In Nevada, an expletive-ridden dirt bike police chase ended up demonstrating how too much power has been given to executive agencies. In this case, in 2021, a man named Gregory Pheasant was riding his dirt bike at Moon Rocks, a popular off-road vehicle spot on federal land in Nevada. Pheasant was riding his dirt bike without a tail light on. A Bureau of Land Management (“BLM”) officer tried to initiate a stop, and Pheasant drove away. Numerous f-word laced exchanges between Pheasant and the officer occurred before finally the officer stuck his baton in Pheasant’s spokes, disabling his dirt bike.
Not surprisingly, Pheasant was charged with resisting citation and failing to operate his dirt bike at night without a tail light. But these crimes were not codified by statute in either Nevada or by the federal government. No legislative body wrote or passed these laws. Rather, BLM itself both wrote the laws and enforced them.
Pheasant challenged these charges under a legal theory based in constitutional law called the nondelegation doctrine. Elementary level civics has taught that a bill should become a law by having both houses of Congress pass a law and the president signs the law. However, that is not how many laws are passed in current times. Congress often uses a process called delegation. There is debate over the limits of delegation, but as it stands now, delegation allows Congress to hand over the responsibilities of making law to agencies belonging to the executive branch. In this case, Congress gave the authority to BLM to create criminal laws.
This power is massive. For example, in Nevada, 68% of the state is federal land, meaning that BLM has more power over Nevada land than Nevada’s own government. A bureaucrat in Washington, really a single person, can create and impose a law from across nearly the entire country.
Here, under the non-delegation doctrine, Pheasant successfully challenged his charges because the laws passed by BLM were delegated with too few parameters. Under the non-delegation doctrine, Congress cannot simply hand over the power to an executive branch agency with no guidance. Rather, Congress must create boundaries to what the executive agency can do. When there are no boundaries, the agency’s regulations are not lawful.
Congress had given BLM the authority to pass any regulations it deemed “necessary,” which effectively created no boundaries to control BLM’s use of power. Accordingly, the District Court of Nevada declared the delegation unlawful. The Court noted that the BLM officials were “essentially single-person legislators and governors” and that Congress did “nothing to cabin the Secretary of Interior’s ability to choose what is a crime.” As a result, Pheasant’s criminal prosecution was dismissed.
Nondelegation is an important principle for the courts to enforce. When Congress does not write laws and empowers unelected bureaucrats to write law for them, two things happen. First, Congress, particularly its individual members, is able to avoid taking responsibility for the negative consequences of the laws. Second, it emboldens government bureaucrats to pass laws to their own liking. While Congress abdicates its responsibility, government bureaucrats assume that responsibility.
This transfer of power is a real problem. Congress is accountable to the electorate. But government bureaucrats are often career employees who are not impacted at all by elections. Once career agency bureaucrats are hired, it is very difficult to fire them, even if they directly contradict the president (who should be their boss). These career employees, therefore, are not accountable to the people, but yet have a tremendous amount of power.
There should be a concerted effort to cabin the Congress’ habit of delegating power to executive bureaucrats to write laws. The power should rest with parties accountable to the people. Allowing unelected bureaucrats to, without restraint, write laws is anti-democratic.
Curtis Schube is the Executive Director for Council to Modernize Governance, a think tank committed to making the administration of government more efficient, representative, and restrained. He is formerly a constitutional and administrative law attorney.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.