The Nondelegation Doctrine’s Next Good Year?

The Supreme Court is set to hear argument this term in a case raising both the nondelegation and private nondelegation doctrines.

On July 24, 2024, the en banc Fifth Circuit Court of Appeals ruled that the federal Universal Service Fund (“USF”), which funds broadband service for rural areas and hospitals, schools, libraries, and low-income individuals, is an unconstitutional delegation of Congress’s legislative authority. In the Communications Act, Congress directed the Federal Communications Commission (“FCC”) to collect contributions, or payments, from certain providers of telecommunications. The FCC employs the private Universal Service Administrative Company (“USAC”) to administer certain aspects of USF, including calculating the contribution factor based on the needs of each program established by the FCC pursuant to the Communications Act.

The Sixth and Eleventh Circuit Courts of Appeals, as well as a panel of the Fifth Circuit, had previously upheld the constitutionality of the delegation of authority. And the FCC defended the Act against delegation challenges. It argued that the Communication Act provides an intelligible principle by which USF is to be administered and that USAC plays only a ministerial role.

But the July en banc ruling by the Fifth Circuit held this regulatory revenue-raising program unconstitutional. It acknowledged “grave” concerns that the Act may have unconstitutionally delegated the taxing power to the FCC to impose a contribution amount, or tax, on America’s telecommunications carriers, and ultimately paid by consumers. Then it similarly concluded there were serious constitutional concerns about the FCC’s subdelegation to private parties, most notably USAC’s role in determining the contribution amount that will be charged to telecommunications carriers. The Court’s ultimate holding, however, was that the combination of these delegations violated the nondelegation doctrine.

A petition for certiorari was granted on November 22, 2024. This roundtable will discuss this case and the broader legal issues it raises, including (1) is there a nondelegation doctrine?, (2) if there is, what should it look like?, and (3) how should the Supreme Court decide this case in light of the above discussion on the nondelegation doctrine.

Featuring:

• Sean Lev, Partner, HWG LLP
• Trent McCotter, Partner, Boyden Grey PLLC
• Prof. Nicholas Parrillo, William K. Townsend Professor of Law and Professor of History, Yale Law School
• Prof. Alexander Volokh, Associate Professor of Law, Emory Law
• Prof. Ilan Wurman, Julius E. Davis Professor of Law, University of Minnesota Law School
• Moderator: Adam Griffin, Attorney, Pacific Legal Foundation

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To register, click the link above.

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.