American Thought Leaders - Censorship, Guns, and Administrative Power: Mark Chenoweth Explains 3 Major SCOTUS Cases

Episode Date: March 15, 2024

“It’s not the government’s job to police the line between true speech and false speech. The Constitution doesn’t give our government that power. The government has the power to police the line between lawful speech and unlawful speech.”Mark Chenoweth is the president and chief legal officer of the New Civil Liberties Alliance (NCLA), a nonpartisan civil rights group dedicated to protecting constitutional freedoms from government violations.“Most people aren’t going to know why their speech was taken down off of the platform. They might assume that it was the private decision of Facebook, or X, or LinkedIn ... and it’s difficult to discover that it was actually the result of a government order,” says Mr. Chenoweth.In this episode, we dive into the NCLA’s three lawsuits that have made their way up to the Supreme Court: Murthy v. Missouri (formerly known as Missouri v. Biden), Garland v. Cargill, and Relentless v. Dept. of Commerce.“Agencies no longer look at the statute and say, ‘How do we best interpret this statute and apply it?’ Instead, they say, ‘How far can we push this and still get federal judges to go along with our ‘reasonable interpretation of the statute’?’ Well, that’s not a good dynamic to have in place. We need to get back to a world in which the agencies expect the judges to enforce the law as Congress wrote it,” says Mr. Chenoweth.Views expressed in this video are opinions of the host and the guest, and do not necessarily reflect the views of The Epoch Times.

It's not the government's job to police the line between true speech and false speech. The Constitution doesn't give our government that power. The government has the power to police the line between lawful speech and unlawful speech. Mark Chenoweth is the president and chief legal officer of the New Civil Liberties Alliance, NCLA, a nonprofit civil rights group dedicated to protecting constitutional freedoms from government violations. Most people aren't going to know why their speech was taken down off of the platform. They might assume that it was the private decision of Facebook or X or LinkedIn. And it's difficult to discover that it was actually the result of a government order.

In this episode, we dive into the NCLA's three lawsuits that have made their way up to the Supreme Court. The agencies no longer look at the statute and say, how do we best interpret this statute and apply it? Instead, they say, how far can we push this and still get federal judges to go along with our quote-unquote reasonable interpretation of the statute? Well, that's not a good dynamic to have in place. This is American Thought Leaders, and I'm Janja Kellek.

Mark Chenoweth, such a pleasure to have you back on American Thought Leaders. Good to be here. Most of our viewers have heard about Missouri v. Biden. This is one of actually three cases you have in front of the Supreme Court, your outfit, NCLA. That's, I think, not typical. It's not typical. We're not going to get used to it. Before we start, give me an outline of Missouri v. Biden. We'll do that for each of the cases, you know, quick thumbnail, what it is and why it's significant, which it really truly is. Yeah. Yeah. Well, let me do these in reverse order. So the last case of the term for us is the Murthy v. Missouri case. It

was Missouri v. Biden below. And this is the case in which we have shown and we've had obtained an injunction against the administration over all of the social media censorship that it has been engaged in. So this is multiple agencies of the federal government telling then Twitter, now X, Facebook, LinkedIn, some of these other social media platforms to take particular ideas and individuals off of those platforms. And then the company is complying because of the pressure that they were put under by the administration in these cases. The second case that we just argued at the Supreme Court is the Garland v. Cargill case. And this is another one that we won below. And this has to

do with the bump stock ban, where bump stocks had been ruled legal by the Bureau of Alcohol, Tobacco, and Firearms under the Bush administration. The Obama administration had multiple rulings on this. And then the beginning of the Trump administration. Then ATF decided after the massacre in Las Vegas, frankly, where bump stocks were used, that they wanted to outlaw them. But instead of going through Congress, as they should have done, the agency just outlawed it on its own. And that's the problem that we have. And so we're taking that issue up to the Supreme Court. And that's, I guess, relevant to your third case as well, right? Right. Because our third case has to do with deference to administrative agencies.

