Amicus Curiae Brief — Gregory W. Pheasant, Petitioner v. United States

No. 25-6911

───────────────────────────

In the

Supreme Court of the United States

──────────────────────────

GREGORY W. PHEASANT,

Petitioner,

v.

UNITED STATES,

Respondent.

──────────────────────────

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

──────────────────────────

AMICUS CURIAE BRIEF OF

THE BUCKEYE INSTITUTE

IN SUPPORT OF PETITIONER

──────────────────────────

David C. Tryon

Counsel of Record

Alex M. Certo

THE BUCKEYE INSTITUTE

88 East Broad Street, Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

i

QUESTION PRESENTED

Whether § 1733(a) violates the nondelegation

doctrine by giving the Executive near-unfettered

power to define what conduct is subject to criminal

punishment?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................ i

TABLE OF AUTHORITIES........................................ iii

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ................................................................. 1

ARGUMENT ................................................................. 3

I. The nondelegation doctrine plays an

important role in determining what powers

have—and can be—delegated .............................. 3

II. Congress should not be “liberated” from the

lawmaking process simply because it is easier

for an agency to make a policy determination ... 7

A. The

Constitution’s

structure

and

protections require a strengthened

nondelegation doctrine for criminal laws ... 12

B. Individuals face grave consequences from

overcriminalization caused by executive

agencies .......................................................... 16

III. History illustrates that the Framers

understood the distinction between filling up

the details and lawmaking ................................ 19

CONCLUSION ............................................................ 23

iii

TABLE OF AUTHORITIES

Cases

Biden v. Nebraska,

600 U.S. 477 (2023) ................................................... 4

Buckley v. Valeo,

424 U.S. 1 (1976)........................................................ 4

Buffington v. McDonough,

143 S. Ct. 14 (2022) ................................................. 17

Caring Hearts Pers. Home Servs., Inc. v. Burwell,

824 F.3d 968 (10th Cir. 2016) ................................... 5

Carter v. Welles-Bowen Realty, Inc.,

736 F.3d 722 (6th Cir. 2013) ................................... 15

City of Arlington Tex. v. FCC,

569 U.S. 290 (2013) ................................................. 16

City of Los Angeles, Calif. v. Patel,

576 U.S. 409 (2015) ................................................. 12

Crandon v. United States,

494 U.S. 152 (1990) ................................................. 18

Dep’t of Transp. v. Ass’n of Am. Railroads,

575 U.S. 43 (2015)...................................................... 7

Gun Owners of Am., Inc. v. Garland,

19 F.4th 890 (6th Cir. 2021) ............................. 14, 19

Gun Owners of Am., Inc. v. Garland,

992 F.3d 446 (6th Cir. 2021) ................................... 14

Gundy v. United States,

588 U.S. 128 (2019) ............................................... 4, 6

INS v. Chadha,

462 U.S. 919 (1983) ............................................... 5, 6

iv

Johnson v. United States,

576 U.S. 591 (2015) ........................................... 13, 14

Kolender v. Lawson,

461 U.S. 352 (1983) ........................................... 12, 13

M. Kraus & Bros., Inc. v. United States,

327 U.S. 614 (1946) ................................................. 19

McKeiver v. Pennsylvania,

403 U.S. 528 (1971) ................................................. 18

Myers v. United States,

272 U.S. 52 (1926)...................................................... 2

Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005)....................... 19

Sessions v. Dimaya,

584 U.S. 148 (2018) ................................................... 4

Smith v. Goguen,

415 U.S. 566 (1974) ................................................. 13

United States v. Davis,

588 U.S. 445 (2019) ................................................. 14

United States v. Reese,

92 U.S. 214 (1875).................................................... 13

United States v. Sharp,

27 F.Cas. 1041 (C.C.Pa. 1815) ................................ 14

United States v. Valdovinos,

760 F.3d 322 (4th Cir. 2014) ................................... 17

United States v. Ward,

448 U.S. 242 (1980) ................................................. 12

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ..................................... 4

v

West Virginia v. EPA,

597 U.S. 697 (2022) ................................................. 18

Whitman v. United States,

574 U.S. 1003 (2014) ............................................... 15

Statutes

5 U.S.C. § 551(4)............................................................ 5

18 U.S.C. § 1853 ............................................................ 9

18 U.S.C. § 1864 .......................................................... 10

26 U.S.C. § 170 .............................................................. 8

42 U.S.C. § 12181 .......................................................... 8

42 U.S.C. § 12182 .......................................................... 8

42 U.S.C. § 415 .............................................................. 9

42 U.S.C. § 423 .............................................................. 9

43 U.S.C. § 1733(a) ..................................................... 23

An Act Concerning Aliens, 1 Stat. 570 (1798) .......... 20

Violent Crime Control and Law Enforcement Act

of 1994, Pub. L. No. 103-322, 108 Stat. 1796

(1994) .......................................................................... 9

Other Authorities

1 William Blackstone, Commentaries on the

Laws of England (1765) .......................................... 14

8 Annals of Cong. 1963 (1798) ................................... 22

Aditya Bamzai, Delegation and Interpretive

Discretion: Gundy, Kisor, and the Formation

and Future of Administrative Law, 133 Harv.

