The Supreme Court spent Wednesday morning giving very serious consideration to a case that no one should take seriously.
FCC v. Consumers’ Research asks the justices to revive a long-dead legal doctrine known as “nondelegation,” which places strict limits on Congress’s authority to delegate power to federal agencies, and essentially move that power over to the judiciary. The problem with this legal doctrine, besides the difficulty it would create for agencies trying to carry out their mandates, is that it appears nowhere in the Constitution, and so it is impossible to come up with principled rules to guide when judges should strike down a law empowering an agency.
The Consumers’ Research case is also a strange vehicle to revive the Nondelegation Doctrine because the particular statute at issue in this case clearly should be upheld under the Court’s current nondelegation precedents. In fact, even if the Court were to abandon those precedents in favor of an alternative, more restrictive nondelegation framework that was proposed by Justice Neil Gorsuch in a 2019 dissent, the federal program at issue in Consumers’ Research should still be upheld.
While all six of the Court’s Republicans showed sympathy with the broader project of expanding the Court’s power to overrule federal agencies, only three of them appeared likely to strike down the law that is actually at issue in Consumers’ Research. The Court’s opinion in this case could still have considerable long-term implications if it embraces Gorsuch’s proposed framework or otherwise expands the judiciary’s authority. But the statutory scheme that is before the justices right now seems likely to survive.
So what is at issue in this case?
Consumers’ Research involves a program known as the Universal Service Fund, which provides telephone and internet service to rural areas and other regions that are difficult to wire. In the absence of this program, these services would be prohibitively expensive in many poorer or more sparsely populated regions of the country.
The Universal Service Fund effectively taxes telephone and internet service providers and uses that money to pay for service in these expensive areas. As a practical matter, that means service providers pass the cost of this tax onto their urban and suburban customers — so people in cities wind up subsidizing communications for people in rural communities.
One challenge Congress faced when it created this program is that the amount of money the Fund must raise to achieve universal service varies from year to year. So, rather than setting a precise annual tax rate for service providers, Congress tasked the Federal Communications Commission (FCC) with determining how much money the fund should collect.
The federal statute at issue in Consumers’ Research provides extraordinarily detailed instructions regarding how to make this determination. It only permits the FCC to subsidize services that are used by “a substantial majority of residential customers,” it instructs the FCC to raise enough money so that rural customers pay “reasonably comparable” rates to other customers, and it lays out numerous other principles which the FCC must follow.
Thus, the FCC should look at which communications services the overwhelming majority of Americans already have, and it should raise enough funds to ensure that rural customers pay similar rates to urban customers, without raising so much money that rural rates are significantly cheaper.
Under the Court’s current precedents, Congress must only provide an agency with an “intelligible principle” that it must follow when it exercises its authority, and there’s no serious argument that this statute fails this test.
Gorsuch’s dissent in Gundy v. United States (2019), which also concerned nondelegation, proposed a new and much vaguer rule — Congress must put “forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed” — but even under Gorsuch’s standard it is tough to make an argument that the Universal Service Fund is illegal.
Only three of the justices seemed to believe that the Universal Service Fund is illegal
Perhaps for this reason, Justice Clarence Thomas suggested a completely novel way to invalidate the Fund. Thomas suggested that the nondelegation doctrine should apply with more force in taxing cases, limiting Congress’s power to determine how much a federal agency may raise.
One problem with Thomas’s approach, however, is that the Court held in Skinner v. Mid-America Pipeline Co. (1989) that the Constitution does not “require the application of a different and stricter nondelegation doctrine in cases where Congress delegates discretionary authority to the Executive under its taxing power.” So reaching Thomas’s preferred result would require the Court to overrule Skinner.
Justice Samuel Alito, meanwhile, followed his typical practice of peppering the side that counters Republican orthodoxy with a series of unrelated questions, in the hopes that they would stumble over one of them — and he was joined in this tactic by Justice Gorsuch.
Over the course of the argument, Alito and Gorsuch complained that the FCC created a corporation to advise it on how to set rates, that the taxing power can potentially be used to destroy companies, and that the FCC sought input from the same companies that they are taxing. At one point, Gorsuch went off on a strange tangent about how the government’s decision to break up “Ma Bell” in 1982 created other telephone monopolies.
None of these arguments are relevant to whether the Universal Service Fund is constitutional, at least under existing law.
Meanwhile, the Court’s other Republicans asked some skeptical questions of the two lawyers who defended the Fund, but they ultimately seemed to conclude that this particular nondelegation challenge is unworkable.
Justice Brett Kavanaugh, for example, did ask acting Solicitor General Sarah Harris how to distinguish between a tax and a “fee,” a question that suggests that Kavanaugh has some sympathy for Thomas’s position, but ultimately seemed satisfied with Harris’s response that this distinction is “unbelievably murky in practice.”
Similarly, while Justice Amy Coney Barrett asked Harris to distinguish this law from other hypothetical laws that would raise more serious nondelegation questions, such as a law that merely instructed the IRS to raise enough money to provide “food for the needy,” she too seemed skeptical that this particular law is unconstitutional.
Notably, Barrett threw cold water on Thomas’s suggestion that there should be a special rule for taxes. Congress, she noted, could potentially solve the problem by imposing a cap as high as $3 trillion on the Fund’s ability to raise money, but that would be an empty requirement that amounts to nothing more than throwing “out a number for the sake of throwing out a number.”
It appears, in other words, that the Republican justices’ general desire to expand the nondelegation doctrine — a desire that five of them have expressed openly at one point or another — is likely to run aground in the Consumers’ Research case because this case is such a poor vehicle to expand nondelegation. Congress’s instructions to the FCC were as detailed as they could possibly be, unless the Supreme Court wants to strip Congress of its ability to, as Justice Ketanji Brown Jackson said, “provide a service, however much it costs.”
The Court could still use this case to seize power
It’s notable that, while even the Trump administration agrees that the Universal Service Fund is legal, the federal government switched its position in this case after Trump took office. The government’s initial brief, which was filed in the final two weeks of the Biden administration, argues that the Court should apply existing law and uphold the Fund. By contrast, its reply brief (a brief responding to the other side’s arguments) treats Gorsuch’s Gundy dissent as if it were the law. The reply brief was filed after Trump took office.
Even if the Court upholds the Universal Service Fund, which seems likely, the Republican justices could still use this case to abandon the longstanding “intelligible principle” framework, which gives Congress a great deal of authority to delegate power to agencies, and replace it with Gorsuch’s “sufficiently definite and precise” framework. Because that later framework is so vague, a decision embracing Gorsuch’s approach would give judges far more discretion to strike down federal programs that they do not like.
So, even if the Court rejects the exceedingly weak attack on the law at issue in this case, it could still use this case to achieve a significant power grab. Gorsuch’s framework would transfer a great deal of power from federal agencies, which are controlled by an elected president, and toward a judiciary dominated by Republicans who serve for life. That would mean that the American people would have far less control over how they are governed.
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