Amicus Curiae Brief — Consumers' Research, et al., Petitioners v. Federal Communications Commission, et al.

No. 23-456

IN THE

Supreme Court of the United States

_______________________________

CONSUMERS’ RESEARCH, et al.,

Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Respondents.

_______________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF AMICUS CURIAE OF THE

NEW CIVIL LIBERTIES ALLIANCE

IN SUPPORT OF PETITIONERS

Zhonette M. Brown

Kaitlyn D. Schiraldi

Mark S. Chenoweth

Counsel of Record

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

Phone: (202) 869-5210

mark.chenoweth@ncla.legal

Counsel for Amicus Curiae

New Civil Liberties Alliance

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF ARGUMENT.....................................2

REASONS FOR GRANTING THE PETITION .........4

I. THE “NONDELEGATION” DOCTRINE ENABLES

CONSTITUTIONAL VIOLATIONS ............................... 4

A. Legislative Power Must Be Exclusive to

Congress ......................................................... 4

1. The Principle of Consent ...................... 4

2. “Shall Be Vested” Mandates That

All Legislative Powers Be in

Congress ................................................ 5

B. The Nondelegation Doctrine Wrongly

Enables Divesting Legislative Power to

the Executive ................................................. 6

1. How It Started: The Nondelegation

Doctrine Developed to Enforce

Constitutional Boundaries ................... 6

2. How It’s Going: The Nondelegation

Doctrine Now Endorses Divesting

Legislative Power ............................... 10

C. Falsity, Fiction, and Other Faults Riddle

the Nondelegation Doctrine ........................ 13

1. “Delegation” Falsely Implies an

Easily Revocable Transfer .................. 14

ii

2. The Nondelegation Doctrine Rests

on Fictions ........................................... 14

3. Today’s Nondelegation Doctrine

Interferes with Article III................... 16

II. THE DIVESTING OF LEGISLATIVE POWERS IN 47

U.S.C. § 254 IS PARTICULY OFFENSIVE TO THE

CONSTITUTION ..................................................... 19

A. Section 254 Permits FCC to Set Its Own

Objectives and Policies ................................ 19

B. FCC’s Universal Service Fund Evades

Legislative Taxing and Spending Powers... 20

CONCLUSION ..........................................................24

iii

TABLE OF AUTHORITIES

Cases

Page(s)

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935) .................................7, 9, 10, 18

All. for Fair Bd. Recruitment v. SEC,

No. 21-60626, 2023 WL 6862856

(5th Cir. Oct. 18, 2023) ......................................... 12

Am. Power & Light Co. v. SEC,

329 U.S. 90 (1946) .......................................... 10, 11

Bhatti v. Fed. Hous. Fin. Agency,

15 F.4th 848 (8th Cir. 2021) ................................. 12

CFPB v. All Am. Check Cashing, Inc.,

33 F.4th 218 (5th Cir. 2022) ........................... 22, 23

CFPB v. Law Offs. of Crystal Moroney, P.C.,

63 F.4th 174 (2d Cir. 2023) .................................. 12

Cincinnati Soap Co. v. United States,

301 U.S. 308 (1937) .............................................. 23

Cmty. Fin. Servs. Ass’n of Am., Ltd. v. CFPB,

51 F.4th 616 (5th Cir. 2022) ................................. 22

Consumers’ Res. v. FCC,

67 F.4th 773 (6th Cir. 2023) ................................. 13

Currin v. Wallace,

306 U.S. 1 (1939) .................................................... 9

Fed. Radio Comm’n v. Nelson Bros.

Bond & Mortg. Co.,

289 U.S. 266 (1933) ................................................ 8

Granados v. Garland,

17 F.4th 475 (4th Cir. 2021) ................................. 12

iv

Gundy v. United States,

139 S. Ct. 2116 (2019) .......................................... 15

J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394 (1928) ................................................ 7

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ................................................ 6

McCulloch v. Maryland,

17 U.S. 316 (1819) ................................................ 21

Mistretta v. United States,

488 U.S. 361 (1989) .................................. 11, 12, 13

N.Y. Cent. Sec. Corp. v. United States,

287 U.S. 12 (1932) ................................................ 11

Nat’l Cable Television Ass’n, Inc. v. United States,

415 U.S. 336 (1974) .............................................. 21

NFIB v. Sebelius,

567 U.S. 519 (2012) .............................................. 20

Off. of Pers. Mgmt. v. Richmond,

496 U.S. 414 (1990) ........................................ 22, 23

Opp Cotton Mills v.

