The risk the administrative state poses to bird owners

October 21, 2020 | By TIMOTHY SNOWBALL

The United States Department of Agriculture (USDA) is contemplating issuing new rules regulating the health and safety of birds kept as pets. This rule-making is the result of a lawsuit brought by several animal rights groups that sued the USDA by arguing that it had failed to issue regulations required by the Animal Welfare Act. As part of this process, they will be considering which bird owners need a federal license for their animals. While the USDA will hopefully be reasonable with the new license rules, the only limitations the agency has provided is that the rules will apply only to “birds not bred for use in research.” But regardless of which birds are included in the license requirement, they may require bird owners to waive their Fourth Amendment protections against unreasonable warrantless searches.

While these new rules might sound like dull, bureaucratic tedium, it is a perfect example of the danger that comes from Congress delegating too much power to government agencies like the USDA. In the modern “administrative state,” unelected bureaucrats not only make the laws, they decide when and how they will be enforced.

All of these constitutionally suspect actions are present in the current USDA rule-making.

First, as we all learned in grade school, Congress is supposed to be the law-making branch of our federal government. Congress makes the laws, the president (and his staff) enforce the laws, and the courts decide if the laws are constitutional. But most modern law-making actually takes place through rule-making by unelected agency bureaucrats acting on only the vaguest general instructions from Congress. Here, the USDA is making law that could seriously impact bird owners’ Fourth Amendment rights.

Second, any investigation of potential violations of these rules is conducted by the agency responsible for making them. This is akin to a game of Monopoly where your opponent makes up the “house rules,” decides whether you owe them rent, and can also change the rules at any time. Not only does this not make sense as a matter of basic fairness, it likely abuts constitutional protections. When it comes to the new regulations regarding the health and safety of birds, the USDA not only will decide the rules of the game but will be responsible for enforcement.

Last, the decision whether to prosecute a violation generally rests exclusively with the agency responsible for both making up the rule and investigating whether a violation has occurred. And any potential violation is not determined by a neutral judge, but by an agency official. According to James Madison, the “Father of the Constitution,” “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” This mix of powers at the USDA for the new bird regulations will likely meet this definition.

Pacific Legal Foundation (PLF) is currently representing California falconers in their efforts to challenge federal and California regulations requiring an identical waiver of their Fourth Amendment rights. PLF submitted a public comment informing the USDA of these potential issues.