Ending the Unconstitutional Regulatory State

PLF’s Center for the Separation of Powers

Every year, federal regulatory agencies impose thousands of new regulations on Americans, filling over 75,000 pages of dense text in the Federal Register, vastly more than the laws that Congress enacts. The numbers alone tell only a small part of the story.

More people are coming to realize that regulatory bureaucracies are oppressive and democratically unresponsive. That is the predictable result when agency operations regularly violate the Constitution’s Separation of Powers, which the Framers fine-tuned to protect individual liberty and keep government accountable.

PLF’s Center for the Separation of Powers leads in the development and promotion of solutions to end the unconstitutional regulatory state—through strategic litigation, legislation, and executive action—which will accelerate the day when the regulatory state is history.

What’s at Stake

The original purpose of many federal regulatory agencies was well-intended, such as ensuring safe food, drugs, or working conditions. But regardless of the need for such regulations or the merit of any particular regulatory program, they still must be developed, implemented, and enforced in a constitutional manner.

The mass of agencies we call “the regulatory state” today has grown oppressive and democratically unresponsive for a predictable reason: agency operations regularly violate constitutional rules the Framers established to protect individual liberty and keep government accountable.

By one estimate, more than one million federal regulatory dictates micromanage our lives. While most Americans can’t keep track of more than a tiny fraction of these regulations, they can be prosecuted for breaking them.

But the sheer volume of burdensome regulations churned out by countless regulatory bureaucracies each year isn’t the worst problem. The greater danger is their unconstitutional concentration of power that seriously diminishes individual freedom.

For more than 80 years, all three branches of the federal government have violated the Constitution’s Separation of Powers by illegally transferring power to regulatory bureaucracies or deferring to this transfer and concentration of power. Federal courts abandoned their duty of independent judgment and sanctioned unconstitutional practices that fueled the seemingly unstoppable rise of the regulatory state. A sustained and principled criticism has now undermined the regulatory state’s foundation, creating a political, intellectual, and judicial climate primed for significant steps back to the lawful constitutional order.

PLF’s Center for the Separation of Powers works to restore the structural protections of liberty in the Constitution, without which other guarantees of liberty become worthless. The Center leads in the development and promotion of solutions to end the unconstitutional administrative state—through strategic litigation, legislation, and executive action—and restore the constitutional order. In doing so, the Center also contributes to the proper understanding of the Constitution’s Separation of Powers.

James Madison explained in the Federalist Papers that the concentration of legislative, executive, and judicial power in any person or entity is “the very definition of tyranny.” He also wrote that government powers must be effectively separated to protect liberty; all other attempts to prevent abuse would be mere “parchment barriers.” The Framers also knew that not just any system of separated powers would protect liberty. Under our Constitution, liberty is protected when particular powers are exercised by particular actors, with unique checks appropriate for each type of actor. This careful arrangement has been disregarded for many years, but the contradiction between a Constitution of separated powers and the increasing concentrations of authority in regulatory bureaucracies cannot continue indefinitely.

PLF has been the leader in constitutional litigation against regulatory abuse for more than four decades, with an unmatched record of success in the Supreme Court, including four wins and two pending cases in the Supreme Court on Separation of Powers issues:

  • National Association of Manufacturers v. U.S. Department of Defense (2018)
    A unanimous Court agreed with PLF and the other petitioners that the U.S. Environmental Protection Agency cannot shelter its “waters of the United States” rule from federal court review by arbitrarily limiting where victims can sue.
  • U.S. Army Corps of Engineers v. Hawkes Co., Inc. (2016)
    The Court unanimously accepted PLF’s arguments that landowners have a right to seek judicial review when their property is designated as wetlands subject to federal jurisdiction under the Clean Water Act.
  • Sackett v. U.S. Environmental Protection Agency (2012)
    In another unanimous decision, the Court held that property owners have a right to direct, meaningful judicial review if the U.S. Environmental Protection Agency effectively seizes control of their housing lot by declaring it to be “wetlands.”
  • Rapanos v. United States (2006)
    In another landmark decision, the Court struck down the U.S. Environmental Protection Agency’s regulation on wetlands as exceeding the agency’s statutory authority under the Clean Water Act.
  • Weyerhaeuser v. U.S. Fish and Wildlife Service (Review Granted)
    PLF challenges the regulatory agency’s critical habitat designation of over 1,500 acres in Louisiana for the dusky gopher frog—a species that has not been seen in the state for more than 50 years, and which could not live on the land in question.
  • Knick v. Scott Township, Pennsylvania (Review Granted)
    PLF challenges a federal court procedural doctrine that has stymied the rights of landowners across the country for more than three decades: When government violates property rights, may victims sue directly in federal court, or must they go to state courts first?

PLF also represents clients in over 20 active cases in lower federal courts on these issues, including two waves of litigation launched in early 2018:

  • Challenge to FDA’s Unconstitutional Rulemaking Procedures
    PLF challenges the FDA’s deeming rule, which was issued by an FDA career employee, not a principal officer of the FDA or HHS, as mandated by the Constitution’s Appointments Clause. Hundreds of other FDA rules were issued in the same unconstitutional manner.
  • Congressional Review Act (CRA) Cases
    The CRA requires federal agencies to send rules to Congress before they may take effect, giving Congress its rightful opportunity to oversee regulatory agency actions and use expedited procedures to overturn the worst rules. PLF challenges two rules not submitted to Congress: one with disastrous consequences, and a good policy that needs to be lawfully in effect.

The Center for the Separation of Powers accelerates PLF’s effort to end the unconstitutional regulatory state by developing additional short- and long-term strategies to enforce the Separation of Powers and restore our constitutional order.

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