Adm’r of Wage and Hour Div.,

312 U.S. 126 (1941) ...................................... 7, 9, 17

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) .................................. 7, 8, 9, 18

United States v. Cooper,

750 F.3d 263 (3d Cir. 2014) .................................. 12

United States v. Diggins,

36 F.4th 302 (1st Cir. 2022) ................................. 12

v

United States v. Grimaud,

220 U.S. 506 (1911) .............................................. 15

United States v. Parks,

698 F.3d 1 (1st Cir. 2012) ..................................... 12

United States v. Rickett,

535 F. App’x 668 (10th Cir. 2013) .................. 11, 12

Wayman v. Southard,

23 U.S. 1 (1825) ...................................................... 7

Whitman v. Am. Trucking Ass’ns, Inc.,

531 U.S. 457 (2001) ........................................ 11, 12

Yakus v. United States,

321 U.S. 414 (1944) .........................7, 11, 16, 17, 19

Constitutional Provisions

U.S. CONST. art. I, § 1............................................. 5, 6

U.S. CONST. art. I, § 7 .............................................. 14

U.S. CONST. art. I, § 9............................................... 21

U.S. CONST. art. II, § 1 ............................................... 5

U.S. CONST. art. III, § 1 ............................................. 5

Statutes

47 U.S.C. § 254 ................................................. 2, 3, 19

Other Authorities

5 ANNALS OF CONG. (1796) ....................................... 23

vi

David Schoenbrod,

Consent of the Governed:

A Constitutional Norm that the Court Should

Substantially Enforce,

43 HARV. J. L. & PUB. POL’Y 213 (2020) ............... 15

Gary Lawson,

Delegation and Original Meaning,

88 VA. L. REV. 327 (2002) ..................................... 11

Kate Stith,

Congress’ Power of the Purse,

97 YALE L.J. 1343 (1988) ...................................... 22

Louis Fisher,

Congressional Abdication:

War and Spending Powers,

43 ST. LOUIS U. L.J. 931 (1999) ............................ 21

Mark Chenoweth & Richard Samp,

“Reinvigorating Nondelegation

with Core Legislative Power,”

in The Administrative State

Before the Supreme Court:

Perspectives on the Nondelegation Doctrine

(Peter J. Wallison

& John Yoo eds., 2022) ............................. 16, 18, 21

Philip Hamburger,

Nondelegation Blues,

91 GEO. WASH. L. REV. 1083 (2023) ......... 2, 4, 6, 13

Resolutions of the Boston Town Meeting

(Sept. 13, 1768), in A Report of the Record

Commissioners of the City of Boston,

Containing the Boston Town Records,

1758 to 1769,

(Boston: Rockwell & Churchill, 1886).................... 5

vii

THE FEDERALIST NO. 58,

(James Madison) (Jacob E. Cooke ed., 1961)....... 20

THE FEDERALIST NO. 78,

(A. Hamilton) (Jacob E. Cooke ed., 1961) ............ 18

1

INTEREST OF AMICUS CURIAE 1

Amicus curiae the New Civil Liberties Alliance

(“NCLA”) is a nonpartisan, nonprofit civil-rights

organization devoted to defending constitutional

freedoms

from

the

administrative

state’s

depredations.

The

“civil

liberties”

of

the

organization’s name include rights at least as old as

the U.S. Constitution itself, such as the right to have

laws made by the Nation’s elected lawmakers through

constitutionally prescribed channels (i.e., the right to

self-government) and due process of law. These

selfsame civil rights are also very contemporary—and

in dire need of renewed vindication—because

Congress,

Presidents,

federal

administrative

agencies, and even sometimes the judiciary, have

neglected them for so long.

NCLA defends civil liberties primarily by

asserting

constitutional

constraints

on

the

administrative state. Although Americans still enjoy

the shell of their Republic, there has developed within

it a different sort of government—a type, in fact, the

Constitution was designed to prevent. NCLA trains

its primary focus on this unconstitutional

administrative state.

NCLA

represents

clients

harmed

by

unconstitutional divesting of legislative power to

administrative agencies who would benefit from

1 Pursuant to Rule 37.6, no party’s counsel authored any part of

this brief. No person or entity, other than amicus curiae and its

counsel, paid for the brief’s preparation or submission. Counsel

for amicus curiae notified Petitioner and Respondent of its

intention to file this brief on November 16, 2023.

2

enforcement of the constitutional mandate that

legislative power be exercised by Congress or not at

all. See, e.g., Complaint, RMS of Georgia, LLC v. EPA,

No. 1:23-cv-4516 (N.D. Ga. Oct. 26, 2023).

SUMMARY OF ARGUMENT

NCLA agrees with Petitioners that 47 U.S.C.

§ 254, which allows the Federal Communications

Commission (“FCC”) to dynamically contour its own

scope of power and to self-fund a multi-billion dollar

social program, violates core constitutional principles

and warrants this Court’s attention. NCLA writes

separately to highlight that the nondelegation

doctrine has become impotent to protect fundamental

separation of powers built into the very structure of

the Constitution and meant to serve as a bulwark for

liberty. 2 NCLA also writes to explain that the current

“nondelegation” doctrine is a misnomer based on

falsity that betrays the Constitution. Id. at 1091–94.

The Constitution vested legislative power in

Congress and demanded that it remain there.

Legitimate exercise of legislative power rests on the

consent of the governed. Only Congress has the

People’s consent to make the prospective laws that

can infringe on their pre-existing natural liberty and

lay claim to their property.

