Petition for Writ of Certiorari — Gregory W. Pheasant, Petitioner v. United States

Supreme Court briefFeb 20, 2026

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APPENDIX

TABLE OF APPENDICES

Appendix A: Opinion, United States v. Pheasant,

No. 23-991 (9th Cir. Feb. 19, 2025) ...................

Appendix B: Order, United States v. Pheasant,

No. 3:21-cr-00024-RCJ-CLB (D. Nev. Feb. 26,

2023) ................................................................... 15a

Appendix C: Order denying panel rehearing and

rehearing en banc, United States v. Pheasant,

No. 23-991 (9th Cir. Oct. 31, 2025) ................... 39a

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

GREGORY W. PHEASANT,

Defendant - Appellee.

No. 23-991

D.C. No.

3:21-cr-00024RCJ-CLB-1

OPINION

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, Senior District Judge, Presiding

Argued and Submitted October 10, 2024

Las Vegas, Nevada

Filed February 19, 2025

Before: Carlos T. Bea, Mark J. Bennett, and Eric D. Miller,

Circuit Judges.

Opinion by Judge Miller

USA V. PHEASANT

SUMMARY *

Criminal Law

The panel reversed the district court’s dismissal of a

count charging Gregory W. Pheasant with driving an offroad vehicle on public lands at night without a taillight, in

violation of 43 C.F.R. § 8341.1(f)(5), and remanded.

Section 8341.1(f)(5) was adopted by the Secretary of the

Interior under authority vested in him by section 303(a) of

the Federal Land Policy and Management Act of 1976

(FLPMA), which directs the Secretary to “issue regulations

necessary to implement the provisions of [the FLPMA] with

respect to the management, use, and protection of the public

lands, including the property located thereon.” The statute

provides that “[a]ny person who knowingly and willfully

violates any such regulation which is lawfully issued

pursuant to this Act shall be fined no more than $1,000 or

imprisoned no more than twelve months, or both.”

The district court held that section 303(a) is an

unconstitutional delegation of legislative power because it

gives the Secretary “unfettered legislative authority” to

make rules that “cover almost all conduct on public lands”

without “any guidance or restraint as to when the Secretary

. . . shall promulgate rules.”

Article I of the Constitution vests all legislative powers

in Congress. Accompanying that assignment of power to

Congress is a bar on its further delegation—Congress may

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

USA V. PHEASANT

not transfer to another branch powers which are strictly and

exclusively legislative. But Congress does not violate the

Constitution merely because it legislates in broad terms,

leaving a certain degree of discretion to executive or judicial

actors. Under the Supreme Court’s “intelligible principle”

test, a statutory delegation is constitutional as long as

Congress lays down by legislative act an intelligible

principle to which the person or body authorized to exercise

the delegated authority is directed to conform.

The panel held that section 303(a) easily satisfies the

“intelligible principle” test because, taken together, the

FLPMA’s provisions set out a clear principle: The Secretary

must develop a long-term management strategy to realize the

land’s value in a sustainable way. Such constraints are

enough to satisfy Article I.

COUNSEL

Adam M. Flake (argued), Appellate Chief and Assistant

United States Attorney; Jason M. Frierson, United States

Attorney; Office of the United States Attorney, Las Vegas,

Nevada; Robert L. Ellman, Appellate Chief, Office of the

United States Attorney, Reno, Nevada; for PlaintiffAppellant.

Ellesse Henderson (argued) and Rohit Rajan, Assistant

Federal Public Defenders; Rene L. Valladares, Federal

Public Defender; Federal Public Defender's Office for the

District of Nevada, Las Vegas, Nevada; Christopher P. Frey,

Assistant Federal Public Defender; Federal Public

Defender's Office for the District of Nevada, Reno, Nevada;

for Defendant-Appellee.

USA V. PHEASANT

Thomas A. Berry and Alexander R. Khoury, Cato Institute,

Washington, D.C., for Amicus Curiae Cato Institute.

Michael D. Pepson, Americans for Prosperity Foundation,

Arlington, Virginia, for Amicus Curiae Americans for

Prosperity Foundation.

Kara M. Rollins and John J. Vecchione, New Civil Liberties

Alliance, Washington, D.C., for Amicus Curiae New Civil

Liberties Alliance.

Molly E. Nixon, Pacific Legal Foundation, Arlington,

Virginia; Luke A. Wake, Pacific Legal Foundation,

Sacramento, California; for Amicus Curiae Pacific Legal

Foundation.

Sean M. Corkery, Assistant Solicitor General; Alan Hurst,

Solicitor General; Raúl R. Labrador, Idaho Attorney

General; Office of the Idaho Attorney General, Boise, Idaho;

Steve Marshall, Alabama Attorney General, Office of the

Alabama Attorney General, Montgomery, Alabama; Treg

Taylor, Alaska Attorney General, Office of the Alaska

Attorney General, Anchorage, Alaska; Kris W. Kobach,

Kansas Attorney General, Office of the Kansas Attorney,

Topeka, Kansas; Liz Murrill, Louisiana Attorney General,

Office of the Louisiana Attorney General, Baton Rouge,

Louisiana; Lynn Fitch, Mississippi Attorney General, Office

of the Mississippi Attorney General, Jackson, Mississippi;

Andrew Bailey, Missouri Attorney General, Office of the

Missouri Attorney General, Jefferson City, Missouri; Austin

Knudsen, Montana Attorney General, Office of the Montana

Attorney General, Helena, Montana; Michael T. Hilgers,

Nebraska Attorney General, Office of the Nebraska Attorney

General, Lincoln, Nebraska; Alan Wilson, South Carolina

Attorney, Office of the South Carolina Attorney General,

Columbia, South Carolina; Jonathan Skrmetti, Tennessee

USA V. PHEASANT

Attorney General, Office of the Tennessee Attorney

General, Nashville, Tennessee; Sean D. Reyes, Utah

Attorney General, Office of the Utah Attorney General, Salt

Lake City, Utah; Patrick Morrisey, West Virginia Attorney

General, Office of the West Virginia Attorney General,

Charleston, West Virginia; for Amici Curiae the State(s) of

Idaho, Alabama, Alaska, Kansas, Louisiana, Mississippi,

Missouri, Montana, Nebraska, South Carolina, Tennessee,

Utah, and West Virginia.

OPINION

MILLER, Circuit Judge:

Late at night on the Friday of Memorial Day weekend in

2021, Bureau of Land Management rangers were patrolling

Moon Rocks, an area of BLM-administered land north of

Reno, Nevada. When the rangers saw a group of

motorcyclists riding without lights, they turned on their

emergency lights to direct them to stop. According to the

rangers, one of the motorcyclists, Gregory Pheasant, refused

to stop. After the rangers chased him down, he allegedly

came to a stop only to spin his rear wheel—thereby throwing

rocks and dirt at the rangers—while making obscene

gestures and abusive comments. He then sped away again.

Pheasant was eventually apprehended, and a grand jury

in the District of Nevada returned a three-count indictment

charging him with assault on a federal officer, resisting the

issuance of a citation or arrest, and—in the only count at

issue in this appeal—driving an off-road vehicle on public

lands at night without a taillight, in violation of 43 C.F.R.

USA V. PHEASANT

§ 8341.1(f)(5). That regulation was adopted by the Secretary

of the Interior under authority vested in him by section

303(a) of the Federal Land Policy and Management Act of

1976 (FLPMA), 43 U.S.C. § 1733(a), which directs the

Secretary to “issue regulations necessary to implement the

provisions of [the FLPMA] with respect to the management,

use, and protection of the public lands, including the

property located thereon.” The statute provides that “[a]ny

person who knowingly and willfully violates any such

regulation which is lawfully issued pursuant to this Act shall

be fined no more than $1,000 or imprisoned no more than

twelve months, or both.” Id.

Pheasant moved to dismiss the indictment, and the

district court granted the motion. As to the taillight count,

the court held that section 303(a) is an unconstitutional

delegation of legislative power because it gives the Secretary

“unfettered legislative authority” to make rules that “cover

almost all conduct on public lands” without “any guidance

or restraint as to when the Secretary . . . shall promulgate

rules.” The government appeals the dismissal of that count,

and we review the district court’s decision de novo. United

States v. Melgar-Diaz, 2 F.4th 1263, 1266 (9th Cir. 2021).

Article I of the Constitution vests “[a]ll legislative

Powers . . . in a Congress of the United States.” U.S. Const.

art. I, § 1. “Accompanying that assignment of power to

Congress is a bar on its further delegation”—Congress “may

not transfer to another branch ‘powers which are strictly and

exclusively legislative.’” Gundy v. United States, 588 U.S.

128, 135 (2019) (plurality opinion) (quoting Wayman v.

Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825)). But

“Congress does not violate the Constitution merely because

it legislates in broad terms, leaving a certain degree of

USA V. PHEASANT

discretion to executive or judicial actors.” Touby v. United

States, 500 U.S. 160, 165 (1991).

The Supreme Court has defined the point beyond which

a grant of discretion is too broad—and is thus a delegation

of legislative power—through the “intelligible principle”

test. See Gundy¸ 588 U.S. at 135 (plurality opinion). Under

that test, “a statutory delegation is constitutional as long as

Congress ‘lay[s] down by legislative act an intelligible

principle to which the person or body authorized to [exercise

the delegated authority] is directed to conform.’” Id.

(alterations in original) (quoting Mistretta v. United States,

488 U.S. 361, 372 (1989)).

The requirement that Congress set out an “intelligible

principle” to constrain executive discretion “is an

exceedingly modest limitation.” Melgar-Diaz, 2 F.4th at

1266. That is because “the extent and character” of the

assistance that Congress may seek from the coordinate

branches “must be fixed according to common sense and the

inherent necessities of the governmental co-ordination.”

J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406

(1928). And “[s]ince Congress is no less endowed with

common sense than [courts] are, and better equipped to

inform itself of the ‘necessities’ of government,” courts

“have almost never felt qualified to second-guess Congress

regarding the permissible degree of policy judgment that can

be left to those executing or applying the law.” Mistretta,

488 U.S. at 416 (Scalia, J., dissenting). As courts confronted

with non-delegation challenges regularly point out, the

Supreme Court has only twice invalidated a statute as an

impermissible delegation—both times in 1935, and “in each

case because ‘Congress had failed to articulate any policy or

standard’ to confine discretion.” Gundy, 588 U.S. at 146

(plurality opinion) (quoting Mistretta, 488 U.S. at 373 n.7);

USA V. PHEASANT

see A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495 (1935); Panama Refining Co. v. Ryan, 293 U.S.

388 (1935).

As long as Congress has provided some standard

constraining discretion—even one phrased in broad terms—

the Supreme Court has upheld statutes against constitutional

scrutiny. See, e.g., Sunshine Anthracite Coal Co. v. Adkins,

310 U.S. 381, 398–99 (1940) (“just and reasonable” rates);

National Broadcasting Co. v. United States, 319 U.S. 190,

216–17 (1943) (“public interest, convenience, or

necessity”); Yakus v. United States, 321 U.S. 414, 423–26

(1944) (“fair and equitable” prices); Whitman v. American

Trucking Ass’ns, 531 U.S. 457, 472–74 (2001) (“requisite to

protect the public health”). As Justice Scalia asked, “What

legislated standard, one must wonder, can possibly be too

vague to survive judicial scrutiny, when we have repeatedly

upheld, in various contexts, a ‘public interest’ standard?”

Mistretta, 488 U.S. at 416 (Scalia, J., dissenting).

Section 303(a) easily satisfies the “intelligible principle”

test. The statute directs the Secretary to “issue regulations

necessary to implement the provisions of [the FLPMA] with

respect to the management, use, and protection of the public

lands.” 43 U.S.C. § 1733(a). The FLPMA instructs the

Secretary to “manage the public lands under principles of

multiple use and sustained yield.” Id. § 1732(a). The

“multiple use” mandate requires ensuring the utilization of

“public lands and their various resource values”—including

“recreation, range, timber, minerals, watershed, wildlife and

fish, and natural scenic, scientific and historical values”—in

a manner that takes into account “the relative values of the

resources” and avoids “permanent impairment of the

productivity of the land and the quality of the environment.”

Id. § 1702(c); see Public Lands Council v. Babbitt, 529 U.S.

USA V. PHEASANT

728, 737–38 (2000). The “sustained yield” mandate requires

controlling depleting land uses to ensure “maintenance in

perpetuity of a high-level annual or regular periodic output

of the various renewable resources.” 43 U.S.C. § 1702(h).

To that end, the statute also requires the Secretary to exercise

his authority “to prevent unnecessary or undue degradations

of the lands.” Id. § 1732(b). Taken together, those provisions

set out a clear principle: The Secretary must develop a longterm management strategy to realize the land’s value in a

sustainable way.

The Supreme Court’s decision in United States v.

Grimaud makes clear why that principle is sufficiently

intelligible. 220 U.S. 506 (1911). In that case, the Court

considered a statute authorizing the Secretary of Agriculture

to issue rules “regulating the use and occupancy of the public

forest reservations and preserving the forests thereon from

destruction.” Id. at 509. Acting under that authority, the

Secretary issued a regulation—backed by criminal

penalties—prohibiting grazing in a forest reserve without a

permit. Id. at 514. The Court held that the statute sufficiently

constrained the Secretary’s authority because it “clearly

indicated” that he was “to make provision to protect [the

lands] from depredations and from harmful uses.” Id. at 522.

Section 303(a) and its complementary provisions provide

similar guidance to the Secretary of the Interior. As in

Grimaud, the constraints imposed by the FLPMA are

enough to satisfy Article I.

Pheasant objects to this conclusion on three grounds.

First, he argues that the adjacent statutory provisions in the

FLPMA do not prescribe a relevant intelligible principle

because they do not affect how the Secretary must execute

his responsibilities under section 303(a). That argument runs

headlong into the Supreme Court’s instruction that, in non-

USA V. PHEASANT

delegation cases as elsewhere, statutory provisions “need not

be tested in isolation” because “[t]hey derive much

meaningful content from the purpose of the [relevant] Act,

its factual background and the statutory context in which

they appear.” American Power & Light Co. v. SEC, 329 U.S.

90, 104 (1946); accord Gundy, 588 U.S. at 141 (plurality

opinion) (“To define the scope of delegated authority, we

have looked to the text in ‘context’ and in light of the

statutory ‘purpose.’” (quoting National Broadcasting Co.,

319 U.S. at 214, 216)). Section 303(a) directs the Secretary

to issue regulations “necessary to implement the provisions

of [the FLPMA] with respect to the management, use, and

protection of the public lands.” 43 U.S.C. § 1733(a)

(emphasis added). Other provisions of the FLPMA define

how the Secretary is to conduct the “[m]anagement of use,

occupancy, and development of public lands,” id. § 1732(a),

and constrain the Secretary’s “management of the public

lands,” id. § 1702(c); see id. § 1702(h). Those provisions are

even more directly relevant than the “general policy

declarations” that the Court considered in American Power

& Light Co.; they expressly define the terms that limit the

scope of the Secretary’s authority. 329 U.S. at 105. The

FLPMA thus makes clear that section 303(a) does not, as

Pheasant suggests, permit the Secretary to issue any

regulation he wishes with a colorable connection to the use

of public lands. Instead, the remainder of the statute specifies

the policy goals that the Secretary must advance.

Second, Pheasant argues that Congress had to provide

the Secretary with more detailed guidance because the

FLPMA authorizes the Secretary to promulgate regulations

that apply on large areas of land in the American West. See

Whitman, 531 U.S. at 475 (explaining that “the degree of

agency discretion that is acceptable varies according to the

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scope of the power congressionally conferred”). But the

Supreme Court has never required Congress to provide

something more specific than an “intelligible principle”

simply because a statute authorizes economically or socially

significant regulations. In Yakus, for instance, the Court

considered a statute that authorized an executive official to

promulgate regulations “fixing . . . maximum prices of

commodities and rents.” 321 U.S. at 419. That delegation

undoubtedly had sweeping economic consequences, but the

Court upheld it because it determined that the statute’s

directive to set prices in a manner that was “fair and

equitable” and to “give due consideration, so far as

practicable, to prevailing prices during the designated base

period” sufficiently constrained the executive’s discretion.

Id. at 423. Likewise, in Whitman, the Court considered a

statute that authorized the EPA to set air quality standards

for certain pollutants. 531 U.S. at 472. Even though the

Court conceded that this “sweeping regulatory scheme[]”

allowed the EPA to “set[] air standards that affect the entire

national economy,” it held that the guidance in the statute—

which called for standards to be set “at a level that is

requisite to protect public health from the adverse effects of

the pollutant in the ambient air”—constituted an “intelligible

principle” and thus “fit[] comfortably within the scope of

discretion permitted by [the Court’s] precedent.” Id. at 473–

76. That the delegation here authorizes regulations that may

affect a large area of land does not compel heightened

constitutional scrutiny.

