NCLA Asks SCOTUS to Revive Nondelegation Doctrine and Stop BLM from Writing Criminal Laws
Gregory Pheasant v. United States of America
Washington, D.C., March 23, 2026 (GLOBE NEWSWIRE) -- The New Civil Liberties Alliance filed an amicus curiae brief today urging the U.S. Supreme Court to hear Pheasant v. U.S. and resuscitate the Nondelegation Doctrine. The doctrine was intended to stop Congress from divesting its legislative power to any other branch, including executive agencies like the Bureau of Land Management (BLM). Through the Federal Land Policy and Management Act of 1976, Congress delegated sweeping, open-ended authority to BLM to criminalize a vast range of activities on millions of acres of public lands, notwithstanding the Constitution’s requirement that Congress—not executive agencies—decide what conduct is a crime. Exercising that enormous power, BLM unilaterally made it a federal crime to ride a dirt bike at night on public land in Nevada without a functioning taillight, resulting in charges against Gregory Pheasant.
The Supreme Court should grant the petition for a writ of certiorari in this case—as well as in NCLA’s RMS of Georgia d/b/a Choice Refrigerants v. EPA suit, which raises a closely related question concerning Congress’s transfer of sweeping legislative authority to the EPA to allocate market share across an entire industry. The Court can use these cases to make clear that Congress must set judicially discernible standards when delegating authority that affects private rights and individual liberty.
The Constitution reserves criminal lawmaking—and all other legislative power—to Congress. So, Congress may not divest that power to executive agencies. The Nondelegation Doctrine once required Congress to set “intelligible principles” in statutes that would meaningfully direct how executive-branch entities like BLM and EPA could exercise delegated authority, ensuring that they merely administered Congress’s legislative decisions, rather than allowing the agencies to legislate. Such intelligible principles also provided courts with clear standards by which they could determine whether an agency had adhered to Congress’s will. But lower courts now too often uphold Congress’s transfer of legislative power to another branch so long as some “intelligible principle” can be identified, however broad or vague.
The Ninth Circuit panel’s decision reviving Mr. Pheasant’s criminal charges—and holding BLM’s power to define crimes constitutional—further weakens the Nondelegation Doctrine. The panel treated broad statutory aspirations as sufficient “standards” to govern and restrain BLM’s power to decide what conduct on public lands may be punished by prosecution and imprisonment. Decisions like that, and the D.C. Circuit’s ruling in Choice Refrigerants preserving EPA’s legislative control over the refrigerants market, allow Congress to hand agencies wide-ranging policymaking authority on the theory that a broad directive, such as acting “in the public interest,” meets the Constitution’s requirements. That is not a constitutionally valid “intelligible” principle. The Supreme Court should use Pheasant and Choice Refrigerants to correct that error, restore the Nondelegation Doctrine, and either revitalize or replace today’s toothless “intelligible principle” test with one that requires Congress to set judicially administrable standards in statutes, so courts and citizens can discern what the law is.
NCLA released the following statements:
“The Vesting Clause in Article I of the Constitution is not a suggestion, nor is the Nondelegation Doctrine a rubber stamp. Yet the Ninth Circuit, like too many other courts, greenlit the transfer of criminal lawmaking power to an executive agency, so long as Congress supplies a broad policy goal, while leaving it to the agency to decide what conduct is criminal. The Court should grant certiorari and make clear that Article I does not permit Congress to merely announce a law’s ends while the Executive determines its substance.”
— Casey Norman, Litigation Counsel, NCLA
“The Ninth Circuit’s Pheasant case and the D.C. Circuit’s Choice Refrigerants case demonstrate that the modern Nondelegation Doctrine absolutely fails to accomplish its purpose. It is far past time for the Supreme Court to decide a case that re-establishes its willingness to restrict legislative power to Congress, where We the People vested it.”
— Zhonette Brown, General Counsel and Senior Litigation Counsel, NCLA
“BLM’s criminalizing a broken taillight may sound like a small matter, but Americans have consented, via the Constitution, to surrender our personal liberty only when our elected legislators outlaw something. That enormous power does not belong in the hands of mere BLM bureaucrats whose use of legislative power is thus illegitimate.”
— Mark Chenoweth, President and Chief Legal Officer, NCLA
For more information visit the amicus page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
Joe Martyak New Civil Liberties Alliance 703-403-1111 joe.martyak@ncla.legal
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