SCOTUS USF Decision Was a Clear Win, but Questions Remain
Lawyers for the Schools, Health & Libraries Broadband Coalition and the Benton Institute for Broadband & Society said Monday that the U.S. Supreme Court’s decision last month upholding the USF was a clean win for the program and the FCC (see 2507020049). By rejecting the challenge -- brought by Consumers’ Research, a right-wing group -- SCOTUS lifted a cloud that has loomed over the USF for years, the lawyers said during an SHLB webinar.
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Six justices joined the majority opinion, and the 5th U.S. Circuit Court of Appeals was reversed, noted HWG’s Jason Neal, who represents SHLB. “It’s a big win for USF -- USF continues.”
Neal said the biggest surprise was that progressive Justice Elena Kagan wrote the majority opinion, since opinions are often assigned to one of the votes that’s hardest to get. Kagan, based on the oral argument, really understood the statute and the issues raised, so she was able to write “clearly and forcefully about the importance” of the USF and “the importance of the historical context and how we got to where we are,” Neal said.
The “real impact” of the decision is “no impact,” said Andrew Schwartzman, the Benton Institute's senior counselor. “We are exactly in the same place that we were when this litigation started,” he said. “This has been a huge annoyance, diversion of resources and created a lot of uncertainty.”
The case had put efforts to reform USF “on ice,” and “now we can start moving forward with that,” Schwartzman said. “It pretty much puts to bed conservative scholars' [push] to revisit the New Deal-era precedents about nondelegation and the so-called intelligible principle.” Under SCOTUS precedent, it’s constitutional for Congress to delegate legislative power to the executive branch only if it provides an "intelligible principle" as guidance. Key members of Congress say they plan to start meeting this month to revisit USF reform (see 2507030051).
Schwartzman also said a concurrence in the case by Justice Brett Kavanaugh provides some reason for future concern. Kavanaugh noted that the court overruled the Chevron doctrine and adopted the "major questions" doctrine, “each of which significantly constrains the implementation of congressional legislation by independent agencies and the executive branch,” Schwartzman said. Kavanaugh “said, in effect, we don’t really need to fiddle with the nondelegation doctrine because our work is done here.”
Kavanaugh also questioned whether the FCC and other agencies are really independent, Schwartzman said. SCOTUS is likely to issue decisions soon “that will agree with Justice Kavanaugh about whether the FCC is truly independent” and find that a president can remove commissioners “at will,” he predicted.
Neal said SCOTUS could revisit the nondelegation doctrine. The majority and Kavanaugh “hinted” that other cases limiting Congress' ability to delegate authority to agencies and limiting the authority of federal agencies generally “kind of take the wind out of the sails” on “the immediacy” of a desire to do more now on the doctrine. Other parties may challenge the intelligible principle test, but SCOTUS probably won’t hear a case doing so in the immediate future, Neal added.
The 5th Circuit “has gotten reined in” by SCOTUS “a good bit” in recent years, Schwartzman noted. “It hasn’t seemed to stop them a whole lot yet.”