April 24, 2020 3:09PM

DOJ Dismisses Indictment of Machine Gun Prosecution to Preserve Its Obamacare Arguments

Although the Supreme Court is closed during the pandemic, it has been releasing a trickle of opinions, as well as scheduling its first‐​ever telephonic oral arguments for the first two weeks of May. But in all that top‐​level stuff, it’s easy to miss an unusual entry in Monday’s order list.

These weekly lists typically contain a few cert grants, a long list of cert denials, and a grab bag of other procedural minutiae, but this week we had this:


The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of the pending application to vacate the judgment and dismiss the indictment.

This case presented a constitutional challenge to the federal prohibition on registering machine guns. Cato Institute had filed an amicus brief in support of Nick Bronsozian in an earlier stage of litigation, arguing that this prosecution was unconstitutional because based on a too‐​expansive reading of the federal taxing power. Mr. Bronsozian’s proposed question presented, in a petition filed in early October, was:

Does Congress’s power to tax give it the power to punish the possession of unregistered machineguns under § 5861(d) of the NFA, even though it is impossible to register and pay tax on those machineguns, the law generates no revenue, and the only enforcement mechanism is prosecution?

It took a very long time for the government to respond; the solicitor general filed four motions to extend his time to respond, with the fourth motion on February 5, noting that “the government has filed an application in the district court to dismiss petitioner’s indictment under Federal Rule of Criminal Procedure 48(a), and that application remains pending.” This was curious, to say the least.

On March 9, the solicitor general finally filed his brief for the United States, urging the Court to grant the petition, vacate the lower court’s decision (affirming conviction), and remand for further consideration in light of the application to dismiss the indictment. Why was the government taking this weird step? Did it see some flaw in its prosecution? No, there was no “confession of error,” as the term of art for that type of concession is called. Instead, the government simply claimed a broad “in the interest of justice” rationale.

On Monday, the Supreme Court took the government’s advice.

How often does DOJ dismiss an indictment while a cert petition is pending, without a confession of error? The solicitor general offered several examples, the most recent of which occurred in 1980. The SG could not find an example in the last 40 years.

Why did the SG take this strange course? Believe it or not, ongoing Obamacare litigation is the most likely explanation. In Texas v. United States, which the Supreme Court agreed to hear but which now likely won’t be argued till the fall, the federal government argues that the Affordable Care Act, which no longer raises revenue, cannot be construed as imposing a tax.

Well, the National Firearms Act no longer raises revenue, because the government won’t collect the payment. Bronsozian argued that his provision cannot be sustained under NFIB v. Sebelius, the 2012 case that upheld the individual mandate after reconstruing it as a tax. As a result, DOJ would’ve had to argue that the National Firearms Act, which raises no revenue, must be construed as imposing a tax, while arguing that the no‐​longer‐​revenue‐​raising ACA cannot be construed that way.

Perhaps the easier path was to simply dismiss the indictment to sustain the Obamacare case. Our kudos to Mr. Bronsozian, and his counsel John Littrell, for securing an unusual win for constitutional governance by forcing the government into that pretzel.