Pheasant’s related argument—that something more than

an intelligible principle is required because BLM’s mission

provides no inherent limitation on the scope of its

regulations—is similarly unavailing. BLM does not have

plenary regulatory authority; it has defined responsibilities

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USA V. PHEASANT

related to the “management of lands and resources.” 43

U.S.C. § 1731(a). The regulations that Pheasant cites to

demonstrate the breadth of BLM’s authority prove just the

opposite. BLM surely regulates a wide range of conduct.

See, e.g., 43 C.F.R. § 8365.1-4(a)(1) (noise disturbances); id.

§ 8365.1-2(a) (camping); id. § 4140.1 (grazing). But all of

its regulations cover conduct with a strong connection to the

management, use, and protection of public lands. See id.

§§ 8365.1-4, 8365.1-2(a), 4140.1 (confining the regulations

to public lands). Pheasant points to no examples of BLM

regulations of private conduct that does not affect public

lands; BLM has no authority to promulgate such regulations.

If anything, section 303(a)’s relationship to public lands

counsels in favor of more, rather than less, deference to

Congress’s choice about the degree of responsibility to

assign to the Executive Branch. The Constitution expressly

vests in Congress the authority to manage “Property

belonging to the United States.” U.S. Const. art. IV, § 3, cl.

2. That authority is plenary—the Supreme Court has

described it as “without limitations,” United States v. City &

Cnty. of San Francisco, 310 U.S. 16, 29 (1940), and

analogous “to the police power of the several states,”

Camfield v. United States, 167 U.S. 518, 525 (1897). The

Court has therefore recognized that Congress can, without

creating a delegation problem, circumscribe the “implied

license under which the United States [allows] its public

domain to be used” by authorizing an agency to make “rules

and regulations” that define “an unlawful use of the

government’s property.” Grimaud, 220 U.S. at 521. That is

precisely what Congress has done here.

Third, Pheasant and his amici urge us to apply greater

scrutiny to section 303(a) because it empowers the Secretary

to promulgate regulations whose violation may be punished

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USA V. PHEASANT

by criminal sanctions. Although Pheasant refers to a

“delegation of criminal lawmaking power,” that description

is somewhat imprecise: It is Congress, not BLM, that created

a criminal offense by providing that “[a]ny person who

knowingly and willfully violates any such regulation which

is lawfully issued pursuant to this Act shall be fined no more

than $1,000 or imprisoned no more than twelve months, or

both.” 43 U.S.C. § 1733(a); see Melgar-Diaz, 2 F.4th at

1267. And Pheasant does not contend that Congress is

prohibited from leaving to the agency the authority to fill in

the details of a regulatory scheme simply because the

scheme is enforced through criminal penalties. So the

question is, as it always is in non-delegation cases, how

much discretion can the agency exercise before it is

legislating? That is precisely the question that the

“intelligible principle” test answers. See Loving v. United

States, 517 U.S. 748, 771 (1996).

Pheasant emphasizes that liberty concerns are especially

salient in criminal law, but those concerns have only an

attenuated relationship to the constitutional principles he

invokes. The non-delegation doctrine guarantees that

Congress does not give away the legislative power that

Article I has vested in it. That guarantee protects individual

liberty by preserving the separation of powers. But a power

does not become more legislative simply because its

exerciser can issue rules backed by criminal penalties. Thus,

although the Supreme Court has not expressly resolved

whether “something more than an ‘intelligible principle’ is

required when Congress authorizes another Branch to

promulgate regulations that contemplate criminal

sanctions,” Touby, 500 U.S. at 165–66, it has routinely

applied the “intelligible principle” test even when the

challenged statute authorized regulations backed by criminal

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penalties. In Grimaud, for example, the Court explained that

“the authority to make administrative rules is not a

delegation of legislative power, nor are such rules raised

from an administrative to a legislative character because the

violation thereof is punished as a public offense.” 220 U.S.

at 521; see Yakus, 321 U.S. at 418, 427 (upholding grant of

authority to executive to set price regulations backed by

criminal penalties); Loving, 517 U.S. at 771–72 (upholding

grant of authority to President to define aggravating factors

applicable in military capital cases).

Pheasant’s view finds no support in circuit precedent,

either. To the contrary, in Melgar-Diaz, we rejected a nondelegation challenge to a statute that criminalized crossing

the border at a time or place other than as designated by an

immigration official. 2 F.4th at 1265. The criminal character

of the statute was irrelevant to our conclusion that Congress

provided a sufficiently intelligible principle. It mattered only

that the statute “does not cast immigration officials

completely adrift when they designate times and places of

entry,” which meant that Congress had not delegated

legislative power. Id. at 1268. Other circuits have also

“decline[d] to abandon the well-settled ‘intelligible

principle’ standard” when reviewing “a statute with criminal

consequences.” United States v. Nichols, 775 F.3d 1225,

1232 (10th Cir. 2014), rev’d on other grounds, 578 U.S. 104

(2016); accord United States v. Cooper, 750 F.3d 263, 270–

71 (3d Cir. 2014).

Even in the criminal context, the “intelligible principle”

test provides the controlling legal standard for evaluating

non-delegation challenges. And under that test, the district

court erred in invalidating section 303(a).

REVERSED and REMANDED.

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APPENDIX B

Case 3:21-cr-00024-MMD-CLB

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UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

UNITED STATES OF AMERICA,

Plaintiff,

GREGORY W. PHEASANT,

Case No. 3:21-CR-00024-RCJ-CLB

ORDER

Defendant.

The United States Attorney for the District of Nevada (“the Government”) charged

Gregory Pheasant (“Pheasant”) with three felonies stemming from his alleged failure to use a

taillight at night. Pheasant moved to dismiss the action, arguing that the indictment lacks

specificity and that the two regulatory charges are unconstitutional. Pheasant also brings a Motion

to Suppress, arguing that evidence was collected in violation of the Fourth Amendment. Beyond

those arguments, Pheasant contends that the charges should be dismissed, and the evidence should

be suppressed because the officers lacked stop and arrest power. For the reasons discussed below,

the Court grants the Motion to Dismiss and denies the Motion to Suppress as moot.

///

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FACTUAL BACKGROUND

(A)

Parties Involved

This case arises from Pheasant’s interaction with an officer of the Bureau of Land

Management (“BLM”). The BLM is an Interior Department agency established in 1946 through

the consolidation of the General Land Office and the U.S. Grazing Service. BLM, BLM NATIONAL

HISTORY, https://www.blm.gov/about/history/timeline (last accessed April 18, 2023). Nevada is a

large state, but most of the land is managed by the BLM. (ECF No. 59 at 2 ¶ 8-9). More specifically,

the BLM manages over 48 million acres of land in the state, which amounts to 63% of the state.

See BLM, BLM NEVADA HISTORY, https://www.blm.gov/about/history/history-by-region/nevada

(last accessed April 16, 2023).

The BLM, through the Secretary of the Interior, has the authority to promulgate regulations

governing the land it manages. That authority includes the ability to issue any “regulations

necessary to implement the provisions of [the Federal Land Policy and Management Act of 1976]

with respect to management, use, and protection of the public lands.” 43 U.S.C. § 1733(a). The

regulations promulgated under that authority are subject to penalties that include prison terms of

up to one year, thousand-dollar fines, or both. Id. Essentially, the BLM acts as a conservationist

agency with law enforcement powers on public lands.

(B)

The Incident1

On the night of May 28, 2021, The BLM was conducting a special operation to ensure a

“family-oriented recreational experience” at Moon Rocks. (ECF No. 75 at 11). The special

operation consisted of efforts from both federal law enforcement and BLM officers. (Id.)

The facts come from the Incident Record that Officer Yost filed (ECF No. 59 at Ex. A), the

Supplementary Incident Report that Officer Sarcinella filed (ECF No. 59 at Ex. B), and the body

camera footage from the night of the incident (ECF No. 57 at Ex. D, E, F).

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Pheasant and a number of other riders were riding their motorized dirt bikes through the

Moon Rocks area without their taillights on. (ECF No. 63 at 2 ¶ 19). BLM Officer Michael Yost

(“Officer Yost”), in his BLM Utility Vehicle (“UTV”), “attempted to make a traffic stop on [the

riders] and one particular member was harassing [Officer] Yost … [by] yelling profanities and

riding away before [Officer] Yost could make contact and identify the driver.” (ECF No. 59 at Ex.

B). Officer Yost followed the riders for a bit longer before losing “visibility due to dust from heavy

use” of the road. (ECF No. 59 at Ex. A). The riders, including Pheasant, rode away on their dirt

bikes because Officer Yost decided to stop following them due to the dust and darkness. (Id.)

Officer Yost again ran into the riders while he was patrolling the area, and this time he

activated the UTV’s lights and siren, but the riders did not yield. (ECF No. 59 at Ex. A). Officer

Yost claims that the riders flipped him off and rocks from their tires hit him as they rode away.

(Id.) After a brief period, Pheasant stopped on the main road in front of Officer Yost and yelled at

the officer. (Id.) The body camera footage shows Officer Yost approaching Pheasant on foot and

Pheasant yelling, “speak louder.” (ECF No. 57 at Ex. D). Officer Yost responds to Pheasant by

saying, “I got you on camera, so I will find you don’t worry. You’re on camera.” (Id.) Officer Yost

started to walk away and Pheasant drove away a few feet and yelled, “what the fuck did I do to

you?” (Id.) Officer Yost turned around briefly and said, “you have no taillights.”2 (Id.) Pheasant

then drove away and Officer Yost got back in his UTV. (Id.)

Officer Yost states in his Incident Record that he “yelled that [Pheasant] needed to stop, and

[he] tried to explain he needed to have rear taillights, but Pheasant drove off yelling ‘fucking

cop’ ‘fuck you.’” (ECF No. 59 at Ex. A). The audio on the body camera footage is not of the best

quality. However, it is clear that Officer Yost did not ask Pheasant to stop his dirt bike after

Pheasant asked him to speak up, which is when Officer Yost claims that he approached Pheasant.

(ECF No. 57 at Ex. D). Further, it is unclear from the body camera footage whether Pheasant

yelled “fucking cop” “fuck you.” (Id.)

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Officer Yost radioed BLM Officer Sarcinella (“Officer Sarcinella”) and the other officers

to inform them that the riders were heading in their direction. (ECF No. 59 at Ex. B.) At that

moment, Officer Sarcinella “activated [his] emergency lights and pulled [his] UTV behind the

group and attempted to make a traffic stop.” (Id.) Officer Sarcinella approached the riders with his

lights on but none yielded to the lights. (Id.) Officer Sarcinella pulled up behind Pheasant, which

caused Pheasant to slow “down briefly as if yielding to [the] lights [before Pheasant] paused and

then accelerated off-road for several hundred yards.” (Id.) “Pheasant was not traveling at a high

rate of speed,” allowing him to gesture with his middle finger toward Officer Sarcinella. (Id.)

While in front of Officer Sarcinella, the rocks from Pheasant’s dirt bike allegedly shot out from

under his tire, struck Officer Sarcinella’s UTV with a few of the rocks coming through to hit his

face. (Id.) Again, Pheasant rode away on his dirt bike and Officer Sarcinella chose not to pursue

him. (Id.)

However, Officer Yost spotted Pheasant and one other rider on a hill nearby. (ECF No. 59

at Ex. A). Officer Yost approached the two of them without his lights on and the two riders

allegedly shifted “their weigh in what appeared … to be preparation to drive away.” (Id.) Officer

Yost “quickly exited [the] UTV and stuck [his] baton through the spokes in the front tire of

Pheasant’s motorcycle so he could not again flee from the area.” (Id.)

The body camera footage picks up the rest of this interaction, starting with Pheasant asking,

“the fuck did I do to you dude?” (ECF No. 57 at Ex. E). Officer Yost responded with, “earlier you

ran away from me.” (Id.) Pheasant, visibly upset, yelled, “I haven’t seen you all night. I just got

here bro.” (Id.) Officer Yost took step towards Pheasant and asked him to turn his lights on. (Id.)

Pheasant yelled, “I don’t have to do anything for you bro. Get a fucking warrant” (Id.) Officer

Yost stated, “I don’t need a warrant for traffic stops.” (Id.) Pheasant disagreed and stated, “you do

to fucking touch my bike. You want to see my taillight? Watch buddy.” (Id.) Officer Yost then

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asked for Pheasant’s name and Pheasant responded by asking why he was being detained. (Id.)

Officer Yost responded with, “you have no taillight” and Pheasant asked, “I am being detained for

having no taillight? Write me a ticket.” (Id.)

At this point, a large crowd of people on foot, in vehicles, and on dirt bikes assembled

around Pheasant, Officer Yost, and the unidentified rider that was with Pheasant at the time he was

stopped. (ECF No 57 at Ex. E). Officer Yost continued to ask Pheasant his first name. (Id.) After

taking off his gear and trying to start his taillight, Pheasant responded and stated, “my name is

Gregory W. Pheasant, officer.” (Id.) Pheasant provided Officer Yost with what he claimed was his

taillight. (Id.) Officer Yost stated that the taillight needed to be red and face the rear of his bike.

(Id.) Officer Yost asked Pheasant for his date of birth and Pheasant complied. (Id.) Pheasant asked

for a ticket for not having a taillight so that he could be on his way. (Id.) Officer Yost asked for

the vehicle’s registration and Pheasant explained that the dirt bike was recently purchased and the

dealership had the registration information. (Id.) Pheasant made a few statements about making

donations to the BLM before Officer Yost started to walk away and told Pheasant to wait there

while he wrote the ticket. (Id.) While Officer Yost walked over to his UTV to identify Pheasant

and call more units over to deal with the situation, Pheasant turned his bike and showed Officer

Yost that his taillight worked. (Id.)

Before Officer Yost could write the ticket, additional officers showed up at the scene and

asked Pheasant what the issue was. (ECF No. 57 at Ex. E). Pheasant explained that he was being

written a citation for not having taillights. (Id.) Pheasant, again visibly upset, also asked the officer

why he was being detained for having no taillight. (Id.) The unidentified officer told Pheasant to

take a step back or he would walk away in handcuffs because “you don’t approach a law

enforcement officer.” (Id.) Pheasant took a step back, muttered another expletive, and waited a

few moments before stating “fuck you guys and fuck Phil…” (Id.)

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While Officer Yost was away, Pheasant explained that he obeys the rules, is a professional

rider, “is an upstanding citizen,” “contributes to the offroad community in positive ways,” and the

officers are wasting their “fucking time.” (EXF No. 57 at Ex. F). The unidentified officer stated

that Pheasant “was also saying fuck you and fuck Phil and fuck whoever you were saying right…”

(Id.) Pheasant responded, “I can say whatever I want.” (Id.) The officer and Pheasant continued to

talk over each other before Officer Yost walked back over to Pheasant to ask him for his address,

phone number, and social security number. (Id.) Pheasant kept his abrasive demeanor while

providing only his address and phone number but argued that he was not required to provide his

social security number. (Id.) Officer Yost provided Pheasant with a copy of the citation, explained

the rules for contesting the citation, and allowed Pheasant to leave. (Id.) Pheasant walked over to

his vehicle, revved his engine, showed his taillight, put his fist in the air, and rode away yelling.

(Id.)

II.

ANALYSIS

The Government brings three counts against Pheasant: Count I Assault on a Federal Officer

(18 U.S.C. § 111(a)(1) and (b)); Count II Resisting Issuance of Citation or Arrest (43 C.F.R. §

8365.1-4(a)(4)); Count III Failure to Use Required Taillight at Night (43 C.F.R. § 8341.1(f)(5) and

(h)). Pheasant moves to dismiss all three counts. (ECF No. 59). Pheasant believes that all three

counts fail to include the essential elements required to prove the count and fail to include the

necessary factual specificity to the elements that the Government pleads. (ECF No. 59 at 18 ¶ 3-

4). For that reason, Pheasant argues that all counts should be dismissed. (Id.) Pheasant also argues

that Counts II and III are unconstitutional under the nondelegation doctrine. (ECF No. 59 at 5-13).

Finally, Pheasant argues that the BLM officers did not have the authority to detain Pheasant, so

Counts I and II are unconstitutional, given the lack of authority. (ECF No. 74).

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The Court agrees with most of Pheasant’s arguments. The officers did not have the

authority to stop and detain Pheasant, so Counts I and II are defective. Without the authority to

detain Pheasant, the BLM officers cannot be engaged in official duties. Further, Counts II and III

are unconstitutional under the nondelegation doctrine because there is no intelligible principle to

guide the Secretary of the Interior. Finally, the Government provided enough specificity for Count

III, however, Counts I and II lack the specificity required. Accordingly, the Court will dismiss all

three counts.

(A)

Indictments “must be a plain, concise, and definite written statement of the essential facts

constituting the offense charged.” FED. R. CRIM. P. 7(c)(1). Rule 12(b)(3)(B) provides defendants

with five ways to challenge an allegedly defective indictment. United States v. Qazi, 975 F.3d 989,

993 (9th Cir. 2020). Relevant to this Order is the requirement that courts dismiss an indictment for

“lack of specificity” and “failure to state an offense.” FED. R. CRIM. P. 12(b)(3)(B)(iii) & (v).

