Eggs with a side of separation of powers

A fight over cage-free eggs might not sound like a constitutional showdown. In Arizona, it is. At issue is a fundamental question: Who gets to make the law—unelected bureaucrats or elected state lawmakers?

Longtime Tucson restaurateur Grant Krueger is challenging an Arizona Department of Agriculture rule that requires, with limited exceptions, that eggs sold in the state come from cage-free hens. Krueger has spent more than three decades in the restaurant business, and his restaurants purchase thousands of eggs every week. Like most restaurants, his businesses operate on thin margins, and even small increases in food costs add up quickly.

The Department of Agriculture itself estimated that its mandate could increase egg costs for Arizona consumers. But whatever the policy's merits or costs, the more fundamental question is who had the authority to enact it.

In a recent hearing on September 1, 2026, before the Maricopa County Superior Court, lawyers from the Goldwater Institute and Pacific Legal Foundation who represent Krueger argued that Arizona law and the state constitution provide a straightforward answer. The Legislature makes the law. Executive agencies enforce it.

That division is a basic protection for individual liberty. Legislators must debate laws publicly, vote on them, and ultimately answer to voters. Administrative agencies have a different role. They carry out those laws. They do not get to decide for themselves what the law ought to be.

Yet the agency crossed that line when it imposed the cage-free mandate. The Legislature never enacted the policy, nor did it authorize the Department of Agriculture to do so.

A state statute expressly prohibits that kind of administrative overreach, providing that an agency may not make a rule that is not "specifically authorized by statute." A general grant of regulatory authority is not a blank check to pursue whatever policies bureaucrats consider desirable.

The Arizona Constitution provides another safeguard: the nondelegation doctrine. The Arizona Supreme Court has long recognized that while the Legislature may authorize agencies to implement the laws it enacts, it cannot surrender its power to decide what the law will be. As the Court recently explained, the Legislature "must first make the policy choice," and only then may an agency implement it.

Perhaps Arizona should require cage-free eggs. Perhaps it should not. Reasonable people can disagree about that policy. But under our constitutional system, those disagreements are supposed to be resolved through the democratic process.

Legislators introduce bills. Citizens testify. Competing interests make their case. Elected representatives cast recorded votes. And if Arizonans dislike the result, they can vote those lawmakers out of office.

Rulemaking should not become a shortcut around that process. Administrative agencies already wield substantial power. Those agencies investigate regulated citizens, write regulations governing them, enforce those regulations, and often adjudicate alleged violations. Allowing those same agencies to assume legislative power concentrates authority precisely where our constitutional system seeks to divide it.

Arizona's founders divided government power for a reason, and courts have a vital role in ensuring that each branch remains within its lawful boundaries. Courts should not relax those boundaries simply because the constitutional process may be time-consuming or inconvenient.

As Krueger put it, "If the government can do this with eggs, what else can they do it with?"

That is a question every Arizonan should be asking.