Columbus, OH – On Monday, The Buckeye Institute filed an amicus brief in Pheasant v. United States, calling on the U.S. Supreme Court to revive the nondelegation doctrine and tell Congress it cannot abdicate its lawmaking responsibilities—particularly its role in creating criminal statutes—to the executive branch. 

“When Congress allows executive agencies to create rules and regulations with the effect of laws, Congress has abdicated the responsibility of lawmaking,” said David C. Tryon, director of litigation at The Buckeye Institute and counsel of record on this brief. “And while it may be easier to let administrative agencies make the rules, the fundamental task of lawmaking constitutionally remains with Congress.”

In its brief, The Buckeye Institute argues that the nondelegation doctrine plays a vital role in protecting the separation of powers enshrined in the U.S. Constitution and in determining what powers Congress can delegate. As it pertains to criminal laws, The Buckeye Institute points out that the Constitution has special protections against delegating legislative authority to create crimes.  

Citing a list of laws Congress has passed, The Buckeye Institute shows that Congress has legislated with great detail and precision when it has had the political will to do so. And if Congress cannot pass a criminal law, the Constitution’s structure prevents the administrative state from doing so. 

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