L. Rev. 164 (2019) ...................................................... 2

vi

Brief of American Bar Association as Amicus

Curiae, INS v. Chadha, 462 U.S. 919 (1983)

(Nos. 80-1832, 80-2170, 80-2171), 1982 U.S. S.

Ct. Briefs LEXIS 1633 ......................................... 6, 11

Cass R. Sunstein, Nondelegation Canons, 67 U.

Chi. L. Rev. 315 (2000) ............................................ 11

Charles G. Koch & Mark V. Holden, The

Overcriminalizaton of America, Politico

Magazine (Jan. 7, 2015),

https://tinyurl.com/2s3jvmjb ................................... 17

Colleen Walsh, Challenging the Constitution,

Harvard Gazette (Sept. 18, 2009),

https://tinyurl.com/4npbwnyp .................................. 7

Daniel E. Walters, Decoding Nondelegation

After Gundy: What the Experience in State

Courts Tells Us About What to Expect When

We’re Expecting, 71 Emory L.J. 417 (2022) ......... 2, 4

Francis A. Allen, The Morality of Means: Three

Problems in Criminal Sanctions, 42 U. Pitt. L.

Rev. 737 (1981)......................................................... 16

Gary Lawson, Delegation and Original

Meaning, 88 Va. L. Rev. 327 (2002) ....................... 23

Ilan Wurman, Nondelegation at the Founding,

130 Yale L.J. 1490 (2021)............................ 19, 22, 23

Jacob Loshin & Aaron Nielson, Hiding

Nondelegation in Mouseholes, 62 Admin. L.

Rev. 19 (2010)........................................................... 11

vii

James Copland & Rafael Mangual, Let’s End

Criminalization Without Representation,

Manhattan Institute (Jan. 14, 2017),

https://tinyurl.com/2tzvefa4 .................................... 17

James Copland & Rafael Mangual,

Overcriminalizing America, Manhattan

Institute, https://tinyurl.com/rxcdw2w7 (last

visited Mar. 20, 2026) ........................................ 17, 18

James Madison, The Report of 1800 (Jan. 7,

1800), reprinted by Nat’l Archives: Founders

Online, https://tinyurl.com/bdf3fz43 ................ 21, 22

John F. Manning, Lawmaking Made Easy, 10

Green Bag 2d 191 (2007)........................................... 7

John Locke, Second Treatise of Civil

Government (J. Gough ed. 1947) .............................. 7

John Locke, Second Treatise of Government

(C.B. Macpherson ed., 1980) ..................................... 2

Letter From Thomas Jefferson to James

Madison (May 31, 1798), reprinted by Nat’l

Archives: Founders Online,

https://tinyurl.com/48nzt9ud .................................. 20

Paul J. Larkin, Jr, Public Choice Theory and

Overcriminalization, 36 Harv. J.L. & Pub.

Pol’y 715 (2013) .................................................. 16, 17

Paul J. Larkin, Jr., Chevron and Federal

Criminal Law, 32 J.L. & Pol. 211 (2017)............... 15

Ronald A. Cass, Rulemaking Then and Now:

From Management to Lawmaking, 28 Geo.

Mason L. Rev. 683 (2021)........................................ 18

viii

The Federalist No. 47 (James Madison) (Fall

River Press ed. 2021) ................................................. 5

Tim Lynch, Cato Institute, Cato Handbook for

Policymakers (8th ed. 2017) .................................... 17

Constitutional Provisions

U.S. Const. art. I, § 1 .................................................... 1

U.S. Const. art. I, § 9, cl. 2 ......................................... 12

U.S. Const. art. I, § 9, cl. 3 ......................................... 12

U.S. Const. art. III, § 2 ............................................... 12

1

INTEREST OF AMICUS CURIAE1

The Buckeye Institute was founded in 1989 as an

independent research and educational institution—a

think tank—to formulate and promote free-market

policy in the states. The Buckeye Institute

accomplishes its mission by performing timely and

reliable research on key issues, compiling and

synthesizing data, formulating free-market policies,

and

marketing

those

policy

solutions

for

implementation in Ohio and replication across the

country. The Buckeye Institute also files lawsuits and

submits amicus briefs to fulfill its mission. The

Buckeye Institute is a nonpartisan, nonprofit, taxexempt organization, as defined by I.R.C. section

501(c)(3).

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Supreme power resides solely in the people. The

Constitution separates and vests the legislative,

executive, and judicial powers in their respective

branches to ensure a government that is both

responsive and effective.

