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

No. 25-6911

In the Supreme Court of the United States

_______________________________

GREGORY PHEASANT,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_______________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

NEW CIVIL LIBERTIES ALLIANCE

IN SUPPORT OF PETITIONER

Casey Norman

Counsel of Record

Zhonette Brown

Mark Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

4250 N. Fairfax Dr., Suite 300

Arlington, VA 22203

Phone: (202) 869-5210

Casey.Norman@NCLA.legal

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

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

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT .............................................................. 5

I.

THE NONDELEGATION DOCTRINE IS FAILING

AND IN NEED OF THIS COURT’S ATTENTION........... 5

II. VESTED POWERS PRECEDENT ONCE DEMANDED

THAT CONGRESS SET LEGISLATIVE STANDARDS .... 7

A. Early Vested Powers Precedent Required

That Congress Set Legislative Standards .... 7

B. The Intelligible-Principle Test Once

Required Standards but Has Devolved ...... 11

III. THE NINTH CIRCUIT DANGEROUSLY APPLIED A

TOOTHLESS INTELLIGIBLE-PRINCIPLE TEST

UNMOORED FROM LEGISLATIVE STANDARDS ....... 15

IV. CERTIORARI IS WARRANTED TO STOP COURTS

FROM MAKING THE NONDELEGATION DOCTRINE

A DEAD LETTER IN THE CRIMINAL CONTEXT ....... 18

A. Reliance on Grimaud to Uphold

Standardless Delegations of Criminal

Lawmaking Authority Is Misplaced ........... 18

B. Grimaud Risks Becoming a Talisman for

Reflexive Deference to Standardless

Criminal Delegations................................... 22

C. Delegations of Criminal Lawmaking

Authority Require Heightened Judicial

Scrutiny—Not Deference............................. 24

ii

CONCLUSION ......................................................... 26

iii

TABLE OF AUTHORITIES

Cases

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

295 U.S. 495 (1935) ...........................8, 9, 17, 24, 25

Allstates Refractory Contractors, LLC v. Su,

79 F.4th 755 (6th Cir. 2023) ................................. 23

Am. Power & Light Co. v. SEC,

329 U.S. 90 (1946) ...................................... 3, 13, 20

BASE Access, et al. v. National Park Service, et al.,

No. 4:25-cv-00790, 2025 WL 4186330

(S.D. Tex. Feb. 24, 2025) ........................................ 2

Dep’t of Transp. v. Ass’n of Am. R.Rs.,

575 U.S. 43 (2015) ................................................ 25

FCC v. Consumers’ Research,

606 U.S. 656 (2025) .................................. 10, 11, 20

Gundy v. United States,

588 U.S. 128 (2019) ........................................ 20, 24

INS v. Chadha,

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

J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394 (1928) .................................... 8, 11, 19

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ............................................. 7-8

Mistretta v. United States,

488 U.S. 361 (1989) ................................................ 6

N.Y. Cent. Secs. Corp. v. United States,

287 U.S. 12 (1932) ................................................ 14

Nat’l Broad. Co. v. United States,

319 U.S. 190 (1943) .............................................. 13

iv

Opp Cotton Mills v. Adm’r of Wage and Hour Div.,

312 U.S. 126 (1941) ............................................ 3, 9

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) .................................8, 9, 17, 23

Touby v. United States,

500 U.S. 160 (1991) .............................................. 22

United States v. Brown,

364 F.3d 1266 (11th Cir. 2004) ............................ 23

United States v. Evans,

333 U.S. 483 (1948) .............................................. 24

United States v. Grimaud,

220 U.S. 506 (1911) ............. 4, 18, 19, 20, 21, 22, 23

United States v. Kozminski,

487 U.S. 931 (1988) .............................................. 25

United States v. Mingo,

964 F.3d 134 (2d Cir. 2020) .................................. 23

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) ................................ 24

Wayman v. Southard,

23 U.S. 1 (1825) ...................................................... 8

Yakus v. United States,

321 U.S. 414 (1944) .....................3, 8, 10, 11, 12, 13

Statutes

43 U.S.C. § 1732(a)................................................... 20

43 U.S.C. § 1733(a)............................................... 5, 20

Other Authorities

Char Miller,

How Counting Sheep Saved the U.S. Forest

v

Service, Peeling Back the Bark

(May 3, 2011) ........................................................ 21

James Madison,

The Report of 1800, in 14 The Papers of James

Madison (Robert A. Rutland et al. eds., 1983) .... 24

Logan Sawyer,

Grazing, Grimaud, and Gifford Pinchot: How the

Forest Service Overcame the Classical

Nondelegation Doctrine to Establish

Administrative Crimes, 24 J.L. & Pol. 169

(2008) .................................................................... 21

Philip Hamburger,

Nondelegation Blues,

91 GEO. WASH. L. REV. 1083 (2023)........................ 6

THE FEDERALIST NO. 70,

(A. Hamilton) (J. Cooke ed. 1961) .......................... 6

vi

Constitutional Provisions

U.S. CONST. art. I, § 1................................................. 6

U.S. CONST. art. II, § 1 ............................................... 6

U.S. CONST. art. III, § 1 .............................................. 6

1

INTEREST OF AMICUS CURIAE1

Amicus curiae the New Civil Liberties Alliance

(“NCLA”) is a nonpartisan, nonprofit civil-rights

organization devoted to defending constitutional

freedoms

from

the

administrative

state’s

depredations. The “civil liberties” at issue include

rights at least as old as the U.S. Constitution, such as

the right to have laws made by the Nation’s elected

lawmakers through constitutionally prescribed

channels (i.e., the right to self-government). Yet these

selfsame civil rights are also very contemporary—and

in dire need of renewed vindication—because

Congress, executive branch officials, administrative

agencies, and even the judiciary have neglected them

for so long.

