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

No. 24-354

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 FIFTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF

WEST VIRGINIA, 14 OTHER STATES, AND

THE ARIZONA LEGISLATURE

IN SUPPORT OF GRANTING THE PETITION

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

QUESTIONS PRESENTED

(1) Whether 47 U.S.C. § 254 violates the nondelegation

doctrine by imposing no limit on the Federal

Communications Commission’s power to raise revenue for

the Universal Service Fund.

(2) Whether the FCC violated the private

nondelegation doctrine by transferring its revenueraising power to a private company run by industry

groups.

(3) Whether the combination of Congress’s delegation

to the FCC and FCC’s delegation to the private Universal

Service

Administrative

Company

violates

the

nondelegation doctrine.

II

TABLE OF CONTENTS

Questions Presented ............................................................ I

Introduction and Interests of Amici Curiae ..................... 1

Summary of Argument ........................................................ 2

Reasons for Granting the Petition...................................... 3

I.

The States—And Our Country—Need

Guidance On the Nondelegation Doctrine ................ 3

II.

Those Who Mean To Scare The Court Away

From These Issues Are Wrong ............................... 10

III. Preserving Congress’s Legislative Power

Protects The States’ Interests ................................. 13

IV. This Court Should Evaluate This Statute .............. 18

Conclusion ........................................................................... 23

III

TABLE OF AUTHORITIES

Page(s)

Cases

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

States,

295 U.S. 495 (1935) ............................................... 4, 5, 21

Barr v. DOJ,

819 F.2d 25 (2d Cir. 1987) .............................................. 2

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ................................................... 20

Bond v. United States,

564 U.S. 211 (2011) ....................................................... 14

Bradford v. U.S. Dep’t of Lab.,

582 F. Supp. 3d 819 (D. Colo. 2022) .............................. 7

Carter v. Carter Coal Co.,

298 U.S. 238 (1936) ....................................................... 22

City of Arlington v. FCC,

569 U.S. 290 (2013) ................................................... 6, 21

Clinton v. City of New York,

524 U.S. 417 (1998) ......................................................... 6

Cnty. of Santa Clara v. Trump,

250 F. Supp. 3d 497 (N.D. Cal. 2017) .......................... 20

Dep’t of Transp. v. Ass’n of Am. R.R.,

575 U.S. 43 (2015) ....................................................... 6, 8

FTC v. Ruberoid Co.,

343 U.S. 470 (1952) ....................................................... 16

Garcia v. San Antonio Metro. Transit

Auth.,

469 U.S. 528 (1985) ....................................................... 14

IV

TABLE OF AUTHORITIES

(continued)

Page(s)

Geier v. Am. Honda Motor Co.,

529 U.S. 861 (2000) ....................................................... 15

Granados v. Garland,

17 F.4th 475 (4th Cir. 2021) ........................................... 7

Gundy v. United States,

139 S. Ct. 2116 (2019) ............................4, 5, 6, 7, 8, 9, 10

Indus. Union Dep’t, AFL-CIO v. Am.

Petroleum Inst.,

448 U.S. 607 (1980) ......................................................... 9

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

276 U.S. 394 (1928) ..................................................... 4, 5

Jarkesy v. SEC,

34 F.4th 446 (5th Cir. 2022) ........................................... 7

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ......................................................... 4

Michigan v. EPA,

576 U.S. 743 (2015) ....................................................... 21

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

States,

415 U.S. 336 (1974) ....................................................... 19

Nat’l Fed’n of Indep. Bus. v. OSHA,

142 S. Ct. 661 (2022) ....................................................... 8

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ................................................. 14, 19

Norfolk S. Ry. Co. v. City of Roanoke,

916 F.3d 315 (4th Cir. 2019) ......................................... 19

V

TABLE OF AUTHORITIES

(continued)

Page(s)

OPM v. Richmond,

496 U.S. 414 (1990) ....................................................... 20

Panama Refin. Co. v. Ryan,

293 U.S. 388 (1935) ..................................................... 4, 5

Paul v. United States,

140 S. Ct. 342 (2019) ....................................................... 6

Printz v. United States,

521 U.S. 898 (1997) ....................................................... 17

Ring v. Maxwell,

58 U.S. 147 (1854) ......................................................... 20

State ex rel. S. Bank v. Pilsbury,

105 U.S. 278 (1881) ....................................................... 19

Tennessee v. FCC,

832 F.3d 597 (6th Cir. 2016) ......................................... 17

Tiger Lily, LLC v. U.S. Dep’t of Hous. &

Urb. Dev.,

5 F.4th 666 (6th Cir. 2021) ..................................... 10, 11

U.S. Dep’t of Navy v. FLRA,

665 F.3d 1339 (D.C. Cir. 2012) .................................... 20

United States v. Comstock,

560 U.S. 126 (2010) ....................................................... 21

United States v. Melgar-Diaz,

2 F.4th 1263 (9th Cir. 2021) ........................................... 7

Wayman v. Southard,

23 U.S. 1 (1825) ............................................................... 4

VI

TABLE OF AUTHORITIES

(continued)

