The Ninth Circuit appeal in United States v. Pheasant is a nondelegation case to watch.
The Ninth Circuit appeal in United States v. Pheasant is a nondelegation case to watch.
O ne of the heavy artillery pieces in the battle to restore the separation of powers as designed by our Constitution is the nondelegation doctrine. It is about to get a serious test in a case, United States v. Pheasant, that is being briefed before the Ninth Circuit federal appeals court.
Last April, Judge Robert Jones of the federal district court in Nevada (a George W. Bush appointee with two decades on the bench) concluded that 43 U.S.C. § 1733(a), a provision of the Federal Land Policy and Management Act of 1976, violated the nondelegation doctrine by ceding too much law-making authority over federal lands to the Bureau of Land Management (BLM) within the Department of the Interior. If upheld, the ruling in Pheasant would call into question a vast number of regulations — many of them carrying criminal penalties — governing what Americans may do on federal land.
The BLM’s power is especially important in western states such as Nevada, in which 68 percent of the state is federal land subject to BLM regulations under Section 1733(a). Because of the case’s sweeping importance, it could easily end up at the Supreme Court. In light of the statute’s unusually open-ended grant of authority to the BLM to exercise what amounts to a general police power over huge tracts of the country backed by the force of the criminal law, it could present the sharpest test for the nondelegation doctrine before the current Court.
All Legislative Powers
The nondelegation concept is a simple one: Article I, Section 1 of the Constitution — the very first rule set forth in the document — begins: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” The federal government has no other legislative powers besides those “herein granted” in the Constitution (a point made explicit by the Ninth and Tenth Amendments). In short: If a power is legislative, it may only be vested in Congress and exercised by Congress.
As Justice John Marshall Harlan wrote in Marshall Field & Co. v. Clark (1892): “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” That principle is derived from the textual separation of powers, but John Locke’s Second Treatise on Government, in arguing against Parliament having the right to hand over law-making powers to the Crown, grounded it deeper in the philosophy of representative government:
The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. . . . And when the people have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it in other hands.
The application of the principle, however, runs into the practical difficulty that Congress has always allowed for some level of executive and administrative action in detailing how laws will work. Chief Justice John Marshall, as far back as Wayman v. Southard (1825), recognized both the principle of nondelegation and its limits: “It will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.” (Emphasis added.) In order to police the line, the Supreme Court has required that an act of Congress lay down an “intelligible principle” that an agency must follow in promulgating rules, so that it is possible for a court to judge whether the agency stayed within its mandate to apply the law rather than make it.
In most cases, the Supreme Court will strain to avoid a nondelegation problem by interpreting what a statute means and identifying what it does and does not empower an agency to do. If the regulation addresses a large and hotly contested question of public policy, the major questions doctrine will lead the Court to presume that statutory silence means that the agency wasn’t empowered to make a rule on the question. If the Court can determine what a statute means, there should likewise be no need for Chevron or similar doctrines of deference to the agency to figure it out. In either event, the question of what was delegated is settled.
Sometimes, Congress can use a general adjective to hand off a particular kind of detail to an agency; for example, if a statute says that a railroad may charge only “reasonable” rates for freight, the agency will have a lot of latitude to specify what rates are reasonable and what are not, and in what circumstances. In that situation, Congress drew the lines, and the agency decides where to color inside them. But what if a court can’t even find the line? Traditionally, only when there really is no standard to say what the agency can and cannot do will the Court take the further step of deciding that Congress has breached the nondelegation doctrine and totally abdicated its law-making authority to an agency.
The nondelegation doctrine remains controversial as an originalist matter, with some scholars and jurists arguing that it ought to be applied with more rigor and others claiming that the Framers didn’t believe in any such doctrine. That alone is one reason why the courts have been hesitant to reach the question whenever they can avoid it. But in Pheasant, there is no avoiding it.
As Big as the Sky
Gregory Pheasant was allegedly driving his dirt bike without a taillight in Moon Rocks, Nev., when he had a run-in with a BLM ranger on the Friday night of Memorial Day weekend in 2021. BLM officers were engaged in a “special operation” with federal law enforcement that night in Moon Rocks, a wide-open rocky desert landscape whose popularity with off-road bike and ATV riders had surged during the pandemic.
