September 10, 2019 Print

The modern administrative state has allowed regulatory agencies to undermine the separation of powers by combining all three branches—legislative, executive, and judicial—within their walls. This unconstitutional, tyrannical “fourth branch” of government poses a threat to individual liberty in America and around the world, and Pacific Legal Foundation (PLF) is reversing this trend. PLF’s Center for the Separation of Powers uses strategic litigation to challenge the legal doctrines that empower the regulatory state. In more than forty years defending freedom, PLF has directly represented clients in 14 U.S. Supreme Court cases and has won 12. Five of these victories have constrained the power of regulatory agencies.

“The ever-growing, runaway regulatory state represents the most significant threat to liberty today,” said Steven D. Anderson, president and chief executive officer of PLF. “We’re grateful for Atlas Network’s recognition of our strategic litigation to beat back the unconstitutional expansion of government power.”

PLF’s 2018 Supreme Court victory in in Weyerhaeuser v U.S. Fish and Wildlife Service illustrates the problems created by a federal agency that oversteps its authority. PLF represented Louisiana landowner Edward Poitevent, whose St. Tammany Parish property was designated by the U.S. Fish and Wildlife Service as “critical habitat” for the dusky gopher frog. Poitevent was prohibited from developing more than 1,400 acres of his land, even though the frog has not been seen in Louisiana since the mid-1960s.

In a unanimous 8-0 opinion written by Chief Justice John Roberts last November, the court vacated the decision of a federal appeals court that had upheld the Fish and Wildlife Service’s designation. Roberts pointed out that the appeals court should have considered the benefits and costs of the designation, and that “agency discretion” is not sufficient grounds for protection. “The nation’s hardworking property owners can rest easier tonight knowing government-sponsored land grabs just became a lot more difficult,” said PLF attorney Mark Miller.

PLF believes that the current political, intellectual, and judicial climate is primed to produce a return to the constitutional order. In addition to requiring regulators to follow federal law, PLF’s Center is targeting these and other problems:

  • Congress too often delegates its lawmaking power to regulatory agencies with vague and open-ended statutes that violate Article I. The courts need to do a much better job of policing constitutional delegation of power to unaccountable bureaucrats. Until then, a faithful president and Congress should institute internal reforms and enact statutory solutions that restore meaningful democratic accountability.
  • Many regulatory-agency proceedings violate fundamental due-process protections and short circuit a fair trial before a federal court judge and jury. These unfair regulatory proceedings must be struck down or statutorily reconstituted to comply with the rule of law.
  • The federal courts disregard their duty when they defer to agency interpretations of law, regulations, and claims of jurisdiction. The courts should abandon their agency-deference doctrines. Congress should lead with laws that prohibit improper judicial deference in the interpretation and application of law.

In 2018, PLF launched two separate waves of strategic litigation, targeting the Food and Drug Administration’s “Deeming Rule” and agency non-compliance with the Congressional Review Act. In 2019, the Office of Management and Budget issued a memorandum to executive agencies directing them that the Congressional Review Act applies to all guidance documents and non-notice-and-comment rules.

“The problem of a burdensome regulatory state is well-known, but finding a solution has proven difficult,” said Brad Lips, CEO of Atlas Network. “Pacific Legal Foundation is showing the way by using litigation to challenge the constitutionality of executive agencies writing and enforcing their own rules.”

About Pacific Legal Foundation:
Pacific Legal Foundation (PLF) is a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. PLF sues the government when it violates Americans’ constitutional rights—and wins! Each year, PLF represents hundreds of Americans, free of charge, who seek to improve their lives but are stymied by the government. It gives them their day in court to vindicate their rights and set a lasting precedent to protect everyone else.

About Atlas Network’s 2019 Templeton Freedom Award:
Awarded annually since 2004, Atlas Network’s Templeton Freedom Award is named for the late investor and philanthropist Sir John Templeton. This prestigious prize honors Sir John’s legacy by recognizing Atlas Network’s partner organizations for exceptional and innovative contributions to the understanding of free enterprise and the advancement of public policies that encourage prosperity, innovation, and human fulfillment. The Templeton Freedom Award is generously supported by Templeton Religion Trust and will be presented during Atlas Network’s Freedom Dinner on Nov. 7 at the Intrepid Sea, Air & Space Museum in New York City. The winning organization will receive a $100,000 prize, and five additional finalists will receive $20,000 prizes.

The finalists for Atlas Network’s 2019 Templeton Freedom Award are:

For media inquiries about the 2019 Templeton Freedom Award, contact Melissa Mann at melissa.mann@atlasnetwork.org or (202) 449-8441.

About Atlas Network:
Atlas Network increases opportunity and prosperity by strengthening a global network of independent civil society organizations that promote individual freedom and remove barriers to human flourishing.