Page(s)

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ................................................... 4, 11

Statutes

47 U.S.C. § 254 .................................................................... 18

Pub. L. No. 107-56, 115 Stat. 272 (2001) .......................... 10

Other Authorities

122 CONG. REC. 31,628 (1976).............................................. 9

Aaron Gordon,

Nondelegation Misinformation: A

Reply to the Skeptics,

75 BAYLOR L. REV. 152 (2023) ....................................... 4

Aaron Nielson,

Erie As Nondelegation,

72 OHIO ST. L.J. 239 (2011) .......................................... 17

Amy Coney Barrett, Suspension and

Delegation, 99 CORNELL L. REV. 251,

318 (2014) ......................................................................... 6

Barbara A. Cherry & Donald D. Nystrom,

Universal Service Contributions: An

Unconstitutional Delegation of Taxing

Power,

2000 L. REV. MICH. ST. U. DET. C.L.

107 (2000) ....................................................................... 20

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

Benjamin Silver,

Nondelegation in the States,

75 VAND. L. REV. 1211 (2022) ........................................ 8

Bradford R. Clark,

Putting the Safeguards Back into the

Political Safeguards of Federalism,

80 TEX. L. REV. 327 (2001)........................................... 16

Bradford R. Clark,

Separation of Powers As A Safeguard

of Federalism,

79 TEX. L. REV. 1321 (2001) ......................................... 14

Calvin R. Massey,

The Tao of Federalism,

20 HARV. J.L. & PUB. POL’Y 887 (1997) ...................... 14

Cass R. Sunstein,

Is the Clean Air Act Unconstitutional?,

98 MICH. L. REV. 303 (1999) ........................................ 11

Cass R. Sunstein,

Nondelegation Canons,

67 U. CHI. L. REV. 315 (2000) ........................................ 7

Charles Davant IV,

Sorcerer or Sorcerer’s Apprentice?:

Federal Agencies and the Creation of

Individual Rights,

2003 WIS. L. REV. 613 (2003) ....................................... 15

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Christopher C. DeMuth, Sr. & Michael S.

Greve,

Agency Finance in the Age of

Executive Government,

24 GEO. MASON L. REV. 555 (2017) ............................. 21

Cody Ray Milner,

Into the Multiverse: Replacing the

Intelligible Principle Standard with A

Modern Multi-Theory of

Nondelegation,

28 GEO. MASON L. REV. 395 (2020) ............................... 8

Convenient, MERRIAM-WEBSTER (2024) ......................... 21

D.A. Candeub,

Tyranny and Administrative Law,

59 ARIZ. L. REV. 49 (2017) ........................................... 11

D. Bruce La Pierre,

Political Accountability in the

National Political Process—the

Alternative to Judicial Review of

Federalism Issues,

80 NW. U. L. REV. 577 (1985) ....................................... 15

Daniel Backman,

The Antimonopoly Presidency,

133 YALE L.J. 342 (2023) ............................................. 17

IX

TABLE OF AUTHORITIES

(continued)

Page(s)

Daniel E. Walters & Elliott Ash,

If We Build It, Will They Legislate?

Empirically Testing the Potential of

the Nondelegation Doctrine to Curb

Congressional “Abdication,”

108 CORNELL L. REV. 401 (2023) .................................. 7

David A. Herrman,

To Delegate or Not to Delegate—That

Is the Preemption: The Lack of

Political Accountability in

Administrative Preemption Defies

Federalism Constraints on

Government Power,

28 PAC. L.J. 1157 (1997) ............................................... 16

David J. Barron & Elena Kagan,

Chveron’s Nondelegation Doctrine,

2001 SUP. CT. REV. 201 (2001) ..................................... 22

Eric Berger, Constitutional Conceits in

Statutory Interpretation,

75 ADMIN. L. REV. 479 (2023) ...................................... 17

Evan C. Zoldan, The Major Questions

Doctrine in the States,

101 WASH. U.L. REV. 359 (2023) ................................. 12

Evan J. Criddle,

When Delegation Begets Domination:

Due Process of Administrative

Lawmaking,

46 GA. L. REV. 117 (2011) ............................................... 5

X

TABLE OF AUTHORITIES

(continued)

Page(s)

