United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED November 9, 2023 No. 23-10718 Lyle W. Cayce ____________ Clerk

Jennifer VanDerStok; Michael G. Andren; Tactical Machining, L.L.C., a limited liability company; Firearms Policy Coalition, Incorporated, a nonprofit corporation,

Plaintiffs—Appellees,

Blackhawk Manufacturing Group, Incorporated, doing business as 80 Percent Arms; Defense Distributed; Second Amendment Foundation, Incorporated; Not An L.L.C., doing business as JSD Supply; Polymer80, Incorporated,

Intervenor Plaintiffs—Appellees,

versus

Merrick Garland, U.S. Attorney General; United States Department of Justice; Steven Dettelbach, in his official capacity as Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives; Bureau of Alcohol, Tobacco, Firearms, and Explosives,

Defendants—Appellants. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:22-CV-691 ______________________________

Before Willett, Engelhardt, and Oldham, Circuit Judges. Case: 23-10718 Document: 00516963058 Page: 2 Date Filed: 11/09/2023

No. 23-10718

Kurt D. Engelhardt, Circuit Judge: It has long been said—correctly—that the law is the expression of legislative will.1 As such, the best evidence of the legislature’s intent is the carefully chosen words placed purposefully into the text of a statute by our duly-elected representatives. Critically, then, law-making power—the ability to transform policy into real-world obligations—lies solely with the legislative branch.2 Where an executive agency engages in what is, for all intents and purposes, “law-making,” the legislature is deprived of its primary function under our Constitution, and our citizens are robbed of their right to fair representation in government. This is especially true when the executive rule-turned-law criminalizes conduct without the say of the people who are subject to its penalties. The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy. Because Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the

_____________________ 1 “Positive law is a manifestation of the legislative will.” Arnold v. United States, 13 U.S. 104, 119 (1815); see also Farrar v. United States, 30 U.S. 373, 379 (1831) (“[The President] cannot in the absence of law exercise the power of making contracts, and much less, as in this case, against the expression of the legislative will.”) (emphasis added); Kindle v. Cudd Pressure Control, Inc., 792 F.2d 507, 512 (5th Cir. 1986) (describing “the express legislative will” as “the determinant”); Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 820 (4th Cir. 1995) (noting the “deference to legislative will” inherent in statutory interpretation); Winstead v. Ed's Live Catfish & Seafood, Inc., 554 So. 2d 1237, 1242 (La. Ct. App. 1989), writ den