Date: 11-10-2025

Case Style: United States of America v. Gregory W. Pheasent

Case Number: 21-CR-24

Judge: Miranda M. Du

Court: United States District Court for the District of Nevada (Clark County)

Plaintiff's Attorney: United States District Attorney's Office in Las Vegas

Defendant's Attorney:

Description: Las Vegas, Nevada criminal defense lawyer represented the Defendant charged with failure to use required taillight at night on an ATM on federal land.

Pheasant involves an Icarus-like criminal prosecution of a dirt biker stemming from an alleged taillight infraction on federal land managed by the BLM. The incident occurred in the context of “a special operation” by BLM “to ensure a ‘family-oriented recreational experience’ at Moon Rocks,” Nevada. Mr. Pheasant and his companions were allegedly rooster tailing their dirt bikes at night without their tail lights on when a BLM officer gave chase, his feathers ruffled. Things went downhill from there, leading to Mr. Pheasant’s prosecution.

Of course, the Supreme Court has endorsed some level of congressional delegation to the Executive branch. See
FCC v. Consumers’ Rsch., 145 S.Ct. 2482, 2491 (2025). But history—and precedent for that matter—make clear that the
non-delegation doctrine is context specific. See id. at 2503 (looking to “broader statutory contexts” to identify
intelligible principles). And what’s permissible “varies according to the scope of the power congressionally
conferred.” Id. at 2397 (simplified). So it’s “not [a] one size fits all” test. Id. at 2525 (Gorsuch, J., dissenting). While a more lenient non-delegation doctrine may suffice in some areas of the law, other areas require a more demanding
approach.

Criminal law is in the more demanding bucket. Given the deprivation of liberty at stake, Congress cannot simply
leave it to the Executive branch to unilaterally declare what acts can subject the people to criminal confinement. In this
context, the Constitution requires more than the standard, opaque version of an “intelligible principle.” Instead, to
satisfy the non-delegation doctrine that our separation of powers demands, Congress must—at a minimum—define
both the actus reus and the penalty for any criminal offense. Our court was thus wrong to simply gesture at a toothless
“intelligible principle” and call it a day. See United States v. Pheasant, 129 F.4th 576, 583 (9th Cir. 2025).

The Legislative Power is the exclusive power to make laws that are binding on citizens. See The Federalist No. 78
(Alexander Hamilton) (George W. Cary & James McClellan ed., 2001) (“[T]he legislature not only commands the purse,
but prescribes the rules by which the duties and rights of every citizen are to be regulated.”). As one early English
treatise put it, “[b]y the Legislative Power, we understand the Power of making, altering, or repealing Laws, which in
all well-ordered Governments, hath ever been lodged in a succession of the supreme Councels of Assemblies of a
Nation.” Marchamont Nedham, The Excellencie of a Free- State (1656), in 1 The Founders’ Constitution 314 (1986).
Another publication closer to the Founding Era said the power included “consulting, debating, enacting laws, and
forming regulations, according to which all are to conduct themselves.” 1 James Burgh, Political Disquisitions 5
(London 1774).

Outcome: Motion to dismiss granted.

Reversed.

Plaintiff's Experts:

Defendant's Experts:

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