Ted Bromund:

The Sessions memo was backed up in January 2018 by a new Department of Justice policy that “prohibits the use of agency guidance documents in affirmative civil litigation in a manner that would convert such guidance into binding rules of conduct.” The ATF understood these directives to mean that it had to stop issuing public, industry-wide guidance or opinions—the very documents that could ensure uniform compliance in industry with existing regulations. When this author reached out to ATF for comment, the ATF stated that it was of course abiding by the former Attorney General’s memo, and that “we do not interpret the law.”

As a result of its understanding, the ATF now operates almost exclusively by private letters. It has not published a ruling on firearms or explosives since July 2017, and its only notifications on proposed rule-making since December 2017 relate to the politically-charged (and politically-motivated) pursuit of bump stocks.

This was not the outcome the Sessions memo envisaged. The memo makes it clear that “not every agency action is required to undergo notice-and-comment rulemaking…. [A]gencies may use guidance and similar documents to educate regulated parties through plain-language restatements of existing legal requirements or provide non-binding advice on technical issues.” The point of the memo was to prevent department rule-makers from using public guidance documents to evade the rulemaking process, not to stop them from issuing any public guidance at all. Education is not interpretation.

The ATF’s approach means that each industry member that asks a question about how to apply or interpret the rules gets its own private answer, an answer that none of its competitors knows about and which does not serve as a legal precedent. It means that no one in the industry has any certainty, not even the firm that asked the question in the first place, because the ATF can always change a decision it made in a private “no-action” letter later on. And it means that the ATF has almost complete discretion in how it regulates, because it is creating no precedents.

According to Jared Febbroriello, a lawyer working with firearms and defense companies “It is disconcerting that any agency that is tasked with interpreting the law might seek to restrict the public’s ability to access their interpretations but given the potential for criminal prosecution and the heightened risk for the loss of life, liberty and property that is associated with firearms one would think that ATF would be embracing complete transparency. Sadly, they are not.”

I do not thing any such stupid thing.  The administrative state won’t do anything in the interest of America or her citizens.  It exists wholly to serve itself.

The ATF does this sort of thing because there is a such a thing as the administrative state to begin with, but also, because Jeff Sessions is a crap-weasel of mammoth proportions who did nothing of any lasting value and lacked the guts to reign in the worst offenders.

And then again, we cannot exonerate the legislative branch who allows all of this, not the president who [a] agrees with it all, [b] lacks the guts to shut it down, [c] pretends it isn’t occurring, [d] claims that it cannot be stopped, or [e] secretly wants to use that administrative state to accomplish what no one else will despite what he tells the voters (e.g., the bump stock ban).