What We Fight For

Separation of Powers

Our Constitution established three separate branches of government: legislative, executive, and judicial.

Each function checks and balances the others in order to protect liberty from government power. However, modern regulatory agencies have accumulated all three functions, becoming lawmaker, executive, and judge. James Madison referred to this concentration of power as “the very definition of tyranny.” We are headed in that direction as modern regulatory agencies increasingly control every major aspect of our lives.

Under our Center for the Separation of Powers, PLF fights to rein in this unconstitutional “fourth branch” and to restore the proper structure of our government.

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 this 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.

Congress has given agencies broad power to regulate our lives, everything from the food we eat to our health care, our finances, and even the ergonomics of our desk chairs. Since the 1930s, the Supreme Court has all but abandoned investigating whether these grants of power are constitutional. However, in Gundy v. United States, four Justices signaled a willingness to restore the principle of nondelegation in a future case. PLF is delighted to accept that invitation.

Supreme Court West Facade

Ending Judicial Deference to Regulators

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

For decades, the Army Corps of Engineers’ definition of “navigable waters” included any private property containing water that may eventually drain into a river (even a river that is miles away). In Rapanos v. United States, the Supreme Court rejected the government’s expansive and self-serving definition of “waters.” 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.”

Hawkes Water Case Page

Holding Bureaucrats Accountable for the Mistreatment of Citizens

Regulatory agencies often act with impunity. “Independent agencies” (such as the FCC, the FTC, and many others) are not accountable to either Congress or the President, who cannot fire the heads of these agencies 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.

The Consumer Financial Protection Bureau, created in response to the 2008 financial crisis, enjoys vast powers, and its independent director is virtually immune from oversight. In a friend-of-the-court brief, PLF argues that the Supreme Court should put an end to the arbitrary power wielded by the CFPB and ensure that we have a government of laws and not of men.

Court Building

Making the Rule Makers Follow the Rules

Congress established rules that agencies must follow. When regulatory agencies work around or ignore these rules, PLF fights back to ensure that they exercise their powers according to law.

Under the Constitution, only high-level officials are permitted to issue new rules. But the Food and Drug Administration has allowed low-level, unaccountable bureaucrats to issue 97% of their rules in the last 10 years. PLF challenged one of these rules, the Deeming Rule, in court, arguing that rule makers must follow the Constitution’s rules when exercising their power.

Woman vaping

Reviving Due Process Protections

When agencies threaten regulatory enforcement, Americans 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” appointed by the agencies, judges who follow the agencies’ preferred rules. This biased process makes a mockery of justice. PLF fights for complete due process rights in all cases.

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 challenge to the EPA’s action heard in court. PLF took the Sacketts’ case to the Supreme Court, which established that the Sacketts had a right to challenge the EPA’s action in federal court.

Sackets Fulltake