On Wednesday March 26, 2025, the Supreme Court will hear oral arguments in Federal Communications Commission, et al. v. Consumers’ Research, et al., No. 24-354. The issue before the Court is whether Congress violated Article I of the Constitution by delegating excessive lawmaking power to the Federal Communications Commission (FCC) by failing to limit the FCC’s discretion over the Universal Service Program. That is what the Fifth Circuit concluded, and if that ruling is upheld, it would be the first time since 1935 that the Court has sustained a delegation challenge.
In their merits brief, the respondents (Consumers’ Research et al.) focus on the FCC’s ability to impose what they call taxes to support the Universal Service Program, with no limit on the rate to be charged or even on the total amount to be paid each year. The purpose of the program is to provide telecommunications services to rural and other communities for which the cost of service would be prohibitive without some form of subsidy. Congress sought to achieve that goal by directing the FCC to collect necessary funds from the carriers that provide the service, who in turn pass the cost along to their customers. The challengers object to the amounts that they have been required to pay, and they argue that Congress must specify the rate to be charged or at least include some guardrails that limit the FCC in what it can mandate.
The delegation issue was most recently before the Court in Gundy v. United States, 588 U.S. 128 (2019). There, four justices rejected the delegation claim. Even so, several justices wrote separately to voice their concerns with the Court’s delegation jurisprudence. Justice Alito concurred with the result while also indicating that, if the time came when a majority of the Court was willing to reconsider the Court’s delegation jurisprudence, he would join that effort. Three justices, led by Justice Gorsuch, vigorously dissented. And one justice, Justice Kavanaugh, did not participate because he had not been confirmed when the case was argued. However, in an identical case in which the Court denied review, Justice Kavanaugh expressed an interest in reconsidering the delegation issue. In other words, even at the time Gundy was decided, a tacit majority of the Court appeared inclined to rein in Congress’ ability to delegate discretionary authority to agencies.
When the Fifth Circuit struck down the law here as exceeding the limits of Congress’ delegation authority—a decision that directly conflicts with decisions of two other circuits regarding the same statute—the Supreme Court had no choice but to hear the case.
The then-solicitor general of the United States defended the law at issue in Consumers’ Research under a nearly century-old test that upholds a statutory delegation so long as Congress provides an “intelligible principle” to guide agency decision-making—a standard that everyone agrees is quite forgiving. The government’s brief pointed to a number of limiting provisions in the law, as well as the history of a prior version of the statute and many similar cases, to argue that Congress had not unconstitutionally delegated legislative power to the FCC.
Many amicus briefs were filed in the case, but three on the delegation issue are worthy of note. One by two Michigan Law School professors looks at the question from an originalist perspective and concludes that there is no historical basis for limiting Congress’ authority to delegate lawmaking power to agencies, although their brief does explicitly state that there should not be a delegation doctrine at all. Second, a brief from the Chamber of Commerce argues that the intelligible principle test should be abandoned, but does not offer anything specific to replace it or indicate which cases would come out differently or even which statutes involve an excessive delegation. Third, the amicus brief of the National Foreign Trade Council (NFTC) supports the FCC law, but urges the Court to refine the intelligible principle test by adding a requirement that the statute must include some limits to pass muster. It illustrates its argument by pointing to section 232 of the Trade Expansion Act of 1962 under which, if the president finds that the importation of a product “would threaten to impair the national security,” including economic security, he may impose tariffs in any amount he chooses, for as long as he wants, favor some countries over others, and allow for exemptions that preference some firms or subproducts over others―all with absolutely no judicial review of any part of the decision. Under that approach, if there is nothing that the president or an agency cannot do under the law, it has gone too far.
In some respects, the respondents’ brief is like the proposal of the NFTC, but it limits its application to “domestic” laws, citing the executive branch’s independent authority to conduct foreign affairs as a reason for treating laws with a foreign reach differently. Their brief does not say whether tariffs are on the domestic side of the line, even though the Constitution specifically authorizes Congress to set them in Article I, section 8, clause 1, and hence any presidential power in this area derives from congressionally delegated authority. Moreover, most economists conclude that domestic users, not the foreign producers, “pay” the cost of the tariffs, which are passed on down the line.
There is another wrinkle: the FCC’s opening brief was filed by the solicitor general under President Biden. The reply and oral argument, by contrast, will come from the solicitor general under President Trump. The acting Solicitor General filed the FCC’s reply brief on March 13, 2025, and it contains a full-throated defense of the statute. That said, the tone was somewhat more accommodating of the nondelegation position. Two statements stand out in the context of the tariff laws: “the government would not defend [the] constitutionality [of a law that] vest[ed] federal agencies with an unbounded taxing power” and “the guidance [in the text of the statute] must be sufficiently definite ‘to permit meaningful judicial review of agency action,’” which is not available at all under section 232 of the Trade Expansion Act.