And so there were actually two cases argued. Ours is called Relentless v. Department of Commerce. The other case was Loperbright v. Raimondo, who's the secretary of the Department of Commerce. But the issue in both cases is whether or not a federal judge has to defer to a federal agency's interpretation of a statute when there's an ambiguity. And under the deference doctrine called Chevron, if the agency's interpretation is reasonable, then a judge has to defer to that. And our view is, wait a minute, if you're suing an agency or an agency is suing you, then you need to have a fair judge, not a judge who's deferring to the agency's view of the law. No, absolutely. But this Chevron deference,

as it's often called, I mean, as far as I can tell, over 40 years, it has created a situation where agencies are kind of making a lot of law. And it's almost like Congress has decided that, well, that's okay. And it's created like Congress has decided that, well, that's kind of, that's okay. And it's created an incentive for agencies to be more promiscuous in the sense of, or adventuresome if you prefer, in the kinds of things that they're willing to see if they can get away with. And the way it's been explained to me by someone at the Department of Justice who saw this particular dynamic in play, the agencies no longer look at the statute and say, how do we best interpret this statute and apply it? Instead, they say, how far can we push

this and still get federal judges to go along with our quote-unquote reasonable interpretation of the statute? Well, that's not a good dynamic to have in place. We need to get back to a world in which the agencies expect the judges to enforce the law as Congress wrote it. You know, one of our reporters, Sam Dorman, actually, you know, he knows that I'm very interested in Chevron deference. He's, you know, done a kind of a long interview with Philip Hamburger back in the day, actually. My boss. Exactly. And he told me that, well, he actually sent me something that kind of, it was interesting. It suggested that one of the justices is referring to Chevron kind of in the past tense, which, how did you, you're aware of this?

I did hear about this, yeah. How do you interpret that? Well, it's always hard to read the tea leaves, but Justice Jackson, in the oral argument in the Corner Post case, which is not one of our cases, asked a question where she said, well, something along the lines of, well, yes, that would be true if we had Chevron, but in a world where there isn't Chevron anymore, then how do you answer the question? And so a lot of people have looked at that and said, oh, I wonder if there's a decision already circulating that where Chevron would go away. Later in the same argument, Justice Kagan asked a hypothetical,

and she sort of explained three different times that this is just a hypothetical, but if there isn't Chevron anymore, and then went on with her question. So folks are looking at that and thinking that might be indicative of where the court is leaning on the relentless and low-per-price cases. Well, so, and I guess they're discussing that right now, and there's an opinion being formulated. So when will we know about this? This is one of the most important or perhaps underrated, but yet important pieces of administrative law ever. Marbury v. Madison is probably the most cited case. The Chevron case is the second most cited case. So it's been very influential over the last 40 years, unfortunately. And the other thing I would say about it is the New Civil Liberties Alliance was founded

in large part to try to do away with the Chevron doctrine. Our founder, Philip Hamburger, whom you mentioned, has a very important theory about why Chevron deference violates individual liberty. It's not just a problem of sort of the structural things of how it creates incentives for Congress and incentives for the agency. It also violates people's individual rights. And so we wanted to get that argument in front of the justices as well. In the 40 years that Chevron has been on the books, no one has ever made that argument about the violation of individual rights to the justices at the Supreme Court. So we were able to do that in January, and we'll see if that made a difference. These other two cases, there's a lot of people interested, but Missouri v. Biden, now Murthy v. Missouri. It's hard to fathom what the world will look like

if this case doesn't work out on the side of the First Amendment. So to take a step back for those who haven't been following sort of the things that have come to light as a result of the discovery in this case, and it's not just the discovery in this case, it's also the Twitter files that Elon Musk released had a lot of information in it that's been useful to this litigation. What we have learned is that there were multiple instances, and by multiple I don't mean like five or ten, I mean hundreds of times when different agencies in the federal government went to the various platforms and directed them to take down particular kinds of speech. They even worked with them to try to change their policies on what would and wouldn't be allowed on those platforms.

