Congress Can’t Delegate Away Its Power to Define Crimes

In 2021, Gregory Pheasant was arrested for riding his dirt bike through Moon Rocks, Nevada, without a taillight. Moon Rocks is a section of federally owned public land managed by the Bureau of Land Management (“BLM”). BLM has been granted authority to issue regulations enforced by criminal penalties on this public land. That authority derives from a statute passed by Congress in 1976. Claiming authority under that act, BLM had issued a rule requiring that all dirt bikes operating at night be affixed with a taillight, on pain of criminal penalty. Pheasant was charged with violating BLM’s taillight regulation, along with two other crimes.

Pheasant moved to dismiss, arguing that the broken taillight charge was unconstitutional under the “nondelegation doctrine.” Pheasant maintained that Congress had unconstitutionally delegated its legislative authority to the executive branch and that crimes created by the executive branch pursuant to that power (including the taillight regulation) were void. The district court agreed and dismissed the charge, but the Ninth Circuit reversed on appeal. 

The Ninth Circuit upheld the delegation of power and refused to apply a heightened standard for nondelegation challenges in the criminal context. Pheasant petitioned the Supreme Court of the United States for review, and Cato filed an amicus brief in support. This week, the Supreme Court will meet to decide whether to grant review of Pheasant’s case.

In our brief, we argue that the district court correctly dismissed the charges against Pheasant on nondelegation grounds and that the Ninth Circuit erred in reinstating them. We also urge the Supreme Court to resolve an inconsistency between two different separation-of-powers standards used for reviewing overly vague criminal statutes.

Our brief explains that parties alleging a separation-of-powers challenge to overly vague criminal statutes risk facing the inconsistent application of two distinct standards of scrutiny: vagueness review and the intelligible principle test under the nondelegation doctrine. Vagueness review applies when a law gives too much discretion to police and prosecutors, while the nondelegation doctrine concerns laws that give too much discretion to rulemakers. Both of these standards enforce the same constitutional concern—preventing Congress from delegating its criminal lawmaking authority to other government actors charged with executing the law. Yet courts apply vagueness review more strictly than the lenient intelligible principle test. Our brief argues that this distinction is meritless and that both claims should be scrutinized under a single, rigorous standard.

Additionally, our brief contends that under such a unified standard, Pheasant’s charges should be dismissed. The executive branch has been granted nearly unfettered authority to create regulatory crimes for federally owned public lands. A federal rulemaker is thus effectively a one-person super legislature for over 240 million acres of federal land, a landmass more than double the size of California. 

This tremendous grant of lawmaking power far exceeds anything the courts have upheld under vagueness precedents. For that reason, the act’s delegation of regulatory power violates the separation of powers. The Supreme Court should grant the petition and reverse the Ninth Circuit.