Specificity

Indictments are sufficient if they “contain[] the elements of the offense charged and fairly

inform[] a defendant of the charge against which he must defend” and “enables him to plead an

acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United

States, 418 U.S. 87, 116 (1974). In ruling on a motion to dismiss an indictment for lack of

specificity, the court is “bound by the four corners of the indictment” and must accept the facts

alleged as true. United States v. Lyle, 742 F.3d 434, 436 (9th Cir. 2014) (quoting United States v.

Boren, 278 F.3d 911, 914 (9th Cir.2002)).

Pheasant argues that the indictment fails to include “the type of assault alleged, the source

of the alleged bodily injury, and identification of the injury itself.” (ECF No. 59 at 19 ¶ 3-5). Count

I alleges that on May 28, 2021, Pheasant “did forcibly assault, resist, oppose and interfere with

[BLM] Ranger G.S.,” while “Officer G.S. was engaged in and on account of the performance of

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his official duties, inflicting bodily injury upon Ranger G.S.” (ECF No. 1 at 1-2). The indictment

does not provide any additional color to the events that occurred on the eve of May 28, 2021.

The Government failed to include any facts or circumstances to inform Pheasant of what

he is being charged with under Count I and II. Rather, Count I merely states Pheasant’s name, the

date of the alleged crime, and a recitation of the statute he is being charged under. See 18 U.S.C.

§ 111(a)(1) (“forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any

[official] while engaged in or on account of the performance of official duties”). Indictments can

use the language of a statute to describe the charges, but the language must be supplemented with

enough “facts and circumstances” to “inform the accused of the specific [offense]... with which he

is charged.” Id. at 117–18 (quoting United States v. Hess, 124 U.S. 483, 487 (1888)). Count I

simply provides a recitation of the statutory language and nothing more.

Even worse, Count I cites section (b) of the statute but does not identify a weapon that

Pheasant used or a bodily injury that the BLM officers suffered. See 18 U.S.C. § 111(b) (those in

violation of section (a) and use a “weapon … or inflict[] bodily injury, shall be” in violation of this

title). At a minimum, the Indictment must provide the essential elements of the crime charged.

Qazi, 975 F.3d at 993–94. Otherwise, how would Pheasant know what exact conduct violated

federal law? Count I undoubtedly cannot answer this question and Pheasant is not required to

answer it himself. For that reason, the Court dismisses Count I for lack of specificity.

Count II suffers from the same deficiencies. Count II alleges that “[o]n or about May 28,

2021, … Gregory W. Pheasant … resisted issuance of a citation by authorized officers engaged in

the performance of their official duties.” (ECF No. 1 at 2 ¶ 5-8). Again, the Indictment fails to

include any facts or circumstances and merely restates the regulatory language. See 43 C.F.R. §

8365.1-4(a)(4) (no person shall engage in activities including “[r]esisting arrest or issuance of

citation by an authorized officer engaged in performance of official duties”). When exactly did

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Pheasant resist the issuance of a citation? At the moment that he initially saw BLM officers but

was not stopped? At the moment that Officer Yost put his baton in Pheasant’s wheel? How did he

resist issuance? The language of Count II does not meet the specificity required under Rule 12.

Accordingly, the Court dismisses Count II.

However, Count III provides enough context given the crime that Pheasant allegedly

committed. Count III alleges that Pheasant “operated an off-road vehicle on public lands during

night hours … without required lighted taillights.” (ECF No. 1 at 2 ¶ 13-15). This provides

Pheasant with the actions that allegedly violated the law and when he engaged in the conduct at

issue. While the language mirrors the language of the regulation at issue, enough facts and

circumstances are available to apprise Pheasant of the charges against him. See 43 C.F.R. §

8341.1(f)(5) & (h) (“No person shall operate an off-road vehicle on public lands … [d]uring night

hours, from a half-hour after sunset to a half-hour before sunrise, without lighted headlights and

taillights”).

(B)

Pheasant argues that Count II and Count III should be dismissed because the regulations

creating the crimes were promulgated under an unconstitutional statute. Essentially, his argument

is that 43 U.S.C. § 1733(a) delegates unfettered legislative authority to the Secretary of the Interior,

a member of the Executive Branch, which violates the nondelegation doctrine. Therefore,

accordioning to Pheasant, the regulatory charges of Count II and Count III are unconstitutional.

Nondelegation Doctrine

1. Legal Standard

The Constitution establishes three separate branches of government: legislative, executive,

and judicial. U.S. CONST. art. I, II, & III. The Framers of the Constitution separated these three

branches of government out of fear that mixing the “legislative, executive, and judiciary” powers

would “hav[e] a dangerous tendency” to lead to the “accumulation of power.” See The Federalist

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No. 47, at 301 (James Madison). Therefore, a breakdown in the separation of these powers is “the

very definition of tyranny” because one branch could aggrandize power from another. Id. With

these concerns in mind, the Framers created a government where three bodies would exist together,

but separately. Id. Accordingly, the Framers prohibited branches from delegating their powers

entirely to one another.3 See Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825) (finding

that the Constitution prohibits Congress from delegating legislative powers to other branches).

The nondelegation doctrine exists to enforce the prohibition on the unconstitutional

delegation of exclusive power from one branch to another. Gundy v. United States, 139 S. Ct. 2116

(2019) (plurality op.). The Constitution gives Congress “[a]ll legislative Powers,” the President

“[t]he executive Power,” and the Courts “[t]he judicial Power.” U.S. CONST. art. I, II, & III.

However, it is well established that Congress can delegate some authority away to Executive

agencies. Mistretta v. United States, 488 U.S. 361, 372 (1989). “[I]n our increasingly complex

society, replete with ever changing and more technical problems . . . Congress simply cannot do

its job absent an ability to delegate power under broad general directives.” Id. While Congress may

not delegate to another branch “powers which are strictly and exclusively legislative,” Wayman,

23 U.S. (10 Wheat.) at 42-43, Congress can give Executive agencies limited discretion to

“implement and enforce the laws.” Gundy, 139 S. Ct. at 2123 (plurality op.). The line between

unconstitutional delegation and constitutional delegation sits between Congress properly

"conferring authority or discretion as to [the law's] execution" or improperly delegating

exclusively legislative power. Field v. Clark, 143 U.S. 649, 693-94 (1892) (quotation omitted).

The Framer's idea of the separation of powers still exists today. As the Supreme Court recently

pointed out, “[t]he federal government’s powers, however, are not general but limited and

divided.” Nat'l Fed'n of Indep. Bus. v. Dep't of Lab., Occupational Safety & Health Admin., 142

S. Ct. 661, 667 (2022) (Gorsuch, J., concurring) (emphasis added) (citing McCulloch v.

Maryland, 4 Wheat. 316, 405, 4 L.Ed. 579 (1819)).

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The Supreme Court has wrestled with the dichotomy of delegation before. First, in J.W.

Hampton, Jr., & Co. v. United States, the Supreme Court found that Congress does not violate the

nondelegation doctrine if Congress “lay[s] down by legislative act and an intelligible principle to

which the [Executive agency] is directed to conform.” 276 U.S. 394 (1928) (emphasis added).

From this decision, the intelligible principle test was borne. Id.; see Mistretta, 488 U.S. at 371-79

(1989) (holding that "[a]lthough Congress ha[d] delegated significant discretion," there was "no

doubt" that the delegation was "sufficiently specific and detailed to meet constitutional

requirements"); United States v. Melgar-Diaz, 2 F.4th 1263, 1266–67 (9th Cir. 2021), cert. denied,

142 S. Ct. 813 (2022) (relying on the intelligible principle test); see also Jarkesy v. Sec. & Exch.

Comm'n, 34 F.4th 446, 459 (5th Cir. 2022) (“Congress gave the SEC a significant legislative power

by failing to provide it with an intelligible principle to guide its use of the delegated power”).

The modern-day nondelegation doctrine’s intelligible principle requirements are

straightforward. “[A] delegation is permissible if Congress has made clear to the delegee (1) the

general policy he must pursue and (2) the boundaries of his authority.” Melgar-Diaz, 2 F.4th at

1267 (quotation and citation omitted). Essentially, a statute is unconstitutional if Congress

delegates legislative power to an Executive agency and does not provide an intelligible principle

outlining the boundaries of the legislative power. Id.; See Jarkesy, 34 F.4th at 461.

2. Nondelegation Applied

(a) Legislative Delegation

The statute at issue here delegates legislative power to an Executive agency. Government

action is legislative if it has “the purpose and effect of altering the legal rights, duties and relations

of persons, including … Executive Branch officials . . . [who are] outside the legislative branch.”

INS v. Chadha, 462 U.S. 919, 952 (1983). The statute reads as follows:

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The Secretary shall issue regulations necessary to implement the provisions of this

Act with respect to the management, use, and protection of the public lands,

including the property located thereon. Any person who knowingly and willfully

violates any such regulation which is lawfully issued pursuant to this Act shall be

fined no more than $1,000 or imprisoned no more than twelve months, or both.

43 U.S.C. § 1733(a). The statute at issue allows the Secretary of the Interior to promulgate

regulations on behalf of the BLM. These regulations “alter” the legal rights of those that use BLM

land, which makes the statute quintessentially legislative. Therefore, the intelligible principle

applies to the delegation of legislative power.

(b) Intelligible Principle

The Government argues that the statute sets out an intelligible principle because the statute

allows regulatory authority “with respect to the management, use, and protection of the public

lands.” Id. Further, the Government argues that the policy declarations accompanying the statute

provide an intelligible principle. (ECF No. 63 at 5-6); 43 U.S.C. § 1701(a)(5), (8), & (12). Pheasant

takes a textualist's view of the statute and argues that the language does not provide any intelligible

principle. The Court agrees with Pheasant.

At a base level, Congress delegated the Secretary of the Interior broad legislative authority

to determine when a rule is necessary for the management, use, and protection of public lands. 43

U.S.C. § 1733(a). The statute does not provide any guidance or restraint as to when the Secretary

of the Interior shall promulgate rules. Id. Instead, the Secretary of the Interior can promulgate rules

whenever it is “necessary.” Id. There is no limiting language to provide the Secretary of the Interior

with any considerations regarding when regulations are necessary. Instead, the words

“management, use, and protection” serve as the limiting words. Id. But, the words “management,

use, and protection” do not limit the authority to promulgate regulations because those words cover

almost all conduct on public lands. That language has allowed the Secretary of the Interior to

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promulgate a plethora of rules from housing policies4, to traffic laws5, to firearms regulations6, to

mining rules7, to agriculture certifications8. (ECF No. 59 at 8 ¶ 8-14). That means that the Secretary

of the Interior has unfettered legislative authority to promulgate rules for over 48 million acres of

land, which is 68% of the state of Nevada.

Diving even deeper into the rules promulgated under the statute at issue, it is clear that the

language provides the Secretary of the Interior with unfettered legislative authority. So broad that

the Secretary of the Interior promulgated a rule allowing State BLM Directors to establish

supplementary regulations “as he/she deems necessary.” 43 C.F.R. § 8365.1-6. Not only can the

Secretary of the Interior promulgate rules regarding the management, use, and protection of the

public lands, but State BLM Directors that the BLM hires have the authority to issue regulations

for the management, use, and protection of the public lands. Without any intelligible principle, the

Secretary of the Interior has provided Executive employees with Congress’ unfettered legislative

power to govern individual states. In a state like Nevada, these State BLM Directors are essentially

single-person legislators and governors because they promulgate regulations (laws) and enforce

the regulations (laws). This delegation of power is the exact type of delegation that the

nondelegation doctrine tries to prohibit because it tries to prevent “Congress from intentionally

delegating its legislative powers to unelected officials.” NFIB, 142 S. Ct. at 669. Nothing could be

worse than delegating exclusive legislative authority to an appointed official and having that

43 C.F.R. § 8365.1-2(a) (how long individuals can camp at a particular spot).

Id. § 8365.1-3(b)(1) (what kind of seatbelts individuals must wear); id. § 8341.1(g) (whether

saddle horses have the right-of-way over off-road vehicles).

79 Fed. Reg. 9,267-01(4)(a) (Feb. 14, 2014); 65 Fed. Reg. 69781-03(4)(e) (Nov. 20, 2000)

(prohibiting shooting firearms in particular areas near Winnemucca and Carson City).

73 Fed. Reg. 39,027-02(2) (July 8, 2008) (picking up rocks in certain parts of Humboldt,

Pershing, and Washoe Counties).

65 Fed. Reg. 54544-01(a)(1) (Sept. 8, 2000) (prohibiting having hay, straw, or mulch that is not

certified as weed-free on any BLM-managed lands in the state).

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appointed official delegate the exclusive legislative authority to an employee of the appointed

official.

Beyond the Secretary of the Interior’s ability to legislate for whatever they see necessary

is the power to write regulations criminalizing behavior. Allowing Executive agencies to create

the very crimes they are tasked with enforcing effectively turns them into “the expositor, executor,

and interpreter of criminal laws.” Aposhian v. Wilkinson, 989 F.3d 890, 900 (10th Cir. 2021)

(Tymkovich, J., dissenting) (emphasis omitted). Essentially, in the words of the Supreme Court,

“the nation’s chief prosecutor [gets] the power to write his own criminal code” on the public lands.

Gundy, 139 S. Ct. at 2131 (2019) (Gorsuch, J., dissenting); See United States v. Davis, 139 S. Ct.

2319, 2325 (2019) (“[v]ague statutes threaten to hand responsibility for defining crimes to

relatively unaccountable police, prosecutors, and judges, eroding the people's ability to oversee

the creation of the laws they are expected to abide”).

Here, the statute allows the Secretary of the Interior to promulgate rules with penalties that

include either a fine of no more than $1,000 or twelve months in prison. 43 U.S.C. § 1733(a). The

statute does nothing to cabin the Secretary of the Interior’s ability to choose what is a crime. Id.

With no limiting language, the statute gives the Secretary of the Interior the authority to promulgate

its own criminal code on 68% of the land in Nevada, giving the BLM a larger jurisdictional area

than the state police. Essentially, the BLM controls a majority of the land in Nevada and has the

authority to write the laws on that area of public land, acting with as much authority as both the

state legislature and the governor. In fact, the 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.9 If the BLM

43 C.F.R. § 9268.3(a)(iv) (relying on § 1733(a)) (prohibition on operating an off-road

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can promulgate all these regulations under 43 U.S.C. § 1733(a) then “the statute would seem to

give the BLM ‘virtually unfettered’ discretion to write crimes on the land it manages.” (ECF No.

69 at 8 ¶ 4-5) (quoting A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542 (1935)).

There is no language in the statute that cabins the authority of the Secretary of the Interior

to promulgate rules on behalf of the BLM. “If the intelligible principle standard means anything,

it must mean that a total absence of guidance is impermissible under the Constitution.” Jarkesy,

34 F.4th at 462. The Court understands the gravity of this Order, but it cannot “impos[e] limits on

an agency’s discretion that [is] not supported by the text” simply because it would make the ruling

more palatable. Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S.

___, ___ (2020) (slip op., at 16) (alteration and internal quotation marks omitted).

3. The Government’s Arguments

The Government argues that the nondelegation doctrine case law forecloses Pheasant’s

argument and that other sections of 43 U.S.C. § 1733(a) provide an intelligible principle.

vehicle without proper “registration”). 43 C.F.R. § 9269.3–3(d)(2) (relying on § 1733(a))

(prohibition on “unauthorized exploration for coal”). 43 C.F.R. § 9264.7(a)(2) (relying on §

1733(a)) (prohibition on “[c]onvert[ing] a wild free-roaming horse . . . to private use”). 43 C.F.R.

§ 9268.3(a)(3)(ii) (relying on § 1733(a)) (prohibition on off-road vehicles “producing excessive

noise”); 43 C.F.R. § 3809.401(b)(4) (relying on § 1733(a)) (prohibition on monitoring plans that

do not account for “noise levels”). 43 C.F.R. § 9269.3–5(b)(iii) (relying on § 1733(a))

(prohibition on “permits secured by fraud”); 43 C.F.R. § 9265.5 (relying on § 1733(a))

(incorporating by reference prohibition on “taking any timber, trees, or other vegetative

resources through falsifying, concealing, or covering up by any trick, scheme, or device a

material fact, or making any false, fictitious, or fraudulent statements or representations, or

making or using any false, fictitious or fraudulent statement or entry”); 43 C.F.R. § 3715.8-1

(relying on § 1733(a)) (prohibition on “falsify[ing], conceal[ing] or cover[ing] up by any trick,

scheme or device a material fact, or mak[ing] any false, fictitious or fraudulent statements or

representations, or mak[ing] or us[ing] any false writings or document knowing the same to

contain any false, fictitious or fraudulent statement or entry”). 43 C.F.R. § 2805.12(a)(5) (relying

on § 1733(a)) (prohibition on grantees and lessees “discriminat[ing] . . . because of race, creed,

color, sex, sexual orientation, or national origin”). 43 C.F.R. § 8365.1-2(a) (relying on § 1733(a))

(prohibition on “[c]amping longer than the period of time permitted by the authorizing officer”).

