Pacific Legal Foundation has come across too many instances where, as a public interest law firm, we must step in to protect Americans against the violation of their rights by the government. And for the past 50 years, we’ve spent much of our time taking these issues to court, including 20 times before the U.S. Supreme Court.
As the new Congress and presidential administration enter office in 2025, policymakers have an opportunity to fix the mistakes of the past and protect the constitutional rights of Americans moving forward.
Pacific Legal Foundation is proud to help produce an agenda for Congress and the executive branch to restore their proper roles, based on our lessons learned over 50 years of litigation, research, and policy work protecting the rights and liberties of all Americans.
Restore the Separation of Powers
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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.
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Congress should approve all significant regulations
Executive agencies have only limited authority from Congress, 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 announce new regulatory mandates or to leave open whether the agency has taken a final agency action. 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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Guarantee fairness and due process for those accused of regulatory infractions
Compliance orders can be ruinous to individuals or businesses that find themselves in the government’s regulatory enforcement crosshairs. Even investigations can be unreasonably burdensome when there is no reasonable justification. Targets should receive due process rights, such as proper notice of the alleged wrong and the opportunity to respond. Further, clarification is needed on what constitutes final agency action in these proceedings.
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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.
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Respect the presumption of liberty when agencies are challenged
In Loper Bright, the Supreme Court returned to the separation of powers in which the judiciary no longer gives improper judicial deference to federal agencies on legal questions. Constitutional principles of fairness and justice demand that this anti-deferential framework be strictly adhered to by all branches of government. Respecting the separation of powers means Congress should be clear in its authorizations to agencies, leaving little room for improper interpretation. In turn, agencies must presume liberty in close cases of both law and fact.
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Leave major questions to Congress
The Major Questions Doctrine requires that if Congress intends an agency to take actions with significant economic or social consequences, Congress must explicitly authorize those actions. All current law, as well as future legislation, must be reviewed to ensure compliance with this constitutional principle.
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End agency adjudication that fails to comply with due process and the right to trial by jury
Agency adjudications have long denied due process and the right to trial by jury—a right recently confirmed by the Supreme Court in Jarkesy v. SEC. Prior to initiating an administrative enforcement action, agencies should determine whether the regulated parties are entitled to a jury trial and whether they must proceed before an Article III court, independent of the agencies.
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Conduct a comprehensive review of all penalties for regulatory violations
There is a major difference between accidental violations and willful violations of laws and regulations. The current legal code, both in civil and criminal penalties, must reflect that principle through better mens rea standards, for example.
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Strengthen the Regulatory Flexibility Act’s review requirements
Most agencies ignore the RFA’s requirement that all regulations be reviewed every 10 years to determine which are duplicative, are excessively burdensome, or are now unnecessary. Congress and the executive must hold agencies accountable to complete this review.
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Add transparency to the rulemaking process
Agencies approve scores of regulations that are often difficult to track. We must strive to ensure that they are authorized by Congress and otherwise constitutional. Regulations should cite specific authority by Congress, and should further note who initiated and who promulgated the rule.
Smart and Constitutional Land and Environmental Policy
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End agency overreach in Clean Water Act claims
In Sackett II, the Supreme Court ruled 9-0 that the EPA has improperly enforced the Clean Water Act for years. All of the federal government must act in a way that conforms to the clear standards in the Sackett II opinion. Most importantly, wetlands are presumptively unregulated under the CWA, so that only those wetlands with a contiguous surface water connection to, and that are indistinguishable from, covered water are within the federal government’s purview.
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Halt improper claims of agency authority where Congress has not explicitly restricted productive use
Agencies claim wide discretion despite limited authorization from Congress regarding the balance between conservation and productive use of federal lands. Actions such as the roadless rule, the Conservation and Landscape Health Rule, and other blanket bans on productive use violate the authority granted by Congress. Further, agencies have used other programs, such as Swampbuster, to advance policy goals through improper means. Agencies may not willfully misinterpret statutory text to suit their own policy goals.
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Return the Endangered Species Act to its original intent
For years, the U.S. Fish & Wildlife Service’s implementation of the ESA has myopically focused on species conservation to the exclusion of all else—even where the statute does not authorize such action. This has punished property owners and resulted in the imposition of severe restrictions that Congress never anticipated or authorized, and that often reflect the policy preferences of special interests that have long exercised undue influence with the FWS.
