VanDerStock is NetChoice Redux: A Sharply-Divided Court Threads The Needle With A “Facial Challenge” Analysis

For more than a decade, I have proudly represented Defense Distributed in a wide range of matters. Most of these cases have ended in defeat. Yet, I do not feel defeated. In case after case, courts have recharacterized our complaints, distorted the usual rules about venue, refused to rule on issues that were plainly presented, and other shenanigans. In 2020, I wrote about early chapters of the litigation. And one day, I may write a book about this never-ending saga. For now, it is enough to say that Bondi v. VanDerStock is the latest chapter in this book. But wait–no such book about this case actually exists. And artifact nouns be damned, no firearms exist in this case either.

Reading this decision was a frustrating experience. I am intimately familiar with how this case was litigated since the outset. Yet, the Court’s approach to the case was completely foreign–so foreign, in fact that it would be unrecognizable to the lawyers and judges who adjudicated the case below.  

I echo Steve Halbrook’s post:

That characterization [of the Plaintiffs’ case] is hard to square with plaintiffs’ briefs in the Supreme Court. . . . Justice Alito was therefore correct to state in dissent that the Court’s treatment of plaintiffs’ arguments was “unwarranted and extremely unfair.”

Also unfair was the Court’s twisting of a supposed “concession” made by counsel at argument—that they had no “quarrel” with the ATF’s prior practice of regulating certain unregulated frames or receivers that had reached a critical stage of manufacture. But as the argument transcript makes clear, that concession was made with respect to the argument that plaintiffs should still win even if the GCA covers some unfinished frames or receivers—i.e., the argument the Court refused to consider. See Tr. at 59, 84. Whatever the reason, the Court chose to engage only a caricatured version of plaintiffs’ arguments.

Justice Alito’s dissent is quite right:

The Court decides this case on a ground that was not raised or decided below and that was not the focus of the briefing or argument in this Court. Specifically, the Court concludes (1) that respondents mounted a “facial” challenge to a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rule implementing provisions of the Gun Control Act of 1968, (2) that a party making such a challenge must meet the test that applies when a statute is challenged as facially unconstitutional (what I will call the Salerno test), and (3) that respondents cannot satisfy that demanding test. . . .  But I am not certain that the Salerno test should govern. . . . Thus, in both the District Court and the Court of Appeals, the parties appear to have proceeded on the assumption that the question presented was simply whether the ATF rule exceeded the agency’s au-thority under the Gun Control Act. The Government defended the rule as a correct interpretation of those statutory provisions and made no mention of the Salerno test.4 And for the most part, that was the position advanced in the Government’s briefs in this Court.

In many regards, VanDerStock felt like a redux of NetChoice–especially with Judge Oldham being reversed in both cases on similar grounds. Somehow, none of the parties or judges in NetChoice realized there was a problem with the facial challenge that was brought. And somehow none of the parties or judges in VanDerStock realized there was a problem with the facial challenge that was brought. Can this blame be placed on the parties and lower court judges? Or is it simply the case that the Court used the “facial” challenge to avoid ruling on a difficult case. 

Justice Gorsuch’s majority opinion in VanDerStock further reminded me of his concurrence in Rahimi: in both cases, Gorsuch invoked the facial challenge issue to stop short of a broader pronouncement. In VanDerStock, it felt like Justice Gorsuch was walking on a tight-rope. It’s possible Gorsuch did this in order to keep the five members of the majority together. It is also possible that Gorsuch did this to keep himself in the majority. My prediction at oral argument was that the Chief assigned this case to Justice Barrett. But maybe Roberts gave the opinion to the most tentative member of the majority, Gorsuch. It is also possible that Justice Barrett initially wrote the majority opinion that squarely ruled against the government on the merits, but Gorsuch and Kavanaugh wouldn’t join that opinion, and Barrett lost the majority opinion, so Justice Gorsuch’s concurrence became the majority. (I hinted at that possibility here.) We will find out if anyone but Barrett has Medical Marijuana v. Horne.

The crux of the analysis appears on Page 7 of the slip opinion:

As presented to us, this case does not ask us to resolve whether ATF’s new regulations in §478.11 and §478.12 may be lawfully applied to particular weapon parts kits or unfinished frames or receivers. Instead, the plaintiffs have pursued what the lower courts called a “facial” pre-enforce-ment challenge to the agency’s authority to regulate any weapon parts kits or unfinished frames or receivers. . . . Nowhere in either of their briefs before us do the plaintiffs dispute that assessment. Accordingly, we take it as given for our purposes here. [FN2]

FN2: The dissents raise a number of questions about what test courts should apply when a party contends that an agency has acted in excess of its statutory authority in a pre-enforcement challenge under the APA. Post, at 7 (opinion of THOMAS, J.); post, at 3 (opinion of ALITO, J.). But the theories the dissents proceed to advance were not pressed or passed upon below, nor did the parties make them before this Court. Cf. post, at 5 (opinion of ALITO, J.) (suggesting that the Court ask for supplemental briefing). In these circumstances, we believe the better course is to leave further analysis of the proper test for another day and address the par-ties’ dispute as they have chosen to frame it. Nor, on remand, may the parties seek to inject arguments about the proper test that they did not pursue here.

Justice Thomas disagrees:

The majority takes a different approach. Asserting that the plaintiffs conceded to having brought a ” ‘facial’ ” chal-lenge, the Court “take[s]” this characterization “as given,” and analyzes the challenge as a facial attack.3

FN3: While the Government characteri

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