BATF makes it's own rules?

[akodo]

I think this has come up before here but I cannot seem to find it.

Basically this deals with the fact that once the legislature has passed a bill and it has been signed into law, the executive branch and all it's agencies are responsible for interpreting the law, and in many cases go above and beyond...up until someone takes them to court.

For the BATF, one example of this would be the Thompson Contender/Encore situation, where just having the parts and the capability to assemble a Short barreled rifle because someone had a long barrel and a short barrel, a shoulder stock and a pistol grip only.

Eventually there was a court case, and it was ruled that simply having these parts was not a violation. Also, BATF took it as 'okay, this ruling only counts for this specific brand'

Now, the specific example I am trying to find info on is the laws relating to the 25% copper jacket maximum or the ammo is considered AP ammo, where the law talks about 'intended for handgun use' but the BATF applies it to all ammunition (yet 100% copper bullets are okay)

Any help guys?

 

[freakshow10mm]

No, the Court says it only applies to that specific rifle/pistol combo kit, not the ATF. The Court's ruling was very specific. It did not cover all firearms, just those specifically mentioned.

You are also mistaken on the definition of "armor piercing ammunition". Here is the actual law (478.11).

Armor piercing ammunition. Projectiles or projectile cores which may be used in a handgun and which are constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or full jacketed projectiles larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile. The term does not include shotgun shot required by Federal or State environmental or game regulations for hunting purposes, frangible projectiles designed for target shooting, projectiles which the Director finds are primarily intended to be used for sporting purposes, or any other projectiles or projectile cores which the Director finds are intended to be used for industrial purposes, including charges used in oil and gas well perforating devices.

The underlined part above covers the monolithic bullets from Barnes and others. Read the bold part on the bottom. It states that if the projectiles are determined to be intended for sporting purposes, such as the Barnes bullets, then they are legal.

Furthermore the jacket percentage is not correct. It must be a "full jacket" and such jacket must be "more than 25% of the total weight of the projectile weight". As such, the "full metal jacket" bullets common with centerfire bullets like the .224 inch FMJs for the .223 Remington are not "full jacket" since the base of the bullet is exposed. A full jacket projectile is one that has no open tip nor open base.

The ATF, much like the DOT, the DOE, the IRS, can and does have the authority to make regulations and enforce them. Want to challenge them? Take them to federal court. That's how it is.

 

[mfcmb]

The legislature passes laws ("statutes") which in general only state objectives, define key criteria, and assign responsibility for administering the law and achieving the objectives to a federal agency (such as the BATF, FCC, IRS, etc.).

Then the assigned agency formulates the set of specific regulations that we all have to follow, in the hope that thus the legislature's objectives will be met.

Thus, yes, each agency has a lot of leeway in interpreting the law and making the actual rules we all have to follow, and if we don't like them then we have to contest them in court, etc. to get them changed.

So regarding your specific question, you'll have to consult the BATF regulations to see what rules currently apply.

 

[ConstitutionCowboy]

Another important part:

Congress has the option, before any such regulations go into effect, to vote down any such regulations. The President must concur with Congress to shoot down any such regulations Congress doesn't like. If the President shall veto any legislation to void a regulation, the regulation will stand as crafted by the agency that wrote the regulation. Congress still has the option to override any such veto.

The scourge in this method - beyond the fact that it's unconstitutional in the first place - is that any such regulation never requires the approval of the President. He has no veto power over this bogus legislative authority that has been granted to these agencies unless Congress doesn't like a particular regulation, then the President can only go along with Congress. The Constitution requires that all legislation(law making) be presented to the President for his approval or veto.

The Constitution requires that all legislative powers shall be vested in Congress. Members of Congress must be elected. Members of agencies are not elected. Members of agencies are not accountable to the people, and thus, such agencies are oligarchic in nature and principle. In my view, this makes such agencies dictatorial and tyrannical.

Congress is supposed to make all these rules - onerous or beneficial - and thus, shall stand accountable to the people.

Woody

 

[Frog48]

any such regulation never requires the approval of the President. He has no veto power over this bogus legislative authority...

