United States v. Pheasant: Oral Argument Held In Important Nondelegation Challenge

A Ninth Circuit panel (Judges Bea, Bennett, and Miller) recently heard oral argument in United States v. Pheasant, which we’ve previously argued might be that rare bird that is a good vehicle to revive the nondelegation doctrine. The core question this appeal raises is whether the Federal Land Management Policy Act’s open-ended grant of power to the Bureau of Land Management (BLM), through the Secretary of Interior, to “issue regulations necessary to implement the provisions of [FLMPA] with respect to the management, use, and protection of the public lands”—violations of which are punishable by up to twelve months imprisonment and a substantial fine—satisfies the Supreme Court’s “intelligible principle” test for constitutionally acceptable delegations. A corollary question is whether something more than an “intelligible principle” is required for crime-writing delegations—a question the Supreme Court has raised, but left open.

The Ninth Circuit Oral Argument Calendar’s framing of the case is mundane: “The United States appeals the district court’s dismissal of a count charging the defendant with driving an off-road vehicle without a taillight on Bureau of Land Management land.” But the reason why the district court dismissed that count is what makes this case remarkable. The district court ruled that the provision of FLMPA granting BLM unfettered power to essentially write its own criminal code governing one-tenth of the land in the United States—including the BLM regulation at issue making it a crime to ride a dirt bike at night in the desert without a taillight—unconstitutionally transferred Congress’s legislative power to an administrative body.

To put it mildly, that rarely happens. Although the Constitution bars Congress from transferring legislative power to other entities, the Supreme Court has not invalidated a federal statute on that ground in ninety years, allowing Congress to pass statutes that punt difficult and important policy decisions to unelected administrative officials in federal agencies and thereby avoid accountability for making hard choices. Indeed, as Dan McLaughlin of the National Review has observed:

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.

At oral argument in Pheasant, a few themes emerged. The government, for its part, stressed existing Supreme Court and Ninth Circuit precedent upholding broad delegations, also giving a nod to the policy argument that Congress couldn’t do its job if it couldn’t broadly delegate to federal agencies—a debatable proposition. The federal defender representing Mr. Pheasant countered that the Constitution requires Congress to make policy choices and that delegations require a closer look in the criminal context. Mr. Pheasant’s counsel also stressed that this statute is different from those that have been upheld, urging that even under the ordinary intelligible principle test FLMPA’s sweeping delegation is unconstitutional. She likened it to the statutes at issue in the only two cases in which the Supreme Court has found a nondelegation violation—Panama Refining Co. v. Ryan and A.L.A. Schechter Poultry Corp. v. United States—both of which likewise delegated standardless crime-writing powers.

Throughout the argument, the panel posed many thoughtful questions, such as: To what extent is it an open question in the Ninth Circuit whether something more than the intelligible principle test applies to criminal delegations? (The Supreme Court has not definitively weighed in on that question, and the government acknowledged it is an open question, instead arguing that this isn’t the case to draw that line.) If it is an open question, what would something more look like? And why would a different nondelegation standard apply in the criminal context given that Article I vests all legislative power in Congress, not just the power to create criminal law? If state legislators can decide what should be a crime by enacting legislation, why shouldn’t Congress be held to the same standard? Why does Congress have to delegate to the agency the decision whether to criminalize driving without a taillight? Why should the agency be allowed to make up legislative pronouncements? What makes this delegation different from those that the Supreme Court and other courts have upheld under the intelligible principle test? Would the Assimilative Crimes Act—which applies state law to conduct on federal land that is not governed by federal law—come into effect if the Court ruled FLMPA’s crime-writing delegation unconstitutional? And does Congress have broader authority to delegate with respect to federal land?

The panel also wrestled with the relevance of the Supreme Court’s recent administrative law decisions, particularly SEC v. Jarkesy. Although the Court resolved that case on Seventh Amendment grounds, it did not vacate the Fifth Circuit’s ruling that the statutory scheme at issue—which gives the SEC standardless discretion to choose to bring enforcement actions impacting private rights in federal court or on home turf in its inhouse tribunal—violates the nondelegation doctrine. That holding thus remains good law in the Fifth Circuit. The Nevada district court cited the Fifth Circuit’s Jarkesy decision several times, so the Ninth Circuit panel might address the Jarkesy nondelegation analysis in its decision. Judge Bea also mentioned Loper Bright v. Raimondo, in which the Court squarely overruled Chevron v. NRDC, suggesting that the Court seems willing to more carefully police the separation of powers. In Loper Bright, the Court noted that congressional delegations to agencies are acceptable when “consistent with constitutional limits.” What exactly those limits are is the very question raised by Pheasant.

How will the panel answer these questions? One possibility is that the panel concludes it is bound under current Supreme Court and Ninth Circuit precedent to uphold the delegation. On the flip side, the panel might conclude that FLMPA’s sweeping delegation of power to BLM to create crimes for any reason it deems “necessary” is on all fours with the delegations the Supreme Court found unconstitutional in Schechter Poultry and Panama Refining, distinguishing cases upholding broad delegations such as Mistretta v. United States. And, after argument, it does not seem outside the realm of possibility that the panel concludes that FLMPA unconstitutionally delegates legislative power to BLM and affirms the district court. If so, it will be interesting to see whether the Court opines on whether crime-writing delegations require something more than a bare intelligible principle and how it situates that question within existing precedent.

Another wild card could also affect how this case is resolved: the Supreme Court may well choose to take up nondelegation this term—and soon. The Fifth Circuit recently ruled en banc that Section 254 of the Telecommunications Act of 1996, at least as implemented by the FCC, is unconstitutional, finding that the “combination of delegations, subdelegations, and obfuscations of the [Universal Service Fund] Tax mechanism offends Article I, § 1 of the Constitution,” creating a circuit split. The Solicitor General has filed a cert petition in FCC v. Consumers’ Research presenting the following questions: 

1. Whether Congress violated the nondelegation doctrine by authorizing the Commission to determine, within the limits set forth in Section 254, the amount that providers must contribute to the Fund.
2. Whether the Commission violated the nondelegation doctrine by using the Administrator’s financial projections in computing universal service contribution rates.
3. Whether the combination of Congress’s conferral of authority on the Commission and the Commission’s delegation of administrative responsibilities to the Administrator violates the nondelegation doctrine.

That petition is fully briefed and will soon go to conference.

As Justice Thomas recently observed, “[a]t least five Justices have already expressed an interest in reconsidering th[e Supreme] Court’s approach to Congress’s delegations of legislative power.” If not Consumers’ Research, Pheasant may just be the vehicle to do so.