WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Federal Communications Commission v. Consumers’ Research, a case in which the Supreme Court is considering whether a federal law that requires the FCC to establish programs making internet access more affordable is unconstitutional under the nondelegation doctrine, Constitutional Accountability Center (CAC) Legal Fellow Margaret Hassel issued this reaction:

Congressional delegations to expert agencies date back to the Founding. As Justice Sotomayor pointed out, one of the very first Congresses delegated “extraordinarily broad power” to tax adjustment boards that set the rates at which much of the country’s land was taxed. That long history of delegation shows that there is no reason for the Court to strike down the Universal Service Fund (USF), an essential program that allows schools, libraries, hospitals, and Americans in rural areas to stay connected to the world via phone and internet.
As Justice Sotomayor highlighted, a stringent nondelegation doctrine would have “disastrous effects” for the schools, hospitals, and libraries that receive services through the program. And as Justice Jackson noted, the people’s representatives in Congress created the USF and told the FCC how to implement it. The Supreme Court should not overstep its judicial role by striking down this essential program.

CAC Chief Counsel Brianne Gorod added the following reaction:

This is the kind of case that rarely generates big headlines, but it is incredibly important—because of both the importance of the Universal Service Fund for the lives of everyday Americans and the potential impact on our system of governance if the Court were to unsettle longstanding precedent on the nondelegation doctrine.
Fortunately, the Constitution’s history and original meaning do not support the restrictions the Fifth Circuit imposed on Congress’s ability to delegate authority to agencies, and the Supreme Court should reject them.