to the fairest reading of the law
`they might expect from a neutral judge, but forced to guess
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`whether the statute will be declared ambiguous; to guess
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`again whether the agency’s initial interpretation of the law
`will be declared “reasonable”; and to guess again whether a
`later and opposing agency interpretation will also be held
`“reasonable”? And why should courts, charged with the in-
`dependent and neutral interpretation of the laws Congress
`has enacted, defer to such bureaucratic pirouetting?
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`Despite these concerns, I agree with my colleagues that
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` GUEDES v. BUREAU OF ALCOHOL, TOBACCO,
` FIREARMS AND EXPLOSIVES
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`Statement of GORSUCH, J.
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` the interlocutory petition before us does not merit review.
`The errors apparent in this preliminary ruling might yet be
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`corrected before final judgment. Further, other courts of
`appeals are actively considering challenges to the same reg-
`ulation. Before de ciding whether to weigh in, we would
`benefit from hearing their considered judgments—pro-
`vided, of course, that they are not afflicted with the same
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`problems. But waiting should not be mistaken for lack of
`concern.
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