You're way off the mark. You're correct in noticing that most presidents have taken a macro-management approach to the day-to-day happenings of executive agencies. However, this is entirely by choice; executive agencies are not rogue entities independent of the chain of command. Presidents have total legal authority to assume direct control of an agency or department if they loose confidence in its operation, function, or leadership. Any administrative rule, regulation, or policy of an executive branch agency is subject to review, modification, and/or repeal by the president. Literally, its as simple as the issuance of an executive order... which is exactly why executive orders were created in the first place.

 

[ConstitutionCowboy]

Any administrative rule, regulation, or policy of an executive branch agency is subject to review, modification, and/or repeal by the president.

Where does it say that in the Administrative Procedures Act? (Title 5, US Code, beginning at Section 500)

Woody

 

[DMF]

ConCow, here is a link so you can read all of Title 5 of the US Code, Sections 500, 501, 502, 503, and 504. http://www4.law.cornell.edu/uscode/html/uscode05/usc_sup_01_5_10_I_30_5_40_I.html

Please show us what in any of those sections of Title 5, or any other part of the US Code, prevents the President from properly exercising executive power over any of the Federal agencies in the Executive branch, and allows any of those agencies in the Executive Branch to operate contrary to the wishes of the President.

 

[Zoogster]

No, the Court says it only applies to that specific rifle/pistol combo kit, not the ATF. The Court's ruling was very specific. It did not cover all firearms, just those specifically mentioned.

That is absolutely not true and is the ATF interpretation of the case because that favors thier agenda.

The way things are done in the Supreme Court is they discuss the topic at hand. They make a decision that then sets precedent on the topic at hand in general.
The opinion of the Supreme Court in the Thompson case is about firearm parts that can be made into legal firearms, but could also be assembled into an NFA item and whether the benefit of the doubt applies that the intended purpose is the legal unrestricted purpose or whether mere possession of parts with the capability to be assembled into an NFA item constitutes possession of an NFA item.


If you feel otherwise show it in the Supreme Court decision text. Then we can compare it to a long list of other Supreme Court decisions and review how they talk about something and whether it was that specific thing or the type of item in general as it pertains to the law.

The ATF did not like the landmark decision so they decided to just say after the fact that it was not a landmark decision and did not apply to anything except that one firearm. That is not how Supreme Court decisions have worked in the past.
Essentialy saying "we lost, but here is how we define the loss _______". They then choose to interprete it in a way that has no actual effect on them or how they conduct thier affairs in the future.

By your conclusion on how the Supreme Court decisions work I guess the Jim Crow south could have just said Brown v. Board of Education only applied to that specific school in question. That it had no impact on any other school, except those specificly in question. That segregation could continue everywhere else except at those specificly referenced schools the Supreme Court addressed.

But that is not the way the court works, not on that issue and not on the Thompson issue. What was being reviewed was the application of the law in question as it pertained to that type of situation, a combination of parts that could be used to assemble restricted or unrestricted firearms, not simply the item itself.
The only one with a view remotely similar to the ATF interpretation is the dissenting view, the one that did not prevail and does not set legal precedent.
What the ATF chose to do is essentialy apply the actual case to nothing since that firearm and kit is not even made, and apply the dissenting view to all other firearms.
Ignoring the Supreme Court by telling people they are actualy following the ruling in the way they interprete it.

Specificly what was being dealt with:
"The Court of Appeals for the Federal Circuit reversed, holding that a short-barreled rifle "actually must be assembled" in order to be "made" within the meaning of the NFA. 924 F.2d 1041, 1043 (1991). The Court of Appeals expressly declined to follow the decision of the Court of Appeals for the Seventh Circuit in United States v. Drasen, 845 F.2d 731, cert. denied, 488 U. S. 909 (1988), which had held that an unassembled "complete parts kit" for a short-barreled rifle was in fact a short-barreled rifle for purposes of the NFA. We granted certiorari to resolve this conflict. 502 U. S. 807 (1991)."