Already we're violating First Amendment territory because what the First Amendment states is that Congress shall make no law abridging the freedom of speech. And if you look at what abridging means, it's not a term we use that much anymore, but it means diminishing. And so do you think if the administration is calling these platforms and telling them to take down speech, that that might be diminishing the amount of speech on those platforms? Of course it is. And that's the standard that the Supreme Court ought to apply. Now, there's a lot of precedents that have been built up over time about what does and doesn't count as so-called state action. And a lot of the cases that have been brought historically have been cases where someone was trying to show that a

private entity was engaged in state action. And you want to be careful before you decide that some company or some other entity is the government because all sorts of kinds of extra obligations would apply to them at that point. And so what those precedents have said is there has to be a showing of coercion or pressure or significant entwinement or encouragement. These are all sort of the legal terms that you have to demonstrate in order to show that level of state action that would then lead the First Amendment to apply. You know, we're not suing the platforms. That's not the defendant here. We sued the government agencies that were guilty of the censorship, of ordering the censorship. And so really, the standard that ought to apply is just abridging. Did they diminish speech or did they not diminish speech by these actions? And it's

crystal clear that these actions diminish speech. And if they can get away with it, then they'll keep doing it. So, you know, since this case was launched, and of course the discovery on this case is, I don't have an opportunity to read through entire cases, but this was sort of so riveting that I did. Yeah. What we've learned is this wasn't just some rogue actors in different agencies, right? This was a systematic effort on the part of the administration to tamp down on certain ideas. One of the things that they were interested in tamping down on was anyone who had anything to criticize about the government's narrative around COVID-19 or the different ways in which the government was trying to handle COVID-19, including vaccine

mandates, vaccine development, and so forth. And there was some of this that predated the current administration, but it really ramped up in January of 2021. And one of the very first things that happened was the story went out when Hank Aaron died, that maybe he had died soon after getting the COVID vaccine. Now, I haven't run that to ground. I don't know if that's true. But that rumor was circulating. And the administration jumped on that. And they were immediately telling folks, take that down. Don't spread that story. The problem is, it's not the government's job to police the line between true speech and false speech. The Constitution doesn't give our government that

power. The government has the power to police the line between lawful speech and unlawful speech. So is there child porn up on the internet? The government can take that down because that's unlawful. It's illegal. You can take that down. They can tell the platforms to take that speech down. And there are lots of other kinds of illegal speech that we can think of that the government can police. But it can't police the line between what it thinks is accurate and inaccurate. That's just not the government's job. And yet this administration thinks that they can do that all over the place, not just on that, but on things like the Hunter Biden laptop. And Jan, you'll appreciate this immediately. The things that they can do that all over the place, not just on that, but on things like the Hunter Biden laptop. And Jan, you'll appreciate this immediately. The things that they were often telling the platforms to take down were actually truthful speech. So they said that they were false speech,

but they weren't. They were truthful. And that's one of the reasons why the government can't be in the business of policing the truth, because it's not very good at it. Well, you know, one of the things that we've learned, and I think this is even I learned since the launch of Missouri v. Biden, which, of course, I just want to add, of course, was done with the states of Louisiana and Missouri as well. So it's not just you. Yeah, I think everybody should know that. Yeah, we represent four private plaintiffs in the lawsuit. But obviously, the state of Louisiana represents itself and the state of Missouri represents itself. This idea you've have you heard of this term malinformation? Oh, sure.

Because there's misinformation, MDM, right? Misinformation, disinformation, malinformation. There's actually a term for what you just described. Well, so I've heard it explained different ways. But I think that there's a difference between information that is sort of maybe deliberately false and information that maybe is negligently or accidentally false. So that's one of the distinctions between sort of misinformation, disinformation. And then malinformation is maybe the most insidious because my understanding is malinformation is information that they concede is true,

but it's unhelpful for that information to be out there. Well, I'm sorry that it's inconvenient that, for example, natural immunity to COVID-19 exists, but it's true that if you have had COVID and you've recovered from it, that you have antibodies and that it's much harder for you to get it a second time. And that was important, accurate, truthful information that deserved to be out in the conversation. And the government systematically suppressed that kind of information from being on these social media platforms. And that's, it's just criminal. It's not literally criminal, but yeah. Well, what are the implications of there being a class of information judged by the government, truthful, but I mean, let's call it

truthful, but inconvenient. Okay. That's the shorthand. An inconvenient truth, you might call it. Well, explain to me, explain to me the implications of that, of that being something that's actually, you know, used and there's multiple instances of this as you just described to me, right? Right. Well, the government has a right to its own speech, right? There's this government speech doctrine. And so if, uh, if the government wants to go out there on its own platforms and its own to spread its own message it's welcome to do that what it can't do is go out there and suppress the counter messages that other people might have or the the information other

people might be putting out there to question the official narrative and yet that's what they're trying to do and And they're doing it under this banner of misinformation, disinformation, and malinformation, as though that has anything to do with what the Constitution permits. There is no mention of misinformation, disinformation, or malinformation in the Constitution. And there have been tremendous precedents from the Supreme Court saying that it's not the job of the government to do this, that the people are the watchguards of truth. The government is not the watchguard of truth.