NCLA defends civil liberties primarily by

asserting constitutional constraints on the modern

administrative state. Although Americans still enjoy

the shell of their Republic, a very different sort of

government has developed within it—a type that the

Constitution was designed to prevent. This

unconstitutional state within the Constitution’s

United States is the focus of NCLA’s concern.

NCLA represents individuals and businesses

harmed by Congress’s unconstitutional divesting of

legislative power to administrative agencies. In those

cases, unelected executive-branch officials—not the

1 No party’s counsel authored any portion of this brief, and no

party, party counsel, or person other than amicus curiae made a

monetary contribution intended to fund this brief’s preparation

or submission. All parties received timely notice of intent to file

this brief.

2

nation’s elected lawmakers—exercise sweeping

delegated authority over private rights and individual

liberty. That authority includes the power to

determine what conduct will constitute a federal

crime on millions of acres of public land, see BASE

Access, et al. v. National Park Service, et al., No. 4:25cv-00790, 2025 WL 4186330 (S.D. Tex. Feb. 24, 2025),

and the unconstrained power to allocate market share

across entire national industries. See Pet. for Writ of

Certiorari, RMS of Georgia, LLC v. EPA, No. 25-1079

(U.S. Feb. 27, 2026). NCLA thus has a strong interest

in faithful judicial enforcement of Article I’s Vesting

Clause—and the nondelegation doctrine that flows

from it.

SUMMARY OF ARGUMENT

The “nondelegation” doctrine is failing—and

nowhere is that failure more dangerous than in the

criminal context. That mounting threat to liberty

warrants this Court’s review.

The nondelegation doctrine was intended to

prevent the legislative power, vested exclusively in

Congress, from being divested2 to any other branch.

Today, however, lower courts too often invoke this

Court’s language to uphold Congress’s transfer of

2 This brief refers to the divesting of legislative power rather

than “delegation.” Once conveyed, Congress cannot later

terminate or withdraw such statutory transfers without a

supermajority or the Executive Branch’s assent. See Mark

Chenoweth & Richard Samp, Reinvigorating Nondelegation with

Core Legislative Power, in THE ADMINISTRATIVE STATE BEFORE

THE SUPREME COURT: PERSPECTIVES ON THE NONDELEGATION

DOCTRINE 81, 98 (Peter J. Wallison & John Yoo eds., 2022).

3

legislative power to executive agencies, so long as

Congress supplied some “intelligible principle,”

however broad or amorphous. The decision below

illustrates how far that doctrine has drifted from its

constitutional moorings, even when criminal

punishment is implicated and physical liberty is at

stake.

First, the panel’s decision further dilutes this

Court’s already degraded nondelegation precedent.

Early cases required Congress to supply judicially

discernible standards—later described as “intelligible

principles”—that both directed executive decisionmaking and enabled courts to determine whether an

agency had adhered to Congress’s will. See, e.g., Opp

Cotton Mills v. Adm’r of Wage and Hour Div., 312 U.S.

126 (1941); Yakus v. United States, 321 U.S. 414

(1944). The statutes in those cases did not merely

announce broad policy aspirations. Congress supplied

concrete criteria, factual predicates, and limiting

principles that confined the agency’s substantive

authority.

Yet the panel invoked those same precedents to

uphold a statute lacking anything resembling the

limiting features that rendered those earlier

delegations constitutionally tolerable, thereby

transforming precedents that required meaningful

congressional direction into authorities approving

virtually boundless Executive discretion. That error

stems largely from this Court’s erroneous dicta—most

prominently in American Power & Light Co. v. SEC,

329 U.S. 90, 105 (1946)—suggesting that broad

phrases such as “public interest” may substitute for

meaningful standards. Repeated over time, that

4

dictum has reduced the constitutional inquiry to a

single, impoverished question: whether Congress’s

guidance is at least as definite as “in the public

interest.”

However, this Court has never held that vague

statutory aspirations, standing alone, satisfy the

Constitution’s requirement that Congress establish a

governing rule for the exercise of delegated authority.

The cases on which the panel relies involved statutes

that meaningfully constrained executive action. And

certainly, none authorized executive officials to

determine, in the first instance, what conduct should

qualify as a federal crime. Yet the Federal Land

Policy and Management Act of 1976 (FLPMA)

empowers the Secretary of the Interior to promulgate

criminal regulations governing virtually all conduct

across millions of acres of public land. Such a

sweeping transfer of lawmaking authority cannot be

squared with the Constitution’s basic structural

command that the power to legislate, including the

power to define crimes, belongs to Congress alone.

Second, the panel’s reliance on United States v.

