A BASE-ic Question: Who Holds the Legislative Pen?
The Legislative branch creates the law, the Executive branch executes the law, and the Judicial branch interprets the law—all within a system of checks and balances. The upshot? A limited government of separated powers that answers to “We the People,” not the other way around. In other words, a system of government designed to preserve, not encroach upon, the liberty of its citizens. We Americans are taught these basics from a young age (or at least most of us…[1]), and it can be tempting to dismiss them as little more than civics-class truisms. Yet as Madison observed, when a government is administered by men over men (as opposed to angels over angels), “the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The Framers crafted the Constitution precisely to meet that “great difficulty”—and they did so with remarkable ingenuity.
Thus was born the United States of America: a revolutionary constitutional republic, a shining beacon of democratic governance, individual liberty, and limited government. But do we remain that shining beacon? Is our government still “obliged to control itself”? The current state of the separation of powers suggests otherwise. Congress—the only branch constitutionally authorized to make the laws—has increasingly abdicated its legislative responsibilities, delegating vast swaths of lawmaking power to the Executive. Specifically, it has delegated its legislative authority to a sprawling constellation of executive agencies, in direct defiance of the Founders’ expectation that each branch would jealously guard its own power from the encroachment of the other two branches. Too often, our elected legislators appear content to offload the politically risky, vote-jeopardizing work of legislating to unelected bureaucrats—officials with nothing to lose, everything to gain, and every incentive to expand their own reach. In doing so, Congress has allowed those agencies to amass not only the power to enforce the law, but also the power to declare what the law is in the first place. And, as history and experience both teach, “there can be no liberty where the legislative and executive powers are united in the same person or body”— least of all when that power is wielded by actors who are not representatives of the people and thus cannot be held to account for the rules they choose to impose.
As just one example, consider the National Park Service (NPS)—an executive agency that, for over a century, has wielded sweeping criminal lawmaking power under the Organic Act of 1916. In enacting the statute, Congress handed NPS an open-ended license to prescribe any regulations the agency “may deem necessary or proper for the use and management” of our national parks. 54 U.S.C. § 100751(a). Then, through a separate criminal statute—18 U.S.C. § 1865(a)—Congress went even further, decreeing that a violation of any such NPS regulation, including those the agency hadn’t yet written, would constitute a federal crime. And what limits did Congress set to restrain this extraordinary power to decide which acts might land a parkgoer in prison? Virtually none. The Organic Act offers only the gauzy directive to “conserve” and “provide for the enjoyment” of the national parks, 54 U.S.C. § 100101(a)—broad, aspirational language that may supply a couple of lofty ideals, but which fails to provide any meaningful constraints on NPS’s authority to define criminal conduct in the parks.
For decades, NPS has used this blank check to criminalize a vast range of conduct on 85 million acres of public land. Some of these offenses border on the ridiculous. For instance, individuals face federal criminal prosecution and potential imprisonment for committing the heinous offense of…possessing a metal detector or simply roller skating in a park. NPS has also effectively criminalized an entire sport—BASE jumping—without direct congressional authorization.
BASE jumping—parachuting from fixed objects like cliffs, bridges, or towers—is a relatively young sport, born in the United States in 1978, but now recognized worldwide and steadily gaining in popularity. For BASE jumpers in the U.S., many of the most ideal locations—those with the safest conditions, the most forgiving terrain, and the most breathtaking scenery—can be found within our national parks. Yet setting foot on one of these cliffs with a parachute on your back can transform a law-abiding citizen into a federal criminal. The penalty? Up to a $5,000 fine, federal probation, a permanent criminal record, and even imprisonment—not because Congress ever debated and outlawed the sport, but because an executive branch agency, the National Park Service, said so.
Think about what that means: a recreational activity and internationally recognized sport has been criminalized by nothing more than a bureaucratic decree. If an executive agency can, on its own—without instruction from Congress or public accountability—criminalize a form of recreation merely because it dislikes it, what safeguard is there for other liberties we hope to keep? That prospect should unsettle anyone who values accountable government. The Framers designed a system in which laws would be enacted only by elected legislators, answerable to the people, precisely to prevent this sort of unilateral power grab. Yet here we are, governed in part by unelected officials who can, with the stroke of a pen, create new criminal offenses at will. The Founders would have recognized this for what it is: a glaring breach of the separation of powers and a direct threat to the liberty that that separation was meant to protect.
The result has been policy by whim: in Yosemite, for instance, visitors may launch themselves from the cliffs while dangling under a hang glider, yet if they make the same leap under a parachute, they are deemed criminals. Such double standards only underscore the danger of allowing regulators to write their own criminal codes. Absent the debate, public scrutiny, and compromise that accompany true legislation, we’re left with agency edicts that reflect the personal preferences of bureaucrats, rather than the considered judgment of the people’s representatives.
The Framers anticipated that ambition in one branch would “counteract” ambition in another, preventing any one branch from overpowering the rest. But that system breaks down when one branch (here, Congress) stops defending its turf. In recent decades, Congress has often been all too willing to give away its lawmaking power so that agencies end up wielding both the legislative pen and the executive sword. And when the same actors who enforce the law also get to decide what the law is, the people are left without the very structural safeguards that protect them from arbitrary government and preserve their liberty.
Fortunately, this isn’t going unchallenged. NCLA represents the plaintiffs in BASE Access, et al. v. National Park Service, et al., a case that both squarely contests NPS’s claimed authority to unilaterally criminalize BASE jumping, and also challenges Congress’s own authority to delegate its criminal lawmaking power without supplying any meaningful guidance, limitations, or semblance of an “intelligible principle.”
At its core, BASE Access is about far more than BASE jumping or the National Park Service—it is about preserving the constitutional structure on which our liberty depends. If Congress can delegate away the power to define crimes—and agencies can punish conduct that Congress never chose to outlaw—then the limits our Founders fought to secure risk becoming little more than ink on parchment. This case calls on the courts to give those limits real force: to restore the constitutional balance of powers, and to ensure that the rules capable of depriving Americans of their liberty are made only by those directly accountable to them. That principle is worth defending, whether you’re standing at the edge of a cliff with a parachute or simply value the freedom that that cliff, and our Constitution, represent.
[1] According to a rather horrifying 2024 survey, 35% of Americans cannot name the three branches of government, let alone their functions.
September 10, 2025