Trump-appointed judges urge Congress to reclaim power to define crimes

As disputes over the limits on presidential power roil legal circles, two of President Donald Trump's federal appellate court appointees argued that Congress, not the executive branch, must define what conduct is criminal. 

The two dissented Friday in a 9th U.S. Circuit Court of Appeals case where the majority ruled defendants can be prosecuted for regulatory crimes under a law written by a cabinet secretary. 

The dissenters appeared to present a separation-of-powers paradox: Both Patrick J. Bumatay and Lawrence J.C. VanDyke recently lodged strong objections when their liberal colleagues blocked a Trump administration override of Congress' power of the purse as it sought to cut appropriated funds that paid lawyers for migrant children. Community Legal Services in East Palo Alto et al. v. U.S. Department of Health and Human Services et al., 25-2808 (9th Cir., order filed Oct. 10, 2025).

Yet on Friday both said Congress should grab back from the executive branch the rulemaking authority that allowed the Department of the Interior to set regulations that can send scofflaws to jail.

The issue arose in an obscure 2021 prosecution of defendant Gregory Pheasant for driving a dirt bike on Bureau of Land Management property known as Moon Rocks, north of Reno, Nevada, at night with a broken taillight, violating BLM regulation 43 C.F.R, section 8341.1 (f)(5). Apprehended and charged, he faced up to a year in prison and a $1,000 fine.

The prosecution mushroomed into a massive federal case when a district judge dismissed the charges on the grounds that the Secretary of the Interior has no power to create crimes. A 9th Circuit panel reversed, holding that Congress' delegation of power was lawful. On Friday, the circuit announced that it had voted against en banc review, letting the regulations stand. USA v. Pheasant, 23-001 (9th Cir., order filed Oct. 31, 2025).

Bumatay, one of the dissenters from denial of en banc review, said he was protesting since a deprivation of liberty is at stake, and Congress cannot simply leave it to the executive branch to unilaterally declare what acts can subject people to criminal confinement. The Constitution requires that Congress be in charge, "because the separation-of-powers demands more before throwing people in prison," Bumatay wrote.

He cited the non-delegation doctrine, which "bars Congress from transferring its legislative power to another branch of Government," according to a 2019 U.S. Supreme Court holding in Gundy v. U.S.

Stanford Law School's Robert I. Weisberg, a criminal law authority, said the court conservatives are often sympathetic to expanded presidential power as it is expressed in executive orders. 

"But they are more suspicious of rules written by what they would call unelected bureaucrats. They make a kind of in-the-weeds distinction between presidential power, where they take a broad view, and executive power exercised by lower ranking officials in what they would call the deep state."

Eugene Volokh, a constitutional scholar at the Hoover Institution at Stanford University, agreed that judges can take a mixed approach to political authority. He emailed, "I will say that it's hard to generalize about conservatives' views on executive power--even when they approve of some expansions to executive power, it doesn't mean they approve of all.  

"They may, for instance, think that the President must have the power to fire any executive branch officer (that's the unitary executive theory) but not the power to create new crimes. Conversely, liberals may think the President should have considerable power in areas such as DACA, but not the power to fire any executive branch officer."

The 9th Circuit concluded that it was OK for Congress to delegate regulatory powers to the Department of the Interior because the delegation passed the "intelligible principle" test by providing the department with a framework to guide its actions.

Wrong, argued VanDyke. Listing a handful of high court opinions, he wrote, "The Court has suggested that these delegations might require more 'meaningful' guidance than a mere 'intelligible principle.'"

The stakes are high, he concluded. "This case squarely presents an issue at the core of separation of powers and individual liberty. The panel opinion in this case broke new ground as the first circuit court to conclusively resolve that criminal delegations are held to the same exceedingly low standard that applies to civil delegations."