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(a) Case Law

The Government relies on United States v. Cassiagnol, to argue that the Fourth Circuit

already heard a challenge to a statute similar to the one at issue in this Action and rejected the

nondelegation doctrine argument. 420 F.2d 868, 876 (4th Cir. 1970). In that matter, the Fourth

Circuit analyzed a statute that delegated authority to the General Services Administration (“GSA”)

to criminalize certain conduct on properties it owned. 40 U.S.C. § 318. The GSA had the authority

to “make regulations governing the operation, maintenance and use of government property.”

Cassiagnol, 420 F.2d at 876. The Fourth Circuit reasoned that the GSA was entrusted with a vast

number of buildings, so the authority to promulgate rules “had to be somewhat general in nature.”

Id. (emphasis added). The Fourth Circuit’s analysis of the GSA’s authority has no relevance to this

Matter because the two agencies and the statutes themselves are vastly different.

First, the statute at issue in Cassiagnol is not relevant here because the GSA’s role is not

as significant as the BLM’s. The GSA’s statute provided the agency with authority over

government property, but, more specifically, government buildings. Cassiagnol, 420 F.2d at 876.

The BLM’s authority extends to all public lands. The two spaces could not be more different.

Citizens have different rights when they enter government buildings as opposed to public lands.

Id. For example, citizens do not have the same speech rights in federal courthouses as on public lands.

United States v. Vosburgh, 59 F.3d 177 (9th Cir. 1995) (citizens “cannot claim a fundamental right of

free speech because the courthouse is a nonpublic forum”). Citizens cannot possess firearms in federal

buildings, while citizens can possess one on almost all public land. 41 C.F.R. 102-74.440 (prohibition

on possession in federal facilities with some exceptions). Relevant to this case, citizens cannot

drive off-road vehicles through government buildings, hunt in government buildings, and camp in

government buildings. However, citizens can do all these things on public lands. The statute in

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Cassiagnol granted the GSA the authority to regulate a space entirely irrelevant to the type of land

that the BLM has the authority to regulate in this matter.

With those types of spaces in mind, it makes sense that the Fourth Circuit found the words

“management, use, and maintenance” to be a limiting principle. Of course, those words, as applied

in a government building, are enough to limit the GSA. The GSA couldn’t, for example, use those

words to criminalize the use of a motorized vehicle at night without a taillight, picking up types of

rocks, and growing types of agriculture. Rather, the words in the statute granting the GSA authority

and the space in which the GSA is authorized to regulate give the GSA a clear line as to what they

can and cannot regulate.

Furthermore, even if the GSA and the BLM regulated the same type of space, one agency

regulates a tenth of the land in the United States, making it vital that Congress provides an

intelligible principle. The space that GSA has authority over is tiny compared to the land that the

BLM has authority over. In total, “the GSA manages 371 million square feet of space, slightly less

than 8,517 acres” of space within government buildings. (ECF No. 59 at 12 ¶ 3-4); GSA, GSA

PROPERTIES, available at https://www.gsa.gov/real-estate/gsa-properties (last accessed April 21,

2023). “In Nevada alone, the BLM manages over five-and-a-half-thousand times that figure: 48

million acres—over 2 trillion square feet of space.” (Id.); See BLM, BLM NEVADA HISTORY,

https://www.blm.gov/about/history/history-byregion/nevada (last accessed April 21, 2023). The

vast difference in the size of the land that each executive agency regulates makes an intelligible

principle all the more critical.10 Giving an Executive agency authority to regulate 10% of the

The government argues that the grant of authority over a vast area of land means that a grant of

broad authority is even more necessary. This could not be any further from the truth. Under that

logic, Congress could create an agency governing all the land in the United States and grant the

agency all Congress’ legislative authority to allow agency to regulate all the land properly. But,

as the Supreme Court has pointed out, Congress cannot “transfer” its legislative authority, nor

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country and 30% of the country’s mineral resources without “substantial guidance” runs afoul of

the constitution. Whitman, 531 U.S. at 475; CONG. RES. SERV., THE FEDERAL LAND MANAGEMENT

AGENCIES

https://crsreports.congress.gov/product/pdf/IF/IF10585.

(updated

February

16,

2021),

available

(b) Statute’s Subsections

The Government argues that the policy declarations in the statute giving the Secretary of

the Interior authority limit the regulatory authority granted to the Secretary of the Interior. The

Government points to three policy declarations:

[I]n administering public land statutes and exercising discretionary authority

granted by them, the Secretary be required to establish comprehensive rules and

regulations after considering the views of the general public; and to structure

adjudication procedures to assure adequate third party participation, objective

administrative review of initial decisions, and expeditious decisionmaking. 43

U.S.C. § 1701(a)(5).

[T]he public lands be managed in a manner that will protect the quality of scientific,

scenic, historical, ecological, environmental, air and atmospheric, water resource,

and archeological values; that, where appropriate, will preserve and protect certain

public lands in their natural condition; that will provide food and habitat for fish

and wildlife and domestic animals; and that will provide for outdoor recreation and

human occupancy and use. 43 U.S.C. § 1701(a)(8).

[T]he public lands be managed in a manner which recognizes the Nation’s need for

domestic sources of minerals, food, timber, and fiber from the public lands

including implementation of the Mining and Minerals Policy Act of 1970 (84 Stat.

1876, 30 U.S.C. 21(a) as it pertains to the public lands. 43 U.S.C. § 1701(a)(12).

The Government argues that these provisions go beyond providing a guiding principle and provide

a “process by which the Secretary would issue regulations and what purposes such regulations

should serve.” (ECF No. 63 at 7 ¶ 2-3). The Government is incorrect.

can it abdicate Article I power. Schechter Poultry, 295 U.S. at 529.

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The policy declarations that the Government relies on provide the Secretary of the Interior

with more authority, not a guiding principle to limit authority. The language in each policy

declaration sets out goals for the Secretary of the Interior. These goals include “protect[ing]”

“scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and

archeological values,” assisting with “the Nation’s need for domestic sources of minerals, food,

timber, and fiber,” and “provid[ing]” for “human occupancy and use.” 43 U.S.C. § 1701(a)(8),

(12). The language here goes past simply issuing rules for the “management, use and protection”

and expands it to a group of goals encompassing an impossibly wide set of subject matters. 43

U.S.C. § 1733(a). The Government also conveniently leaves out the other eleven policy

declarations that further expand the Secretary of the Interior’s authority. See id. (a)(1)-(7), (9)-

(11), (13). While this language identifies specific policy goals, the policy goals themselves provide

authority over almost every subject matter. For that reason, these policy goals do not provide an

intelligible principle. Without an intelligible principle, the statute is unconstitutional and the

regulations promulgated thereunder that Pheasant allegedly violated are dismissed.

(C)

Pheasant also argues that the BLM officers lacked the authority to stop and arrest him, so

Pheasant’s detention was unlawful and the Counts relying on BLM officers “engaged in” official

duties are defective. Pheasant is correct.

Stop-and-Arrest Authority

1. Statutory Authority

Federal law provides the BLM, through the Secretary of the Interior, with enforcement

authority. That authority includes the authority to issue regulations, bring actions in federal court,

contract with local law enforcement to enforce laws issued under the statute, and the establishment

of a uniformed desert ranger force in the California Desert Conservation Area. See 43 U.S.C. §

1733(a)-(g). Importantly, the statute does not provide the BLM with the authority to detain

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individuals for alleged violations of federal law, nor does any other statute. The statute allows the

Secretary of the Interior to promulgate regulations that provide BLM officers with the authority to

“carry out … law enforcement responsibilities.” 43 U.S.C. § 1733(c)(2). But, the Secretary of the

Interior never promulgated a regulation providing BLM officers with that authority.11

The statute only allows the BLM to contract with “local officials” to enforce “Federal laws

and regulations relating to the public lands or their resources.” 43 U.S.C. § 1733(c)(1). According

to the statute’s language, these local officials have the right to carry out various law enforcement

responsibilities across the public lands.12 Id. The right to carry out law enforcement responsibilities

includes the privilege to “carry firearms,” “execute and serve any warrant,” “make arrests,” as well

as “search” and “seize.” Id. Accordingly, the statute’s text is unambiguous on local officials’

authority to stop-and-arrest people like Pheasant who allegedly violate federal law on public land.

Moreover, the statute’s establishment and delegation of law enforcement authority to the

uniformed desert ranger force for the California Desert Conservation Area indicates Congress’

willingness to provide BLM officers with law enforcement authority. Under § 1733(e), “[t]he

officers and members of [the uniformed desert] ranger force shall have the same responsibilities

and authority as” the local officials that the BLM contracts with. The statute specifically recognizes

this force but no others, even though the statute’s enforcement authority extends to 244 million

acres of public lands. (ECF No. 69 at 8 ¶ 9-10). Simply put, “[h]ad Congress wanted to do the

Here, the BLM issued special operational guidelines that provided local law enforcement with

the authority to stop-and-arrest people at the event that Pheasant was riding at. (ECF No. 74 at

4). The language of the operational guidelines clearly states that “[local law enforcement] must

detail suspects prior to affecting a federal arrest. The U.S. Attorney’s Officer will be contacted

before making a federal arrest.” (Id.) At bottom, this is an indication that the BLM officers in this

case knew that they did not have stop-and-arrest authority.

This of course excludes any regulations that the Secretary of the Interior may promulgate, but,

as mentioned previously, the Secretary of the Interior has not issued any regulations providing

the BLM officers with law enforcement authority.

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same for BLM rangers everywhere, it could have done so.” (ECF No. 74 at 5 ¶ 4); See ANTONIN

SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 107 (2012)

(articulating the interpretive canon that the text of a statute may express one thing and that

inclusion “implies the exclusions of others”). Notably, the only officers with the authority to arrest

are the uniformed desert ranger force and local law enforcement contracted for specific

circumstances.

Congress has shown its willingness to provide executive bodies with officers that have law

enforcement authority. These bodies include – but are not limited to – the GSA13, Fish and Wildlife

Service14, National Park Service15, Forest Service16, Postal Service17, Veterans Affairs18, and

Amtrak19. The statutes providing these federal bodies with officers all grant the officers the

authority to make arrests, which is something that 43 U.S.C. § 1733 does not provide the BLM

officers. While these statutes expressly provide these officers with arrest authority, there is one

other statute that a few of these statutes use to define law enforcement: 28 U.S.C. § 2680. Under

40 U.S.C. § 1315(b) (the Secretary of Homeland Security may designate officers to “enforce

federal laws,” “make arrests,” “serve warrants,” and “conduct investigations”).

16 U.S.C. § 7421(b)(3) (providing the Fish and Wildlife Service with officers that can “search,

seize, arrest, and exercise any other law enforcement functions”).

54 U.S.C. § 102701(a)(2)(B), (C), (D) (providing the National Park Service with officers that

can “make arrests,” “execute any warrant,” and “conduct investigations”).

16 U.S.C. § 559c(2)-(6) (providing the National Forest System with officers that can conduct

investigations, “make arrests,” “serve warrants,” “search,” and “seize”).

18 U.S.C. § 3061(a)(1), (2), (5) (providing the United States Postal Service (“USPS”) with

officers that can “serve warrants,” “make arrests,” “make seizures”); see 39 C.F.R. § 233.1

(further specifying what the officers can do).

38 U.S.C. § 902(a)(1)-(2) (providing the Department of Veterans Affairs with officers that can

“enforce Federal laws,” “conduct investigations,” “make arrests,” and execute an “arrest

warrant”); see 38 C.F.R. § 1.218 (setting out the guidelines for officers and the penalties for

different infractions).

49 U.S.C. § 28101 (providing any United States railroad service with officers that can “enforce

the laws of any jurisdiction in which the rail carrier owns property, to the extent of the authority

of a police officer certified or commissioned under the laws of that jurisdiction”).

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that statute, an “investigative or law enforcement officer” is an officer “empowered by law to

execute searches, to seize evidence, or to make arrests for violations of Federal law.” 28 U.S.C. §

2680(h). Again, Congress did not provide BLM officers with any authority to execute searches,

seize evidence, or make arrests, so the BLM officers neither meet the statutory definition that other

statutes refer to nor do the BLM officers have the same authority that other federal officers have.20

Finally, Nevada state law does not provide BLM officers with stop-and-arrest authority.

Nevada Law provides DEA officers, FBI and Secret Services agents, BIA officers, and USPS

Postal Inspectors with stop-and-arrest authority. See generally NEV. REV. STAT. §§ 171.124, 1245,

1255, 1257. At the risk of sounding like a broken record, if the Nevada Legislature wanted to

provide BLM officers with stop-and-arrest authority, it would have.

2. No Authority to Stop Pheasant

It appears that the BLM officers here were not authorized law enforcement officers.

Without the authority to stop-and-arrest people for allegedly violating federal law, Count I and

Count II must be dismissed. The BLM officers did not have the authority to stop Pheasant, so they

could not have been engaged in “official duties” when the BLM officers tried to stop-and-arrest

him. See 18 U.S.C. § 111(a)(1) and (b); see also 43 C.F.R. § 8365.1-4(a)(4). Therefore, Pheasant

could not have interfered with the BLM officers or resisted the issuance of a citation because the

BLM officers were not engaged in official duties.

Further, Pheasant was illegally arrested because the officers did not have stop-and-arrest

authority. “There has been an arrest if, under the circumstances, a reasonable person would

20 The Court recognizes that 43 U.S.C. § 1733 provides the BLM, through the Secretary of the

Interior, with the authority to provide their officers with the authority to execute searches, seize

evidence, or make arrests. But, as mentioned previously, that statute is an unconstitutional

delegation of legislative authority.

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conclude that he was not free to leave after brief questioning.” United States v. Del Vizo, 918 F.2d

821, 824 (9th Cir.1990). Anything beyond “a brief stop, interrogation and, under proper

circumstances, a brief check for weapons” is an arrest. United States v. Robertson, 833 F.2d 777,

780 (9th Cir.1987). In determining whether a stop amounts to an arrest, the Ninth Circuit also

“consider[s] the specificity of the information that leads the officers to suspect that the individuals

they intend to question are the actual suspects being sought and the number of police officers

present.” United States v. Miles, 247 F.3d 1009, 1013 (9th Cir. 2001) (citation and quotation

omitted). “A warrantless arrest executed outside of the arresting officer’s jurisdiction is analogous

to a warrantless arrest without probable cause. . . [and] is presumptively unreasonable.” Ross v.

Neff, 905 F.2d 1349, 1353–54 (10th Cir. 1990). Unreasonable arrests are illegal arrests in violation

of the Fourth Amendment. United States v. Henderson, 906 F.3d 1109, 1116–18 (9th Cir. 2019).

Officer Yost arrested Pheasant when he put his baton through the spokes of Pheasant’s dirt

bike. Pheasant was not free to move after a brief stop, interrogation, and brief questioning.

Pheasant’s dirt bike was unusable because Officer Yost had put his baton through the spoke of the

vehicle. (ECF No. 59 at Ex. A). Further, a large group of BLM officers showed up to aid Officer

Yost at the stop and made it clear to Pheasant that he was being stopped for his taillight. (Id.) Both

of these factors point in the direction of an arrest. Without the authority to make an arrest, Officer

Yost executed an unreasonable, illegal arrest in violation of the Fourth Amendment.

(D)

Motion to Suppress

Pheasant’s Motion to Suppress is denied as moot, given the dismissal of the charges

brought against him.

///

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III.

CONCLUSION

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IT IS HEREBY ORDERED that Pheasant’s Motion to Dismiss is GRANTED. (ECF No.

Filed 04/26/23

59).

IT IS FURTHER ORDERED that Pheasant’s Motion to Suppress is DENIED as moot.

(ECF No. 57).

IT IS SO ORDERED.

Dated this 26th day of April 2023.

_____________________________________

ROBERT C. JONES

United States District Judge

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APPENDIX C

Case: 23-991, 10/31/2025, DktEntry: 91.1, Page 1 of 51

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

No. 23-991

D.C. No.

3:21-cr-00024RCJ-CLB-1

GREGORY W. PHEASANT,

ORDER

Defendant - Appellee.

Filed October 31, 2025

Before: Carlos T. Bea, Mark J. Bennett, and Eric D. Miller,

Circuit Judges.

Order;

Dissent by Judge Bumatay;

Dissent by Judge VanDyke

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SUMMARY *

Criminal Law

The panel denied a petition for panel rehearing and a

petition for rehearing en banc in a case in which the panel

reversed the district court’s dismissal of a count charging the

defendant with driving an off-road vehicle on public lands at

night without a taillight, in violation of 43 C.F.R.

§ 8341.1(f)(5), which was adopted by the Secretary of the

Interior under authority vested in him by section 303(a) of

the Federal Land Policy and Management Act of 1976.