The stated aim of the law-enforcement operation was to ensure a “family-oriented recreational experience” at Moon Rocks. The Reno Gazette Journal had reported in March 2021 that the BLM was “considering whether to manage the area as a developed recreation site” with funding from the Nevada Commission on Off-Highway Vehicles. The article quoted a representative of the state commission opining that Moon Rocks was “a little bit Mad Max out there, especially over holiday weekends.” In other words, enforcement was being stepped up as an exercise of basic police power, and not for any reason particular to conservation or resource management.
Pheasant ended up charged with “resisting issuance of citation or arrest” and “failing to use required taillight at night” under a pair of rules found deep within the Code of Federal Regulations. The BLM’s basis for issuing those rules was Section 1733, which provides: “The Secretary shall issue regulations necessary to implement the provisions of this Act with respect to the management, use, and protection of the public lands, including the property located thereon.” (Emphasis added.) The statute authorizes the BLM to create crimes, punishable by up to a year in prison or a fine of up to $1,000, by promulgating these rules.
As the district court observed, “management, use, and protection of the public lands” is a completely elastic term that the BLM has used to justify the creation of new crimes on an almost limitless number of topics never remotely mentioned by Congress, including “how long individuals can camp at a particular spot,” “what kind of seatbelts individuals must wear,” “whether saddle horses have the right-of-way over off-road vehicles,” a prohibition on “shooting firearms in particular areas near Winnemucca and Carson City,” and on “picking up rocks in certain parts of Humboldt, Pershing, and Washoe Counties,” and “prohibiting having hay, straw, or mulch that is not certified as weed-free on any BLM-managed lands” in Nevada. The “BLM has used this authority to write regulations criminalizing behavior that the state would normally criminalize, like outdated vehicle registration, coal exploration, horse adoption, noisiness, fraud, discrimination, and homelessness.” As a result, “the Secretary of the Interior has unfettered legislative authority to promulgate rules for over 48 million acres of land, which is 68% of the state of Nevada.”
Moreover, the secretary of the interior has, in turn, delegated rulemaking authority to state-level BLM directors:
Without any intelligible principle, the Secretary of the Interior has provided Executive employees with Congress’ unfettered legislative power to govern individual states. In a state like Nevada, these State BLM Directors are essentially single-person legislators and governors because they promulgate regulations (laws) and enforce the regulations (laws). . . .
Allowing Executive agencies to create the very crimes they are tasked with enforcing effectively turns them into the expositor, executor, and interpreter of criminal laws. . . . Essentially, in the words of [Justice Neil Gorsuch], “the nation’s chief prosecutor gets the power to write his own criminal code” on the public lands. (Alterations omitted).
Are any of these rules beyond the scope of the power granted to the BLM? How could you tell? As the court concluded, “There is no language in the statute that cabins the authority of the Secretary of the Interior to promulgate rules on behalf of the BLM.”
This is, to use a technical legal term, bonkers.
The government argued that a similar delegation of authority to the General Services Administration over government buildings had been upheld half a century ago by the Fourth Circuit, but the court was unpersuaded that this was analogous, given that rules confined to government buildings are inherently more specific just by virtue of the more limited setting.
In its appeal brief in the Ninth Circuit, the government relied on United States v. Grimaud (1911), which upheld rules under the Forest Reserve Act against grazing sheep on federal land without permission. The Forest Reserve Act, which was particular to forests designated by the president for conservation, aimed “to improve and protect the forest within the reservation, and to secure favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States.” It explicitly allowed the “egress and ingress of actual settlers residing within the boundaries of such reservations” but conditioned entry into the forest reservations “for all proper and lawful purposes” on the provision “that such persons comply with the rules and regulations covering such forest reservation.” Whether or not the Court in Grimaud was right to uphold the grazing rules, the statute rather clearly set aside forest reservations as a specially protected area for the purpose of preserving their plant life and explicitly empowered the creation of rules conditioning entry into the forest. Management of grazing was obviously the sort of thing Congress in the 1890s would have expected to be included in that authority. In Pheasant, by contrast, there is no limitation of topics or places within federal land — land that covers more than two-thirds of Nevada.
It’s much harder to justify sweeping agency powers when they are also sweeping in application. That’s one lesson of the Supreme Court’s vaccine-mandate cases: The justices were willing to accept a broad power to mandate vaccination for workers in federally funded health-care facilities because it was closely related to the power to fund such facilities, but it balked at reading a similar power into the workplace-safety rules for every business in the country.
Under the briefing schedule set by the Ninth Circuit, Pheasant’s response to the government’s brief is due February 19, and amicus briefs supporting Pheasant’s position will be due February 27. Anyone concerned about the lawless power of the administrative state should be watching.