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Our Separation of Powers Practice Includes:

Undoing Improper Delegations of Lawmaking Power to Regulatory Agencies

The Constitution gives Congress—and Congress alone—the power to make laws. Unfortunately, Congress has delegated this power to administrative agencies, and the courts have allowed it to happen. PLF aims to restore the principle of nondelegation so that Congress—the branch of government closest to the people—alone has the responsibility to create new laws.

During the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) enacted a nationwide moratorium on residential evictions. CDC justified the ban as a measure to combat the spread of disease, but nothing in CDC’s authorizing statute gives them the power to impose such sweeping restrictions on property and contract rights. The law allows them to take modest steps to prevent the spread of disease across state lines, which CDC read as a license to take any steps. But agencies cannot make up the law as they go along. Eviction moratoriums are bad policy, but if they are going to exist, they must come from Congress, not bureaucrats.

Ending Judicial Deference to Regulators

It’s not only Congress. Courts have also failed to oversee agencies, by deferring to the agencies’ own interpretations of the laws they enforce. PLF has won numerous victories calling into question the legal doctrines that encourage this deference.

Hawkes Water Case Page

For decades, the Army Corps of Engineers’ definition of “navigable waters” included any private property containing water—even large, seasonal puddles—that may eventually drain into a river. For years, courts deferred to the government’s expansive and self-serving definition of “navigable waters.” In Rapanos v. United States, the Supreme Court rejected the government’s absurd approach. The late Justice Scalia wrote: “The plain language of the Clean Water Act simply does not authorize this ‘Land is Waters’ approach to federal jurisdiction.” Unfortunately, that decision was a plurality, so PLF continues to fight to protect landowners from the government’s effort to weaponize the Clean Water Act.

Making the Regulatory State Accountable to the People

Regulatory agencies are almost entirely insulated from political control. That’s a foreseeable result of Congress delegating its lawmaking power and judges deferring to agencies’ alleged expertise. But it’s also because Congress has made so many agencies independent of presidential control. The heads of “independent agencies” (such as the FCC, the FTC, and many others) can’t be fired by the president for bad behavior or bad policy choices. And immunity doctrines insulate officials from lawsuits that challenge their actions. PLF advocates holding agencies and bureaucrats that violate the law politically—and, sometimes, personally—accountable.

Federal regulators implemented a rule that would devastate the swordfish industry in California and put many family businesses in jeopardy. But the regulators who created the rule were unconstitutionally appointed. When bureaucrats with tremendous power over individual rights are not answerable to the president—or elected representatives—our government is no longer accountable to the people. PLF won a statutory victory striking down the rule, but the appointments problem continues. But we will keep on fighting.

Reviving Due Process Protections

When agencies bring enforcement actions, their targets find themselves in an upside-down universe. Normally, Americans have their cases heard by a neutral judge under fair rules of evidence, as guaranteed by the Constitution’s due process clauses. However, in regulatory proceedings, individuals are often denied a hearing in court, or their cases are heard by “administrative law judges” who work for the agencies themselves and who follow the agencies’ preferred rules. This biased process makes a mockery of justice. PLF fights for complete due process rights in all cases.

Sackets Fulltake

The Environmental Protection Agency ordered Michael and Chantell Sackett to stop construction on their home and fined them $37,500 per day. Then it said that they had no right to have their case heard in court. PLF represented the Sacketts all the way to the Supreme Court, which established that the Sacketts had a right to challenge the EPA’s action in federal court, rather than being stuck before an agency that was never going to treat them fairly.