Dissenting from the denial of rehearing en banc, Judge

Bumatay wrote that the Ninth Circuit should have demanded

more before letting the Executive branch—rather than

Congress—define the conduct made criminal under the

Federal Land Policy and Management Act. Given the text

and history of the Constitution’s Article I Vesting Clause,

Congress cannot delegate authority to define the actus reus

of a crime to the Executive branch. While some discretion

may be left in the hands of executive officials, Congress

must establish the conduct that subjects the people to a core

deprivation of personal liberty—imprisonment.

Dissenting from the denial of rehearing en banc, Judge

VanDyke, joined in part by Judge Bumatay, wrote that the

court should have reheard this case en banc to resolve the

question whether criminal delegations are held to the same

exceedingly low standard that applies to civil delegations

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

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and to correct the panel’s erroneous conclusion that criminal

delegations are not held to a higher standard.

ORDER

The panel has voted to deny the petition for panel

rehearing. Judge Bennett and Judge Miller have voted to

deny the petition for rehearing en banc, and Judge Bea has

so recommended.

The full court was advised of the petition for rehearing

en banc. A judge requested a vote on whether to rehear the

matter en banc. The matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc

consideration. Fed. R. App. P. 40.

The petition for panel rehearing and rehearing en banc is

DENIED. Dkt. No. 75.

BUMATAY, Circuit Judge, dissenting from the denial of

rehearing en banc:

As Judge VanDyke thoughtfully explains, we should

have heard this case en banc. The Ninth Circuit should have

demanded more before letting the Executive branch—rather

than Congress—define the conduct made criminal under the

Federal Land Policy and Management Act. See 43 U.S.C.

§ 1733(a).

Of course, the Supreme Court has endorsed some level

of congressional delegation to the Executive branch. See

FCC v. Consumers’ Rsch., 145 S.Ct. 2482, 2491 (2025). But

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history—and precedent for that matter—make clear that the

non-delegation doctrine is context specific. See id. at 2503

(looking to “broader statutory contexts” to identify

intelligible principles). And what’s permissible “varies

according to the scope of the power congressionally

conferred.” Id. at 2397 (simplified). So it’s “not [a] one size

fits all” test. Id. at 2525 (Gorsuch, J., dissenting). While a

more lenient non-delegation doctrine may suffice in some

areas of the law, other areas require a more demanding

approach.

Criminal law is in the more demanding bucket. Given

the deprivation of liberty at stake, Congress cannot simply

leave it to the Executive branch to unilaterally declare what

acts can subject the people to criminal confinement. In this

context, the Constitution requires more than the standard,

opaque version of an “intelligible principle.” Instead, to

satisfy the non-delegation doctrine that our separation of

powers demands, Congress must—at a minimum—define

both the actus reus and the penalty for any criminal offense.

Our court was thus wrong to simply gesture at a toothless

“intelligible principle” and call it a day. See United States v.

Pheasant, 129 F.4th 576, 583 (9th Cir. 2025).

Because the separation-of-powers demands more before

throwing people in prison, I respectfully dissent from the

denial of rehearing en banc.

The Non-Delegation Doctrine

The non-delegation doctrine “bars Congress from

transferring its legislative power to another branch of

Government.” Gundy v. United States, 588 U.S. 128, 132

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(2019) (plurality). It’s a function of the Constitution’s

Article I Vesting Clause, which requires that “[a]ll

Legislative powers herein granted shall be vested in a

Congress of the United States.” U.S. Const., Art. I, § 1. And

it is “rooted in the principle of separation of powers.”

Mistretta v. United States, 488 U.S. 361, 371 (1989). It

preserves the tripartite system of government established by

the Constitution’s first three articles: three branches—each

with distinct and “exclusive” authority. Dep’t of Transp. v.

Ass’n of Am. Railroads, 575 U.S. 43, 67 (2015) (Thomas, J.,

concurring in the judgment).

The Legislative Power is the exclusive power to make

laws that are binding on citizens. See The Federalist No. 78

(Alexander Hamilton) (George W. Cary & James McClellan

ed., 2001) (“[T]he legislature not only commands the purse,

but prescribes the rules by which the duties and rights of

every citizen are to be regulated.”). As one early English

treatise put it, “[b]y the Legislative Power, we understand

the Power of making, altering, or repealing Laws, which in

all well-ordered Governments, hath ever been lodged in a

succession of the supreme Councels of Assemblies of a

Nation.” Marchamont Nedham, The Excellencie of a FreeState (1656), in 1 The Founders’ Constitution 314 (1986).

Another publication closer to the Founding Era said the

power included “consulting, debating, enacting laws, and

forming regulations, according to which all are to conduct

themselves.” 1 James Burgh, Political Disquisitions 5

(London 1774).

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A key limit on the legislative power is that it cannot be

delegated. As John Locke said, the legislature could only

make new laws—not new legislators:

The power of the legislative being derived

from the people by a positive voluntary grant

and institution, can be no other, than what

that positive grant conveyed, which being

only to make laws, and not to make

legislators, the legislative can have no power

to transfer their authority of making laws, and

place it in other hands.

John Locke, Second Treatise of Government: An Essay

Concerning the True Original, Extent and End of Civil

Government § 141 (1764 ed.); see also Ilan Wurman,

Nondelegation at the Founding, 130 Yale L.J. 1490, 1518

n.146 (2021) (collecting sources showing Locke’s influence

on the Founding generation).

Founding-era debates over the Constitution reflected

Locke’s ideas. At the Pennsylvania Ratifying Convention,

James Wilson—the only Founder to have signed the

Declaration of Independence and the Constitution—

favorably contrasted the limits on delegation imposed by the

Constitution with the lack of limits on Parliament to do the

same. James Wilson, Speech at the Pennsylvania Ratifying

Convention (Nov. 24, 1787). While the British constitution

allowed “the Parliament [to] transfer[] legislative authority

to Henry VIII,” Wilson observed that the “control [over] the

power and conduct of the legislature by an overruling

constitution was an improvement in the science and practice

of government reserved to the American states.” Id.; see

also The Federalist No. 53, at 277–78 (James Madison)

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(George W. Cary & James McClellan ed., 2001) (comparing

“the transcendent and uncontrollable” authority of

Parliament with the “constitutional security . . . established

in the United States” because of its “constitution paramount

to the government”). Or as an anonymous Virginia essayist

put it, legislative power could not be “transferred,” because

it would “surpass the power of legislation and require the

assent of the people at large.” Philip Hamburger, Is

Administrative Law Unlawful? 599 n.16 (2014) (citing

Observations upon the Seven Articles, Reported by the

Grand Committee . . . and Now Lying on the Table of

Congress, Virginia Independent Chronicle (Feb. 21, 1787)).

The Founding generation understood that one way to

violate the prohibition on legislative delegation was if

Congress authorized another branch of government to

address too many details left unresolved by statute. This is

because, at the time of the Founding, providing sufficient

statutory detail was inherent in the nature of the Legislative

power. If Congress promulgated a statute that delegated to

the Executive branch the ability to provide necessary

legislative details, it would exceed the legislative authority.

As James Madison wrote in a widely read post-Ratification

circular:

Details to a certain degree, are essential to the

nature and character of a law . . . . If nothing

more were required . . . than a general

conveyance of authority—without laying

down any precise rules by which the

authority conveyed should be carried into

effect—it would follow that the whole power

of legislation might be transferred by the

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legislature from itself, and proclamations

might become substitutes for law.

James Madison, The Report of 1800 (Jan. 7, 1800). 1 Chief

Justice Marshall echoed these views: “[i]t will not be

contended that Congress can delegate to the Courts, or to any

other tribunals, powers which are strictly and exclusively

legislative.” Wayman v. Southard, 23 U.S. 1, 42 (1825).

The non-delegation doctrine addressed two Foundingera concerns—preventing tyranny and maintaining

accountability. Centuries of English common law taught

that maintaining a strict separation of powers was crucial to

preserving liberty. Blackstone, for example, “defined a

tyrannical government as one in which ‘the right both of

making and of enforcing the laws, is vested in one and the

same man, and the same body of men,’ for ‘whenever these

two powers are united together, there can be no public

liberty.’” Ass’n of Am. Railroads, 575 U.S. at 73 (Thomas,

J., concurring in the judgment) (quoting Blackstone, 1

Commentaries *142). Countless other writings from the

common law accord with his view. See id. at 70–74 (citing

writings of de Bracton, Coke, Hale, Locke, Hume, and

Blackstone). And the English experience in resisting

delegations to the Crown made this principle concrete. Id.

at 71–72 (citing the Case of Proclamations, 12 Co. Rep. 74,

75, 77 Eng. Rep. 1352, 1353 (K.B. 1611) (Coke, C.J.)

(holding the King could not “change any part of the common

law, nor create any offence by his proclamation, which was

not an offence before, without Parliament.”)).

So the idea that the “separate and distinct exercise of the

different powers of government [was] essential to the

https://founders.archives.gov/documents/Madison/01-17-02-0202.

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preservation of liberty” was embraced at the time of the

Founding. The Federalist No. 51, at 268 (James Madison)

(George W. Cary & James McClellan ed., 2001). As said by

Montesquieu, “[t]here can be no liberty where the legislative

and executive powers are united in the same person . . . lest

the same monarch . . . should enact tyrannical laws to

execute them in a tyrannical manner.”

Baron de

Montesquieu, The Spirit of the Laws 151 (Thomas Nugent,

trans., Hafner Pub. Co. 1949) (1748). And Madison wrote

that it would be “absurd” for the Executive’s orders to have

the force of law “like all other laws,” because that would presuppose that the “executive department naturally includes a

legislative power.” Helvidius No. 1 (James Madison), Aug.

24, 1793. 2 In fact, to Madison, it was more than “an

absurdity”—it was “tyranny.” Id.

The Founders also understood that the non-delegation

principle secured democratic accountability.

Simply,

permitting delegation of legislative powers to unelected

Executive branch officials undermines representative

democracy—the bedrock of legitimacy for creating binding

laws. Cf. Resolutions of the Boston Town Meeting on Sept.

13, 1768, in A Report of the Record Commissioners of the

City of Boston, Containing the Boston Town Records, 1758–

1769, at 261, 262–63 (Boston, Rockwell & Churchill 1886)

(protesting efforts to levy taxes or maintain a standing army

in the colonies as “illegal” unless prescribed by

“Representatives of [citizens’] own free Election”). The

Founders knew that “[r]estricting the task of legislating to

one branch characterized by difficult and deliberative

processes . . . promote[d] fair notice and the rule of law,

ensuring the people would be subject to a relatively stable

https://founders.archives.gov/documents/Madison/01-15-02-0056.

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and predictable set of rules,” and guaranteed “that the lines

of accountability would be clear.” Gundy, 588 U.S. at 155

(Gorsuch, J., dissenting) (citing The Federalist No. 50

(James Madison)). And that way, “the adoption of new laws

restricting liberty” would remain “a hard business, the

product of an open and public debate among a large and

diverse number of elected representatives”—rather than

“hand[ed] off” to another branch where “unelected judges

and prosecutors [are] free to ‘condemn all that they

personally disapprove and for no better reason than they

disapprove it.” Sessions v. Dimaya, 584 U.S. 148, 182

(2018) (Gorsuch, J., concurring) (simplified).

To be sure, Congress was not categorically precluded

from leaving some discretion in the hands of the Executive

in implementing laws. But early examples of what some

have labeled “delegations” were nothing like today’s grants

of nearly unlimited administrative rulemaking authority to

executive officers. And importantly, as a historical matter,

any delegations took place in specific, limited contexts.

Simply, some—but only some—legislative matters allowed

greater discretion to the Executive.

Understanding why the Founders delegated some details

helps explain why today’s broadest criminal delegations are

impermissible. Experience had shown that a deliberative

legislative body was ill-suited to exhausting future

contingencies in legislation, quickly responding to

emergencies, or nimbly dealing with sensitive matters of

foreign affairs.

See Akhil Reed Amar, America’s

Constitution: A Biography 132–33 (2005) (“Under the old

Articles, various recesses and quorum failures of the

Confederation Congress had compromised America’s ability

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to conduct foreign affairs.”). As then-Ambassador Thomas

Jefferson complained in a letter to a fellow Virginian, the

Articles of Confederation Congress obsessed over the

“smallest trifle” rather than the “most important act[s] of

legislation,” because it had to exercise both executive and

legislative power. Thomas Jefferson to Edward Carrington

(Aug. 4, 1787). 3 According to Jefferson, this was “the

source of more evil than we have ever experienced from any

other cause.” Id. Jefferson’s solution was “to separate in the

hands of Congress[,] the Executive and Legislative powers.”

Id. Similarly, Jefferson wrote to Madison that an executive

committee be appointed to “receive and dispatch all

executive business, so that Congress itself should meddle

only with what should be legislative.” Thomas Jefferson to

James Madison (Dec. 16, 1786). 4

So Founding-era laws didn’t always specify every detail

in their legislative acts. See Julian Davis Mortenson &

Nicholas Bagley, Delegation at the Founding, 121 Colum.

L. Rev. 277, 302–05 (2021) (giving examples of grants of

legislative authority in Founding-era statutes); Wurman, 130

Yale L.J. at 1540–53 (same). Nor could they—almost every

statute requires at least some discretion in execution.

Instead, it was understood that some legislative areas—

to respect the separation of powers and to adhere to

democratic accountability—required Congress to make all

the essential decisions. In the words of Chief Justice

Marshall, “important subjects . . . must be entirely regulated

by the legislature itself.” Wayman v. Southard, 23 U.S. 1,

43 (1825). Otherwise, in areas of “less interest,” Congress

https://founders.archives.gov/documents/Jefferson/01-11-02-0588.

https://founders.archives.gov/documents/Jefferson/01-10-02-0461.

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may identify the “general provision” and give power “to

those who are to act under such general provisions to fill up

the details.” Id.

As a historical matter, Congress granted the Executive

greater discretion in implementing laws requiring ministerial

administration or in areas involving executive prerogatives.

Take the Founding-era example of veteran pensions. The

law allowed the President to regulate the distribution of

pension payments to veterans—a mere act of bureaucratic

process. Act of Sept. 29, 1789, ch. 24, 1 Stat. 95. Another

allowed the Secretary of State, the Secretary of War, and the

Attorney General to issue exclusive patents if they

determined an invention or discovery was “sufficiently

useful and important”—a highly individualized, factspecific inquiry difficult to treat broadly via legislation

alone. Act of Apr. 10, 1790, ch. 7, § 1, 1 Stat. 109, 109–110.

And another authorized the President to determine whether

a foreign nation sufficiently interfered with American trade

to trigger a preexisting embargo statute—a decision already

within the Executive’s foreign-policy wheelhouse. Act of

Mar. 1, 1809, ch. 24, § 11, 528, 530; Act of May 1, 1810, ch.

39, § 4, 2 Stat. 605, 606; see also Cargo of the Brig Aurora

v. United States, 11 U.S. (7 Cranch) 382, 382 (1813).

Likewise, whether the delegation implicated public or

private rights served as a fault line for permissible

delegation. “The idea that the Executive may not formulate

generally applicable rules of private conduct” has “ancient

roots.” Ass’n of Am. Railroads, 575 U.S. at 70 (Thomas, J.,

concurring in the judgment). Indeed, according to some

scholars, while delegations in the areas of public rights, such

as foreign and military affairs, spending, and management of

government property, were permissible, for other areas, such

as “rules that regulate citizens as to their private rights in the

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domestic sphere,” “the Constitution imposes a strict

prohibition on such delegation.” Michael Rappaport, A Two

Tiered and Categorical Approach to the Nondelegation

Doctrine, 2 San Diego Legal Stud. Paper No. 20-471

(2020); 5 see also Hamburger, Is Administrative Law

Unlawful? 388–95 (noting delegations with a historical

pedigree from states to municipalities, the federal

government to territories, municipalities to local

administrative bodies, to courts for matters of procedure, and

to the military for martial orders).

Non-delegation was thus understood at the Founding to

be a real limitation on Congress’s “Legislative powers.”

History shows that non-delegation’s mandate varied based

on subject matter, allowing significant discretion to the

Executive in foreign, territorial, and military affairs. But

outside these historical exceptions, and especially in subjects

of great “importan[ce],” the non-delegation doctrine is

violated when a statute is insufficiently detailed and vests

authority in an agency to write the rules necessary to make

the law enforceable.

II.

Non-Delegation and Criminal Law

If the non-delegation doctrine has teeth in any area, it

must in the criminal law context. The power to make

criminal law raises heightened concerns for liberty and

arbitrary government power. After all, what else could

encroach more on personal liberty than the threat of

imprisonment? The drafting of criminal law thus requires a

more stringent non-delegation doctrine because it

“implicate[s] potentially two core private rights: the right to

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3710048.

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life and personal liberty.” Nicolas Elliott-Smith, Crimes

Without Law: Administrative Crimes and the Nondelegation

Doctrine, 115 J. Crim. L. & Criminology 429, 450 (2025).

So when enacting criminal statutes, the Constitution requires

far more legislative detail and prohibits broad delegations.