- Interior improves Endangered Species Act’s application based on PLF petitions
- Lawsuit: Unauthorized expansion of the ESA is a “take” of landowners’ rights
- Research report: The Road to Recovery: How restoring the Endangered Species Act’s two-step process can prevent extinction and promote recovery (PERC)
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Rehabilitate the Clean Water Act’s exemptions for farming, ranching, and forestry
The EPA and the Army Corps of Engineers have all but ignored the exemptions provided by Congress for permissible activities that do not require a Clean Water Act permit. These agencies have aggressively pursued a conservation agenda, to the detriment of Congress’ goal of properly balanced land use. Clarity is needed in section 404(f) that reflects Congress’ goal that the ordinary land use activities identified be presumptively exempted. Furthermore, this should apply uniformly nationwide unless specifically stated otherwise by Congress.
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Return the Antiquities Act to its original intent
The Antiquities Act has been abused by past presidents to make millions of acres of land and sea unavailable to productive use. The original purpose of the Antiquities Act was to set aside small parcels of land to preserve invaluable artifacts and sites of historic or scientific interest. This presidential proclamation power must be limited to this original intent.
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Reform economic impact analysis for critical habitat designations to prevent abuse of property rights
Agencies have long abused critical habitat designations for threatened or endangered wildlife to restrict legitimate uses of property. The process for evaluating these designations must be clarified to ensure it follows the statutes and has a sound basis in science. When the costs imposed upon private parties outweigh any conservation benefits to the species, there should exist a presumption that the area be excluded.
Expand Economic Opportunity and End Race and Sex Discrimination
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End unconstitutional preferences in federal hiring and contracting
Discrimination based on race or sex is both unconstitutional and morally wrong, and the federal government should take no part in it. All federal employment, hiring, contracting, and grant decisions should be made by neutral criteria that treat every individual equally before the law. Discriminatory race- and sex-based quotas should be eliminated, including discrimination under the guise of proxies such as “social disadvantage.”
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Eliminate federal education funding regimes that promote race- and sex-based discrimination
Federal funding for education too often relies on race, ethnic, or sex classifications, encouraging unlawful discrimination. Federal programs that provide educational grants or subsidies based on a school’s racial or ethnic composition must be eliminated. Accreditors should be prohibited from using race, ethnicity, or sex to rate or evaluate the faculty or student body of colleges and universities. “Affinity classes” that segregate or cater to specific racial groups must be eliminated at all levels of education. College and university athletes should also be freed from Title IX sex-based quotas that limit students’ opportunities on the basis of sex.
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End racially and sexually divisive training programs and categorization
The federal government should reimplement neutral principles that prohibit race and sex stereotyping and scapegoating in all training programs for federal employees, contractors, and military academies. The responsible federal agencies should issue guidance clarifying that any workplace training that accepts and promotes racially or sexually divisive concepts create a hostile workplace with potential liability under Title VII and Title IX.
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Support and encourage the availability of telemedicine
Advances in technology increasingly allow access to quality health care regardless of where one lives, including in rural and hard-to-access areas. The federal government should encourage the elimination of states’ irrational barriers to providing medical care across state lines and should promote the availability of telemedicine and other technologies to increase access and reduce burdens on patients and their families.
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Eliminate regulatory barriers to employment
Under the guise of protecting workers, the Department of Labor has overstepped its authority and adopted rules that stifle both the economic freedom of American workers and free enterprise of American businesses. The DOL should trust individuals to make the best choices for themselves and focus its efforts on liberating the American worker from onerous regulations that stifle entrepreneurism and growth.
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Guarantee equality in education
Colleges and universities must abide by the constitutional prohibition on race and sex discrimination. No preferences should be allowed in admissions, scholarships, grants, or subsidies based on an applicant’s race and sex. Schools with unconstitutional race- and sex- based requirements should be excluded from federal education grants and subsidies.
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Disparate impact alone is insufficient to prove discrimination
Every policy imposed by government will have some measure of disparate impact across demographic groups. But not every racially disparate impact is evidence of discrimination, and it should not be treated as such. Responsible federal agencies should issue rules or guidance clarifying that disparate impact alone is not conclusive evidence of discrimination against a protected class, and agencies should eliminate any policies or guidance requiring demographic parity when disparate impact is not the product of discrimination.
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Enforce existing civil rights law to ensure all individuals are treated equally with respect to race
The Department of Justice’s Civil Rights Division and the Department of Education’s Office for Civil Rights have too often ignored the problem of discrimination or even affirmatively supported discriminating institutions, particularly where the discrimination is against Asian Americans. Full enforcement should include conducting compliance reviews of those likely to be engaging in discrimination and issuing rules or interpretive guidance making clear that Title VI prohibits all racial or ethnic discrimination, including anti-Asian discrimination.
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End Certificates of Need
State Certificate of Need (CON) laws prohibit new entrants into the market, for no other reason than to protect incumbents, especially in health care. The federal government should take steps to discourage CON laws and promote the ability of qualified entrepreneurs to bring innovative products and services to market. Federal regulators such as the Federal Trade Commission and the Department of Justice’s Antitrust Division should ensure CON laws do not violate federal law.