Conservative Groups: SCOTUS Should Clarify Delegation Doctrine in USF Case
Three conservative groups on Tuesday urged the U.S. Supreme Court to use its upcoming decision in FCC v. Consumers' Research to provide clarity on when agencies can delegate authority to private companies. SCOTUS will consider the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating part of the USF program (see 2501090045), in part because the FCC delegated authority for overseeing the program to the Universal Service Administrative Co. (see 2412100060).
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Telecom industry groups have raised concerns about the real-world implications of invalidating the USF contribution factor (see 2501100057). The Mackinac Center for Public Policy, the Institute for the American Worker and the Pelican Institute for Public Policy instead urged SCOTUS to focus on doctrinal issues the case raises.
“Confusion over the different permutations of the ‘private nondelegation’ doctrine has opened space for state and local governments to delegate power to private groups to regulate the workplace,” said a brief by the three groups. SCOTUS should “alleviate this confusion and clarify the doctrinal structure,” they said: “That clarity will not only help resolve this case, but will also help American workers protect themselves from unconstitutional delegations of regulatory power.” Confusion over the nondelegation doctrine “has created space for constitutionally dubious delegations to private regulators,” the brief added.