2 See Philip Hamburger, Nondelegation Blues, 91 GEO. WASH. L.

REV.

1083,

1090

(2023),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3990247

(the nondelegation doctrine “is the fulcrum of a sobering crises

of governance and legitimacy”).

3

The nondelegation doctrine ostensibly developed

to determine whether transfers of authority from

Congress were unconstitutional grants of legislative

power or were permissible delegations of other

authority. Modern application of the doctrine,

however, serves the opposite function; it purports to

legitimize statutes that grant the executive branch

the power to enact general prospective laws with all

the hallmarks of legislation.

The nondelegation doctrine fails to acknowledge

what is at stake in congressional grants of power.

Further, it rests on unsustainable fictions concerning

the breadth and nature of power granted to the

executive and the scope and force of guidance that

allegedly

constrains

the

executive.

Today’s

nondelegation doctrine reliably permits political

expediency to overcome constitutional duty, not only

duties of Congress, but also duties of the judiciary.

Because the grant of authority in 47 U.S.C. § 254

allows FCC to establish its own guiding policies and

touches on the core legislative power of the purse, it

is particularly troubling.

The Petition should be granted; until this Court

returns to restricting legislative power to Congress,

no other court will be able to do so.

4

REASONS FOR GRANTING THE PETITION

I. THE “NONDELEGATION” DOCTRINE ENABLES

CONSTITUTIONAL VIOLATIONS

The Constitution, by design, vested separate and

largely exclusive powers in each branch of the United

States

government.

When

establishing

the

Constitution, the People gave Congress alone the

power to legislate—the power through an exercise of

will to make general, prospective, binding rules that

limit liberty.

While the “nondelegation” doctrine claims to

prevent divesting of legislative power, its application

actually enables such transfers. This misnomered,

fictional doctrine must be recast if the Constitution is

to serve its purpose.

A. Legislative Power Must Be Exclusive

to Congress

Limiting legislative power to Congress was (and

is) essential to the Constitution’s fundamental

principles of consent of the governed. The

Constitution thus makes clear that legislative power

cannot be shared or divested.

1. The Principle of Consent

No principle mattered more for the founding of

the Nation than consent. Without consent, a

government lacks legitimacy and its laws lack

obligation. See Hamburger, supra note 2, at 1105–07.

5

In a republic such as the United States, consent

for laws that impinge on liberty comes through the

election of representatives to the legislature.

American colonists declared it “the first principle in

civil society, founded in nature and reason, that no

law of the society can be binding on any individual[],

without his consent, given by himself in person, or by

his representative of his own free election.” 3

2. “Shall Be Vested” Mandates That All

Legislative Powers Be in Congress

Consistent with its motivating principles, the

Constitution states that each of the government’s

tripartite powers “shall be vested” in a separate

branch. U.S. CONST. art. I, § 1, art. II, § 1, art. III, § 1.

The Constitution thereby emphasizes that its powers

cannot be rearranged.

Imagine that the Constitution had used the word

“vested” as one might in a grant of property, saying

merely that the legislative powers are hereby vested

in Congress. Then there would be an initial transfer

of legislative power from the People, but no express

textual indication that the legislative powers must

remain with Congress.

But the Constitution says that its powers “shall

be vested.” It thereby not only transfers the People’s

powers, but it says where they “shall” and thus must

be located. Of particular interest here, “all legislative

3 Resolutions of the Boston Town Meeting (Sept. 13, 1768), in A

Report of the Record Commissioners of the City of Boston,

Containing the Boston Town Records, 1758 to 1769, 261, 261

(Boston: Rockwell & Churchill, 1886).

6

powers … shall be vested in a Congress.” U.S. CONST.

art. I, § 1 (emphases added). The phrase “shall be

vested” reinforces what already should be clear, that

“the Constitution’s vesting of powers is not just an

initial distribution.” See Hamburger, supra note 2, at

1174. Rather, the Constitution mandates where they

shall remain, and that Congress may not divest them.

For these reasons and more, limiting legislative

power to Congress is fundamental to protecting

liberty.

B. The Nondelegation Doctrine Wrongly

Enables Divesting Legislative Power to

the Executive

Adhering to these Constitutional dictates, the

Court once demanded that Congress complete the act

of legislating before empowering an agent to

administer statutes. Now, the Court allows Congress

to merely articulate broad policies, leaving agencies

to develop codes of law that constrain liberty.

1. How It Started: The Nondelegation

Doctrine

Developed

to

Enforce

Constitutional Boundaries

For over 150 years after the founding of our

republic, this Court faithfully acted as a boundary

warden, keeping legislative power where the

Constitution vested it. See Marshall Field & Co. v.

Clark, 143 U.S. 649, 692 (1892) (“That [C]ongress

cannot delegate legislative power to the president is a

principle universally recognized as vital to the

integrity and maintenance of the system of

government ordained by the constitution.”); see also

7

Wayman v. Southard, 23 U.S. 1, 20 (1825) (“It will not

be contended that Congress can delegate … powers

which are strictly and exclusively legislative.”); J.W.

