Two Ninth Circuit Judges Criticize Agency Power to Legislate

Two Ninth Circuit judges said the court should have reheard a February panel decision reinstating a criminal charge for failing to use taillights at night while driving on public lands.

A district court tossed Gregory Pheasant’s taillight charge after deciding Section 303(a) of the Federal Land Policy and Management Act amounted to an unconstitutional delegation of legislative power. The Ninth Circuit reversed, saying the law easily meets the US Supreme Court’s “intelligible principle” test.

The panel denied Pheasant’s petition for a panel rehearing, and the full court voted against a rehearing en banc over dissents by Judges Patrick J. Bumatay ...