In Article I, the people granted “legislative Powers”

to the federal government and “vested [them] in a

Congress of the United States, which shall consist of a

Senate and House of Representatives.” U.S. Const.

art. I, § 1 (emphasis added). Article I’s additional

1 Pursuant to Supreme Court Rule 37.6, no counsel for any party

authored this brief in whole or in part and no entity or person,

aside from amicus curiae made any monetary contribution toward

the preparation or submission of this brief. Counsel timely

provided the notice required by Rule 37.2.

2

separation of powers “forces Congress to exercise those

‘Powers’ through an elaborate process of enacting the

same legal text in two legislative chambers and

presenting the passed bill to the President for

approval.” Aditya Bamzai, Delegation and Interpretive

Discretion: Gundy, Kisor, and the Formation and

Future of Administrative Law, 133 Harv. L. Rev. 164,

164 (2019).

The Convention of 1787 adopted the doctrine of

separation of powers between the three branches “not

to promote efficiency but to preclude the exercise of

arbitrary power.” Myers v. United States, 272 U.S. 52,

293 (1926) (Brandeis, J., dissenting). To protect the

separation of powers, the nondelegation doctrine, as

traditionally understood, prohibits the transfer of

“quintessentially legislative powers—the power to

make laws—to actors outside the legislative branch.”

Daniel E. Walters, Decoding Nondelegation After

Gundy: What the Experience in State Courts Tells Us

About What to Expect When We’re Expecting, 71 Emory

L.J. 417, 424 (2022). For “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 75 (C.B. Macpherson ed., 1980). When

Congress allows agencies to create rules and

regulations with the effect of laws, Congress has

abdicated the lawmaking function.

Protecting against broad delegation is especially

important in the criminal context. When the two

powers of crime definition and crime prosecution are

combined in one branch, the structural protection of

individual liberty is undermined at its core. The

Constitution is designed to guarantee that before an

3

individual is subjected to a criminal prosecution, two

separate judgments will have been made. First, that

particular conduct—not conduct to be later defined—

should be criminalized. Second, that the individual

deserves prosecution for a violation of the law. That

guarantee is eliminated when the prosecutor is given

the power to make both judgments.

Some legislators and courts seem to treat the

intelligent principle doctrine as permission to delegate

rather than a restriction on delegation. But that is

backwards. The Court should recognize that the

nondelegation doctrine restricts delegation and

applies with more force in the criminal context.

ARGUMENT

I. The nondelegation doctrine plays an

important role in determining what powers

have—and can be—delegated.

When assessing laws that allegedly grant

authority to the executive branch, three fundamental

questions must be answered: (1) Does Congress

possess constitutional authority to regulate the

matter in question? (2) Did Congress delegate

regulatory authority to another branch? (3) Is

Congress permitted to delegate this authority to

another branch?

The answer to the first question naturally depends

on an examination of the powers granted to Congress

in Article I and elsewhere in the Constitution.

For the second, the Court must analyze the

statute’s language. If the language suggests a broad

delegation of authority, the Court applies the major

4

questions doctrine and examines “the closely related

domain of review for unconstitutional vagueness,”

Walters, supra, at 432 (citing Sessions v. Dimaya, 584

U.S. 148, 216 (2018) (Thomas, J., concurring)). This

approach is taken because “in a system of separated

powers, a reasonably informed interpreter would

expect Congress to legislate on ‘important subjects’

while delegating away only ‘the details.’” Biden v.

Nebraska, 600 U.S. 477, 515 (2023) (Barrett, J.,

concurring) (quoting Wayman v. Southard, 23 U.S. (10

Wheat.) 1, 43 (1825)). The Court applies the major

questions doctrine “in service of the constitutional

rule” that answers the third question: “Congress may

not divest itself of its legislative power by transferring

that power to an executive agency.” Gundy v. United

States, 588 U.S. 128, 167 (2019) (Gorsuch, J.,

dissenting).

As one scholar noted,

[t]he nondelegation doctrine reflects deep

and unresolved ambiguities about the

extent to which the U.S. Constitution

requires that the three branches of

government be hermetically sealed off

from one another, subject to certain

explicit exceptions where the framers

chose to subject the exercise of one power

to the checks of a coordinate branch of

government.

Walters, supra, at 424. While the Framers understood

that a complete hermetic seal would not allow the

nation to thrive, Buckley v. Valeo, 424 U.S. 1, 120–121

(1976), certain limits and precautions against the

“accumulation of all powers, legislative, executive, and

5

judiciary, in the same hands,” The Federalist No. 47,

at 273 (James Madison) (Fall River Press ed. 2021),

had to be instituted.

The separation of powers is much like an airlock,

and the nondelegation doctrine acts like the doors.

Before passing contents (powers) from one side (the

legislature) to the other (the executive), the former

side must complete certain tasks like decompression

(lawmaking). If those tasks are not completed before

opening the doors, the system fails.