Hampton, Jr. & Co. v. United States, 276 U.S. 394,

406 (1928) (“it is a breach of the national fundamental

law if Congress gives up its legislative power and

transfers it to the President, or to the judicial

branch”).

In the 1930s and early 1940s, as the

administrative state took root, the Court took care to

define what Congress must do before it could delegate

authority. Specifically, it was not sufficient that

Congress identify broad policy goals, rather, Congress

also had to set the standards that would be applied in

accomplishing such goals, to establish rules of

decision and conduct, and to do so in a manner that

would allow courts and the public to determine

whether the acts of the executive were consistent with

the legislative will expressed in a statute. See

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935);

A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495 (1935); Opp Cotton Mills v. Adm’r of Wage

and Hour Div., 312 U.S. 126 (1941); Yakus v. United

States, 321 U.S. 414 (1944).

In Panama Refining, the Court held Section 9(c)

of

the

National

Industrial

Recovery

Act

unconstitutional. 293 U.S. at 430–32. Section 9(c)

authorized

the

President

to

prohibit

the

transportation of “hot” oil, but provided no standards

for when he should do so. After finding no standards

for or constraints on this specific power in Section 9,

the Court turned to the broader statute. Id. at 414–

16. The Act’s “declaration of policy,” identified at least

8

twelve policy objectives such as “to promote the fullest

possible utilization of the present productive

capacity” and “to conserve natural resources.” Id. at

416–17. The Court found that this “general outline of

policy” did nothing to establish a standard for when

the granted authority should be used. Id. at 417.

Rather, it left the President to perform the legislative

function of establishing the standard for when to

apply governmental power. Id.

The Court distinguished other cases where

delegations of authority had been permissible. Id. at

421–30. In such cases, Congress had established not

only policies, but specific standards or rules of

conduct; leaving the executive to develop

“subordinate” rules or to find facts needed to apply the

legislative rule. Id. at 421; see also id. at 422–26. In

such instances, the President “was the mere agent of

the law-making department to ascertain and declare

the event upon which [the legislature’s] expressed

will was to take effect.” Id. at 426.

Further, the Court rejected the idea that it

previously approved something so vague as “public

convenience, interest, or necessity” as a sufficiently

limiting standard. Id. at 428 (noting that the

executive was also required to provide “equality of

radio broadcasting service, both of transmission and

of reception” between the states) (citing Fed. Radio

Comm’n v. Nelson Bros. Bond & Mortg. Co., 289 U.S.

266 (1933)).

Ultimately, the Court struck Section 9(c) because

“Congress has declared no policy, has established no

standard, has laid down no rule,” specifically as to the

9

transportation of hot oil. Panama Refining, 293 U.S.

at 430; see also id. at 432 (to prevent “a pure

delegation of legislative power” Congress must

establish the “rules of decision”). Notably, the Court

was looking for a standard related to the narrow

authority granted in one subsection of the statute, not

a global aspiration.

Later the Court struck another part of the Act,

holding that Congress must “itself establish[] the

standards of legal obligation, thus performing its

essential legislative function.” Schechter Poultry, 295

U.S. at 530. “[F]ailure to enact such standards”

amounted to an “attempt[] to transfer [the legislative]

function to others.” Id. When the purpose of a statute

is not to establish law, but to authorize the executive

to make “new and controlling prohibitions through

codes of law[,]” and when any restrictions “leave

virtually untouched the field of policy envisaged,”

Congress has exceeded its bounds. Id. at 535, 538. A

statute that “does not undertake to prescribe rules of

conduct,” but instead “authorizes the making of codes

to prescribe [rules of conduct]” is “an unconstitutional

delegation of legislative power.” Id. at 541–42; see also

Currin v. Wallace, 306 U.S. 1, 18 (1939) (statute

upheld where Congress both “defines the policy” and

“establishes standards.”); Opp Cotton Mills, 312 U.S.

at 145 (“The essentials of the legislative function are

the determination of the legislative policy and its

formulation as a rule of conduct.”); id. at 144 (where

a statute sets up standards for the guidance of the

administrative agency “such that Congress, the

courts[,] and the public can ascertain whether the

agency has conformed to the standards which

10

Congress has prescribed, there is no failure of

performance of the legislative function”).

Thus, the Court once properly applied standards

for legislation that required Congress to do more than

make grand statements of policy. Those days passed.

2. How It’s Going: The Nondelegation

Doctrine Now Endorses Divesting

Legislative Power

Today, the standard that purports to restrict

legislative power to Congress is impotent. The

nondelegation doctrine is viewed as moribund and in

practice wholly ineffective.