That Court of Appeals for the Federal Circuit decision was AFFIRMED! Meaning the Supreme Court of the United States hold it as valid, and they then give specifics in thier various opinions, but only the majority opinion sets legal precedent, the dissenting opinion is just for formal record.
What decision were they affirming? The Federal Circuit one: a short-barreled rifle "actually must be assembled" in order to be "made" within the meaning of the NFA."

A combination of parts that can be used to create legal completed firearms are not an NFA item just because they could also be assembled into an illegal violation of the NFA according to the Thompson case. More specificly even an item intended to go from pistol to rifle and back with a swapping of stock and barrel to give proper overall length and barrel length and the resulting great "utility" is not an NFA item. The "utility" spoken of by the court addresses the great potential and usefulness of an item that can be both a pistol and a rifle to fit different situations at the whim of the shooter.

Now clearly since the ATF feels the way they do and they are tasked with enforcement there is a situation that could be very unpleasant for someone following the law. One that would require a lot of legal counsel to resolve an issue the Supreme Court already resolved. The ATF has therefore in fact nullified the SCOTUS decision in practice, but not in actuality.

Here is the text for you on the Thompson case:

http://supreme.justia.com/us/504/505/case.html

 

[Poor East Texan]

But THIS President probably wants even more than THIS Congress wants.

Veto my foot!

I'm VERY afraid!

 

[Zoogster]

In answer to the OP, yes the BATFE makes its own policy which is enforced as law.
They can take a few actual firearm laws and then creates hundreds of interpretations on how they apply and what they mean even though the actual laws say nothing like thier policies enforced as law.

This is managed by the President of the United States who determines the appointment of the heads of various federal agencies. Those appointed heads can then influence the policies, essentialy changing law without actualy changing the law. They can also fire those who oppose or disagree.
Since most of the rules they enforce are policy and not actual text in law, they do make thier own rules freely as long as nobody calls them on it conflicting with an actual law.


The ATF does answer to the Attorney General, the top LEO in the nation. So that can act as a balance.
Who did Obama put in place as Attorney General?
Eric Holder, a staunch anti-gun advocate. In fact Eric Holder was involved on the anti-gun side of Heller, arguing to uphold the D.C. gun ban.
Holder views firearms as a problem. He believes less guns is better.

Then there is the head of the ATF the Acting Director, who will answer to Eric Holder. The previous Acting Director stepped down to make room for the Obama appointment.
He will be appointed by Obama.

 

[ConstitutionCowboy]

You're way off the mark. You're correct in noticing that most presidents have taken a macro-management approach to the day-to-day happenings of executive agencies. However, this is entirely by choice; executive agencies are not rogue entities independent of the chain of command. Presidents have total legal authority to assume direct control of an agency or department if they loose confidence in its operation, function, or leadership. Any administrative rule, regulation, or policy of an executive branch agency is subject to review, modification, and/or repeal by the president. Literally, its as simple as the issuance of an executive order... which is exactly why executive orders were created in the first place.

ConCow, here is a link so you can read all of Title 5 of the US Code, Sections 500, 501, 502, 503, and 504. http://www4.law.cornell.edu/uscode/h...30_5_40_I.html

Please show us what in any of those sections of Title 5, or any other part of the US Code, prevents the President from properly exercising executive power over any of the Federal agencies in the Executive branch, and allows any of those agencies in the Executive Branch to operate contrary to the wishes of the President.

Sorry. My bad. It's not in Chapter 5 of Title 5, but in Chapter 8 of Title 5. You'll find it here : http://www.archives.gov/federal-register/laws/congressional-review/801.html

And, it doesn't matter what the president says, these agencies must comply with these procedures.

To wit:

President Bush had to ask for the National Parks rule against carrying arms to be changed, the agency did that through the proposed rule making procedure, and Congress didn't shoot it down.

Woody

 

[DMF]

President Bush had to ask . . .

Having spent the majority of my adult life working in the executive branch of the Federal government, when the President "asks" an agency to do something, it's actually an order. Yes, they are required to follow the procedures you cited, but they can't say no when the President tells them to go through that process to change a regulation, nor can they attempt to change a regulation if the President tells them not to.

 

[ConstitutionCowboy]

Yes, they are required to follow the procedures you cited, but they can't say no when the President tells them to go through that process to change a regulation, nor can they attempt to change a regulation if the President tells them not to.