Well, exactly, because the implication of this, you know, malinformation, I mean, the malinformation is kind of a mind job to me because it's sort of saying if it's government, effectively government information, because who decides if it's inconvenient? In this case, it's the government deciding. That speech is somehow more important or more valuable, even if, or like, is it speech to suppress? I don't know. I'm thinking about that. But basically, what they're doing is more important, more valuable than the actual true information. And the way that we arrive at truth in science and in public policy debates

is to have a free flow of information where people put forward different hypotheses. And if we're going to reach the truth, some of the hypotheses that people put forward are going to be wrong. And you have to have the freedom to be wrong, to say things that turn out not to be quite right. And then other people can come along and say, well, okay, that piece out not to be quite right. And then other

people can come along and say, well, okay, that piece of what you said is right, but this piece I think is wrong. And then slowly over time, you're able to generate the truth of the situation in science or public policy. Well, I was going to say, I think you just described the scientific method, perhaps ironically, right? That's right. And that was not allowed to prevail in the debates around COVID-19. We were all led to believe that there was only one truth and that the government already knew it and that all of the other information that was circulating was not true.

And yet our clients in the Murthy case include Dr. Jay Bhattacharya, who's a professor at Stanford University, and Martin Kulldorff, Harvard University. These are top scientists in the field who understand epidemiology and understand the science behind these viruses and had a different view than the prevailing government view about what we ought to do in terms of responding to the pandemic. And yet, their voices were silenced. So are you going to give us a hint as to what I guess this operation is going to argue on the 18th? Right. So in the Murthy case, the state of Louisiana is going to be the lead folks arguing this case. And what we're going to try to explain to the justices is that even under the standard that is prevailing that I talked about earlier,

the sort of coercion or pressure or entanglement standard, there is plenty of evidence in this case to show that all of those things happened. The White House was telling these platforms to take speech down and then when they didn't do it they'd call them back sometimes the same day and say hey how come it's not down yet. You know there were also instances of threats by the president saying well we're really gonna have to look at section 230 and the immunity that you guys have under

section 230 if you don't you guys have under section 230 if you don't go along with what we want to do from a censorship standpoint so there are examples of of the pressure of the coercion of the entanglement but as i alluded to earlier i don't think that's the right standard i think that it's a much lower bar than that. Look, the reason that we were able to show in this case that all of those things happened is because we were able to get discovery from a judge who believed this enough and there was enough evidence and the Twitter files were helpful in this. But if you have to show that and the government knows you have to show that high a bar, most people aren't going to

know why their speech was taken down off of the platform. They might assume that it was the private decision of Facebook or X or LinkedIn or whatever to take down their speech. And it's difficult to discover that it was actually the result of a government order. And if you have to show, before you can ever survive a motion to dismiss in a lawsuit that there was coercion or entanglement or encouragement, it's going to be very difficult for an individual to show that. And that would give the government way too much latitude in silencing ordinary Americans on these platforms. Fascinating. I mean, you're involved actually in a whole new case now. I believe it's the Daily Wire and the Federalist and the State

