Congress, not bureaucrats, should make federal criminal law

Closeup of Gavel with Books and Scale

By Michael Pepson

Would it surprise you to know that Congress has granted the Bureau of Land Management (BLM) unfettered power to write its own criminal code governing one-tenth of the land in the United States? A Nevada federal court ruled that Congress unconstitutionally transferred its legislative power to write crimes to the BLM. Last week, Americans for Prosperity Foundation submitted a friend-of-the-court brief in United States v. Pheasant urging the Ninth Circuit to affirm that decision.

This federal prosecution for an alleged taillight infraction on federal land is a classic case of overcriminalization.

But at its core this case is about who decides what should be a federal crime and by what process: the People’s elected representatives through the deliberately difficult legislative process, subject to constitutional limits on federal power, or unelected, unaccountable bureaucrats by bare administrative edict. The Constitution requires that the answer must be the former, but today the reality is the latter. Most federal criminal law is created by unelected bureaucrats issuing regulations. To put this in perspective, “[i]n contrast to the roughly 200 to 400 laws passed by Congress, the federal administrative agencies adopt approximately 3,000 to 5,000 final rules each year.” There are untold thousands of regulations governing private conduct in the 180,000 pages of the Code of Federal Regulations. Indeed, “[b]y one estimate, there are over 300,000 federal regulations that may be enforced criminally.”

The provision at issue in this case transfers to the Bureau of Land Management sweeping legislative power to write its own criminal code covering 245 million acres of federal land—that is, one tenth of the land in the United States. To make something a crime, all BLM must do is find the regulation is “necessary” for some rhyme or reason.  This effectively gives the BLM the powers of a state legislature and governor over about two-thirds of the land in Nevada and about one-half of Utah. As the district court observed, “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has used this authority to write regulations criminalizing behavior that the state would normally criminalize, like outdated vehicle registration, coal exploration, horse adoption, noisiness, fraud, discrimination, and homelessness.” And while Congress has not enacted legislation setting standards for dirt biker taillights, let alone chosen to criminalize the alleged taillight infraction at issue here, BLM has used its vast legislative power to criminalize the alleged failure to use a taillight while riding a dirt bike in the desert at night.  In other words, the federal criminal charge at issue in this appeal flows not from an act of Congress but an administrative edict. This makes a mockery of the Constitution’s separation of legislative, executive, and judicial powers. And it should not be allowed to stand.

The Constitution does not allow unelected bureaucrats to write federal crimes.

Our Constitution exclusively tasks the people’s elected representatives with making policy choices, subject to constitutional limits on federal power. And under the Constitution, the political branches may only do so through duly enacted legislation that survives bicameralism and presentment, a deliberately difficult process designed to ensure such laws reflect broad political consensus. The Constitution does not vest in or permit the Executive to possess lawmaking powers. To the contrary, the Constitution flatly prohibits Congress from transferring any of its legislative power to other entities, especially Congress’s power to enact criminal laws binding private parties. As Chief Justice Marshall wrote, “the power of punishment is vested in the legislative,” which means “[i]t is the legislature . . . which is to define a crime, and ordain its punishment.”

This ensures that the American people know exactly who to hold accountable at the ballot box for failed or unpopular policy choices. More importantly, this system of checks and balances protects individual liberty. As James Madison famously warned in Federalist 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” And as now-Justice Gorsuch has observed, “[i]f the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce.”

Unfortunately, the Supreme Court’s modern delegation precedent has strayed from the Constitution’s original public meaning, generally allowing Congress to transfer its crime-writing power to unelected administrators so long as an “intelligible principle” exists to guide the agency. But even under that unduly lax judicially created standard, there are limits. And the district court properly found that Congress’s decision to “[g]iv[e] an Executive agency authority to regulate 10% of the country and 30% of the country’s mineral resources without ‘substantial guidance’ runs afoul of the constitution.” The district court correctly concluded: “Without an intelligible principle, the statute is unconstitutional and the regulations promulgated thereunder that Pheasant allegedly violated are dismissed.”

The district court recognized “the gravity of this Order[.]” But, if ultimately upheld, this decision is an important step to restoring the Constitution’s promise that only the People’s elected representatives in Congress can create crimes restricting liberty, and even then only through the deliberately arduous legislative process, subject to constitutional limits on federal power.

AFPF applauds the work of the federal defenders representing Mr. Pheasant in this case for their advocacy on behalf of their client and in support of the U.S. Constitution. Read the full amicus brief for United States of America v. Pheasant. More information about this case can be found here.