Where is that written?

Woody

 

[Jeff White]

Where is that written?

Article II section 2 of the United States Constitution:

he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices,

The president is the chief executive and is in charge of all executive departments. Note that the constitution says he may require the opinion of the principal officer in each executive department. The chief officer gives his opinion and the president makes the decision. Like every executive he delegates. The decisions made by the department heads are the same as if the president himself had made them, and the president retains the power to make those decisions himself. Why else would he need the opinion of the department heads?

 

[eye5600]

Where is that written?

It's also implicit in the fact that the policy makers all serve at the pleasure of the President. See "Saturday Night Massacre" for a case in point.

http://en.wikipedia.org/wiki/Saturday_Night_Massacre

In theory, this is one of the points about the Civil Service. Supposedly, they don't make policy, in return for which, they get greater job security.

 

[DMF]

ConCow, are you being deliberately obtuse?

Why don't you start with Article II of the Constitution, which grants the President power.

If you want to do some detailed reading on the scope and limits of Presidential authority I suggest you read the information here: http://caselaw.lp.findlaw.com/data/constitution/article02/

Which covers the history of Article II throughout history including relevant caselaw.

 

[AZRickD]

I've been on several Rule-Writing committees for state government. It's not one of my favorite activities. However, if someone were an activist BATFE employee and that person wanted to really put the screws to gun owners, the process is ripe for that kind of abuse.

The process goes as follows, a department lawyer in charge of Rules says, "Hey, it's time to update these rules. Lots of laws passed since the last time." That last time could have been two or more years ago. So, (this is an actual example) we could have had a few new generally worded statutes that affect our Department but we've never written any rules to say when and how something should be done. Say, who (doctor, laboratory, etc) has to report a positive TB case and how many days do they have to do it and how do they do it (certified mail, regular mail, fax, Electronically)? And if there are multiple agencies involved (for court-ordered STD testing) -- the State Lab, county health dept, Victim Services, County Jail -- then we have to get all of the parties in the room (or via e-mail) to figure out who has to do what (if the perp is in the county lock-up pre-trial, then the county has to draw the blood, they can choose the State Lab (free) or private lab (fast) for testing. Who has to inform the victim of the test resutls...)

This takes months of agony. And then as we go line by line on the current admin rules, we'll find a rule still in place that interprets a law no longer in effect (reporting a disease that is no longer reportable by statute).

While we try to have the rules make sense based on the wording of the statute, our abilities as agencies, and the history of the actions. Given that, we have a lot of leeway. Sometimes some can interpret the needs of Rule/Statute very narrowly if that work group thinks that the activity should be limited (say, the need for an HIV+ elementary student to have her HIV status blabbed all over the school system). Or it can be more expansive (say, getting insurance companies to report positive results for reportable disease conditions).

When we get close to a final draft, we'll send out a massive mailing (electronic as well) to concerned individuals and groups (county attorneys, docs, nursing groups, insurance companies, etc) for them to comment. There will be a good handful of comments that question the need for a Rule based on law, or suggesting a better. I can't speak for BATFE, But we take every comment seriously. I'd say that half of our rules are modified based on the comments of people working in the trenches.

The Attorney General gets a look at the rules as well. I can't recall any major comment from them. I'm also unaware of any comment from any of the last three governors.

I do not look forward to the next round.

 

[ConstitutionCowboy]

Requiring an opinion is not the same as dictating a rule or rule change. That's dictatorship. He can suggest 'till he's blue in the face, but unless the agency and Congress go along with him in such matters, it is up to him to enforce the law as set forth by Congress. As in all cases, the President may voice HIS opinion and suggestions to the head of an agency, but the head of that agency is not bound by law to act upon that suggestion. The President may fire and hire 'till he finds a compliant head that will do his bidding, but even in that case, such proposed rule changes/creations still must pass the scrutiny of Congress.

... he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices,...

He ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Nothing here says the heads of any agency must do the bidding of the President. Ambassadors and Consuls might be compelled to act as directed by the President - it'll be in the law creating such departments - but I'm sure that Supreme Court Justices - nominated and appointed by the same procedures in Article I, Section 8 - are not compelled to act as directed by the President. So, you see, there is no implied or explicit caveat that these appointed heads must act as directed by the President except as spelled out in the law creating such departments and agencies.

Yes, he can hire and fire those heads, but those heads are bound to the rules and regulations of the particular agency they head. If those rules are changed following the procedures as proscribed by law, the head of that particular agency is bound by the new rules, not ever by the whims of the President. If it were that the President could rule according to his whims, we wouldn't need these agencies - just law enforcers. Hell, we wouldn't need Congress! Maybe not even a court system.

Case law is not THE law, either. There is nothing in the Constitution to even suggest that the Court can make it up as they go. If it were the case, we again wouldn't need Congress. If all you intend to do is follow the misconceptions and misdirections of the past, I fear for the future of this great country. As it stands, I fear there are too many who are willing to accept the old mis-given ways and too few who would set this country back on an even keel.

I'd like to see most of these agencies disappear. They amount to usurpations of the powers reserved to the several states and the people. I'd like to see repeal of the 16th and 17th Amendments, too, but that's another thread.

Woody

I see it clearly as fact. Words mean things. Just as numbers have value, you can add, subtract, multiply and divide them. I just do the math. B.E. Wood

 

[Jeff White]

Requiring an opinion is not the same as dictating a rule or rule change. That's dictatorship. He can suggest 'till he's blue in the face, but unless the agency and Congress go along with him in such matters, it is up to him to enforce the law as set forth by Congress.

An Executive Order is not a suggestion. It is directive in nature. The agency cannot disobey it. Are you actually suggesting that the 1988 import ban could have been ignored by the departments who were responsible for enforcing it?

As in all cases, the President may voice HIS opinion and suggestions to the head of an agency, but the head of that agency is not bound by law to act upon that suggestion. The President may fire and hire 'till he finds a compliant head that will do his bidding, but even in that case, such proposed rule changes/creations still must pass the scrutiny of Congress.

When your boss expresses his opinion in the form of a directive telling you how he wants you to do your job, can you expect to disobey him and keep your job? Of course not. Executive orders do not require the scrutiny of congress or anyone else.

If it were that the President could rule according to his whims, we wouldn't need these agencies - just law enforcers. Hell, we wouldn't need Congress! Maybe not even a court system.

Fortunately he may only issue executive orders to the executive agencies in accordance with the power that congress gave that agency when they passed the law in question. An executive order does not create law, but in a case where the Secretary of the Treasury has the statutory authority to determine what criteria a gun has to meet to be imported as was given to the Secretary of the Treasury in the Gun Control Act of 1968, then he can, and has (George Bush 1988) direct the secretary of the treasury to to change that criteria so that "semi automatic assault weapons" can no longer be imported if they have evil features on them. If the Secretary of the Treasury refused then he would be out of a job. You are correct, nothing says you have to listen to your boss, but in real life if you want to stay employed you must. No congressional review was required for the Bush import ban or the expansion of it that Clinton made. Both were totally legal.

Case law is not THE law, either. There is nothing in the Constitution to even suggest that the Court can make it up as they go. If it were the case, we again wouldn't need Congress. If all you intend to do is follow the misconceptions and misdirections of the past, I fear for the future of this great country. As it stands, I fear there are too many who are willing to accept the old mis-given ways and too few who would set this country back on an even keel.

Come on back to reality. Just because YOU say that case law isn't the law, doesn't overturn 233 years of legal precedent. The reality is, that case law is the law. Always has been and I don't see that changing.

 

[gc70]

Any pending administrative rule, regulation, or policy of an executive branch agency is subject to review, modification, and/or repeal by the president.

There - that should make you happy ConstitutionCowboy.

As in all cases, the President may voice HIS opinion and suggestions to the head of an agency, but the head of that agency is not bound by law to act upon that suggestion. The President may fire and hire 'till he finds a compliant head that will do his bidding, but even in that case, such proposed rule changes/creations still must pass the scrutiny of Congress.