Grimaud, 220 U.S. 506 (1911), is misplaced and

dangerous. Grimaud did not involve anything like

FLPMA’s sweeping transfer of general criminal

lawmaking authority. There, Congress authorized the

Secretary to issue regulations narrowly directed to

protecting forest reservations from fire, depredations,

and destructive uses. The delegation was thus

bounded by a clearly defined congressional policy and

meaningful limits. It did not authorize executive

officials to criminalize whatever conduct they deemed

“necessary” for the “management, use, and

5

protection” of millions of acres of federal lands. See 43

U.S.C. § 1733(a). Yet the panel deployed Grimaud

much as courts have invoked American Power’s

“public interest”—not as precedent to be closely read

in light of its reasoning, statutory framework, and

context, but as a doctrinal talisman for dispatching

nondelegation claims. That misguided approach

warrants this Court’s review. If left uncorrected, it

threatens to make Grimaud in the criminal context

what “public interest” has become elsewhere: a readymade substitute for the serious constitutional

analysis that Article I requires.

Finally, the panel’s decision further entrenches

an enervated form of the nondelegation doctrine

under which Congress need only gesture at broad

policy aims while executive officials dictate what

conduct qualifies as criminal. Without this Court’s

intervention, that shortcut approach will continue to

erode the Vesting Clause, undermine the role of the

judiciary, and normalize the divesting of criminal

lawmaking power untethered from meaningful

legislative standards. This Court should grant

certiorari to make clear that the Constitution does not

tolerate a regime in which Congress legislates in

aspirations, the Executive defines the crimes (even at

the point of enforcement), and courts are expected to

bless that arrangement as law.

ARGUMENT

I.

THE NONDELEGATION DOCTRINE IS FAILING AND

IN NEED OF THIS COURT’S ATTENTION

This Court developed the nondelegation doctrine

6

to ensure that the legislative power3 vested in

Congress would remain there.

Through the Constitution, the People consented

to the exercise of legislative power by Congress—and

by Congress alone. U.S. CONST. art. I, § 1 (“All

legislative powers … shall be vested in a Congress[.]”)

(emphasis added). This consent is fundamental to the

legitimacy of the government.4 To safeguard liberty,

the Constitution placed procedural burdens on the

legislative process, see THE FEDERALIST NO. 70, at 475

(A. Hamilton) (J. Cooke ed. 1961), and it isolated the

legislative and other governmental powers, vesting

executive and judicial power in separate branches.

U.S. CONST. art. II, § 1; U.S. CONST. art. III, § 1.

Limiting legislative power to Congress is

essential to respect the consent of the governed and to

uphold individual liberty, yet the precedent meant to

enforce that stricture now falls short. Even this Court

has erroneously qualified what the Constitution

makes absolute, stating “Congress generally cannot

delegate its legislative power.” Mistretta v. United

States, 488 U.S. 361, 372 (1989) (emphasis added).

The modern nondelegation doctrine no longer

protects the separation of powers (i.e., it no longer

confines legislative power to the legislative branch).

To vindicate the Constitution’s design—particularly

3 The power to legislate has been described as the power through

an exercise of will to make general, prospective, binding rules

intended to limit liberty. See INS v. Chadha, 462 U.S. 919, 952

(1983).

4 See Philip Hamburger, Nondelegation Blues, 91 GEO. WASH. L.

REV. 1083, 1105-08 (2023).

7

where criminal punishment is concerned—this Court

should grant review and restore meaningful

enforcement of the nondelegation doctrine.

II. VESTED POWERS PRECEDENT ONCE DEMANDED

THAT CONGRESS SET LEGISLATIVE STANDARDS

To protect the separately vested constitutional

powers, this Court once demanded that Congress

provide judicially discernible standards before

empowering an agency to administer a statute with

substantive power to limit rights. In this case, for

instance, precedent predating 1946 would have

required that a court and the public be able to point

to the language of the statute and identify a standard

that would allow them, not BLM, to decipher whether

the agency had complied with the will of Congress or

whether it had exercised authority beyond the scope

of Congress’s delegation, in determining what conduct

qualifies as a criminal act on 245 million acres of

public lands.

Even the now-maligned intelligible-principle test,

as this Court originally applied it, required Congress

to furnish standards to meaningfully constrain

Executive authority.

A. Early

Vested

Powers

Precedent

Required That Congress Set Legislative

Standards

For over 150 years after the founding of our

Republic, this Court dutifully observed the

constitutional mandate to limit legislative power to

Congress. See Marshall Field & Co. v. Clark, 143 U.S.

649, 692 (1892) (“That [C]ongress cannot delegate

8

legislative power to the president is a principle

universally recognized as vital to the integrity and

maintenance of the system of government ordained by

the constitution.”); Wayman v. Southard, 23 U.S. 1,

42 (1825) (“It will not be contended that Congress can

delegate … powers which are strictly and exclusively

legislative.”); J.W. Hampton, Jr. & Co. v. United

States, 276 U.S. 394, 406 (1928) (“it is a breach of the

national fundamental law if Congress gives up its

legislative power …”).

In the 1930s and early 1940s, this Court took care

to delineate what Congress must do before it may

delegate authority to an executive agency.

