Pacific Legal Foundation has come across too many instances where, as a public interest law firm, we find a place to step in to protect Americans against the violation of their rights by the government. And for the last 50 years, we spent much of our time taking these issues to court. But there are some national issues in PLF’s focus that can be solved by Congress.
For example, we recognize what may be obvious to students of the Constitution, but has often been lost on Congresses of the past: Congress holds the lawmaking power, and it is the duty of our elected representatives to ensure that this, and the other elements of the separation of powers, are respected.
As the premier public interest law firm dedicated to individual liberty, we are proud of our success in the Supreme Court of the United States in vindicating our constitutional rights. Congress has no less vital role than the courts in preserving liberty. Pacific Legal Foundation is proud to help produce an agenda for Congress to restore its proper role, based in our lessons learned in the last half-century, as well as our recent research and legal policy work in the states and at the federal level.
Respect the Separation of Powers
The Separation of Powers: Explained | Pacific Legal Foundation
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Make rulemaking democratically accountable with presidentially appointed and Senate-confirmed officers
Thousands of rules are written and approved not by individuals appointed by the president and confirmed by the Senate, but rather by career bureaucrats with no meaningful accountability to the democratic process. The Constitution demands that only those properly appointed officers of the United States initiate and promulgate rules.
- The Hill: Pulling back the curtain on DC's rulemakers? | Pacific Legal Foundation
- But Who Rules the Rulemakers?
- Vaping Litigation | Pacific Legal Foundation
- Distilleries heroically stepped up during COVID. The FDA punished them. | Pacific Legal Foundation
- WSJ - Who Gets to Make the Rules? Washington May Finally Get It Right
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End judicial bias and presume liberty
The seemingly unlimited deference courts grant to federal agencies is poorly reasoned judge-made law that lets the government win even when a neutral reading of the law would dictate the opposite result. This is unjust and violates constitutional principles of fairness and justice.
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Congress should approve all significant regulations
Executive agencies have only limited delegated authority from the Legislature, which should not be stretched to create massive new programs never contemplated by Congress. Congress should require regulations that have major economic and social impact to be approved by both houses before going into effect.
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Limit the use of guidance documents—rulemaking by another name
Guidance documents and other declarations by executive agencies do not go through notice and comment, nor do they conform to other standards for rulemaking. Some guidance documents may be informative, but it’s an abuse by agencies when guidance is used to announced new regulatory mandates. Reform is needed to ensure that guidance documents are not used in a coercive manner to entrap Americans in administrative quagmires.
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Limit the duration, applicability, and scope of executive emergency powers
Emergency powers given to the president have been abused for decades, in a number of policy areas, with no end in sight. Changes are necessary to limit what the president may do without the approval of Congress.
- Emergency Powers | Pacific Legal Foundation
- Skyworks Ltd. v. Centers for Disease Control
- Fighting lawless student loan cancellations to restore separation of powers
- The Hill: What Joe Biden can learn from Harry Truman's failed steel seizure | Pacific Legal Foundation
- Defending The Separation of Powers Is A Nonpartisan Issue... Or At Least It Should Be | Pacific Legal Foundation
- Principled Limitations on Executive Emergency Powers | Pacific Legal Foundation
Reform the Administrative State
The Regulatory State's Due Process Deficits | Pacific Legal Foundation
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Ensure that fair notice is given to targets of regulatory infractions
Compliance orders alone can be ruinous to a family or business, and even investigations are unreasonably burdensome when there is no reasonable justification. It is important that anyone in the government’s crosshairs be given proper notice of the alleged wrong and the opportunity to respond and otherwise challenge the basis of the intended order before it goes into effect.
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Limit the authority of agency adjudicators in coercive litigation
Administrative law judges or other hearing officers in regulatory agencies should be used in only limited circumstances. Those include government benefits cases and where regulated entities consent to the use of administrative adjudicators. But when regulatory agencies initiate coercive litigation that limit or abridge individual rights, targeted parties must be permitted to remove the dispute to an independent Article III court, guaranteeing a de novo review of the facts of the case for a proper legal determination.
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Reform the standards, burdens, and processes regarding facts and evidence in administrative enforcement actions
The American ideal of justice places the burden on the prosecutor to make the case, rather than the accused to prove innocence. But serious due process deficits in the administrative enforcement process turn that ideal on its head. With rare exceptions, regulatory agencies should not withhold information from regulated parties that they believe justifies their enforcement actions, which information may be erroneous, incomplete, or misleading.
Apply Environmental Law Effectively
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Clarify the definition of “navigable waters” in the Clean Water Act
Pending Supreme Court litigation may resolve some issues regarding the EPA’s tortured definition of “navigable waters,” but Congress adding commonsense clarity is still needed to limit future agency abuse in this area.
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Conduct a comprehensive review of all penalties for environmental laws
There is a major difference between accidental violations and purposeful polluters or other serious violators of environmental laws and regulations. The current legal code, both in civil and criminal penalties, must reflect that principle.
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Enhance economic impact analysis for critical habitat designations for threatened or endangered species, and the process for excluding particular areas.
Agencies do not have a clear process to properly evaluate the impacts of designating critical habit areas for threatened wildlife because of the lack of standards in the law. Too often, when an area is designated as critical habitat, the costs imposed upon private parties radically outweigh any conservation benefits to the species. Where that is the case, there should exist a presumption that the area be excluded.
End Federal Discrimination
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Ban all quotas and preferences based on race or sex
The federal government should not discriminate on the basis of race or sex. The practice is unconstitutional, morally wrong, and its end is long overdue. Employment, hiring, and contracting decisions should be made by neutral criteria that treat every individual equally before the law.
- Race-based COVID-19 farm loan forgiveness denies equal treatment to farmers and ranchers across the country
- The Hill: Why farmers are fighting the USDA's loan forgiveness program | Pacific Legal Foundation
- Hierholzer v. Guzman | Pacific Legal Foundation
- Coalition for TJ v. Fairfax County School Board | Pacific Legal Foundation
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End race-based higher education funding
Grants and subsidies that go to colleges and universities with race-based strings are unconstitutional. Discriminatory funding that directs universities or research projects to have a particular racial composition must be stopped.