SCOTUS Has Variety of Options in USF Case: Panel
If the U.S. Supreme Court uses the FCC USF case as a route for establishing a judicial test about the nondelegation of power, that test should consider the nature of the power being delegated, legal academics say. A Federalist Society panel discussion about the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating part of the USF program and subsequent SCOTUS appeal (see 2411220050) saw speakers discussing how courts have looked at Congress' delegation of its powers to other branches or agencies and the high court's available options.
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For Emory administrative law associate professor Alexander Volokh, the nondelegation issues aren't the most important part. Instead, SCOTUS should focus on the due process and appointments issues that the case raises. He said the Universal Service Administrative Company, USF's administrator, having representatives of telecommunications carriers as members gives them power to set contribution factors in a way that would help their companies. The fact that USAC decisions about contribution factors go into effect automatically if the FCC does nothing makes USAC members officers of the U.S., he said: "This whole scheme is unconstitutional" because of those due process and appointments clause issues.
Ilan Wurman, Davis professor of law at the University of Minnesota, dismissed arguments that there traditionally wasn't a nondelegation doctrine limiting one branch's ability to give its power to another. While the nondelegation doctrine isn't explicitly spelled out in the Constitution, he said, "there's no delegation clause either" that explicitly lets one branch give away its power. The only route for Congress to subdelegate its legislative power to the president or subordinate agencies is Article I of the Constitution's "necessary and proper" clause, he added. But, at most, that clause applies to delegating incidental powers, not substantive and important prerogatives, he said. "If the people had wanted to give Congress that power, to give away legislative power ... they probably would have said something about it in the Constitution."
Determining if Congress has violated the nondelegation doctrine involves the "intelligible principle" test -- those intelligible principles being standards set by Congress -- said Nicholas Parrillo, Townsend professor of law at Yale. Proposed alternative tests focus on whether too much power was delegated, but determining how much delegation is too much is a very open-ended question, he added.
It's not clear how to enforce the nondelegation doctrine any better than it is now, Volokh said. He waved off the idea that delegation of power to private authorities -- such as USAC -- is bound by stricter limits than delegation to another branch of government. SCOTUS has repeatedly upheld delegations of power to private authorities and has called such delegation uncontroversial, he said.
Former FCC general counsel Sean Lev, now at HWG, said that with the suit being about the contribution factor for Q1 2022 -- now three years old -- it's possible SCOTUS could rule on whether the case is moot. Lev is counsel for the Schools, Health & Libraries Broadband Coalition, Benton Institute for Broadband & Society, National Digital Inclusion Alliance and MediaJustice -- which, along with the Competitive Carriers Association, NTCA and USTelecom, are joining the FCC as petitioners challenging the 5th Circuit decision.
Trent McCotter of Boyden Gray, representing respondent Consumers' Research, said he hoped that as part of its decision, SCOTUS would address the nature of the power being delegated. Guidance from the court would then help when trying to clarify how much delegation is too much, he said.