Labrador Letter: Urging the Supreme Court to Block Federal Agencies from Writing Criminal Law

Dear Friends,

In 2021, Gregory Pheasant was arrested for riding a dirt bike without a taillight on federal land near Reno, Nevada. A federal district court dismissed the charges, ruling that Congress had violated the Constitution by letting the Bureau of Land Management decide what conduct is criminal without defining the crimes themselves. However, the Ninth Circuit reversed that decision, upholding BLM's authority. Pheasant asked the Supreme Court to review the case, and last week, Idaho filed a brief urging the Court to take the case and restore the constitutional requirement that Congress, not unelected agencies, must write the laws that define criminal conduct.

The Constitution gives Congress the power to make laws and the Executive the duty to enforce them. But in Section 303(a) of the Federal Land Policy and Management Act, Congress handed the power to define crimes on public lands to the Bureau of Land Management. The law allows BLM to issue any regulations deemed "necessary" for the "management, use, and protection of the public lands" and attaches criminal penalties of up to one year imprisonment and $1,000 fines to violations. Congress prescribed maximum penalties but left it entirely to BLM to decide what conduct triggers those penalties.

That breaks a foundational principle of our constitutional system. The People granted Congress legislative authority through the Constitution. Under settled principles of common law and political philosophy embraced by the Framers, delegated power cannot be re-delegated without the consent of the original grantor. When Congress hands lawmaking authority to agencies, it breaks the link between legislation and the consent of the governed.

This matters to Idaho because 61% of our state is federal land, with BLM managing 22%. Across nearly a quarter of Idaho, individuals can face prosecution under rules written by bureaucrats they never voted for and cannot hold accountable. Using this delegated authority, BLM has criminalized conduct traditionally regulated by states, including playing music too loudly, repositioning campground furniture, searching for treasure, and possessing outdated vehicle registration.

The separation of powers exists to prevent tyranny. When the same person or body holds both the power to make laws and the power to enforce them, liberty dies. James Madison singled out "criminal subjects" as ones on which Congress must "leave as little as possible to the discretion of those who are to apply and to execute the law," warning that otherwise "the whole power of legislation might be transferred by the legislature from itself."

The Supreme Court has long demanded that Congress be the body that makes criminal law. The Judiciary cannot make criminal law. There are no common-law offenses against the United States. Nor can the Executive prescribe a criminal offense by regulation. For an agency to prescribe a rule carrying criminal penalties, there must be an act of Congress that at least prescribes what conduct constitutes a crime.

Idaho led 18 states in urging the Court to hear the case and reverse the Ninth Circuit's decision. The case raises fundamental questions about accountability, consent, and the structure of government the Founders designed to protect liberty. What people call BLM land is actually the people's land, and the people have not agreed to have their liberty restrained under BLM's conditions, only under conditions set forth by their elected representatives.

Best regards,