Supreme Court will consider reviving another curb on agency power known as nondelegation doctrine
The U.S. Supreme Court agreed Friday to consider whether Congress and the Federal Communications Commission violated the nondelegation doctrine in a challenge to fees imposed on telecommunications carriers to help provide service in underserved areas. (Image from Shutterstock)
The U.S. Supreme Court agreed Friday to consider whether Congress and the Federal Communications Commission violated the nondelegation doctrine in a challenge to fees imposed on telecommunications carriers to help provide service in underserved areas.
At issue is whether Congress violated the nondelegation doctrine by requiring the FCC to determine the required fees and whether the FCC violated the private nondelegation doctrine by authorizing a private company to handle financial projections and administrative tasks.
The nondelegation doctrine bans Congress from delegating legislative power to federal agencies without an “intelligible principle” to guide the exercise of agency discretion.
Law.com described the doctrine as “long-dormant” because the Supreme Court has not cited it in overturning legislation since the 1930s.
The cert grant opens “the next chapter in a decades-long effort by conservatives and business interests to reduce the power of the federal government,” according to CNN.
Other publications covering the cert grant include SCOTUSblog, the Volokh Conspiracy, Reuters and the Washington Post.
Congress created the Universal Service Fund in 1996 to help fund service to low-income families and to provide service in libraries, schools and rural and other underserved areas, according to CNN and Law.com. The private company that administers the program is the Universal Service Administrative Co.
Two federal appeals courts rejected constitutional challenges to the FCC program. But the en banc 5th U.S. Circuit Court of Appeals at New Orleans ruled for the challengers, creating a circuit split. The 5th Circuit said the fees imposed on telecommunications companies amount to “a multibillion-dollar tax nobody voted for,” according to Law.com.
The Supreme Court granted cert in two consolidated cases, FCC v. Consumers’ Research and SHLB Coalition v. Consumers’ Research. The SCOTUSblog case pages are here and here.
According to the Washington Post, the consolidated cases “could chip away at the authority of the executive branch” and may represent “the next frontier in the fight over administrative power.”
The Supreme Court issued an important decision curbing administrative power when it held in June that courts can’t defer to agency interpretations of laws just because they are ambiguous. The decision, Loper Bright Enterprises v. Raimondo, ended the principle known as Chevron deference.
The Supreme Court effectively made the Loper Bright decision retroactive when it ruled that the deadline for lawsuits filed by plaintiffs injured by agency actions begins to run at the time of injury, rather than when an agency action is final. The case was Corner Post v. Board of Governors of the Federal Reserve System.
There is a chance, however, that the Supreme Court will avoid a ruling on the nondelegation issue in the new cases. The high court “gave itself an out” when it asked the parties to brief whether the case is moot because the challengers did not seek a preliminary injunction in the 5th Circuit case, according to the Volokh Conspiracy.
See also:
FCC slashes cost of phone calls for inmates, capping decades-long effort