As the administrative state gained power, the

Court became an enabler. The Court had previously

stated that, “[e]xtraordinary conditions do not create

or enlarge constitutional power[,]” and government

actors “are not at liberty to transcend the imposed

limits because they believe that more or different

power is necessary.” Schechter Poultry, 295 U.S. at

528–29. By 1946, however, the Court had a different

view, stating that “[n]ecessity fixes a point beyond

which it is unreasonable and impracticable [for]

Congress to prescribe detailed rules; it then becomes

constitutionally sufficient if Congress delineates the

general policy, the public agency which is to apply it,

and the boundaries of this delegated authority.” Am.

Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946).

While the Court feigned a nod to the demand for

congressionally established standards as well as

policy, it made the “standards” requirement

meaningless. The Court curtly stated that since it had

11

previously approved “public interest” and like

expressions as sufficiently definitive, it was now

compelled to sanction similar standards. Id. A review

of the cases it cited, however, demonstrates that the

Court had not, in fact, approved such vague and broad

standards, standing alone, to complete the task of

legislating. See N.Y. Cent. Sec. Corp. v. United States,

287 U.S. 12 (1932); Yakus, 321 U.S. at 414.

By 1989, the Court admitted its retreat from

enforcing the constitutional demand that “all”

legislative power be vested in Congress. In Mistretta

v. United States, 488 U.S. 361 (1989), the Court

remarked that “Congress generally cannot delegate

its legislative power.” 488 U.S. at 372 (emphasis

added). The Court acknowledged that its

“jurisprudence has been driven by a practical

understanding that … Congress simply cannot do its

job absent an ability to delegate power under broad

general directives.” Id. This reasoning confirmed that

since 1946, so long as Congress provided “general

directives” through an “intelligible principle,”

Congress was free of further demands.

Thus, any true nondelegation doctrine had

collapsed, perhaps died, and congressional delegation

of legislative power became the rule. For example, a

panel on the Tenth Circuit noted that the

nondelegation doctrine has been long dormant, to the

point of being deemed a “dead letter” never properly

interred. United States v. Rickett, 535 F. App’x 668,

674–75 (10th Cir. 2013) (citing Mistretta, 488 U.S. at

373); see also Whitman v. Am. Trucking Ass’ns, Inc.,

531 U.S. 457, 474 (2001); Gary Lawson, Delegation

and Original Meaning, 88 VA. L. REV. 327, 329 (2002).

12

The panel continued, “if there is anything clear or

obvious about the nondelegation doctrine, it is that,

viewed through its lens, virtually any statute will be

deemed valid.” Rickett, 535 F. App’x at 675 (citing Am.

Trucking, 531 U.S. at 474–75; Mistretta, 488 U.S. at

373 n.7).

While other courts may not yet state that the

nondelegation doctrine is defunct, they view it as

“lax,” “lenient,” or a low threshold, unworthy of

meaningful analysis. The First Circuit, for example,

held that discretion constrained to “the public

interest” and “substantial justice” “indisputably

satisfies the lax ‘intelligible principle’ standard under

our precedents and those of the Supreme Court.”

United States v. Diggins, 36 F.4th 302, 319 n.19 (1st

Cir. 2022) (citing United States v. Parks, 698 F.3d 1,

7–8 (1st Cir. 2012)); see, e.g., CFPB v. Law Offs. of

Crystal Moroney, P.C., 63 F.4th 174, 184 (2d Cir.

2023) (referring to “the nondelegation doctrine’s

lenient standard”) (cert. pet. filed June 21, 2023);

United States v. Cooper, 750 F.3d 263, 272 (3d Cir.

2014) (“under controlling nondelegation doctrine

jurisprudence, the hurdle for the government … is not

high”); Granados v. Garland, 17 F.4th 475, 480 (4th

Cir. 2021) (“intelligible principle is not an exacting

standard”); All. for Fair Bd. Recruitment v. SEC, No.

21-60626, 2023 WL 6862856, at *10 n. 13 (5th Cir.

Oct. 18, 2023) (“the intelligible principle standard

means ‘that a total absence of guidance is

impermissible’”); Bhatti v. Fed. Hous. Fin. Agency, 15

F.4th 848, 854 (8th Cir. 2021) (since the Supreme

Court found that “in the ‘public interest, convenience,

or necessity’” was a sufficient intelligible principle,

13

there is a “low threshold for validation under the

nondelegation doctrine”).

In the case below, the Sixth Circuit arguably took

the nondelegation doctrine even further. See

Consumers’ Res. v. FCC, 67 F.4th 773 (6th Cir. 2023).

The court was untroubled by Congress’s divesting to

FCC not only the ability to define the objective of the

statute, “universal service,” but also the power to set

at least some of the intelligible principles to guide

implementation. Id. at 792–93. The court found that

giving FCC “evolving” objectives and flexibility

“reflects the exact rationale that underpins the

nondelegation doctrine.” Id. (emphasis added) (citing

Mistretta, 488 U.S. at 372).

That the court below saw Congress’s alleged

inability to do its job without giving away power as

the “rationale” for the nondelegation doctrine

demonstrates how far the doctrine has deviated from

its purpose. Further, so long as an “intelligible

principle” could be identified, the court below believed

it was relieved of any duty to inquire whether the

executive was in fact exercising legislative power.

