NFIB Sides With Consumers' Research in USF Fight
The National Federation of Independent Business’ Small Business Legal Center joined Consumers’ Research in asking the U.S. Supreme Court to reject how the FCC handles USF. FCC v. Consumers' Research, which SCOTUS will hear March 26, challenges the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating how the USF program is funded (see 2501090045).
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The brief by NFIB, a mainstream business group, took aim at the role of the Universal Service Administrative Co., which was a focus of the en banc decision. The filing was also signed by the Technology Channel Sales Professionals, a group representing independent sales and sales fulfillment companies. On the other side, the Competitive Carriers Association, NTCA and USTelecom have supported the FCC in asking that the decision be overturned (see 2501100057).
Congress gave the FCC power “to manage universal service programs,” but “rather than exercise that power, the FCC improperly handed it to [USAC] -- a private entity whose leadership is drawn from the industry it regulates,” the NFIB brief said. USAC “lays and collects taxes, spends the funds it collects, and adjudicates all disputes that arise over its conduct,” it continued. “Those are the acts of an unaccountable private regulator, not a company acting in an advisory capacity.”
NFIB urged that SCOTUS “articulate meaningful limits on delegations of legislative power” and go beyond its “intelligible principle,” which examines transfers of legislative authority. That test has led to “an accumulation of executive power that is difficult to forestall and even harder to reverse,” the brief said. “A more precise and rigorous framework would help restore the traditional understanding of the separation of powers and political accountability that are vital to our republic.”
Among other groups filing amicus briefs to support Consumers’ Research, the Foundation for Government Accountability said that “despite the Constitution’s exclusive vesting of legislative power in Congress, Congress has allowed and actively facilitated a runaway growth of Executive Branch lawmaking through the administrative state.” It also questioned whether the intelligible principle test is working as intended. “For our constitutional structure to work … the Court must finally act to enforce the separation of powers by checking Congress’s penchant for handing its authority over to Executive Branch agencies.”
A brief by Chad Squitieri, assistant professor at the Catholic University of America’s Columbus School of Law, said the intelligible principle test “provides federal courts with an inept and ineffective tool for ensuring the constitutionality of delegations.” It “fundamentally conflicts with the Constitution’s text and structure,” Squitieri said. “The test turns on ‘legislative power’ generally, but Article I [of the Constitution] does not vest Congress with all legislative power. Instead, the Constitution carefully circumscribed Congress’s authority by only vesting Congress with specifically enumerated powers. The Constitution’s nondelegation principle should therefore be enforced by a test that reflects this foundational constitutional design.”