Specifically, it would not suffice for Congress to

identify a broad policy and then grant power to

advance that policy. To ensure that legislative power

remained in the Legislative Branch, Congress also

had to prescribe standards and establish rules of

decision that would allow courts to determine

whether the Executive’s administrative acts

conformed to the legislative will. See Panama

Refining, 293 U.S. at 422-26; Schechter, 295 U.S. at

530; Yakus, 321 U.S. at 424–26.

In Panama Refining, the Court held § 9(c) of the

National Industrial Recovery Act unconstitutional

because, notwithstanding the statute’s many

articulated policy goals, it failed to provide any

standard dictating when or how the specific power at

issue should be applied. 293 U.S. at 430-32.

The Court identified the key distinction between

§ 9(c) and other statutory delegations that the Court

had previously upheld. Id. at 421-30. In those prior

9

cases, Congress had established not only policies, but

standards or rules of conduct, leaving the Executive

to develop “subordinate” rules or to find facts

necessary to apply the legislative standard. Id. at 42126. In Panama Refining, “Congress ha[d] declared no

policy, ha[d] established no standard, ha[d] laid down

no rule,” specifically concerning the transportation of

hot oil. Id. at 430.

Later, the Court struck another part of the Act,

holding again that Congress must “itself establish[]

the standards of legal obligation, thus performing its

essential legislative function.” Schechter, 295 U.S. at

530. “[F]ailure to enact such standards” amounted to

an “attempt[] to transfer [the legislative] function to

others.” Id. As to legislative power, when the purpose

of a statute is not to establish law, but to authorize

the executive to make “new and controlling

prohibitions [i.e., restrictions on liberty] through

codes of laws,” and when any congressional

restrictions “leave virtually untouched the field of

policy envisaged,” Congress has exceeded the bounds

of its lawful authority to divest legislative power. Id.

at 535, 538. Such is surely the case in FLPMA.

As the Court explained in Opp Cotton Mills, the

“essentials of the legislative function are the

determination of the legislative policy and its

formulation as a rule of conduct.” 312 U.S. at 145

(emphasis added); id. at 144 (statutory criteria

supplied a “definition of the circumstances in which

[the statute’s] command is to be effective,” which

together with the declared policy, “constitute the

performance, in the constitutional sense, of the

legislation function.”). And, as this Court recently

10

reaffirmed, to determine whether a statute contains

the requisite “intelligible principle,” courts must

assess whether it has provided “sufficient standards

to enable both ‘the courts and the public [to] ascertain

whether the agency’ has followed the law.” FCC v.

Consumers’ Research, et al., 606 U.S. 656, 673 (2025)

(quotation omitted). In other words, Congress must do

more than announce an objective—it must prescribe

the rules governing when and how that objective may

be pursued.

Judicially discernible standards also serve a core

constitutional function with respect to the role of the

judiciary. The panel suggests that the Court should

adhere to the modern, permissive approach to Vested

Powers and the intelligible-principle test because

constitutional limits on divesting are ostensibly

difficult for courts to enforce. App. 7a (“[C]ourts ‘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.’”) (quotation omitted). But that purported

concern is avoided if the Court returns to its

traditional requirement that Congress supply

standards sufficient to permit courts to ascertain

whether an agency has conformed to, contravened, or

exceeded the will of Congress. The Ninth Circuit’s

reasoning illustrates the consequences of abandoning

that requirement: the modern nondelegation doctrine

not only facilitates divesting legislative power, but

also impedes the exercise of judicial power.

To accomplish their purpose, standards must thus

be “sufficiently definite and precise.” Yakus, 321 U.S.

at 425-26. While this prescription permits flexibility,

11

it precludes reliance on unqualified policy statements.

Id. at 425. Yakus examined a wartime price-control

statute that declared its policy objectives in Section 1,

while Section 2 and an amending statute supplied the

operative standard—prices prevailing on a specified

date—for setting maximum prices. Id. at 420-21; but

see App. 8a (panel misleadingly referring to applicable

statutory standard in Yakus as simply “‘fair and

equitable’ prices”). It was the standards specified that

“define[d] the boundaries” for agency action. Id. at

423. The Court reiterated that the essence of the

legislative function consists not only in the

determination of policy, but also in its “formulation

and promulgation as a defined and binding rule of

conduct.” Id. at 424.

The Court should grant certiorari and restore the

requirement that Congress prescribe standards

sufficiently discernible for “the courts and the public”

to identify when and how a statute may be applied to

impinge rights. Consumers’ Research, 606 U.S. at 673.

B. The Intelligible-Principle Test Once

Required Standards but Has Devolved

When this Court first began speaking in terms of

an “intelligible principle,” it did not relax its

requirement that Congress supply meaningful

standards.

In J.W. Hampton, the Court found that Congress

had established a “perfectly clear and perfectly

intelligible” standard for administering a tariff

statute: the President was to determine the difference

between domestic and foreign production costs and

adjust tariffs to offset that difference, thereby

12

enabling domestic producers to compete “on terms of

equality with foreign producers.” Id. at 404. The

standard was clear and fixed, even though the

circumstances to which it applied were complex and

varied. Id. at 404-05.