Effectively, the “nondelegation doctrine” has

become a “pro-delegation doctrine.” See Hamburger,

supra note 2, at 1086.

C. Falsity, Fiction, and Other Faults

Riddle the Nondelegation Doctrine

The nondelegation doctrine has become either a

misnomer or double-speak, and it rests on fictions

that can neither be maintained nor justified any

longer. Hamburger, supra note 2, at 1091–95.

14

1. “Delegation” Falsely Implies an Easily

Revocable Transfer

When statutes improperly divest legislative

power, they do not merely delegate. When a political

officer “delegates” power, she retains the authority to

unilaterally revoke the delegation. An FCC

Commissioner, for example, who “delegates”

statutorily authorized powers, has the right to

terminate that arrangement at any time, for any

reason.

That is not the case when a statute has conferred

lawmaking powers. A statutory divesting of power

ties the hands of Congress until another statute can

be passed. Congress may revoke the “delegation” only

via the cumbersome bicameralism and presentment

process of Article I, § 7. The President is empowered

to veto any effort to withdraw powers that a statute

vests, so Congress cannot unilaterally revoke a

divesting of authority that a predecessor Congress

made via statute. Congress must obtain the

President’s assent, or else it must secure veto-proof

supermajorities in both houses of Congress—an

exceedingly difficult task.

It is therefore misleading to discuss divesting of

legislative power in terms of “delegation.”

2. The Nondelegation Doctrine Rests on

Fictions

The nondelegation doctrine rests on multiple

fictitious assumptions.

15

One such fiction is the idea that agency

lawmaking is merely “specifying” or “filling in the

details” of a statutory standard. See, e.g., United

States v. Grimaud, 220 U.S. 506, 517 (1911) (“[W]hen

Congress had legislated and indicated its will, it could

give to those who were to act under such general

provisions ‘power to fill up the details’ by the

establishment

of

administrative

rules

and

regulations”).

But even where authorizing statutes offer

governing standards, the authorized agencies often

are not merely filling in details. As is widely

understood, such statutes frequently leave the most

difficult legislative questions to the agencies—indeed,

members of Congress notoriously use such statutes to

avoid making difficult legislative decisions. See

Gundy v. United States, 139 S. Ct. 2116, 2144 (2019)

(Gorsuch, J., dissenting) (“Because Congress could

not achieve the consensus necessary to solve the hard

problems …, it passed the potato” to an agency “freed

from the need to assemble a broad supermajority[.]”);

David Schoenbrod, Consent of the Governed: A

Constitutional Norm that the Court Should

Substantially Enforce, 43 HARV. J. L. & PUB. POL’Y

213, 219 (2020).

A second fiction is that an “intelligible principle”

provided by Congress ensures that it is delegating

something less than legislative power. As

summarized above and as Justice Gorsuch has

accurately recounted, courts have gradually relaxed

the “intelligible principle” standard so that it no

longer prevents Congress’s divestment of legislative

powers. See Gundy, 139 S. Ct. at 2140 (the Court’s

16

“intelligible principle” remark “has been abused to

permit delegations of legislative power that on any

other conceivable account should be held

unconstitutional. … Even Justice Douglas, one of the

fathers of the administrative state, came to criticize

excessive congressional delegations in the period

when the intelligible principle ‘test’ began to take

hold”) (Gorsuch, J., dissenting) (citations omitted).

Every act of Congress is ostensibly constrained by

the Constitution’s enumerated powers, and there is

almost always some semblance of an “intelligible

principle” that may be found in an agency’s enabling

statutes. But that does not demote an agency’s

liberty-impinging laws to something less than an

exercise of legislative power.

Hence, an “intelligible principle” does not save

agency rulemaking from being legislative. And

current doctrine is fictional in suggesting otherwise.

3. Today’s

Nondelegation

Interferes with Article III

Doctrine

Another fault with the nondelegation doctrine is

that courts cannot perform their constitutional duty

if Congress can delegate lawmaking after providing

no more than an open-ended policy suggestion. See

Mark Chenoweth & Richard Samp, “Reinvigorating

Nondelegation with Core Legislative Power,” in The

Administrative State Before the Supreme Court:

Perspectives on the Nondelegation Doctrine 81, 93–95

(Peter J. Wallison & John Yoo eds., 2022). Legislation

must be “sufficiently definite and precise” so as to

permit courts (and the public) “to ascertain whether

the will of Congress has been obeyed.” Yakus, 321

17

U.S. at 425–26; Opp Cotton Mills, 312 U.S. at 144

(where a statute sets up standards “such that

Congress, the courts[,] and the public can ascertain

whether the agency has conformed to the standards

…, there is no failure of performance of the legislative

function”). In order to accomplish this task, a statute

must “mark[] the field within which the [Commission]

is to act so that it may be known whether [it] has kept

within it in compliance with the legislative will.”