Department on the other side. Explain that case to me, because I mean, obviously related. Yeah, it is. It's related to this social media censorship problem. And you're exactly right. So it's the Daily Wire, the Federalist and the state of Texas is one of the plaintiffs as well. And we've sued the State Department because it's come to our attention, and this is due to some great reporting by our colleague Margo Cleveland, who also works for The Federalist, by Gabe Kaminsky at the Washington Examiner. I think we all assume the State Department is engaged in activity overseas on behalf of Americans. But in this case, the State Department was actually funding research and developing technology to promote censorship. But not only was it developing this and promoting it,

it was then turning around and selling it or giving it to folks in the United States to use to suppress the speech of Americans. Well, this is shocking. First of all, it's shocking that the State Department would be doing something that had a domestic focus at all. And then secondly, the fact that it would think that it can take this technology, which, look, there may or may not be a legitimate way to deploy this kind of technology in service of the foreign policy of the United States. I'm not a foreign policy organization. I'm not going to opine on that today. But I know for sure that the First Amendment forbids the State Department from turning around and applying these tools. And not only does it have these tools, it has a testbed where it allows folks to come in and test the efficacy of these various speech suppressing software and tools that they've developed. And so now we have organizations like NewsGuard that are going out there and they are trying to demonetize some of these websites, like the Daily Wire,

like Federalist, probably Epoch Times too, I wouldn't be surprised. So the fact that the State Department is the one that's behind this, facilitating this, has been using government taxpayer dollars to do this, it is unlawful. And that's what we are. That's why we're suing the State Department over it. And hopefully we will be able to show to the federal court and get the federal court to stop the State Department from doing this anymore. So, you know, it's terrible to hear this because I remember, you know, I remember back when the legislation for the Global Engagement Center, which is the arm of the State Department that's doing this right now, was written. And I was actually very happy to see that there was some kind of effort to counter Chinese Communist Party propaganda that was being lifted on the ground.

Because what I was observing over years of looking at China, there was this billion-dollar effort at foreign influence being pushed in all sorts of ways into the United States especially, but basically the West at large. I mean, just purely on these influence operations. And the U.S. had, I guess, not a lot to counter on the other side. And the way this was written, it seemed like this was the U.S. trying to get busy on trying to counter that in some way. Yeah, kind of a radio-free Europe for the Internet. Right, right, right. And more sophisticated, right, to be fair. And to see what it's become now, what we've learned it's become, it's just utterly, maybe heartbreaking is the term, right?

It's a good term for it. I was dismayed with both of these cases. When we started the Murthy case, I had no idea that, I thought we might find some rogue actors. I had no idea that we were going to uncover a systematic suppression of Americans' free speech by multiple agencies of the federal government in a coordinated and systematic fashion, going after particular ideas and particular individuals. And that's shocking. And then to turn around and find out that not only were these other agencies doing it, but our own State Department is testing software and turning it over to private actors and encouraging private actors in the United States to use this government-developed software to suppress American speech

just takes my level of heartbreak, to use your word, to an even deeper level. So where are things at with this case then? So the Murthy case will be argued March 18th in the Supreme Court, and we'll have a decision on that by the end of June. The State Department case is still at a pretty early stage. So we filed in the Eastern District of Texas with that litigation. The State Department predictably is trying to move out of Texas and wants to force us into a different jurisdiction like Washington, D.C. And so we'll have some of those initial battles presumably in the litigation. But we think that we'll get some discovery here pretty

quickly and we'll get a handle on the scope of the State Department's activities and we'll have more to go on than just the good investigative work that journalists have done so far. What are your thoughts about trying cases in D.C. in general? We don't do it. Look, there are some very fine judges in Washington, D.C., on both the district court and the U.S. Court of Appeals for the D.C. Circuit. And it's not just a question of the makeup of the bench in terms of who appointed most of the judges on the bench district level and the court of appeals level in D.C. are appointed by folks who do not share the same jurisprudential approach that the new Civil Liberties Alliance has. But it goes beyond that, too. The judges in D.C. and this would even include some of the folks who've been elevated from

the D.C. circuit to the Supreme Court, like maybe even Chief Justice Roberts, they're a little more willing to go along with the government's view on things or a little more willing to go along with administrative agency perspective on things than some of the judges in what we'll call the hinterlands that don't live inside the beltway and maybe are not as mesmerized by the government's view or not as prepared to go along with the government's representations about different things. This issue seems to keep coming up, basically. That's the reason I mention it. But there are examples, too, of we had a case against the nationwide eviction moratorium that we had brought in the Northern District of Georgia

