Six years ago, I noted that the Supreme Court’s fragmented judgment in Gundy v. United States suggested that the nondelegation doctrine might have a future. Legislative power is vested in Congress under the Constitution, and according to the doctrine, that power may not be transferred elsewhere. The Court has never explicitly rejected this basic tenet of constitutional text, but it has not struck down delegations since 1935, when it invalidated delegations in two cases. Federal Communications Commission v. Consumers’ Research, which will be argued in the Supreme Court tomorrow, offers a possibility that this will be the case in which the nondelegation doctrine makes a comeback.
The nondelegation doctrine has been dormant in no small part because of what happened to a gloss on the doctrine that the Court adopted in J.W. Hampton, Jr., & Co. v. United States (1928): When a statute contains an “intelligible principle” to guide an executive agency action, it is making a legitimate grant of discretion and not unlawfully delegating legislative power. In his Gundy dissent, Justice Neil Gorsuch suggested that the Court’s “intelligible principle” language was not originally employed to change “the traditional rule that Congress may leave the executive the responsibility to find facts and fill up details,” but that term was nonetheless “abused” and the test “mutated” to permit unconstitutional delegations of power.
Consumers’ Research presents the question of whether an unconstitutional private delegation occurred. The Telecommunications Act of 1996 created the Universal Service Fund (USF) as a mechanism to expand telephone access at reasonable prices. Instead of providing for funding by appropriations, Congress authorized the FCC to raise the USF’s revenue. But it failed to provide for how much to raise. The FCC claims that it would set the amount based upon “[u]niversal service principles” provided by statute, but on closer examination, those principles are amorphous, devoid of substantive requirements, and regarded by courts and the FCC itself as aspirational only. Examples of the principles are provisions that “[q]uality services should be available at just, reasonable, and affordable rates” and that “[a]ccess to advanced telecommunications and information services should be provided in all regions of the Nation.” Gorsuch in Gundy had addressed the insufficiency of a congressional announcement of “vague aspirations.”
The delegation does not stop there. The FCC largely gave the power over the USF’s revenue to a private company designated as its “permanent Administrator,” the Universal Service Administrative Company (USAC). USAC issues quarterly “proposals” for the amount to be raised for the USF, which are converted into a “contribution factor” that the FCC passively “deem[s] approved” fourteen days later. The agency lacks a means of substantively reviewing ASAC’s figures. Thus the “private” component of this delegation. USAC is run by industry interest groups, and it should come as no surprise that the USF tax rate jumped from under 4% in 1998 to approaching 37% now—all in the absence of any change to the relevant statutory text.
Gorsuch’s Gundy dissent noted the Court’s recent attempts “to tame misunderstandings of the intelligible principle ‘test’” and suggested a set of relevant questions that are more sensitive to separation of powers:
Does the statute assign to the executive only the responsibility to make factual findings? Does it set forth the facts that the executive must consider and the criteria against which to measure them? And most importantly, did Congress, and not the Executive Branch, make the policy judgments? Only then can we fairly say that a statute contains the kind of intelligible principle the Constitution demands.
In the present case, such questions are complicated by the added feature of a private delegation, and the Court may well find those layers of deficiencies enough to find that this delegation should be struck down. Gorsuch was joined by Chief Justice John Roberts and Justice Clarence Thomas in his dissent, and while Justice Brett Kavanaugh did not participate in Gundy, he later indicated his own interest in pursuing the analysis in Gorsuch’s “thoughtful Gundy opinion.” Justice Samuel Alito did not join the dissent in Gundy, but he issued a concurrence in the judgment indicating that in a different case, he would be “willing to reconsider the approach we have taken” since 1935.
The return of a meaningful nondelegation doctrine with at least five votes on the Court is therefore a real possibility. But there is another issue that could prevent a consideration of the merits: When the Court granted certiorari, it supplemented the questions presented on the nondelegation doctrine with an additional question: “Whether this case is moot in light of the challengers’ failure to seek preliminary relief before the Fifth Circuit.” Interestingly, both the challengers and the government agree that the case is not moot. The challengers argue more grounds to dispute mootness than the government, but both sides agree that this case involves a dispute that is “capable of repetition, yet evading review.” In that exception to mootness doctrine, “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.” Both sides found it inconsistent with prior Supreme Court cases—besides otherwise being inappropriate—to require a party in such a case to move for preliminary relief.
Unless the Supreme Court disagrees with both sides on the mootness question, this case may well turn out to be the nondelegation doctrine’s moment, ninety years in the making.