Yakus, 321 U.S. at 425.

Importantly, to “mark the field within which the

[Commission] is to act,” is not accomplished by merely

establishing the outer limits of an agency’s

jurisdiction and setting aspirational goals. For

example, Yakus examined an emergency wartime

price control act. Id. at 420. The Court noted that

Section 1 declared its purposes or policy objectives,

while Section 2 and an amending statute provided the

standards to be used in fixing maximum prices. Id. at

420–21. In the standards, Congress required

reference to prices prevailing on specific dates with

further standards for when deviations may be

appropriate. The executive was required to “conform

to standards.” Id. at 423. It was the standards, not the

policy, that “define[d] the boundaries within which

prices having [the purpose of furthering the policy]

must be fixed.” Id. The Act was a sufficient exercise of

legislative power because it “stated the legislative

objective, … prescribed the method of achieving that

objective … and laid down standards to guide the

administrative determination” of when to exercise

price-fixing power and the prices that could be set. Id.

The Court reiterated that the essential of the

legislative function was not only the determination of

18

policy, but its “formulation and promulgation as a

defined and binding rule of conduct.” Id. at 424.

Virtue-signaling aspirational policy goals are not

standards. See Panama Refining, 293 U.S. at 418–20;

Chenoweth & Samp, supra p. 16, at 91. In the absence

of discernible, enforceable standards that create rules

of conduct for delegated authority, Congress has not

completed the task of legislating. Likewise, in the

absence of identifiable standards, courts have done no

more than improperly defer to administrative

agencies’ opinion that their action advances statutory

policy goals. Schecter Poultry, 295 U.S. at 538;

Chenoweth & Samp, supra p. 16, at 106. In doing so,

the court is not completing its task of independently

determining and applying the law. See THE

FEDERALIST NO. 78, at 525 (A. Hamilton) (Jacob E.

Cooke ed., 1961) (where the legislature’s will “stands

in opposition to that of the people declared in the

constitution, the judges ought to be governed by the

latter, rather than the former”).

***

The current nondelegation doctrine has become a

misnomer that no longer protects the principles

enshrined in our Constitution. This constitutional

safeguard can begin to be resuscitated by granting

certiorari.

19

II. THE DIVESTING OF LEGISLATIVE POWERS IN

47 U.S.C. § 254 IS PARTICULY OFFENSIVE TO THE

CONSTITUTION

The statute at issue here evinces a particularly

troubling divesting of legislative power, making this

case a good vessel for this Court’s review. Section 254

gives FCC the power to define the purpose and policy

of the statute. Section 254 is also self-funding,

evading the congressional power of the purse.

A. Section 254 Permits FCC to Set Its Own

Objectives and Policies

Even under today’s nondelegation doctrine,

Congress must provide a guiding “intelligible

principle,” but § 254’s guidance is neither binding nor

fixed.

Congress granted FCC the ability to define

“universal service” and to establish the policy

principles for preserving and advancing universal

service. See 47 U.S.C. §§ 254(c)(1), 254(b). Section 254

provides that universal service shall be based on

“principles” that include whatever the Commission

determines is necessary and appropriate for “public

interest, convenience, and necessity.” 47 U.S.C.

§ 254(b)(7).

The “evolving” definition of “universal service,” to

be set and revised by FCC, according to policies FCC

selects, fails to accomplish the goal of “mark[ing] the

field within which the [Commission] is to act so that

it may be known whether [it] has kept within it in

compliance with the legislative will.” Yakus, 321 U.S.

20

at 425. The statutory scheme of § 254 allows FCC to

continually move the goalposts and enlarge the field.

B. FCC’s Universal Service Fund Evades

Legislative Taxing and Spending

Powers

Congress handed FCC the purse strings in § 254,

thus warranting this Court’s review. Divesting of

Congress’s greatest power—the power of the purse—

must be viewed with particular concern. See THE

FEDERALIST NO. 58, at 394 (James Madison) (Jacob E.

Cooke ed., 1961) (“[T]his power over the purse … [is]

the most compleat and effectual weapon with which

any constitution can arm the immediate

representatives of the people[.]”); NFIB v. Sebelius,

567 U.S. 519, 573 (2012) (“[T]he breadth of Congress’s

power to tax is greater than its power to regulate

commerce.”).

Congress’s financial powers were drafted

intentionally, not haphazardly, due to the

unpredictable and dictator-like control of the purse

strings in England:

The [F]ramers were particularly intent

on vesting the power of the purse … in

the

Congress,

as

the

people’s

representative. …

Because

of

[]

transgressions and encroachments of

legislative

prerogatives,

England

lurched into a bloody civil war. … The

rise of democratic government is directly

related to legislative control over all

expenditures. The U.S. Constitution

21

attempted to avoid the British history of

civil war and bloodshed by vesting the

power of the purse squarely in

Congress.

Symposium, Louis Fisher, Congressional Abdication:

War and Spending Powers, 43 ST. LOUIS U. L.J. 931,

937 (1999). Congressional control of taxing was also

the byproduct of other grievances against the Crown.