and tried to bring up through the 11th Circuit. Meanwhile, someone else brought a case in the D.C. District Court and up through the D.C. Circuit. And even though they lost at both levels, they got the case up to the Supreme Court very quickly by losing at both of the lower court levels. So I suppose that's a strategy we should keep in mind for the future as well. Oh, very interesting. Well, let's jump to this bump stock issue. And so some people might not even understand what bump stock is. So maybe just quickly tell me about that. And how is it that this has come to the Supreme Court, I guess, because it's not necessarily obvious that it needed to. So we won below and the Solicitor General sought a petition of certiorari. And usually if the Solicitor General seeks a petition in a case in which a federal statute or a federal rule has been set aside by a lower court,

the Supreme Court will usually take a look at that. We're also in a situation here where we have four different courts of appeals who have looked at this question. We won in the Fifth Circuit. There was another case that won in the Sixth Circuit. We lost in the Tenth Circuit. And there was another case that lost in the D.C. Circuit. So you have two circuit courts on both sides of the issue. So it really was maybe a moderate circuit split, but it's the kind of case you can't

have a law like this be applied in two different ways. So in other words, it might actually be obvious that it's a case that should be going to the Supreme Court. Okay, I stand corrected. Yeah. be obvious that it's a case that should be going to the Supreme Court. Okay, I stand corrected. Well, I think there's been some narrative out there, Jan, that the Supreme Court is looking to reach out and take Second Amendment cases or try to vindicate gun rights or something like that. And I think that the problem with that narrative in this case is, first of all, it's not a Second Amendment case. We'll get back to that. But secondly, the court did not reach out for this

case. In fact, it denied cert in one of our earlier cases. It denied cert several times, actually, in cases having to do with bump stocks. This is the first time it granted cert. It's also the first time that the government was the one asking for cert. So I think that it was high time for the court, frankly, to look at this issue. The rule went into effect in 2019. As a result of the rule, 500,000 folks were turned into felons overnight. And this is just explain what this device is. Sure. So a bump stock is, so the stock of a gun is just the part that you hold against your shoulder, right? It's the part that's sort of between the trigger and the back end of the gun. And so with a bump stock, you remove the regular stock from the gun and you put on this piece of plastic, and that's what it is, that replaces the regular

stock. And you might say, well, so it's not affecting the trigger assembly at all or anything? No, it's not. It's just changing the stock of the gun. There's a couple of features of the bump stock that make the gun operate slightly differently. One of them is there's an extension ledge that's part of it that allows you to rest your finger in front of the trigger. So instead of putting your finger on the trigger, you rest your finger on this ledge in front of the trigger. The other thing is that there's a little bit of a gap, about a one inch gap, that when the gun recoils, instead of the whole thing just coming back against your shoulder, at first it recoils into that space for about an inch before it comes back against your shoulder. A combination of that gap and having that extension ledge means that you're able to bump fire the weapon.

And what bump firing is, is instead of pulling the trigger with your finger, and here I'm going to switch hands with my microphone, you have to use your off hand, your non-trigger hand, to push the gun away from you. And that's counterintuitive. Ordinarily, if you're firing a weapon, you're pulling the whole weapon into your shoulder, at least if it's a long gun. Here, you're simultaneously pulling with your trigger hand back and pushing with your non-trigger hand out in kind of a separating kind of a motion. And when you do that, it pushes the trigger into your finger rather than pulling back on it and if you keep doing that multiple times then you can essentially fire faster if you can become good at it it's not

intuitive it's not natural it's i mean look anybody can pick up a machine gun pull the trigger and just a whole bunch of bullets come out. And, of course, the question in front of the court is whether or not a semi-automatic weapon equipped with a bump stock is a machine gun. And the government says that it is, and we say that it isn't. And in particular, we say, look, if you want to ban this weapon and call it a machine gun, that's something Congress needs to do, because Congress is the one that decides whether something is criminal behavior or not. You can't, as an agency, just reinterpret a statute to increase the scope of criminality. I mean, remember, ATF said for 15 plus years, this device is perfectly lawful. And then they just turned

