NCLA Amicus Brief Asks Ninth Circuit to Stop Bureau of Land Management from Writing Criminal Laws
April 26 2024 - 5:31PM
Today, the New Civil Liberties Alliance filed an amicus curiae
brief in U.S. v. Pheasant, urging the U.S. Court of Appeals for the
Ninth Circuit to affirm a decision barring the Bureau of Land
Management (BLM) from wielding legislative power to criminalize
activity on public lands. Gregory Pheasant was charged with three
violations of BLM rules for allegedly failing to use a taillight on
his dirt bike at night on federal land in Nevada. A federal
district court dismissed the charges, ruling that Congress
unconstitutionally delegated “virtually unfettered” legislative
power to criminalize activities on BLM-managed lands. NCLA asks the
Ninth Circuit to uphold this decision and reasoning.
Congress purportedly gave the Bureau complete
authority to criminalize activity on BLM-managed public land
through a provision in the Federal Land Policy and Management Act
of 1976. That provision violates the Vesting Clause of the
Constitution, which reserves all legislative authority for Congress
and forbids it from divesting that power to an administrative
agency or anyone else. Determining what actions are criminal is an
exclusively legislative task. The text and structure of the
Constitution support NCLA’s view that only Congress has the power
to define crimes—not agencies like BLM.
In transferring legislative power to the BLM,
Congress weakens its accountability to the public and deprives
Americans of their freedom to rule themselves through elected
representatives, instead allowing unelected bureaucrats to
unilaterally brand them as criminals. Congress cannot be allowed to
fend off political consequences for its actions by shifting its
criminal lawmaking responsibility elsewhere.
NCLA released the following statements:
“Where the fundamental interest in one’s liberty
is involved, skepticism of agency-claimed power should be at its
highest. The Bureau has no independent constitutional power to
criminalize activity on its managed lands, nor could Congress
provide such power to it.”— Kara Rollins, Litigation Counsel,
NCLA
“That more than 65% of the land in Nevada will
have its criminal law imposed by bureaucrats in Washington with no
democratic accountability is insupportable under our Constitution,
which vests the power to make criminal law solely in the
Congress.”— John Vecchione, Senior Litigation Counsel,
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.
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Ruslan Moldovanov
New Civil Liberties Alliance
202-869-5237
ruslan.moldovanov@ncla.legal