“For some time, the sheer amount of law—the

substantive rules that regulate private conduct and

direct the operation of government—made by

[executive] agencies has far outnumbered the

lawmaking engaged in by Congress through the

traditional process.” INS v. Chadha, 462 U.S. 919, 985

(1983) (White, J., dissenting). “The number of formal

rules these agencies have issued thanks to their

delegated legislative authority has grown so

exuberantly it’s hard to keep up.” Caring Hearts Pers.

Home Servs., Inc. v. Burwell, 824 F.3d 968, 969 (10th

Cir. 2016) (Gorsuch, J.). “There is no question but that

agency rulemaking is lawmaking in any functional or

realistic sense of the term. The Administrative

Procedure Act, 5 U.S.C. § 551(4) provides that a ‘rule’

is an agency statement ‘designed to implement,

interpret, or prescribe law or policy.’” Chadha, 462

U.S. at 986 (White, J., dissenting) (emphasis added);

see also id. at 989 (White, J., dissenting) (noting that

the Court agrees that agency rulemaking resembles

legislation, the Court has described agency

rulemaking as “‘quasi-legislative’ in character,” and

that “[s]uch rules and adjudications by the agencies

6

meet the Court’s own definition of legislative action”).

These regulations “may pre-empt state law and grant

rights to and impose obligations on the public. In sum,

they have the force of law.” Id. at 986 (White, J.,

dissenting) (citations omitted).

The broken valve of the intelligible principle test

has allowed nearly every incomplete law to slip past

the seal between Article I lawmaking powers and

Article II enforcement powers. It has simply failed to

stop impermissible delegations. See, e.g., Gundy, 588

U.S. at 146 (Gorsuch, J., dissenting) (noting that the

Court has rarely found an impermissible delegation);

Chadha, 462 U.S. at 985 (White, J., dissenting) (“In

practice, [ ] restrictions on the scope of the power that

could be delegated diminished and all but

disappeared.”). The intelligible principle test “serves

to encourage broader and vaguer delegations by the

implicit promise (which, as a practical matter, can

rarely be redeemed) that actions pursuant to those

delegations will be scrutinized by Congress; and its

major effect is augmentation of the power of”

Congress, see Brief of American Bar Association as

Amicus Curiae, INS v. Chadha, 462 U.S. 919 (1983)

(Nos. 80-1832, 80-2170, 80-2171), 1982 U.S. S. Ct.

Briefs LEXIS 1633, at *46 (Antonin Scalia as cocounsel).

7

II. Congress should not be “liberated” from the

lawmaking process simply because it is

easier for an agency to make a policy

determination.

The filling-up-the-details exception to the

nondelegation doctrine—and to a greater extent the

intelligible principle test—are premised on the notion

that Congress cannot do it all, and we must liberate it

from some of its responsibilities. See John F. Manning,

Lawmaking Made Easy, 10 Green Bag 2d 191, 193

(2007). But this is no excuse for sloppy or incomplete

lawmaking. Indeed, “[e]ven the quickest look at the

constitutional structure reveals that the design of

bicameralism and presentment disfavors easygoing,

high volume lawmaking.” Id. at 198. “The very point

of the structural element of the Constitution is to

make some things difficult.” Colleen Walsh,

Challenging the Constitution, Harvard Gazette (Sept.

18, 2009), https://tinyurl.com/4npbwnyp (quoting

Justice Souter). As Locke recognized, the large and

slow nature of a legislative body is a benefit for

lawmaking because “the creation of rules of private

conduct should be an irregular and infrequent

occurrence. The Framers, it appears, were inclined to

agree.” Dep’t of Transp. v. Ass’n of Am. Railroads, 575

U.S. 43, 86 (2015) (Thomas, J., concurring in the

judgment) (citing John Locke, Second Treatise of Civil

Government 72, 80 (J. Gough ed. 1947)).

While it may be more efficient for administrative

agencies to handle certain administrative details, the

fundamental task of lawmaking is better left to—and

constitutionally remains with—Congress.

8

The “regulations” outlined in the Code of Federal

Regulations—setting out standards supposedly

derived from Congress’s broad policy statements—

demonstrate that lawmakers can draft precise laws. If

Congress does not draft and pass legislation as specific

as the federal agencies, it is likely due to a lack of

political will. If such political will is lacking, this

indicates that the Constitution’s structure is

functioning as intended.

And Congress has shown that it can legislate with

great detail and precision when it has the political will

to do so. Just a few examples:

•

The Internal Revenue Code is highly detailed,

specifying tax rates, deductions, credits,

penalties, and reporting requirements. Indeed,

it even details the rules for charitable

contribution deductions, including percentage

limits, record-keeping requirements, and

restrictions on certain types of donations. 26

U.S.C. § 170. Congress delegated only the detail

of prescribing regulations to verify the

charitable contribution. 26 U.S.C. § 170(a)(1).

•

The Americans with Disabilities Act (ADA)

includes detailed provisions on accessibility,

employment

discrimination,

public

accommodations,

and

enforcement

mechanisms. See, e.g., 42 U.S.C. § 12182. The

ADA defines “public accommodations” and

specifies the types of businesses covered under

the ADA. Id.