After surveying numerous statutory schemes that

followed this model—namely, Congress providing

clear standards that govern when and how the

Executive should apply legislated authority—the

Court observed that “[i]f Congress shall lay down by

legislative act an intelligible principle to which the

person or body authorized to [administer the law] is

directed to conform, such legislative action is not a

forbidden delegation of legislative power.” Id. at 409.

That formulation did not suggest that Congress could

satisfy constitutional requirements merely by

announcing broad policy aspirations.

Contrast that approach with the panel below,

App. 8a–10a, equating broad statutory aims with an

“intelligible principle,” rather than identifying

concrete legislative standards directing agency’s

exercise of delegated authority. Rather than confront

whether Congress supplied judicially discernible

standards governing the exercise of BLM’s delegated

criminal lawmaking authority, the Ninth Circuit

treated the constitutional inquiry as satisfied so long

as Congress provides “some standard constraining

discretion,” even “one phrased in broad terms.” App.

8a. Indeed, according to the panel, statutory

directives as amorphous as instructing an agency to

set “fair and equitable” prices, to adopt measures

“requisite to protect the public health,” or to act in the

“public interest, convenience, or necessity” suffice to

13

satisfy the nondelegation doctrine. Id. (citing Yakus v.

United States, 321 U.S. 414, 423 (1944), Whitman v.

American Trucking Ass’ns, 531 U.S. 457, 472-74

(2001), and National Broadcasting Co. v. United

States, 319 U.S. 190, 216-17 (1943)).

That flawed understanding stems largely from

this Court’s erroneous dicta—most prominently in

American Power & Light—which lower courts have

repeatedly quoted and invoked to nearly foreclose the

need for judicial analysis beyond asking if Congress’s

guidance is at least as definite as “in the public

interest.”

In American Power & Light, the Court rejected a

Vested Powers challenge to the Public Utility Holding

Company Act of 1935. The Act prohibited nested

holding company structures that “unduly or

unnecessarily complicate the structure, or unfairly or

inequitably distribute voting power among security

holders.” 329 U.S. at 97 (quotation omitted). The

Court concluded that to “those familiar with corporate

realities[,]” the statutory language conveyed concrete

meaning even “standing alone.” Id. at 104. Even so,

the phrases did not stand alone. The Court

emphasized that the statute provided “a veritable

code of rules … for the Commission to follow in giving

effect to the standards.” Id. at 105.

Up to that point, American Power’s analysis

faithfully tracked earlier nondelegation precedent.

What followed, however, was dicta that has been

widely adopted but seemingly seldom scrutinized.

After concluding that the statute supplied a

sufficiently clear regulatory framework, the Court

14

observed that the standards were “certainly no less

definite in nature than … ‘public interest,’ ‘just and

reasonable rates,’ ‘unfair methods of competition’ or

‘relevant factors.’ The approval which this Court has

given in the past to those standards thus compels the

sanctioning of the ones in issue.” Id.

The Court’s offhand suggestion that broad,

indeterminate policy statements may serve as

substitutes for meaningful congressional standards

was not only dicta, but also incorrect. As support for

this faulty proposition, American Power cited New

York Central Securities Corp. v. United States, 287

U.S. 12 (1932)—yet it ignored that Court’s explicit

observation that it was a “mistaken assumption that

[the ‘public interest’ criterion mentioned in the

statute] is a mere general reference to public welfare

without any standard to guide determinations.” N.Y.

Cent. Sec. Corp., 287 U.S. at 24. In New York Central,

the Court considered “[t]he purpose of the Act, the

requirements it imposes, and the context of the

provision in question,” and it concluded that the

statute’s “public interest” term was not “without

ascertainable criteria,” but had a “direct relation to

adequacy of transportation service, to its essential

conditions of economy and efficiency, and to

appropriate provision and best use of transportation

facilities[.]” Id. at 25. Equally important, “the

Interstate Commerce Commission ha[d] constantly

addressed” these terms, and their meaning was

informed by decades of ICC practice, related statutory

provisions, and judicial precedent. Id.

American Power’s stray suggestion that vague

policy directives—divorced from statutory purpose,

15

context, established legal meaning, or legislative

standards—may themselves constitute an intelligible

principle was mistaken. Properly understood, the

precedent that American Power invoked did not treat

such language as a free-standing substitute for

congressional lawmaking. Rather, those decisions

interpreted broad statutory terms within clear

legislative schemes that supplied concrete standards

governing the agency’s exercise of authority. The

panel’s ruling below collapses that critical distinction,

effectively reducing the constitutional inquiry to

whether Congress has announced a policy objective—

while leaving it to the Executive to determine the

operative rules and standards governing the law’s

substantive content.

III. THE NINTH CIRCUIT DANGEROUSLY APPLIED A

TOOTHLESS INTELLIGIBLE-PRINCIPLE TEST

UNMOORED FROM LEGISLATIVE STANDARDS

The improper influence of American Power’s dicta

is evident in modern nondelegation decisions,

including the panel’s ruling below, which have

embraced and further diluted its purported reframing

of the intelligible-principle test, leaving the vesting

clause largely toothless. See App. 8a (“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?”) (citation omitted). “General policy” has

come to be mistaken for the “principle” in the

intelligible-principle test, untethering the doctrine

from its original mooring in congressionally supplied

standards.

16

The Ninth Circuit’s analysis reflects that dilution.

