National Review: The Administrative State Comes for James Bond — and You Could Be Next

April 12, 2024 | By JOSH ROBBINS
James Bond

The law finally caught up to James Bond — or at least the actor who used to play him. On March 14, 2024, former 007 actor Pierce Brosnan pleaded guilty in federal court in Wyoming to a single count of straying from a footpath in a thermal area of Yellowstone National Park. Brosnan was cited for allegedly standing off the path at Mammoth Hot Springs while having his photo taken. Brosnan was fined $500 for this infraction and ordered to donate $1,000 to Yellowstone Forever, a nonprofit organization.

But how did something so pedestrian — in the most literal of senses — become a federal crime? The answer is much more troubling than Brosnan’s momentary trespass. The Department of the Interior — the same agency that cited Brosnan and initiated his prosecution — got to make it up.

Determining what conduct is a crime is one of the government’s most consequential actions. That decision subjects Americans to criminal penalties — a GoldenEye for our liberties, if you will — including fines, prison, and other consequences like losing the right to vote. The agency responsible for deciding whether to prosecute you for breaking the law is not also supposed to determine what the law is. The Supreme Court has long recognized that as “dangerous.” And the danger should be intuitive to all of us. Federal bureaucrats deciding for themselves what you can and cannot do subjects us to capricious rules and places our liberty at significant risk.

The creation of federal crimes is supposed to be the responsibility of our elected representatives in Congress. That is how the separation of powers in our Constitution reduces the risks to individual liberty created when the same officials write and enforce the law.

But Congress abandoned its legislative duties entirely — a practice that seems never to die — when it comes to regulating conduct in our national parks. Congress gave the secretary of the interior the authority to create any regulations she thinks are “necessary or proper for the use” of the parks. And Congress decided that violations of any regulations she created are criminal offenses punishable by up to six months in prison. So, if the secretary can plausibly claim that a potential regulation is related to the use of the national parks, she can issue that regulation, thereby creating a federal crime.

That leads us back to Pierce Brosnan. His alleged offense was just such a regulatory crime created by a secretary of the interior — not Congress. Buried in the Code of Federal Regulations is a requirement that “foot travel in all thermal areas” where Brosnan was purportedly visiting “be confined to boardwalks or trails.” So, when Brosnan stepped off the path at Mammoth Hot Springs for his photo, he became a federal criminal.

Our national parks are undoubtedly treasures that should be legally protected. I regularly visit federal lands near my home in northern Virginia — such as Shenandoah National Park and the Dolly Sods Wilderness — to hike and camp. And I am grateful that they continue to be preserved.

I have been to Yellowstone’s Mammoth Hot Springs. It is a remarkable place that I recommend everyone visit. The strangely colored rock terraces collecting pools of steaming-hot water create an otherworldly experience. Legal restrictions to protect this natural wonder are perfectly sensible. Even more so because venturing from the paths in this thermal area could lead to severe burns, or worse — and has done so, in some cases — and the National Park Service understandably prefers that visitors die another day. But should stepping off a path be a jailable federal offense?

Even if it should, Congress must make that decision, not the secretary of the interior or any other federal bureaucrat. To allow executive-branch officials to write and enforce criminal laws invites abuse. As Justice Neil Gorsuch explained, in that circumstance, federal laws “risk becoming nothing more than the will of the current President.” This deprives Americans of “a relatively stable and predictable set of rules” generated by the slow, deliberative, and democratically accountable legislative process. Regulatory crimes are inherently unfair.

Fortunately, one federal court has tried to put a stop to Congress’s giving away its power to write criminal laws. Gregory Pheasant’s felony criminal case — which arose from his alleged use of a dirt bike on federal land at night without a taillight — was dismissed by a federal court in Nevada because Congress permitted the Bureau of Land Management to create the relevant crime. That case is currently on appeal at the U.S. Court of Appeals for the Ninth Circuit. And the U.S. Supreme Court will likely have to intervene before this situation changes.

For now, Brosnan is left with his fine and compulsory donation. And the rest of us are left subject to the whims of Interior Department bureaucrats on our visits to the national parks. Ideally, Congress will soon learn that delegating power is not enough when creating federal crimes.

This op-ed was originally published in National Review on April 5, 2024.