Consider the battle cry and anger of “no taxation

without representation” that led to the Boston Tea

Party and culminated in the American Revolution.

If viewed as a tax, as Petitioners contend, § 254

represents a core legislative power that cannot be

delegated to agencies. See Nat’l Cable Television

Ass’n, Inc. v. United States, 415 U.S. 336, 340 (1974)

(“Taxation is a legislative function, and Congress … is

the sole organ for levying taxes[.]”). Because “the

power to tax involves the power to destroy[,]”

McCulloch v. Maryland, 17 U.S. 316, 431 (1819), “the

Founders placed special controls on the enactment of

federal taxes.” Chenoweth & Samp, supra p. 16, at 98.

But regardless of its title—a tax, a fee, a king’s

ransom—Section 254 allows FCC to unilaterally raise

revenue that adds up to roughly 25 times its

congressionally-appropriated budget. See Pet’rs’ Pet.

for Writ of Cert. at 2, Consumers’ Res. v. FCC, No. 23456 (Oct. 27, 2023). The Constitution dictates that

“No Money shall be drawn from the Treasury, but in

Consequence of Appropriations made by Law[.]” U.S.

CONST. art. I, § 9, cl. 7. Here, Congress does not fund

the FCC’s Universal Service Fund, but rather gives

FCC a blank check written on consumer accounts.

22

Under the Appropriations Clause, “[f]or the

executive branch to act to achieve the ends of

government identified by Congress, Congress must

affirmatively authorize the funds to do the job.” Kate

Stith, Congress’ Power of the Purse, 97 YALE L.J. 1343,

1350 (1988) (emphasis added). See also Off. of Pers.

Mgmt. v. Richmond, 496 U.S. 414, 426 (1990) (“Just

as the pardon power cannot override the command of

the Appropriations Clause, so too judicial use of the

equitable doctrine of estoppel cannot grant

respondent a money remedy that Congress has not

authorized.”).

Self-funding mechanisms raise constitutional

issues because “[t]he Constitution vests Congress not

only with the power to tax and spend, but also

removes ‘the option not to require legislative

appropriations prior to expenditure.’” CFPB v. All

Am. Check Cashing, Inc., 33 F.4th 218, 221 (5th Cir.

2022) (Jones, J., concurring) (quoting Stith, supra p.

22, at 1349). “Given that the executive is forbidden

from unilaterally spending funds, the actual exercise

by Congress of its power of the purse is imperative to

a functional government.” Cmty. Fin. Servs. Ass’n of

Am., Ltd. v. CFPB, 51 F.4th 616, 637 (5th Cir. 2022).

“Congress may no more lawfully chip away at its own

obligation to regularly appropriate money than it may

abdicate that obligation entirely.” All Am. Check

Cashing, 33 F.4th at 226, 241 (Jones, J., concurring).

The Appropriations Clause, like Congress’s power

to tax, was the result of the Framers’ stance against

the tyrannical control over monies in England. Id. at

226 (Jones, J., concurring). At the Founding, “[a]mong

delegates to the Constitutional Convention, that

23

Congress would exercise power over both taxation

and appropriations was wholly uncontroversial. The

idea, of course, was ‘that the money of the people

should not be voted out of their pockets without giving

them the utmost satisfaction, for passing the laws to

this effect.’” Id. at 228 (quoting 5 ANNALS OF

CONG. 448 (1796)) (statement of Rep. Heath).

Congress’s spending power is also an important

check on the other branches. Congress is the

gatekeeper of the United States Treasury. See

Richmond, 496 U.S. at 424 (“Our cases underscore the

straightforward and explicit command of the

Appropriations Clause. ‘It means simply that no

money can be paid out of the Treasury unless it has

been appropriated by an act of Congress.’”) (quoting

Cincinnati Soap Co. v. United States, 301 U.S. 308,

321 (1937)).

FCC’s self-funding mechanism, particularly as

it is unconstrained by any binding standards,

warrants this Court’s review. See All Am. Check

Cashing, 33 F.4th at 232 (Jones, J., concurring)

(“Because the CFPB is a perpetually self-funded

agency armed with vast executive authority, its

structure defies congressional oversight and is

incompatible with the Constitution.”). FCC

unilaterally determines what it wishes to accomplish

and then how much funding it will take from

American consumers to serve its self-selected ends.

Such core legislative functions cannot rest with an

unrestrained agency.

24

CONCLUSION

This Court should grant the Petition and take the

opportunity to establish guidance that enables the

lower courts to enforce constitutional limitations

found in the Vesting Clauses.

November 30, 2023

Respectfully submitted,

/s/ Mark S. Chenoweth

Zhonette M. Brown

Kaitlyn D. Schiraldi

Mark S. Chenoweth

Counsel of Record

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

Phone: (202) 869-5210

mark.chenoweth@ncla.legal

Counsel for Amicus Curiae

New Civil Liberties Alliance