Starting from the premise that the intelligibleprinciple requirement is an “exceedingly modest

limitation,” and that courts “almost never” secondguess Congress regarding how much “policy

judgment” it may leave to those executing the law, the

panel asked only whether Congress had supplied

“some standard constraining discretion—even one

phrased in broad terms.” App. 7a-8a.

From there, the panel treated FLPMA’s broad

transfer of authority to issue whatever criminal

regulations BLM deems necessary “with respect to

the management, use, and protection of the public

lands”—combined with the FLPMA’s “multiple use

and sustained yield” provisions—as a “clear

principle,” which, the court concluded, “easily

satisfies” the intelligible-principle test. App. 8a-12a.

That “principle,” however, supplies no ascertainable

standards to govern BLM’s authority to define

criminal conduct on public lands. At most, it

paraphrases FLPMA’s general policy aims, which

supply no rules for determining, inter alia, what

conduct should be criminalized, when criminal

regulation is appropriate, what factual findings the

agency should make, or how the agency should

balance the statute’s numerous, competing objectives.

Such a “standard” does not, for example, enable a

court to determine whether BLM conformed to or

exceeded Congress’s will when it criminalized riding

a bike without a functioning taillight. Yet, under the

panel’s approach, Congress need only announce lofty

objectives, leaving it to the agency to decide what

binding rules—including criminal prohibitions—will

advance them.

17

That is precisely the kind of transfer of power that

Panama Refining and Schechter Poultry invalidated

as unconstitutional. Neither decision rested on the

notion that Congress had provided no policy or

guidance at all, and both acknowledged the “necessity

of adapting legislation to complex conditions

involving a host of details with which the national

Legislature cannot deal directly.” Schechter, 295 U.S.

at 592-30; Panama Refining, 293 U.S. at 421. Still,

both rulings faulted Congress for divesting its

“essential legislative functions” to another branch

without supplying any standards or policy to govern

the specific power at issue. Schechter, 295 U.S. at 59230; Panama Refining, 293 U.S. at 421. Although the

Constitution does not forbid Congress from “laying

down policies and establishing standards, while

leaving to [the Executive] the making of subordinate

rules within prescribed limits and the determination

of facts to which the policy as declared by the

Legislature is to apply,” it does prohibit Congress

from abdicating its vested powers and authorizing

another branch to exercise them in its stead. Id. By

transferring through FLPMA the essential legislative

function at issue here—the power to write criminal

laws—Congress committed the same Article I

violation that the Court identified in Panama

Refining and Schechter Poultry.

The panel’s reasoning rests on a series of

misreadings of this Court’s early nondelegation

cases—misreadings traceable to American Power’s

dicta and repeated so often that they now pass for

doctrine—resulting in a “test” that asks little more

than whether Congress has announced a policy

aspiration. On that view, Congress effectively need

18

only gesture at lofty hopes and capacious dreams to

transfer its legislative power to the Executive—

including its power to create new crimes. But the

Constitution does not tolerate such arrangements.

Certiorari is warranted to arrest—and ideally

reverse—this dangerous erasure of the requirement

that Congress prescribe meaningful standards.

IV. CERTIORARI IS WARRANTED TO STOP COURTS

FROM MAKING THE NONDELEGATION DOCTRINE

A DEAD LETTER IN THE CRIMINAL CONTEXT

The Ninth Circuit’s decision below warrants this

Court’s review for reasons extending well beyond this

case. That ruling not only reflects, but threatens to

accelerate, the broader doctrinal decay that the

intelligible-principle test has suffered for decades.

Further, it does so here in the particularly alarming

context of divested criminal lawmaking power, where

the question is not simply who regulates, but who

decides what conduct will subject an individual to

criminal prosecution and imprisonment.

A. Reliance

on Grimaud to Uphold

Standardless Delegations of Criminal

Lawmaking Authority Is Misplaced

The Ninth Circuit’s decision to uphold FLPMA’s

divestiture of criminal lawmaking power leans

heavily on this Court’s ruling over 100 years ago in

United States v. Grimaud. But Grimaud cannot bear

the weight that the panel places on it. Neither

Grimaud’s reasoning, context, nor statutory

framework bears any resemblance to FLPMA’s

standardless transfer of criminal lawmaking

authority.

19

To begin, Grimaud was not an intelligibleprinciple case at all. It was decided in 1911—nearly

two decades before J.W. Hampton first coined that

now-familiar phrase. See 276 U.S. at 409. Thus,

Grimaud cannot serve as an example of this Court’s

“routine[] appli[cation of] the ‘intelligible principle’

test” to criminal delegations, as the panel below

contends. App. 13a. If anything, Grimaud applied “a

standard higher than the intelligible-principle test to

evaluate the legality of a delegation enforced by a

criminal penalty.” App. 75a (VanDyke, J., dissenting

from denial of rehearing en banc). There, the Court

upheld Congress’s delegation of authority to the

Secretary of Agriculture to promulgate a criminal

regulation prohibiting the grazing of livestock on

national forest reservations without a permit. The

Court explained that the delegation was lawful

because Congress had not conferred open-ended

authority to make “rules and regulations for any and

every purpose,” but instead had authorized the

Secretary only to “fill up the details” necessary to

administer the law within clearly defined statutory

parameters. Id. at 517-522 (Congress “cannot

delegate its power to make a law”). That reasoning

bears little resemblance to the panel’s toothless test,

under which broad policy aspirations are treated as

adequate substitutes for the meaningful standards

and limitations that Article I requires.