As long as an agency meets the specific requirements of the Administrative Procedures Act, the President can direct the agency's actions. If, as you point out, an agency head wants to disobey the President's instructions, the new head of the agency will undoubtedly have a different attitude.

 

[DMF]

Thanks to Jeff White and gc70 for trying to interject a little reason into this matter.

ConCow, you conveniently went to Article II of the Constitution and stopped right there. Ignoring my comment that it was a START to your research, and you ignored my suggestion to follow the provided link for additional information on the scope and limits of Presidential power.

Further, your rant about caselaw is not only illogical, and irrational, it ignores what's clearly set forth in Article III of the Constitution.

Article III clearly gives the Judiciary the authority to settle disputes that arise under the law. Meaning caselaw does establish an interpretation of the law, which must be followed by lower courts. Further, in Marbury v. Madison the Court clearly explained the duty of the Court to side with the Constitution in cases where a law and the Constitution are in conflict, as the Constitution is the supreme law of the land.

As Jeff White has pointed out this was all clearly established in precedent while the men who wrote the Constitution were still alive, and that precedent has continued for more than two centuries.

I don't know how to make this any more clear to you.

 

[ConstitutionCowboy]

It's too late to get started tonight.

I've been hooking up and setting up DTV converter boxes.

I'll be back tomorrow.

Woody

 

[ConstitutionCowboy]

Are you actually suggesting that the 1988 import ban could have been ignored by the departments who were responsible for enforcing it?

Are you talking about the "ban" that was put into effect in March of 1988? Ten months before George H W Bush became President?

As for this:

Yes, they are required to follow the procedures you cited, but they can't say no when the President tells them to go through that process to change a regulation, nor can they attempt to change a regulation if the President tells them not to.

Where is that written?

All you need to do is show me where it specifically says something to the effect, in the law creating the BATFE, that the agency can't say no when the President tells them to go through that process to change a regulation, nor can they attempt to change a regulation if the President tells them not to.

When your boss expresses his opinion in the form of a directive telling you how he wants you to do your job, can you expect to disobey him and keep your job? Of course not. Executive orders do not require the scrutiny of congress or anyone else.

This is not hardly the same thing. If you work in a dough-nut factory, for sure you're gonna follow the boss's recipe. However, if he tells you to go ahead and ship out a couple dough-nuts that fell on the floor, you've got a moral and probably a health regulation obligation to disobey.

I worked in the aviation industry as an inspector. Many times I was 'told' or 'asked' to let something slide that wasn't up to the standards of airworthiness spelled out in the FAR's. I refused but was never fired. Other "compliant" inspectors didn't refuse and more than once got the company in trouble with the FAA, sued, and nearly closed down. That one such case brought the company down from over 800 employees down to 32. If it weren't for the parent company chopping heads and wishing to keep its expensive facilities and equipment earning money, the company would have gone completely belly-up. It's a wonder the FAA didn't close them down.

At any rate, the import ban attributed to George HW Bush was in place prior to his taking office. All he did was enforce it.

That said, I'll give you another chance to show me I'm wrong. Show me the executive order you claim the ban was created under.

ConCow, you conveniently went to Article II of the Constitution and stopped right there. Ignoring my comment that it was a START to your research, and you ignored my suggestion to follow the provided link for additional information on the scope and limits of Presidential power.

The scope of the power and limitations of the President is all spelled out in the Constitution. One need not look further unless you wish to find usurpations and/or derelictions.

Marbury v. Madison is one of my favorite decisions to come down from the Court. The Court never declared the law Congress passed directing the Court to issue that particular mandamus to be unconstitutional. The Court simply stated that such power was not granted to the Court by the Constitution and would not comply - could not comply - with that particular law. (Judiciary Act of 1789, Section 13) In reality, the Court cannot adjudicate in accordance with law that is not in accord with the Constitution. To say a law has been declared unconstitutional by the Court is a bit of a misnomer. The Court hasn't actually been granted that power. It can and should disregard law that is unconstitutional. If only the other two branches of government - and the liberals on the Court - would act the same as the Court did in Marbury v. Madison, we'd have far fewer infringements upon our rights.

That's all pretty damn clear to me.

Woody