Founding-era criminal statutes reflected these concerns

by specifying an actus reus and punishment. Indeed, it was

recognized long ago that “[t]he legislative authority of the

Union must first make an act a crime” and “affix a

punishment to it.” United States v. Hudson & Goodwin, 11

U.S. (7 Cranch) 32, 34 (1812) (emphasis added). Thus, the

textual and historical evidence shows that, to comply with

Article I’s exclusive grant of “Legislative powers,” Congress

must at a minimum define the actus reus within the four

corners of the statute.

So great was the concern for the deprivation of liberty in

the criminal context that our Founding generation

understood that Congress needed to provide more specificity

in enacting criminal statutes. In 1800, Madison warned of

this need when “personal liberty” was invaded:

[O]n criminal subjects, it is proper, that

details should leave as little as possible to the

discretion of those who are to apply and to

execute the law. . . . To determine then,

whether the appropriate powers of the

distinct departments are united by [the act], it

must be enquired whether it contains such

details, definitions, and rules, as appertain to

the true character of a law; especially, a law

by which personal liberty is invaded,

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property deprived of its value to the owner,

and life itself indirectly exposed to danger.

James Madison, The Report of 1800 (Jan. 7, 1800). 6 Thus,

shortly after ratification, it was acknowledged that only

Congress could set the “details, definitions, and rules” of

criminal violations. Id. See also Wurman, 130 Yale L.J. at

1555 (arguing that only permissible delegations at the

Founding were those involving a “narrow” “category of

conduct”).

At a minimum, this means that Congress must define the

actus reus by statute. After all, the criminal act is at the heart

of criminal offense. See 4 Blackstone Commentaries *5

(defining a “crime or misdemeanor” as “an act committed or

omitted, in violation of a public law either forbidding or

commanding it”); Samuel Johnson, A Dictionary of the

English Language (4th folio ed.,1773) (defining “crime” as

“[a]n act contrary to right; an offence; a great fault; an act of

wickedness”); see also City of Grants Pass v. Johnson, 603

U.S. 520, 545 (2024) (“[H]istorically, crimes in England and

this country have usually required proof of some act (or

actus reus) undertaken with some measure of volition (mens

rea).”). Indeed, one would search in vain through the

Founding-era criminal law treatises of Hawkins and Hale for

mention of a penal statute that did not include an actus reus.

See generally William Hawkins, 1 A Treatise of the Pleas of

the Crown (1716); Matthew Hale, 1 Historia Placitorum

Coronæ: The History of the Pleas of the Crown (1736); see

also 4 Blackstone Commentaries (Of Public Wrongs).

The Marshall Court also twice held the power to define

and enact criminal statutes, including the actus reus, belongs

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to Congress alone. In deciding whether federal courts could

exercise common-law jurisdiction in criminal cases, the

Court emphatically said no. See Hudson & Goodwin, 11

U.S. at 34. While the Court recognized some “implied

powers” for the courts, the “jurisdiction of crimes against the

state is not among those powers.” Id. Instead, the Court

understood that criminal rulemaking was part of the

“legislative authority.” Id. And chief among Congress’s

responsibilities was to “first make an act a crime.” Id.

(emphasis added). Thus, the Court required Congress to set

the actus reus for any criminal statute.

This was no anomaly. A few years later, Chief Justice

Marshall reiterated that “[i]t is the legislature . . . which is to

define a crime, and ordain its punishment.” United States v.

Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). Simply, to the

Chief, it was “a plain principle that the power of punishment

is vested in the legislative . . . department.” Id.; see also

United States v. Bailey, 34 U.S. 238, 257 (1835) (McLean,

J., dissenting) (objecting to a perjury statute’s potential

delegation to the Treasury Department to prescribe who

could administer oaths, because it involved “the construction

of a highly penal law of the union” and was thus an

“important” matter). But see id. at 253–54 (maj. op. of Story,

J.) (upholding the conviction without relying on a delegation

because the statute’s plain language empowered a state

justice of the peace to administer oaths).

Several reasons support this differential treatment of

criminal law for purposes of the non-delegation doctrine.

First, the Constitution’s text supports treating criminal

law differently. Indeed, the Constitution reflects unique

“concern with the danger to liberty associated with the

criminal process.” Rachel E. Barkow, Separation of Powers

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and the Criminal Law, 58 Stan. L. Rev. 989, 1015 (2006).

Consider a few of the Constitution’s criminal safeguards. It

prohibits the passage of ex post facto laws and bills of

attainder, but only as to criminal law. U.S. Const., Art. I,

§ 9. It requires that all criminal trials be conducted by a jury

of peers and held within the State where the offense was

committed. Id. Art. III § 2. And a conviction for treason

requires two independent witnesses. Id. § 3. The Fifth

Amendment’s due process guarantee requires a higher

standard of proof in criminal cases. In re Winship, 397 U.S.

358, 364 (1970). And the Sixth Amendment guarantees a

speedy and public trial, notice of charges, confrontation,

assistance of counsel, and juries in criminal proceedings.

U.S. Const. Amend. VI. Thus, the Constitution’s overriding

concern for limiting government power in the criminal

sphere should be reflected in the non-delegation doctrine.

Second, some of the Founding Era’s most influential

legal philosophers wrote on the need for more specificity in

criminal law. Discussing the nature of criminal laws,

Blackstone wrote that “[in] proportion to the importance of

the criminal law, ought also to be the care of the legislature

in properly forming and enforcing it.” 4 Blackstone

Commentaries **2–3. This, he explained, was because “to

know with precision what the laws of our country have

forbidden, and the deplorable consequences to which a

willful disobedience may expose us, is a matter of universal

concern.” Id. Illustrating his point, Blackstone discussed an

old English statute that had made stealing sheep “or other

cattle” a felony.

1 Blackstone Commentaries *88.

According to Blackstone, these “general words, ‘or other

cattle,’ [were] looked upon as much too loose to create a

capital offence,” leading a court to strike the general phrase.

Id. In response, Parliament passed another theft statute

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specifically listing “bulls, cows, oxen, steers, bullocks,

heifers, calves, and lambs, by name.” Id.

Blackstone’s views accorded with those of the criminallaw reformist Cesare Beccaria, one of the most influential

writers of the era. Beccaria’s treatise On Crimes and

Punishments advocated for codifying the criminal law rather

than maintaining judge-made crimes. Cesare Beccaria, On

Crimes and Punishments 13 (David Young, trans., Hackett

Publ. Co. 1986) (1764). He argued that “without written

texts, society will never assume a fixed form of government

in which power derives from the whole rather than the parts

and in which the laws, which cannot be altered save by the

general will, are not corrupted as they move through the

crush of private interests.” Id.; see generally John Bessler,

The Italian Enlightenment and the American Revolution:

Cesare Beccaria’s Forgotten Influence on American Law,

37 Mitchell Hamline L.J. Pol’y & Prac. 1 (2017)

(demonstrating Beccaria’s literary popularity in the United

States during the Founding). The writings of Blackstone,

Beccaria, and others make clear that the principle that the

legislature must define the act forbidden and its penalty was

within the Framers’ consciousness.

Third, age-old criminal-law doctrines support greater

specificity in criminal legislation. Take the rule of lenity. It

teaches “that ambiguities about the breadth of a criminal

statute should be resolved in the defendant’s favor.” United

States v. Davis, 588 U.S. 445, 464 (2019). Lenity reinforces

the separation of powers by “strik[ing] the appropriate

balance between the legislature, the prosecutor, and the court

in defining criminal liability.” Liparota v. United States, 471

U.S. 419, 427 (1985).

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Or take the void-for-vagueness doctrine. It applies with

greatest force to “criminal penalties because the

consequences of imprecision are qualitatively less severe [in

the civil context].” Vill. of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 498–99 (1982). Many

of the concerns that drive vagueness doctrine may apply

equally to non-delegation doctrine. See Sessions, 584 U.S.

at 216 (Thomas, J., dissenting) (suggesting that “the

vagueness doctrine is really a way to enforce the separation

of powers—specifically, the doctrine of nondelegation”).

Indeed, “[v]ague statutes have the effect of delegating

lawmaking authority to the executive.” Nathan S. Chapman

& Michael W. McConnell, Due Process As Separation of

Powers, 121 Yale L.J. 1672, 1806 (2012). Vague statutes

simply make it “more likely that any individual enforcement

decision will be based on a construction of the statute that

accords with the executive’s unstated policy goals, filling the

gaps of the legislature’s policy goals.” Id.

Thus, as an original matter, for federal “crimes” to be

consistent with the “Legislative power,” Congress—and no

other branch—must specify the actus reus of the criminal

offense. See Elliott-Smith, 115 J. Crim. L. & Criminology

at 483–84 (“When Congress delegates rulemaking authority

to an agency to unilaterally determine the actus reus of a

criminal offense, it has impermissibly delegated the

authority to regulate a citizen’s core [personal] right to

liberty.”).

Founding-Era Criminal Statutes

The need for specificity in criminal enactments was

reflected in early congressional practice. Although the

“number of federal crimes at the Founding was low,” an

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examination of those laws suggests that “the blanket

authorization for an executive body to create regulations

punishable by criminal penalties directly contravenes the

Founding-era conceptualization of the separation of

powers.”

Michael C. McCue, Modern Times, Hidden

Crimes: Criminal Lawmaking Delegations from the

Founding to Today, 20 Dartmouth L.J. 12, 13, 28 (2022)

(simplified). One lone exception exists—the Northwest

Ordinance—but that law dealt with the unique enclave of

federal territories. Criminal statutes approaching the

criminal administrative laws we see today—statutes

delegating to an executive official the power to define the

actus reus—did not appear until the late 19th century. This

historical evidence supports that Article I’s Vesting Clause,

as originally understood, required that Congress define, at a

minimum, a crime’s actus reus and penalty.

Early Criminal Laws

With a single exception, federal criminal statutes at the

Founding never delegated to other branches the authority to

define an actus reus or affix a penalty.

Consider the first criminal law enacted by Congress. See

An Act for the Punishment of Certain Crimes Against the

United States, ch. 9, 1 Stat. 112 (1790). It specified many

crimes, including treason, piracy, murder and manslaughter

within federal enclaves and at sea, and more. Id. These were

well known criminal offenses—even if they were defined

with respect to the common law or the law of nations. So in

each case, Congress had specified an actus reus and a

penalty.

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Of course, sometimes discretion was involved. The Act,

for example, provided that a person who “violate[s] any safeconduct . . . under the authority of the United States, or shall

. . . offer[] violence to the person of an ambassador or other

public minister” would be imprisoned for up to three years

and fined. 1 Stat. 112, 118 § 28. So the statute did not

specify who counted as an “ambassador or other public

minister” (a determination strictly within the President’s

foreign-policy authority). But Congress specified the actus

reus—violating the official’s safe-conduct. The Act thus

only represents “an extraordinarily narrow amount of

executive discretion.” McCue, 20 Dartmouth L.J. at 14

(emphasis added).

Consider next a law enacted a few years later—one

outlawing unregulated trade with Indians. See An Act to

Regulate Trade and Intercourse with the Indian Tribes, ch.

19, 1 Stat. 329 (1793). While granting the Executive branch

some discretion over licensing, the law sufficiently specified

the conduct it made unlawful. Id. The law prohibited “any

trade or intercourse” with Indian Tribes “without a license

under the hand and seal of the superintendent of the

department, or of such other person, as the President of the

United States shall authorize to grant licenses for that

purpose.” Id. at 329 § 1. So unlike some modern

delegations, the law didn’t authorize an executive

administrator to set a course of conduct for punishment.

Rather, it let the Executive grant exceptions to a

congressionally mandated, general prohibition, which fit

within the Executive’s traditional purview anyway. See

Reynolds v. United States, 565 U.S. 432, 450 (2012) (Scalia,

J., dissenting) (“[T]he power to reduce congressionally

imposed requirements . . . is little more than a formalized

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version of the time-honored practice of prosecutorial

discretion.”).

In the years following, Congress clearly specified in

several early criminal laws the conduct prohibited even if it

left to the Executive the discretion to determine the precise

objects of the conduct made criminal. The Stamp Act, for

example, prohibited “counterfeit[ing] or forg[ing] any stamp

or mark, directed or allowed to be used by this act.” See An

Act Laying Duties on Stamped Vellum, Parchment, and

Paper, ch. 11, § 13, 1 Stat. 527, 531 (1797). But that statute

allowed “the Secretary of the Treasury . . . [to] provide[ the]

many marks and stamps” subject to the criminal offense. Id.

at 529. Likewise, another law punished those who “falsely

make, alter, forge or counterfeit . . . any bill or note issued

by order of the president, directors and company of the Bank

of the United States” with a term of imprisonment. An Act

to Punish Frauds Committed on the Bank of the United

States, ch. 61, 1 Stat. 573, 573–74 (1798). Yet another law

subjected persons who “cut any timber on the lands

reserved” by the Navy Secretary to fine and imprisonment,

with the Secretary authorized to select “such tracts or

portions . . . as in his judgment may be necessary to furnish

for the navy a sufficient supply” of wood. An Act Making

Reservation of Certain Public Lands to Supply Timber for

Naval Purposes, 3 Stat. 347 (1817). In all these statutes,

Congress itself unambiguously specified the actus reus:

counterfeiting, forging, or altering of governmental

instruments or chopping down protected trees—even if

Congress left to the Executive branch or others the task of

specifying the precise object of the conduct proscribed.

Amid this backdrop, a constitutional controversy was

sparked by an extraordinarily broad criminal statute, the

Alien Friends Act of 1798. See An Act Concerning Aliens,

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ch. 58, 1 Stat. 570 (1798). While the criminal portion of the

Act provided a well-defined actus reus—illegal re-entry of

previously deported aliens—it controversially gave

unlimited discretion to the President to “order [the

deportation of] all such aliens as he shall judge dangerous to

the peace and safety of the United States.” Id. at 571. The

Act punished the return of “alien[s]” previously “ordered to

depart” with imprisonment and disqualification from ever

becoming a United States citizen. Id. Thus, the Act sparked

concerns over too much delegation to the President to

determine who could be subject to criminal punishment.

Debates over this delegation spurred Madison to

passionately criticize the Act’s blurring of legislative

lawmaking and executive enforcement, particularly in the

criminal context. See James Madison, The Report of 1800

(Jan. 7, 1800) (“[T]he alien act . . . unites legislative, judicial

and executive powers in the hands of the President . . . .

[A]ll will agree, that the powers referred to [the Executive

and Judiciary] may be so general and undefined, as to be of

a legislative, not of an executive or judicial nature; and may

for that reason be unconstitutional.”). 7 And Madison was

not alone in his opposition. See Wurman, 130 Yale L.J. at

1514–15 (discussing the opposition to the bill by

Representatives Gallatin, Williams, and Livingston).

Agreeing with Madison, for instance, Rep. Gallatin said in

the House of Representatives that unless crimes and

punishments were “accurately defined,” “States and the

State Judiciary would, indeed they must, consider the law as

a mere nullity, they must declare it to be unconstitutional.”

8 Annals of Cong. 1982 (1798). Even Representative Otis,

a supporter of the Bill, thought that such fundamental liberty

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could not “depend[] upon the will of one man.” 8 Annals of

Cong. 2021 (1798). In the shadow of this constitutional

controversy, the Alien Friends Act was never enforced and

not renewed upon its expiration in 1800. See McCue, 20

Dartmouth L.J. at 26. Thus, the Act’s attempt at excessive

delegation was thwarted before such delegation could

become a trend.

Finally, Congress was often specific as to all aspects of

the crime when it wrote a statute. For example, a statute

regulating imports forbade “defac[ing], alter[ing] or

forg[ing] any certificate, granted for the protection of

merchandise transported as aforesaid[,]” subjecting violators

to imprisonment and fines. An Act to Regulate the

Collection of Duties on Imports and Tonnage, ch. 22, § 109,

1 Stat. 703, 703 (1799). This provision didn’t just specify

an actus reus and penalty. Congress set the object of the

guilty act, too: it drafted and specified the text of the

certificate one could be charged for forging. Id.; see McCue,

20 Dartmouth L.J. at 19. So while Congress sometimes gave

the Executive the leeway to set the specific objects of an

actus reus, it more commonly handled even those details

itself.

The Northwest Ordinance

Of course, some countervailing history exists. The

Northwest Ordinance is sometimes cited as proof that the

Founders had no issue with broadly delegating the power to

define criminal laws. See Mortenson & Bagley, 121 Colum.

L. Rev. at 335. The Ordinance provided that territorial

governors and judges could temporarily adopt criminal and

civil laws of existing states until an assembly could be

formed, at which point the “[territorial] Legislature shall

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have authority to alter them as they shall think fit.” See An

Ordinance for the Government of the Territory of the United

States Northwest of the River Ohio §§ 5, 9 (1787)

(“Northwest Ordinance”); 8 Act of Aug. 7, 1789, ch. 8, 1 Stat.

50, 50–51 (1789) (expressly re-adopting the Northwest

Ordinance as previously enacted by the Continental

Congress). And similar laws were passed to regulate

other pre-statehood territories. 9 Thus, Congress perhaps

authorized criminal lawmaking in the Ordinance without

specifying the actus reus of the offenses.