Nor did Grimaud uphold anything like the

delegation challenged here. Indeed, the key principle

in Grimaud was that Congress made the fundamental

policy decisions and then provided clear guidance for

the Executive’s enforcement of the law. Id. at 522. The

statute there authorized the creation of forest

20

reservations, declared the purposes of those

reservations, and empowered the Secretary to issue

regulations to protect the reservations “against

destruction by fire and depredations” and “to preserve

the forests thereon from destruction.” Id. at 509. The

Secretary’s authority was thus limited to “defined”

subjects—protecting the forest reserves from

“depredations and from harmful uses”—which

Congress had “clearly indicated and authorized.” Id.

at 522.

FLPMA bears little resemblance. It does not direct

BLM to protect public lands from a concrete and

determinate category of harms. It authorizes the

agency to issue whatever criminally enforceable

regulations

it

deems

“necessary”

for

the

“management, use, and protection” of public lands,

while pursuing broad and often competing aims of

“multiple use and sustained yield.” 43 U.S.C.

§§ 1732(a), 1733(a). As Judge VanDyke explained,

those principles do not meaningfully constrain the

agency at all, but instead can be marshaled to justify

“almost any of the potential uses of land that [the

agency] might pursue.” App. 85a-86a.

Context makes the distinction even clearer. This

Court has repeatedly emphasized that whether

Congress supplied an intelligible principle depends

not only on the bare text of a statute, but also on its

purpose, factual background, and context. See

Consumers’ Research, 606 U.S. at 684; Gundy v.

United States, 588 U.S. 128, 136 (2019); Am. Power &

Light Co., 329 U.S. at 104-05. Read that way, the

statute in Grimaud supplied a far more determinate

principle than FLPMA does here. When Congress

21

enacted the statute, the first forest reservations had

only recently been established, and unrestricted

grazing on those reserves was widely understood to be

a serious and ongoing source of destruction to the

forest reserves. Sheep herders, in particular, were

notorious for disregarding the new restrictions and

grazing freely on protected reserves, causing

substantial damage.5 Against that historical

backdrop, Congress’s policy in Grimaud was not an

indeterminate aspiration, but a clear and bounded

legislative directive: to protect forest reservations

from destruction and depredations—at a time when

uncontrolled grazing was widely understood to be a

principal harm.

By contrast, FLPMA’s grant of authority to issue

whatever criminally enforceable regulations BLM

deems “necessary” for the “management, use, and

protection of the public lands” provides no similarly

concrete benchmark by which courts or citizens can

discern why riding a dirt bike at night without a

taillight—or countless other activities across 245

million acres of public land—may be criminalized.

In short, Grimaud offers FLPMA no refuge. The

defect in that statute does not concern the “filling of

details,” but the standardless transfer of criminal

lawmaking power. Grimaud did not sanction such an

Char Miller, How Counting Sheep Saved the U.S. Forest

Service, Peeling Back the Bark (May

3, 2011),

https://fhsarchives.wordpress.com/2011/05/03/how-countingsheep-saved-the-u-s-forest-service/; see also Logan Sawyer,

Grazing, Grimaud, and Gifford Pinchot: How the Forest Service

Overcame the Classical Nondelegation Doctrine to Establish

Administrative Crimes, 24 J.L. & Pol. 169, 181 (2008).

5

22

arrangement, and this Court’s later cases foreclose it.

At a minimum, whether “something more than an

‘intelligible principle’ is required when Congress

authorizes another Branch to promulgate regulations

that contemplate criminal sanctions” remains an

open question long overdue for this Court’s resolution.

Touby v. United States, 500 U.S. 160, 165-66 (1991).

B. Grimaud Risks Becoming a Talisman for

Reflexive Deference to Standardless

Criminal Delegations

Much as American Power has been read to support

an enfeebled intelligible-principle test far removed

from that decision’s actual holding, the panel likewise

stretched Grimaud beyond its actual holding, logical

reasoning, and facts. Left undisturbed, that

misreading threatens to make Grimaud in the

criminal sphere what American Power’s “public

interest” language has too often become elsewhere: a

doctrinal talisman invoked not as precedent carefully

read in light of its reasoning, statutory framework,

and context, but as a ready-made excuse for rejecting

nondelegation challenges whenever Congress has

supplied some lofty but amorphous bromide to

“govern” agency action. That danger is especially

acute where, as here, the delegated power bears

criminal consequences and individual liberty is at its

apex.

Nor is the Ninth Circuit alone in its talismanic

invocation of Grimaud. Multiple courts, eschewing

Grimaud’s reasoning and statutory context, as the

panel did here, have cited the century-old precedent

as purported support for the proposition that

23

Congress need not supply meaningful standards

when it divests power to the Executive to define the

very crimes that it will later enforce. See, e.g., App.