9

•

The Social Security Act governs Social Security

benefits and includes detailed requirements

and benefit formulas. See, e.g., 42 U.S.C. § 415.

It even sets forth the criteria for disability

benefits, including medical conditions and work

history requirements. 42 U.S.C. § 423.

•

The Public Safety and Recreational Firearms

Use Protection Act, enacted in 1994 and

sunsetting in 2004, provided very specific

descriptions of characteristics of banned

firearms and included a long list of specific

firearms, leaving few details to any agency.

Violent Crime Control and Law Enforcement

Act of 1994, Pub. L. No. 103-322, §§ 110101–

110105, 108 Stat. 1796, 1996–2010 (1994).

Title 18—while not always perfect—exemplifies

Congress’s ability to write precise criminal laws as

well. In fact, Congress had no issue providing detailed

criminal laws related to public lands:

•

In Title 18, Congress declared it a crime,

punishable by a fine and imprisonment, for

anyone to “wantonly injure[ ] or destroy[ ] any

tree growing, standing, or being upon any land

of the United States which, in pursuance of law,

has been reserved or purchased by the United

States for any public use . . . .” 18 U.S.C. § 1853.

The law clearly demarks the actual conduct

that is criminal, leaving nothing for an agency

to decide.

10

•

Title 18 also punishes the use of “a hazardous

or injurious device on Federal land” when the

individual acts with a specified mental state

and causes specified injury or damage.

18 U.S.C. § 1864. The law provides in

comprehensive detail that “the term ‘hazardous

or injurious device’ means a device, which when

assembled or placed, is capable of causing

bodily injury, or damage to property, by the

action of any person making contact with such

device subsequent to the assembly or

placement. Such term includes guns attached to

trip wires or other triggering mechanisms,

ammunition attached to trip wires or other

triggering mechanisms, or explosive devices

attached to trip wires or other triggering

mechanisms, sharpened stakes, lines or wires,

lines or wires with hooks attached, nails placed

so that the sharpened ends are positioned in an

upright manner, or tree spiking devices

including spikes, nails, or other objects

hammered, driven, fastened, or otherwise

placed into or on any timber, whether or not

severed from the stump . . . .” Id. at (d)(3).

Congress had no issue detailing what actions

are criminal.

These laws—and many others—show

Congress can do it—it just does not want to.

that

By “requiring legislators to agree on a relatively

specific form of words, the nondelegation principle

seems to raise the [political] burdens and costs

associated with the enactment of federal law.” Jacob

Loshin & Aaron Nielson, Hiding Nondelegation in

11

Mouseholes, 62 Admin. L. Rev. 19, 55 (2010) (quoting

Cass R. Sunstein, Nondelegation Canons, 67 U. Chi.

L. Rev. 315, 320 (2000)). If Congress must make laws

with precision and care, it imposes a crucial safeguard

for individual liberty. Id. (citation omitted). The

doctrine “ensure[s] that national governmental power

may not be brought to bear against individuals

without a consensus, established by legislative

agreement on relatively specific words.” Id. (citation

omitted).

The argument that Congress should be liberated of

its lawmaking responsibility because it lacks the

expertise of agencies holds little weight. The

Constitution’s nondelegation principle does not

prevent Congress from adopting rules and regulations

suggested by agencies through the constitutionally

prescribed lawmaking process. See Brief of American

Bar Association as Amicus Curiae, supra, at *44

(“Instead of conferring authority to promulgate rules,

it may confer authority to propose legislation.”).

Congress could even utilize the agencies to collect and

summarize comments on proposed laws, like what

agencies do now when rulemaking. This collaboration

ensures an accountable and responsive government

that adheres to the processes outlined in the

Constitution.

12

A. The

Constitution’s

structure

and

protections

require a strengthened

nondelegation doctrine for criminal laws.

The Constitution recognizes the unique nature of

criminal laws. As originally written, the Constitution

only guaranteed a jury trial in criminal cases. U.S.

Const. art. III, § 2. The original Constitution also

protected the “Privilege of the Writ of Habeas

Corpus . . . .” U.S. Const. art. I, § 9, cl. 2. As to the

crime-defining power, the Constitution recognizes its

special nature in, for example, the prohibitions on ex

post facto laws and bills of attainder. See U.S. Const.

art. I, § 9, cl. 3.

The Bill of Rights and other future amendments

extended the Constitution’s protections in criminal

cases. “The Self-Incrimination Clause of the Fifth

Amendment, for example, is expressly limited to ‘any

criminal case.’ Similarly, the protections provided by

the Sixth Amendment are available only in ‘criminal

prosecutions.’” United States v. Ward, 448 U.S. 242,

248 (1980). The Court has noted that the Fourth

Amendment has special force in the criminal arena.

See City of Los Angeles, Calif. v. Patel, 576 U.S. 409,

420 (2015) (discussing the relaxed rules for

administrative searches “where the ‘primary purpose’

of the searches is ‘[d]istinguishable from the general

interest in crime control’” (citation omitted)).