around and said, no, actually, we're going to say that this is a machine gun that's illegal. So when Congress banned machine guns back in 1986 and President Reagan signed that law banning machine guns, they put a 10-year prison sentence on that. And by the way, the rule also, it just bans the bump stock. So even if you didn't own a semi-automatic weapon and you just had possession of a bump stock, you'd be facing potentially 10 years in federal prison. Well, Congress never said that. And Congress, by the way, wouldn't say that. There have been a number of bills introduced in Congress to ban bump stocks. They've never passed, including in the, you may remember there was a

bipartisan gun control bill that did pass Congress here a couple of years ago, didn't ban bump stocks. They've looked at this question multiple times. They've never been able to get a majority to do it. And so there's a sort of a democratic deficit problem here as well of the agency doing something that Congress looked at and deliberately didn't do. And so we think that it's important that the court recognize that and that the court not allow a federal agency to increase the scope of criminal law. Fascinating. You see, there's half a million people that are in jeopardy here, basically. Well, so the rule told folks you either have to destroy your bump stock by, you know, sawing it in two or something like that or turn it into your local ATF authority. So our clients, for example, turned it into ATF but said, hold on to these because we're suing you and we want these back when we win.

And so our clients, if they win, will get them back. A lot of people presumably won't get them back because they didn't have a similar thing or they destroyed them. But I think that the principle still matters that you can't have ATF be the one that decides whether or not, whether it's a bump stock or a pistol brace or something else, it's not the role of ATF to decide that things are unlawful. Now, it's a little bit different if you're talking about something that obviously is a machine gun and someone's trying to kind of defeat the, and that's why there's a statutory definition that ATF is empowered to employ against those sorts of devices.

And what Congress has said in terms of what makes something a machine gun is if it automatically fires more than one bullet with a single function of the trigger. And so those two terms are the terms that the court's going to be looking at. What counts as automatically, what counts as a single function of the trigger. Now, as I explained earlier, bump stocks are not automatic because in order to overcome the recoil after each bullet fires, you have to re-engage with your non-trigger hand to push forward. That is literally a manual activity that you're engaged in, pushing forward on the forestock or foregrip of the gun.

So for that reason, I think it fails the automatically test. And then in terms of single function of the trigger, the trigger on the weapon works exactly the same way, whether a bump stock is attached or a bump stock isn't attached. It doesn't change the mechanism. The only thing that changed is the stock. We haven't touched the trigger. We haven't done anything to the trigger.

And so the idea that somehow the trigger has become illegal because of something we've done to another part of the gun, I don't think that makes sense. It's still a single function of the trigger. It still works exactly the same way. Whether you're firing regularly or bump firing, the trigger moves the same distance. They call it bump firing, but the trigger moves the same amount. The same amount of pressure is put on the trigger to initiate firing, and only one bullet is released for every time the trigger is bumped. So it operates as a semi-automatic weapon, not as a machine gun. The one last thing I was curious about, because you said somehow this isn't a Second Amendment issue.

Right. It seems to me like it's a Second Amendment issue. But, you know, very briefly, as we finish up, if you can explain that. Sure. Well, when I say that, what I mean is there are no Second Amendment arguments in the case. No one has said that this is not the kind of law that Congress could pass if it wanted to. If Congress had passed this law, then someone might sue and say, well, the Second Amendment doesn't allow you to ban this. But we're not even at that stage here. That's not an issue in the case.

And frankly, if Congress had passed this, the New Civil Liberties Alliance wouldn't be protesting it because our job or our role is to fight against unlawful administrative power. And that's what we see in all three of these cases. We see the ATF using unlawful administrative power in place of Congress to ban bump stocks. We see the Department of Commerce using unlawful administrative power in the Relentless case where they've gotten Chevron deference. And we didn't even talk about sort of the underlying facts of that case. But essentially, the Department of Commerce is trying to force fishermen to pay for federal observers, federal monitors on their boats. The Congress never authorized that. And then lastly, with the social media censorship case, you see unlawful

administrative power being used to suppress free speech. So that's what these cases all have in common. And the good news is, Jan, that the Supreme Court agreed to hear all of these cases. And if we win all these cases, and I think we have a really good shot of that, then we'll have struck a blow against unlawful administrative power. Well, Mark Chenoweth, it's such a pleasure to have had you on. Thanks. Thank you all for joining Mark Chenoweth and me on this episode of American Thought Leaders. I'm your host, Jan Jekielek.