13a; Allstates Refractory Contractors, LLC v. Su, 79

F.4th 755, 761 (6th Cir. 2023); United States v. Mingo,

964 F.3d 134, 138 (2d Cir. 2020); United States v.

Brown, 364 F.3d 1266, 1274 (11th Cir. 2004). But

neither Grimaud’s actual reasoning, nor this Court’s

subsequent precedent support that proposition. Read

that way, Grimaud becomes an all-purpose citation

for dispensing with meaningful scrutiny whenever

Congress gestures toward some broad policy

aspiration and leaves the Executive to supply the

operative content of the law.

That shortcut approach is especially untenable

because it effectively displaces the core reasoning of

this Court’s controlling decisions in Panama Refining

and Schechter Poultry—both of which invalidated

congressional divestitures of criminal lawmaking

power. In neither case did the Court find that

Congress had provided no restrictions, policies, or

standards, nor that “some standard” “phrased in

broad terms” could have saved the day. To the

contrary, the Court acknowledged that Congress had

defined the subject to be regulated and had

articulated numerous broad policy objectives.

Panama Refining, 293 U.S. at 414–18, 432; Schechter,

295 U.S. at 521–23, 537–42. Yet that was not enough

because Congress still had failed to supply

ascertainable standards or conditions with which the

President was required to comply “as a ground of his

[actions].” Panama Refining, 293 U.S. at 431-32. The

panel below used Grimaud to sidestep those two

precedents and uphold a transfer of criminal

24

lawmaking power that suffers the same deficiencies.

Properly assessed under this Court’s precedent,

FLPMA plainly vests BLM with an “uncontrolled

legislative power,” id., to “make whatever laws [it]

thinks may be needed or advisable” to effectuate an

amorphous range of objectives. Schechter, 295 U.S. at

538.

Absent this Court’s intervention, the Ninth

Circuit’s decision and others like it will encourage

courts to uphold transfers of criminal lawmaking

power so long as Congress supplies a broad outline of

amorphous policy aims. That cannot be reconciled

with Article I nor the Constitution’s separation of

powers. As Justice Gorsuch put it, “The Constitution

promises

that

only

the

people’s

elected

representatives may adopt new federal laws

restricting liberty.” Gundy, 588 U.S. at 157 (Gorsuch,

J., dissenting).

C. Delegations of Criminal Lawmaking

Authority Require Heightened Judicial

Scrutiny—Not Deference

The Framers recognized that, with “criminal

subjects,” Congress should “leave as little as possible

to the discretion of those who are to apply and to

execute the law.” James Madison, The Report of 1800,

in 14 The Papers of James Madison 266, 307, 324

(Robert A. Rutland et al. eds., 1983). This Court’s

precedent

has

long

reflected

that

same

understanding, see, e.g., United States v. Evans, 333

U.S. 483, 486 (1948) (“defining crimes” is a

“legislative” function); United States v. Wiltberger, 18

U.S. (5 Wheat.) 76, 95 (1820) (“It is the legislature …

25

which is to define a crime, and ordain its

punishment.”). And this Court has made explicit that

Congress may not delegate “the inherently legislative

task” of determining what conduct “should be

punished as crimes.” United States v. Kozminski, 487

U.S. 931, 949 (1988).

This principle reflects a foundational premise of

Vested Powers: laws restricting liberty must be

enacted by the people’s elected representatives—not

by unaccountable executive-branch bureaucrats. See

Schechter, 295 U.S. at 529 (“Congress is not permitted

to abdicate or to transfer to others the essential

legislative functions with which it is … vested.”);

Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 55

(2015) (“[T]he structural principles secured by the

separation of powers protect the individual”). The

Constitution does not permit such lawmaking by

executive fiat—and for good reason. When Congress

broadly delegates its legislative power, the people can

no longer “readily identify the source of legislation or

regulation that affects their lives.” Ass’n of Am. R.Rs.,

575 U.S. at 57 (Alito, J., concurring). That, in turn,

allows “[g]overnment officials [to] wield power

without owning up to the consequences.” Id.



Although this Court once insisted that Congress

set the legislative standards that govern when rights

may be infringed, later cases drifted from that first

principle. After nearly 80 years of steadily

diminishing protection for Vested Powers, it is long

past time for this Court to restore the Constitution’s

prohibition on divesting legislative power.

26

CONCLUSION

The Court should grant the petition in this case to

restore the Constitution’s allocation of legislative

power and to clarify that Congress must supply

judicially discernible standards when delegating

authority that affects private rights and individual

liberty—especially in the criminal context.

For similar reasons, the Court should also grant

the petition for a writ of certiorari in RMS of Georgia,

LLC v. EPA, No. 25-1079 (U.S. Feb. 27, 2026), which

presents a closely related question concerning

Congress’s transfer of sweeping policymaking

authority to an administrative agency to allocate

market share across an entire industry. Together,

these petitions present the Court with an opportunity

to reaffirm that Article I’s Vesting Clause and the

nondelegation doctrine are not mere formalities, but

enduring structural safeguards of liberty.

March 23, 2026

Respectfully submitted,

/s/ Casey Norman

Casey Norman

Counsel of Record

Zhonette Brown

Mark Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

4250 N. Fairfax Dr., Suite 300

Arlington, VA 22203

Phone: (202) 869-5210

Casey.Norman@ncla.legal

27

Counsel for Amicus Curiae

New Civil Liberties Alliance