Further, the Court has recognized due-process

limits on vagueness in criminal laws. See Kolender v.

Lawson, 461 U.S. 352, 357 (1983). The doctrine

requires “‘that a legislature establish minimal

guidelines to govern law enforcement.’ Where the

legislature fails to provide such minimal guidelines, a

13

criminal statute may [unconstitutionally] permit ‘a

standardless sweep [that] allows policemen,

prosecutors, and juries to pursue their personal

predilections.’” Id. at 358 (quoting Smith v. Goguen,

415 U.S. 566, 574–575 (1974)). The Court has

recognized the danger of imprecise criminal

legislation:

It would certainly be dangerous if the

legislature could set a net large enough

to catch all possible offenders, and leave

it to the courts to step inside and say who

could be rightfully detained, and who

should be set at large. This would, to

some extent, substitute the judicial for

the

legislative

department

of

government.

United States v. Reese, 92 U.S. 214, 221 (1875).

Relatedly, the Court strictly construes criminal

statutes against the government. The rule of strictly

construing penal statutes—“better known today as the

rule of lenity—first emerged in 16th-century England

in reaction to Parliament’s practice of making large

swaths of crimes capital offenses . . . .” Johnson v.

United States, 576 U.S. 591, 613 (2015) (Thomas, J.,

concurring in the judgment).

Courts relied on this rule of construction

in refusing to apply vague capital-offense

statutes to prosecutions before them. As

an example of this rule, William

Blackstone described a notable instance

in which an English statute imposing the

death penalty on anyone convicted of

14

“stealing sheep, or other cattle” was “held

to extend to nothing but mere sheep” as

“th[e] general words, ‘or other cattle,’

[were] looked upon as much too loose to

create a capital offence.”

Id. at 614 (Thomas, J., concurring in the judgment)

(quoting 1 William Blackstone, Commentaries on the

Laws of England 88 (1765)). Parliament responded in

the proper way by passing another statute to clarify

the ambiguity. Id. at 614 n. 2 (Thomas, J., concurring

in the judgment).

The rule of lenity made its way to this Nation

where “American courts—like their English

predecessors—simply refused to apply [vague laws] in

individual cases under the rule that penal statutes

should be construed strictly” against the government.

Id. at 615 (Thomas, J., concurring in the judgment)

(citing United States v. Sharp, 27 F.Cas. 1041 (C.C.Pa.

1815) (Washington, J.)). Unfortunately, Congress has

not always followed its English predecessors in fixing

ambiguity through new statutes. Instead, it often

relies on executive agencies to sort out the

ambiguity—and, it seems, it sometimes purposely

implants ambiguity so the agencies can do its bidding.

“Each branch’s role and responsibility with regard

to criminal statutes is clear. First, ‘[o]nly the people’s

elected representatives in the legislature are

authorized to make an act a crime.’” Gun Owners of

Am., Inc. v. Garland, 992 F.3d 446, 464 (6th Cir.)

(quotation marks omitted) (quoting United States v.

Davis, 588 U.S. 445, 451 (2019)), reh’g en banc

granted, opinion vacated, 2 F.4th 576 (6th Cir. 2021),

and on reh’g en banc, 19 F.4th 890 (6th Cir. 2021).

15

Making something a crime is serious

business.

It

visits

the

moral

condemnation of the community upon

the citizen who engages in the forbidden

conduct, and it allows the government to

take away his liberty and property. The

rule of lenity carries into effect the

principle that only the legislature, the

most democratic and accountable branch

of government, should decide what

conduct triggers these consequences.

Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 731

(6th Cir. 2013) (Sutton, J., concurring); see, e.g., Paul

J. Larkin, Jr., Chevron and Federal Criminal Law, 32

J.L. & Pol. 211, 235 (2017) (“The criminal law reflects

underlying moral judgments that it is the

responsibility of the people to make in a democracy.

Agencies lack expertise in making these moral

judgments; their skills lie elsewhere.”). If “unelected

commissioners and directors and administrators [are

given] carte blanche to decide when an ambiguous

statute justifies sending people to prison,” then this

ideal of democratic accountability diminishes. Carter,

736 F.3d at 731 (Sutton, J., concurring).

Congress cannot skirt its responsibility by

conferring its legislative authority to enact criminal

laws to agencies. “[O]nly the legislature may define

crimes

and

fix

punishments.

Congress

cannot . . . effectively leave that function to the

courts—much less to the administrative bureaucracy.”

Whitman v. United States, 574 U.S. 1003, 1003 (2014)

(statement of Scalia & Thomas, JJ., respecting the

denial of certiorari).

16

B. Individuals face grave consequences from

overcriminalization caused by executive

agencies.

“[C]riminal law is the heavy artillery of society.”

Francis A. Allen, The Morality of Means: Three

Problems in Criminal Sanctions, 42 U. Pitt. L. Rev.

