Law Professors See 'Elegant Solution' to SCOTUS Nondelegation Questions
Two law professors told the U.S. Supreme Court on Friday it should reverse the 5th U.S. Circuit Court of Appeals' 9-7 en banc decision, which found the USF contribution factor is a "misbegotten tax.” SCOTUS has agreed to hear the…
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case, FCC v. Consumers’ Research, which potentially has broad implications, experts say (see 2412100060). Look no further than a 1938 brief by then-Solicitor General Robert Jackson, urged Gerard Magliocca, professor at the Indiana University Law School, and John Barrett, professor of law at St. John’s University, in an amicus brief Friday. They wrote that Jackson, later appointed to SCOTUS, “proposed an elegant solution to the issue now before the Court" when he argued in Currin v. Wallace that "the non-delegation doctrine applies only when Congress delegates power to the President" and "that congressional delegations to federal agencies, independent boards, and private actors are not subject to" the doctrine. Acknowledging that SCOTUS decided Currin without addressing Jackson's theory, they said the court should read his "thoughtful brief" and reverse the 5th Circuit.