But the Ordinance is fundamentally different from

general criminal delegations that would have been

understood to exceed Congress’s “Legislative powers.” So

the Ordinance is best viewed as the exception that proves the

rule that criminal legislation required specificity, including

establishing an actus reus. First, the Ordinance limited the

forms of criminal conduct. The territorial governors and

judges still couldn’t define a criminal law’s actus reus from

scratch—rather, they could only temporarily adopt laws that

had already been written and enacted by other states’

legislatures. Northwest Ordinance § 5. And they could only

do so until a territorial legislature was formed to enact laws

blessed by local voters. Id.

Second, and more important, the Northwest Ordinance

involved the administration of territorial lands—an area

subject to a less stringent non-delegation doctrine.

Hamburger, Is Administrative Law Unlawful? 389–90.

https://www.archives.gov/milestone-documents/northwest-ordinance.

Act of May 26, 1790, ch. 14, § 1, 1 Stat. 123, 123 (Southwest

Territory); Act of Apr. 7, 1798, ch. 28, § 3, 1 Stat. 549, 550 (Mississippi

Territory); Act of May 7, 1800, ch. 41, § 2, 2 Stat. 58, 59; Act of May 8,

1792 (Indiana Territory).

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When debates about non-delegation regained prominence in

the early twentieth century, the chief justice of the Florida

Supreme Court wrote that history and necessity justified

delegations to territories:

Immemorial usage and the necessities of

local government justify the delegation of

some minor legislative power of a police

nature within definite limitations to

municipalities where express organic

provisions do not forbid. Congress may

[thus] confer limited and defined legislative

powers upon the territories.

J.B. Whitfield, Legislative Powers That May Not Be

Delegated, 20 Yale L.J. 87, 88 (1910) (emphasis added); see

also Territory ex rel. Cty. of Oahu v. William L. Whitney, 17

Haw. 174, 180–81 (Haw. 1905) (upholding a criminal

delegation to a territory’s county government); id. at 188

(Hartwell, J., concurring) (“Delegating certain legislative

powers to municipal organizations, such as towns and cities,

has been found so essential to public welfare, and its

delegation has been so often sustained by judicial decisions,

as to be established beyond question.”) (simplified). So

congressional delegations to temporary territorial

governments are a different playing field.

It’s also worth noting that no local legislatures existed in

the territories before the Ordinance. See Elliott-Smith, 115

J. Crim. L & Criminology at 462. So the Ordinance’s

protection of local inhabitants—then without a local

representative government—justified expansive delegation.

After all, whenever local government had been denied to

colonial Americans, they experienced logistical nightmares

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in petitioning Parliament and awaiting legislation from an

ocean away. See Akhil Amar, The Words That Made Us:

America’s Constitutional Conversation 1760-1820, at 4–7

(2021). So the Northwest Ordinance (and later delegations

to territorial governors) allowed for the quick adoption of

laws most suitable for local conditions. Thus, Congress’s

broad delegations to temporary territorial governments

fulfilled rather than undermined the fundamental principle

of democratic accountability underlying the non-delegation

doctrine.

Broad Delegations Long Postdated the Founding

The earliest federal statute to broadly delegate to an

executive official the power to proscribe criminal conduct

was enacted over a hundred years after the Founding. See

McCue, 20 Dartmouth L.J. at 35–36 (explaining that the

Organic Administration Act of 1897 marked the beginning

of modern administrative crimes).

The Organic

Administration Act of 1897 granted the Secretary of the

Interior authority to “make provisions for the protection” of

“public forests” and “make such rules and regulations . . . to

preserve the forests . . . from destruction.” See Act of June

4th, 1897, ch. 2, 30 Stat. 11, 35 (1897). And “any violation”

of these “rules and regulations” was punishable “by a fine of

not more than $500 or imprisonment for not more than

twelve months, or both.” Id. (cross-referencing punishment

provided by the Act of June 4th, 1888, ch. 340, 25 Stat. 166)

So this was the start of broad delegations at the turn of the

20th century. Some—the Court blessed. See, e.g., United

States v. Grimaud, 220 U.S. 506, 515–23 (1911). Others—

the Court struck down on non-delegation grounds. See, e.g.,

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A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.

495, 537–42 (1935).

That we don’t see the first broad delegation of criminal

lawmaking authority until the late 19th century suggests that

our Founding generation would have considered such power

contrary to the original meaning of “the Legislative power.”

See Espinoza v. Montana Dep’t of Revenue, 591 U.S. 464,

482 (2020) (explaining that a tradition that “arose in the

second half of the 19th century . . . cannot by itself establish

an early American tradition”); see also New York State Rifle

& Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 36 (2022) (“[T]o

the extent later history contradicts what the text says, the text

controls.”).

***

A pattern emerges from this history. For over a century,

Congress understood that it must establish the conduct

proscribed as criminal. Excluding the Northwest Ordinance

(which is in a different context), no Founding-era federal law

broadly delegated authority to the Executive to set the range

of criminal conduct without significant constitutional

controversy. That doesn’t mean that Congress could not

leave any discretion to the Executive. So long as Congress

“identifie[d] an actus reus, the Executive Branch may retain

broad discretion to prohibit particular types of conduct

[within the actus reus] without running afoul of any

originalist constraints on the delegation of criminal

lawmaking authority.” Elliott-Smith, 115 J. Crim. L. &

Criminology at 483. So Congress could specify the range of

conduct proscribed (the actus reus) and the Executive could

determine which precise objects would be included within

that narrow range of conduct—like choosing which lands

were to be protected or what stamps and marks could not be

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counterfeited. Yet, at a minimum, the non-delegation

principle has always required that Congress specify the actus

reus and the penalty within the text of the statute to meet

constitutional muster.

III.

The Federal Land Policy and Management Act’s

criminal provision violates the non-delegation doctrine

because it empowers an executive agency to define the actus

reus of its criminal offense. It provides that “[t]he Secretary

[of Interior] shall issue regulations necessary to implement

the provisions of this Act with respect to the management,

use, and protection of the public lands, including the

property located thereon” and “[a]ny person who knowingly

and willfully violates any such regulation which is lawfully

issued pursuant to this Act shall be fined no more than

$1,000 or imprisoned no more than twelve months, or both.”

43 U.S.C. § 1733(a). The Act’s text defines no prohibited

activity and provides no notice of what conduct would

constitute a criminal offense.

This statutory prohibition is as indefinite as it gets. The

Act says nothing about where or when motorists can drive

off-road vehicles on public lands. It doesn’t specify what

conduct could land you in jail. Instead, the public would

need to plumb the depths of the Federal Register to know

what’s off-limits. See 43 C.F.R. § 8341.1(f)(5). This is no

simple task. See Neil Gorsuch & Janie Nitze, Overruled:

The Human Toll of Too Much Law 17 (2024) (explaining

that the Federal Register has expanded from 16 pages in

1936 to over 188,000 pages as of 2021). And it was likely

unelected bureaucrats—and not politically accountable

actors—who wrote those regulations. See id. at 77 (“If laws

governing major facets of our society were once largely the

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work of elected representatives and the product of

democratic compromises, nowadays they often represent

only the current thinking of relatively insulated agency

officials in a distant city.”). So in effect, Congress has said,

“do as the minions of the Secretary of the Interior tell you—

or go to jail.” Such a statute fails to provide the necessary

legislative detail contemplated by the Constitution’s

“Legislative powers.” Because Congress has not exercised

its “strictly and exclusively legislative” authority to define

the offense’s criminal conduct, see Gundy, 588 U.S. at 135

(simplified), Gregory Pheasant’s conviction under the Act is

constitutionally invalid.

Our precedent shows why. Recently, we upheld a

criminal delegation because the statute’s four corners

“penalized a particular type of conduct[.]” United States v.

Melgar-Diaz, 2 F.4th 1263, 1267 (9th Cir. 2021). Congress

made it a crime “to enter the United States unless an alien

presents himself for inspection at an approved time and

place.” Id. Thus, the statute did “not give immigration

officials the power to create crimes,” but allowed discretion

in determining the object of prohibited criminal activity (i.e.,

the location and time of entry). Id. This distinction between

the criminal act (which cannot be delegated) and the

criminal act’s precise object (which can) is reflected in our

Nation’s history and criminal non-delegation precedents.

See, e.g., Yakus v. United States, 321 U.S. 414, 423 (1944)

(upholding a statutory prohibition on selling commodities

above maximum prices, when the type of commodity and

maximum prices were set by wartime administrators).

The Court has expressly left open what “‘intelligible

principle’ is required when Congress authorizes another

Branch to promulgate regulations that contemplate criminal

sanctions.” See Touby v. United States, 500 U.S. 160, 165–

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66 (1991). Based on the text of the Constitution and its

historical understanding, the answer is clear. We should

read the “intelligible principle” requirement in the direction

of our constitutional history and demand that Congress

decide the actus reus before criminalizing conduct. The

Constitution demands no less.

IV.

Given the text and history of the Vesting Clause,

Congress cannot delegate authority to define the actus reus

of a crime to the Executive branch. While some discretion

may be left in the hands of executive officials, Congress

must establish the conduct that subjects the people to a core

deprivation of personal liberty—imprisonment. Because

today we bless a conviction where some unaccountable

bureaucrat rather than the People’s Congress established the

conduct made criminal, I respectfully dissent.

VANDYKE, Circuit Judge, joined by BUMATAY, Circuit

Judge, except as to Part II.C, dissenting from the denial of

rehearing en banc:

Section 303 of the Federal Land Policy and Management

Act (“FLPMA”) grants to the Secretary of the Interior broad

authority to issue regulations “with respect to the

management, use, and protection of the public lands.” 43

U.S.C. § 1733(a). The Secretary can back up those

regulations with hefty criminal penalties—up to one year in

prison and a $1,000 fine. The Secretary used this authority

to create a broad array of regulatory crimes across the

Bureau of Land Management. Gregory Pheasant violated

one such regulation by driving his motorcycle with a broken

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taillight on BLM land. He was indicted for violating that

taillight regulation, and then he successfully moved to

dismiss that indictment. The district court concluded that the

regulations violated the nondelegation doctrine and

dismissed them. The panel reversed, holding that the BLM

regulations did not violate the nondelegation doctrine.

The panel held that congressional delegations of criminal

lawmaking power are to be reviewed under the same

standard as civil delegations. “Even in the criminal context,”

the panel held, “the ‘intelligible principle’ test provides the

controlling legal standard for evaluating non-delegation

challenges.” United States v. Pheasant, 129 F.4th 576, 583

(9th Cir. 2025). The panel was our court’s first to reach that

conclusion. And although the Supreme Court has explicitly

declined to conclude one way or the other whether the

deferential intelligible-principle test applies in the criminal

context, Supreme Court precedent and first principles

suggest that it does not. Given the heightened concerns that

criminal delegations create with respect to the separation of

powers and individual liberty, courts should scrutinize

criminal delegations more closely than they review civil

delegations. By denying rehearing en banc, our court missed

an auspicious opportunity to correct the panel’s erroneous

conclusion otherwise. I respectfully dissent from the denial

of rehearing en banc.

The Bureau of Land Management manages some 245

million acres of land—roughly 10% of all the land in

the United States. See U.S. Dep’t of the Interior,

Bureau of Land Mgmt., What We Manage,

https://www.blm.gov/about/what-we-manage (last visited

Oct. 7, 2025). Most of that land falls within this circuit. Id.

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Roughly two-thirds of Nevada (where this case originated)

falls under BLM’s authority. U.S. Dep’t of the Interior,

Bureau

Land

Mgmt.,

BLM

Nevada,

https://www.blm.gov/nevada (last visited Oct. 7, 2025).

Across this wide swath, Congress has granted the

Secretary of the Interior, acting through BLM, broad

authority to issue any “regulations necessary to implement

the provisions of [FLPMA] with respect to the management,

use, and protection of the public lands.” 43 U.S.C.

§ 1733(a). The Secretary can back up those regulations with

criminal penalties: “any person who knowingly and willfully

violates any such regulation … shall be fined no more than

$1,000 or imprisoned no more than twelve months, or both.”

Id. Under this authority, the BLM has constructed a vast

criminal code regulating the conduct of anyone present on

BLM land with respect to, inter alia, housing policies, traffic

laws, firearms regulations, mining rules, and agricultural

policies.

Over the Memorial Day weekend of 2021, Pheasant rode

his dirt bike on a portion of BLM land known as Moon

Rocks, a few miles north of Reno, Nevada. Because offroaders use Moon Rocks frequently, it is regularly patrolled

by BLM rangers. Pheasant’s dirt bike did not have an

operating rear taillight. By operating his dirt bike without

the traffic light, Pheasant violated BLM’s traffic regulation

in 43 C.F.R. § 8341.1(f)(5), which bans the operation of an

off-road vehicle on BLM land without a taillight. Once

apprehended he was cited (then indicted) for violating

§ 8341.1(f)(5)’s taillight regulation and indicted for assault

on a federal officer and resisting issuance of citation or

arrest.

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Pheasant moved to dismiss the indictment, and the

district court granted his motion. As relevant to this appeal

and the panel’s opinion, the district court found that the two

counts premised on Pheasant’s violation of BLM’s

regulatory crimes were invalid because they relied on an

unconstitutional delegation of authority.

The court

determined that § 1733(a), which delegated the authority to

create the regulations under which Pheasant was charged,

lacked an intelligible principle, rendering it unconstitutional.

The government appealed, challenging the dismissal of

the taillight count on nondelegation grounds. A panel of our

court reversed in a published opinion, holding that § 1733(a)

satisfies the “intelligible principle” test and is therefore a

constitutional delegation of power. The panel noted that the

intelligible-principle test is “an exceedingly modest

limitation.” Pheasant, 129 F.4th at 579 (quoting United

States v. Melgar-Diaz, 2 F.4th 1263, 1266 (9th Cir. 2021)).

The panel therefore determined that it would uphold the

statute so long as it contained “some standard constraining

discretion.” Id. at 580. The panel found such a standard in

the statute’s requirement that any regulations issued be

“necessary to implement the provisions of [FLPMA] with

respect to the management, use, and protection of the public

lands.” Id. (alteration in original) (quoting 43 U.S.C.

§ 1733(a)). Coupled with FLPMA’s instruction to “manage

the public lands under principles of multiple use and

sustained yield,” id. (quoting 43 U.S.C. § 1732(a)), the court

found a “clear principle: The Secretary must develop a

long-term management strategy to realize the land’s value in

a sustainable way,” id.

The panel concluded its opinion by addressing

Pheasant’s argument that the statute requires greater scrutiny

“because it empowers the Secretary to promulgate

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regulations whose violation may be punished by criminal

sanctions.” Id. at 582. Citing various Supreme Court cases,

the panel asserted that the Court has previously upheld such

delegations under the “intelligible principle” test. Id. at 583.

Though it acknowledged the Supreme Court’s statement that

perhaps “something more than an ‘intelligible principle’ is

required when Congress authorizes another Branch to

promulgate regulations that contemplate criminal

sanctions,” id. (quoting Touby v. United States, 500 U.S.

160, 165–66 (1991)), the panel concluded that “[e]ven in the

criminal context, the ‘intelligible principle’ test provides the

controlling legal standard for evaluating non-delegation

challenges,” id.

II.

The Constitution vests “[a]ll legislative Powers [t]herein

granted … in a Congress of the United States.” U.S. Const.

art. I, § 1. “Accompanying that assignment of power to

Congress is a bar on its further delegation.” Gundy v. United

States, 588 U.S. 128, 135 (2019) (plurality opinion).

Moreover, “the principle of separation of powers that

underlies our tripartite system of Government”

independently compels the conclusion that Congress, not

agencies, must make legislative decisions. Mistretta v.

United States, 488 U.S. 361, 371 (1989); see also Gundy,

588 U.S. at 153 (Gorsuch, J., dissenting) (“[I]t would

frustrate the system of government ordained by the

Constitution if Congress could merely announce vague

aspirations and then assign others the responsibility of

adopting legislation to realize its goals.” (internal quotation

marks and footnote omitted)). So there is no doubt that “the

lawmaking function belongs to Congress.” Loving v. United

States, 517 U.S. 748, 758 (1996). No matter the context,

Congress “may not constitutionally delegate its legislative

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power to another” constitutional actor. Touby, 500 U.S. at

165.

Still, “[t]he Constitution has never been regarded as

denying to the Congress the necessary resources of

flexibility and practicality, which will enable it to perform

its function.” Panama Refin. Co. v. Ryan, 293 U.S. 388, 421

(1935). So the Supreme Court has made clear that

delegations are constitutional so long as Congress “lay[s]

down by legislative act an intelligible principle to which the

person or body authorized to exercise the delegated authority

is directed to conform.” Mistretta, 488 U.S. at 372

(alteration marks omitted) (quoting J.W. Hampton, Jr., &

Co. v. United States, 276 U.S. 394, 409 (1928)).