737, 738 (1981). In City of Arlington Tex. v. FCC, Chief

Justice Roberts observed that the “Framers could

hardly have envisioned today’s ‘vast and varied

federal bureaucracy’ and the authority administrative

agencies now hold over our economic, social, and

political activities.” 569 U.S. 290, 320 (2013) (Roberts,

C.J., dissenting). “This problem did not always exist.

The Framers were concerned that a voluminous

criminal code was a threat to liberty . . . .” Paul J.

Larkin,

Jr,

Public

Choice

Theory

and

Overcriminalization, 36 Harv. J.L. & Pub. Pol’y 715,

725 (2013). “There are so many federal criminal laws

that no one, including the Justice Department, the

principal federal law enforcement agency, knows the

actual number of crimes.” Id. at 726.

Organizations of many stripes and philosophies

agree that overcriminalization is a serious problem in

America today. In 2014,

the U.S. House of Representatives

renewed the bipartisan task force it

created to review the federal criminal

code and the trend toward “overcriminalization;” groups who have

testified in support of reform include the

American Bar Association, the Heritage

Foundation, . . . the Judicial Conference

17

of the United States[,]

Sentencing Commission.

and

the

United States v. Valdovinos, 760 F.3d 322, 339 (4th Cir.

2014).2 And criminalization via regulation is one of the

phenomenon’s “core drivers.” James R. Copland &

Rafael A. Mangual, Let’s End Criminalization Without

Representation, Manhattan Institute (Jan. 14, 2017),

https://tinyurl.com/2tzvefa4.

The number of “laws” through regulatory

rulemaking

has

increased

exponentially.

Overcriminalization “has been particularly immense

with regard to the twentieth century pursuit of

‘regulatory crimes,’ also known as malum prohibitum

crimes . . . .” Larkin, Public Choice Theory and

Overcriminalization, supra, at 728. The sheer amount

of federal criminal regulations is impossible to follow.

“If regulations enforceable in criminal prosecutions

are included, the number of potentially relevant

federal laws could exceed 300,000,” id. at 729, far in

excess of the already massive “3,300 congressionally

enacted federal criminal statutes,” id. at 728. Indeed,

by one account, the Code of Federal Regulations now

spans more than 180,000 pages. Buffington v.

McDonough, 143 S. Ct. 14, 20 (2022) (Gorsuch, J.,

dissenting from denial of certiorari). Each year, the

agencies add between “three thousand to five

thousand final rules.” West Virginia v. EPA, 597 U.S.

See also, e.g., Tim Lynch, Cato Institute, Cato Handbook for

Policymakers 193–199 (8th ed. 2017); James Copland & Rafael

Mangual, Overcriminalizing America, Manhattan Institute,

https://tinyurl.com/rxcdw2w7 (last visited Mar. 20, 2026); Charles

G. Koch & Mark V. Holden, The Overcriminalizaton of America,

Politico Magazine (Jan. 7, 2015), https://tinyurl.com/2s3jvmjb.

2

18

697, 741 n. 2 (2022) (Gorsuch, J., concurring) (quoting

Ronald A. Cass, Rulemaking Then and Now: From

Management to Lawmaking, 28 Geo. Mason L. Rev.

683, 694 (2021)). Nearly “98 percent of the more than

300,000 crimes on America’s books were never voted

on

by

Congress.”

Copland

&

Mangual,

Overcriminalizing America, supra.

Overcriminalization through agency rulemaking

exponentially increases the risk that citizens will be

subject to the “serious deprivations of liberty” that

flow from “the consequences of criminal guilt,”

McKeiver v. Pennsylvania, 403 U.S. 528, 551 (1971)

(White, J., concurring)—and it does so without the

ordinary checks the separation of powers and political

accountability provide. Where the stakes are so high

for so many, it is urgent to resolve whether Congress

can criminalize the violation of a regulation and then

delegate to an agency the power to determine what

acts are actually criminal.

Criminalization through regulation at the whim of

everchanging agency determinations

“turn[s] the normal construction of

criminal statutes upside-down, replacing

the doctrine of lenity with a doctrine of

severity.” Crandon v. United States, 494

U.S. 152, 178 (1990) (Scalia, J.,

concurring in the judgment). . . . [I]t [ ]

allow[s] an agency to depart from its

longstanding interpretation of a criminal

law merely for policy reasons associated

with

a

change

in

presidential

administrations and merely by going

through

the

notice-and-comment

19

process. See Nat’l Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S.

967, 981–82 (2005). Such a policy-laden

expansion of the scope of prohibited

conduct has no place in this criminal

sphere. “[A] criminal conviction ought

not to rest upon an interpretation

reached by the use of policy judgments

rather than by the inexorable command

of relevant language.” M. Kraus & Bros.,

Inc. v. United States, 327 U.S. 614, 626

(1946).

Gun Owners of Am., Inc. v. Garland, 19 F.4th 890, 923

(6th Cir. 2021) (en banc) (Murphy, J., dissenting)

(citations cleaned up).

III. History illustrates that the Framers

understood the distinction between filling

up the details and lawmaking.

Many of the First Congress’s acts appropriately

imposed limits on executive discretion. See Ilan

Wurman, Nondelegation at the Founding, 130 Yale

L.J. 1490, 1540–1544 (2021) (examining early acts and

concluding

that

they

are

consistent

with

nondelegation principles). For example, when the first

Congress established military pensions, “Congress

decided all the important subjects: that the disabled

veterans shall be paid, and how much. The President

then merely had to decide when the payments should

be made—the statute required they be made within

one year . . . —and what proofs would be necessary.”

Id. at 1540.

20

When Congress began delegating broad legislative

authority, however, influential Founders voiced their

concerns. For instance, in An Act Concerning Aliens, 1

Stat. 570 (1798), Congress empowered the President

to order the deportation of “aliens as he shall judge

dangerous to the peace and safety of the United

States, or shall have reasonable grounds to suspect

are concerned in any treasonable or secret

machinations against the government.” The act also

granted the President the discretion to issue residence

licenses, require bonds of indeterminate amounts, and

revoke such licenses. Id.

Thomas Jefferson called the law “a most detestable

thing” and was “glad” “that laws of the US. subsequent

to a treaty, controul [sic] it’s operation, and that the

legislature is the only power which can controul [sic] a

treaty.” Letter From Thomas Jefferson to James

Madison (May 31, 1798), reprinted by Nat’l Archives:

Founders Online, https://tinyurl.com/48nzt9ud.

James Madison similarly responded and made

clear that each of the powers granted by the act

violated the nondelegation principle. Madison

declared that

[h]owever difficult it may be to mark, in

every case, with clearness and certainty,

the line which divides legislative power,

from the other departments of power; all

will agree, that the powers referred to

these departments may be so general and

undefined, as to be of a legislative, not of

21

an executive or judicial nature; and may

for that reason be unconstitutional.

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

reprinted by Nat’l Archives: Founders Online,

https://tinyurl.com/bdf3fz43. Madison then expounded

on “details”:

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 to execute the law. If nothing more

were required, in exercising a legislative

trust, 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

legislature from itself, and proclamations

might become substitutes for laws. A

delegation of power in this latitude,

would not be denied to be a union of the

different powers.

Id. (emphasis added).

Madison pondered whether a power could be “well

given in terms less definite, less particular, and less

precise” than allowing the President to judge an alien

“dangerous to the peace and safety of the United

States,” or to “suspect” that they “are concerned in any

treasonable, or secret machinations” against the

government. Id. For these terms are not “legal rules or

22

certain definitions. They leave every thing to the

President. His will is the law.” Id.

Madison concluded that the law not only gave

legislative power to the President, but

[h]e is to stand in the place of the

judiciary also. His suspicion is the only

evidence which is to convict: his order the

only judgment which is to be executed.

...

It is rightly affirmed therefore, that the

act [unconstitutionally] unites legislative

and judicial powers to those of the

executive.

Id.

At least two members of Congress expressed

concerns about nondelegation when the act was

debated. Wurman, supra, at 1513. Representative

Williams stated that “it is inconsistent with the

provisions of our Constitution, and our modes of

jurisprudence, to transfer power in this manner.” Id.

at 1514. And Representative Livingston argued that

“[l]egislative power prescribes the rule of action; the

Judiciary applies that general rule to particular cases,

and it is the province of the Executive to see that the

laws are carried into full effect.” Id. Livingston further

contended that the act granted the President

legislative power because it empowered the President

alone “to make the law, to fix in his mind what acts,

what words, what thoughts or looks, shall constitute

the crime contemplated by the bill.” 8 Annals of Cong.

1963 (1798). He concurred with Madison that the act

23

unconstitutionally vested the President with all three

powers. See Wurman, supra, at 1514.

CONCLUSION

The Federal Land Policy and Management Act

makes it a crime to “knowingly and willfully violate[ ]

any . . . regulation” issued by the Secretary of the

Interior under the Act. 43 U.S.C. § 1733(a). “These

words are not literally gibberish, but they are so

vacuous that any attempt to implement th[e] law

would amount to creation of a new law.” Gary Lawson,

Delegation and Original Meaning, 88 Va. L. Rev. 327,

340 (2002). By its terms, the Secretary—not

Congress—determines what actions are criminal. The

language “leaves so much undetermined that it would

constitute an act of legislation to attribute any

meaning to it.” Id.

The nondelegation doctrine still plays an

important role in determining whether an agency

action is constitutional. Its role is more important

than ever in the criminal context, and the Court

should make clear that Congress must determine

what act—in more detail than any violation of an

agency regulation—is criminal.

Respectfully submitted,

David C. Tryon

Counsel of Record

Alex M. Certo

THE BUCKEYE INSTITUTE

88 East Broad Street, Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org