Here, the panel misread Supreme Court and circuit

precedent to support its conclusion that criminal delegations

are subject only to the “intelligible principle” test for

reviewing nondelegation challenges. Far from supporting

the panel’s conclusion, precedent in fact cuts the other

way—confirming that courts must apply a stricter test when

assessing criminal delegations. And FLPMA’s criminal

delegation to the Secretary runs afoul of this stricter test.

The panel held, for the first time in this circuit, that the

intelligible-principle test—and only that test—applies to

congressional delegations of criminal lawmaking authority.

See Pheasant, 129 F.4th at 583. The panel found support for

this conclusion in both Supreme Court and circuit precedent.

See id. Neither offers the support that the panel claimed to

find.

At best, precedent has simply left open the

criminal-delegation question.

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Supreme Court precedent first. The panel described

United States v. Grimaud, 220 U.S. 506 (1911), as an

example of the Supreme Court’s “routine[] appli[cation of]

the ‘intelligible principle’ test even” to statutes that

“authorize[] regulations backed by criminal penalties.”

Pheasant, 129 F.4th at 583. That can’t be. Grimaud was

decided in 1911, a decade and a half before the

intelligible-principle test came to the fore in J.W. Hampton,

276 U.S. at 409. So that case is certainly not an example of

the Supreme Court’s applying the intelligible-principle test

to a criminal delegation.

If anything, Grimaud is an example in which the

Supreme Court applied a standard higher than the

intelligible-principle test to evaluate the legality of a

delegation enforced by a criminal penalty. There, the statute

authorized the Secretary of Agriculture to “regulat[e] the use

and occupancy of the public forest reservations and

preserv[e] the forests thereon from destruction,” and to

enforce those regulations with criminal penalties. Grimaud,

220 U.S. at 509. The Court reasoned that this delegation was

permissible because it only included the “power to fill up the

details”—that is, the power to “administer the law and carry

the statute into effect.” Id. at 517–18. 1 Given this focus, the

Grimaud Court effectively applied a higher standard for

assessing congressional delegation. See, e.g., Gundy, 588

U.S. at 157–58 & n.38 (Gorsuch, J., dissenting) (describing

Grimaud as consistent with a higher nondelegation

standard).

The Court has similarly upheld criminal delegations in other instances

providing adequate limitations on the executive’s actions pursuant to the

delegation. See, e.g., Loving, 517 U.S. at 771–72; Yakus v. United States,

321 U.S. 414, 424–25 (1944).

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But you needn’t take my word for it that Grimaud

doesn’t settle the criminal-delegation question. Even when

upholding delegations backed by criminal penalties after

Grimaud, the Supreme Court itself has acknowledged that

“whether more specific guidance is in fact required” when

Congress “authorizes another Branch to promulgate

regulations that contemplate criminal sanctions” remains an

open question. Touby, 500 U.S. at 165–66. 2 Thus, the

Supreme Court itself has said it hasn’t provided any

definitive conclusion as to whether criminal delegations

require greater congressional guidance, but rather that it has

explicitly left this question open for resolution in later cases.

Grimaud neither compels nor supports the panel majority’s

conclusion in this case.

Nor have the circuit courts, including ours (until now),

definitively decided this question. For a half century, when

our court has been presented with the criminal-delegation

question, we have declined to conclusively resolve it. See

United States v. Gurrola-Garcia, 547 F.2d 1075, 1079 & n.6

(9th Cir. 1976) (concluding that “Congress may

constitutionally provide a criminal sanction for the violation

of regulations which it has empowered the President or an

agency to promulgate,” but also explaining that “if we were

to apply Justice Brennan’s [heightened standard] we would

reach the same result” (citing United States v. Robel, 389

U.S. 258, 272 (1967) (Brennan, J., concurring in the

result))); United States v. Motamedi, No. 20-10364, 2022

Contrast the Court’s treatment of the criminal-delegation question

(which it has explicitly avoided answering) with its treatment of

delegations concerning the taxation power. In the context of tax

delegations, the Court has made explicit that the intelligible-principle

standard applies. See Skinner v. Mid.-Am. Pipeline Co., 490 U.S. 212,

223 (1989).

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WL 101951, at *2 (9th Cir. Jan. 11, 2022). Recently, in

Melgar-Diaz, our court considered a nondelegation

challenge to a statute that made it a crime to “enter[] or

attempt[] to enter the United States at any time or place other

than as designated by immigration officers.” 2 F.4th at 1266

(quoting 8 U.S.C. § 1325(a)(1)). That statute passed muster

because it did “not give immigration officials the power to

create crimes.” Id. at 1267. Rather, Congress “penalized a

particular type of conduct”—unlawfully entering the United

States—and provided the executive no more than a

“ministerial authority” of “determining [approved] times

and places.” Id. So our court concluded that the delegation

at issue did “provide[] an intelligible principle.” Id. at 1269.

And we further reasoned that the criminal delegation in

Melgar-Diaz “present[ed] even fewer nondelegation

concerns than [the criminal delegation in] Touby.” Id. at

1268. Thus, like Touby, Melgar-Diaz simply assumed that

a higher standard may apply to criminal delegations and

declined to resolve that question. Id. So until the panel’s

opinion in this case, our court has consistently applied both

the “intelligible principle” test and a heightened standard to

nondelegation challenges to criminal delegations.

Other circuits have taken a similar approach. They have

frequently evaluated delegations of criminal lawmaking

power under both the intelligible-principle test and a stricter

test without endorsing one or the other. See, e.g., Cargill v.

Garland, 57 F.4th 447, 472 (5th Cir. 2023) (en banc)

(plurality opinion), aff’d, 602 U.S. 406 (2024); United States

v. Cooper, 750 F.3d 263, 271 (3d Cir. 2014); United States

v. Amirnazmi, 645 F.3d 564, 576–77 (3d Cir. 2011); United

States v. Dhafir, 461 F.3d 211, 216–17 (2d Cir. 2006);

United States v. Arch Trading Co., 987 F.2d 1087, 1093–94

(4th Cir. 1993). In rare cases, circuit courts have applied

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only the intelligible-principle test—but even then, they have

declined to conclusively state that it is the controlling legal

standard, recognizing that the Supreme Court has suggested

that a higher standard may be appropriate. See Cooper, 750

F.3d at 271 (“In Amirnazmi, we did not resolve ‘the unsettled

question of whether something more demanding than an

“intelligible principle” is necessitated within the context of

delegating authority to define criminal conduct.’ We

likewise decline to do so here.” (citation omitted)); United

States v. Nichols, 775 F.3d 1225, 1232 (10th Cir. 2014)

(“[T]he Supreme Court left open the question whether a

heightened ‘meaningfully constrains’ standard applies to

Congress’s delegation of authority involving statutes with

criminal implications.”), rev’d on other grounds, 578 U.S.

104 (2016).

Whether congressional delegations backed by criminal

penalties are reviewed under the same standard as those

backed by civil enforcement is an important question. And

I concede that it is not an easy question. As scholars have

noted, “the Court’s decisions on criminal delegations are

confused and conflicting.” F. Andrew Hessick & Carissa

Byrne Hessick, Nondelegation and Criminal Law, 107 Va.

L. Rev. 281, 295 (2021). Yet even while the courts have

refrained from answering this question conclusively, there is

no shortage of judges who have described the serious

constitutional concerns that arise from Congress’s

delegations to the executive in the context of criminal

statutes. See, e.g., Cargill, 57 F.4th at 472; Aposhian v.

Wilkinson, 989 F.3d 890, 900 (10th Cir. 2021) (Tymkovich,

C.J., dissenting); United States v. Nichols, 784 F.3d 666,

672–73 (10th Cir. 2015) (Gorsuch, J., dissenting from the

denial of rehearing en banc); Carter v. Welles-Bowen Realty,

Inc., 736 F.3d 722, 734 (6th Cir. 2013) (Sutton, J.,

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concurring). Nor have individual Justices been silent on this

issue. See Robel, 389 U.S. at 272–73 (Brennan, J.,

concurring in the result); Barenblatt v. United States, 360

U.S. 109, 140 n.7 (1959) (Black, J., dissenting).

The Supreme Court has found occasion to avoid

answering this question, as have the other circuit courts. But

this case makes the question unavoidable because the

criminal delegation at issue here does not survive the more

exacting scrutiny due criminal delegations. And given the

important separation-of-powers and individual-liberty

interests at stake, our court should have taken the

opportunity to correct the panel’s decision en banc. Criminal

delegations require a heightened standard.

Our en banc court should have considered the question

left open by longstanding Supreme Court precedent. The

panel’s conclusion that criminal delegations are not held to

a higher standard undermines the principles underlying the

nondelegation doctrine—separation of powers and

protection of individual liberty. Moreover, it contradicts the

Supreme Court’s commonsense idea that the degree of

congressional guidance must be commensurate with the

scope of the delegation. Holding criminal delegations to a

higher standard than civil delegations is also consistent with

the way courts treat other constitutional and

quasi-constitutional doctrines regarding criminal-law

impositions upon individual freedom. So courts should

scrutinize criminal delegations to a greater degree than civil

delegations.

The basis for scrutinizing criminal delegations more

rigorously than civil delegations is simple: laws defining

criminal conduct “represent the ultimate intrusions on

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personal liberty and carry with them the stigma of the

community’s collective condemnation.” Nichols, 784 F.3d

at 672–73 (Gorsuch, J., dissenting from the denial of

rehearing en banc). It was for that reason that the Founders

exercised caution to separate the criminal enforcement

power from the lawmaking power. See Rachel E. Barkow,

Separation of Powers and the Criminal Law, 58 Stan. L.

Rev. 989, 1017, 1031 (2006); see also The Federalist No. 47

(Madison) (“The accumulation of all powers … in the same

hands … may justly be pronounced the very definition of

tyranny.”). Thus, as the Supreme Court has explained since

its earliest days, “[t]he legislative authority of the Union

must first make an act a crime,” and “affix a punishment to

it.” United States v. Hudson & Goodwin, 11 U.S. (7 Cranch)

32, 34 (1812). Congress must “define a crime, and ordain

its punishment.” United States v. Wiltberger, 18 U.S. (5

Wheat.) 76, 95 (1820). When Congress simply sets a

punishment, as it did in 43 U.S.C. § 1733(a), without

defining the specific conduct that warrants that punishment,

Congress fails to comply with that central ideal of the

separation of powers. See James Madison, Report on the

Virginia Resolution, in 4 The Debates in the Several State

Conventions on the Adoption of the Federal Constitution

546, 560 (Jonathan Elliot ed., 2d ed. 1836) (“Details, to a

certain degree, are essential to the nature and character of a

law; and on criminal subjects, it is proper that details should

leave as little as possible to the discretion of those who are

to apply and execute the law.”).

Congress may not transfer to others “powers which are

strictly and exclusively legislative”—such as the power to

write criminal laws. Wayman v. Southard, 23 U.S. (10

Wheat.) 1, 42 (1825); see also A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495, 529 (1935) (“Congress

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is not permitted to abdicate or to transfer to others the

essential legislative functions with which it is thus vested.”).

“[E]nacting criminal statutes is a core congressional

function, because the alternative (delegating legislative

power to the executive branch) has an untenable result—

placing the lawmaking and the law-enforcing in a single

branch of government.” Mark Chenoweth & Richard Samp,

Reinvigorating Nondelegation with Core Legislative Power,

in The Administrative State Before the Supreme Court 97

(Peter J. Wallison & John Yoo eds., 2022).

The panel incorrectly concluded otherwise. It reasoned

that “a power does not become more legislative simply

because its exerciser can issue rules backed by criminal

penalties.” Pheasant, 129 F.4th at 583. Not true.

“[B]ecause of the seriousness of criminal penalties, and

because criminal punishment usually represents the moral

condemnation of the community, legislatures … should

define criminal activity.” United States v. Bass, 404 U.S.

336, 348 (1971); see also Gundy, 588 U.S. at 154 (Gorsuch,

J., dissenting); Hessick & Hessick, supra at 300. That is why

“[t]he definition of the elements of a criminal offense is

entrusted to the legislature, particularly in the case of federal

crimes, which are solely creatures of statute.” Liparota v.

United States, 471 U.S. 419, 424 (1985). Contrary to the

panel’s conclusion otherwise, criminal lawmaking is an

especially legislative matter.

Requiring a higher standard for delegations in the

criminal context is also not a novel idea. Rather, it is the

logical extension of the general idea that “the degree of

agency discretion that is acceptable varies according to the

scope of the power congressionally conferred.”

Melgar-Diaz, 2 F.4th at 1267 (quoting Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 475 (2001)). That is, “[l]aws

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that vest more power require more constraints.” Allstates

Refractory Contractors, LLC v. Su, 79 F.4th 755, 776 (6th

Cir. 2023) (Nalbandian, J., dissenting). There is no greater

power than the power to punish criminally. See Brenner M.

Fissell, When Agencies Make Criminal Law, 10 U.C. Irvine

L. Rev. 855, 880 (2020) (“[T]he uniquely harsh sanctions

that result from criminal law violations makes delegation of

criminalization a matter of special concern ….”);

Chenoweth & Samp, supra at 102. Because the power to

impose harsh criminal sanctions is so great, Congress must

provide a comparably greater degree of guidance.

It is particularly noteworthy that the only two cases in

which the Supreme Court has ever found an impermissible

delegation were in cases that presented criminal delegations.

In Fahey v. Mallonee, the Court reasoned that the statutes at

issue in Schechter Poultry and Panama Refining were found

to have violated the nondelegation doctrine because each

“dealt with delegation of a power to make federal crimes of

acts that never had been such before.” 332 U.S. 245, 249

(1947). And even when the Court has upheld other criminal

delegations it has nonetheless “suggested that ‘greater

congressional specificity [may be] required in the criminal

context.’” Carter, 736 F.3d at 734 (Sutton, J., concurring)

(quoting Touby, 500 U.S. at 166); see also Nichols, 784 F.3d

at 672 (Gorsuch, J., dissenting from the denial of rehearing

en banc) (collecting cases). The Court has suggested that

these delegations might require more “meaningful[]”

guidance than a mere “intelligible principle.” Touby, 500

U.S. at 166; Fahey, 332 U.S. at 249–50; see also, e.g., Robel,

389 U.S. at 272–73 (Brennan, J., concurring); Barenblatt,

360 U.S. at 140 n.7 (Black, J., dissenting). Thus, while the

nondelegation doctrine has only ever had “one good year” at

the Supreme Court, Cass R. Sunstein, Nondelegation

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Canons, 67 U. Chi. L. Rev. 315, 322 (2000), that was the

year in which the Court was presented with rampant

delegations backed by criminal penalties.

Requiring greater specificity with respect to criminal

delegations is also consistent with other doctrines that

require greater clarity in the criminal context. See Hessick

& Hessick, supra at 301–05.

For example, the

void-for-vagueness doctrine demands greater specificity in

criminal laws. See Sessions v. Dimaya, 584 U.S. 148, 156

(2018). The Court has “expressed greater tolerance of

enactments with civil rather than criminal penalties because

the consequences of imprecision are qualitatively less

severe.” Vill. of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 498–99 (1982). So too with the

centuries-old prohibition on federal common-law crimes,

even while federal common law remains commonplace in

the civil context. See Hudson & Goodwin, 11 U.S. (7

Cranch) at 34. The quasi-constitutional doctrine of lenity

also lends support with its standard conception that

“ambiguity concerning the ambit of criminal statutes should

be resolved in favor of lenity.” Skilling v. United States, 561

U.S. 358, 410 (2010) (quoting Cleveland v. United States,

531 U.S. 12, 25 (2000)). Criminal delegations should not be

the glaring exception amidst these constitutional and

quasi-constitutional doctrines properly limiting Congress’s

ability to impose criminal penalties based upon open-ended

statutes.

In sum, Supreme Court precedent, the principles

underlying the nondelegation doctrine, and the Supreme

Court’s treatment of corollary criminal-law doctrines all

suggest a higher standard when reviewing criminal

delegations.

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So criminal delegations should be subject to a stricter test

than non-criminal delegations. But what might this stricter

test require? Touby lays out one option. See 500 U.S. at 166.

There, the Court noted three factors that justified the

Controlled Substances Act’s delegation of the power to

schedule a drug as a controlled substance. Id. at 166–67.

First, Congress required that before scheduling a drug as a

controlled substance, the executive must first determine it to

be an “imminent hazard” to public safety. Id. at 166.

Second, the executive was required to weigh the history,

current state, scope, duration, and significance of the drug’s

abuse to determine what risk it presents to the public health.

Id. And finally, the executive, after making a factual finding

that the drug “has a high potential for abuse,” has no medical

use, and is not safe under medical supervision, could list the

drug as a controlled substance. Id. at 167.

From the Court’s analysis flows a three-pronged

“meaningful constraint” test. See Nichols, 784 F.3d at 673–

74 (Gorsuch, J., dissenting from the denial of rehearing en

banc). First, Congress must draw a clear and generally

applicable rule—in the case of the Controlled Substances

Act, the statutory requirement that no unauthorized person

may possess a controlled substance. Touby, 500 U.S. at 166–

67. S

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