Exec. Order 13,132,

64 Fed. Reg. 43255 (Aug. 4, 1999) ............................... 16

Gary Lawson, Delegation and Original

Meaning, 88 VA. L. REV. 327 (2002) ............................. 5

Ilan Wurman,

Nondelegation at the Founding,

130 YALE L.J. 1490 (2021) ............................................. 4

James R. Hines Jr. & Kyle D. Logue,

Delegating Tax,

114 MICH. L. REV. 235 (2015) ...................................... 19

Jason Iuliano & Keith E. Whittington,

The Nondelegation Doctrine: Alive and

Well,

93 NOTRE DAME L. REV. 619 (2017) ........................... 12

Jason Webb Yackee & Susan Webb

Yackee,

Delay in Notice and Comment

Rulemaking: Evidence of Systemic

Regulatory Breakdown?, in

REGULATORY BREAKDOWN: THE CRISIS

OF CONFIDENCE IN U.S. REGULATION

163 (2012) ....................................................................... 10

Jennifer Nou & Edward H. Stiglitz,

Strategic Rulemaking Disclosure,

89 S. CAL. L. REV. 733 (2016) ...................................... 16

XI

TABLE OF AUTHORITIES

(continued)

Page(s)

John M. Manning,

The Nondelegation Doctrine As A

Canon of Avoidance,

2000 SUP. CT. REV. 223 (2000) ....................................... 8

Jonathan H. Adler,

The Ducks Stop Here? The

Environmental Challenge to

Federalism,

9 SUP. CT. ECON. REV. 205, 221 (2001) ....................... 15

Jonathan H. Adler & Christopher J.

Walker, Delegation & Time, 105 IOWA

L. REV. 1931 (2020) ......................................................... 9

Jonathan S. Marashlian et al.,

The Mis-Administration and

Misadventures of the Universal Service

Fund: A Study in the Importance of the

Administrative Procedure Act to

Government Agency Rulemaking,

19 COMMLAW CONSPECTUS 343 (2011) ...................... 22

Joseph Postell & Randolph J. May,

The Myth of the State Nondelegation

Doctrines,

74 ADMIN. L. REV. 263 (2022) ...................................... 13

Kathryn A. Watts,

Rulemaking As Legislating,

103 GEO. L.J. 1003 (2015) ............................................... 6

XII

TABLE OF AUTHORITIES

(continued)

Page(s)

Laurence H. Tribe,

Intergovernmental Immunities in

Litigation, Taxation, and Regulation:

Separation of Powers Issues in

Controversies About Federalism,

89 HARV. L. REV. 682 (1976) ........................................ 15

Martin B. Louis,

Allocating Adjudicative Decision

Making Authority Between the Trial

and Appellate Levels: A Unified View

of the Scope of Review, the Judge/Jury

Question, and Procedural Discretion,

64 N.C. L. REV. 993 (1986) ........................................... 10

MICHAEL ASIMOW & RONALD M. LEVIN, STATE AND

FEDERAL ADMINISTRATIVE LAW 450 (4th ed. 2014) .................... 12

Michele E. Gilman,

Presidents, Preemption, and the States,

26 CONST. COMMENT. 339 (2010) ................................ 17

Mila Sohoni,

The Major Questions Quartet,

136 HARV. L. REV. 262 (2022) ...................................... 13

Nichole L. Millard,

Universal Service, Section 254 of the

Telecommunications Act of 1996: A

Hidden Tax?,

50 FED. COMM. L.J. 255 (1997) .................................... 20

Philip Hamburger,

Nondelegation Blues,

91 GEO. WASH. L. REV. 1083 (2023) .............................. 6

XIII

TABLE OF AUTHORITIES

(continued)

Page(s)

Richard A. Epstein,

Delegation of Powers: A Historical and

Functional Analysis,

24 CHAP. L. REV. 659 (2021) .......................................... 4

Ronald Cass,

Delegation Reconsidered: A Delegation

Doctrine for the Modern

Administrative State,

40 HARV. J.L. & PUB. POL’Y 147 (2017) ........................ 9

Ronald J. Krotoszynski, Jr.,

Reconsidering the Nondelegation

Doctrine: Universal Service, the Power

to Tax, and the Ratification Doctrine,

80 IND. L.J. 239 (2005) ................................................. 19

Samuel Dodge,

Whitmer bill signings include

tightened sex offender registration

protocols, boosts in medical staffing,

MLIVE (Dec. 30, 2020, 11:09 a.m.) .............................. 12

Scott A. Keller,

How Courts Can Protect State

Autonomy from Federal

Administrative Encroachment,

82 S. CAL. L. REV. 45 (2008) ........................................ 14

Sean P. Sullivan, Powers,

But How Much Power? Game Theory

and the Nondelegation Principle,

104 VA. L. REV. 1229 (2018) .......................................... 5

XIV

TABLE OF AUTHORITIES

(continued)

Page(s)

Steven G. Calabresi, Separation of Powers

and the Rehnquist Court: The

Centrality of Clinton v. City of New

York, 99 NW. U. L. REV. 77, 85 (2004) .......................... 7

INTRODUCTION AND INTERESTS

OF AMICI CURIAE*

A few months ago, several States warned that the

Universal Service Fund was yet another example of a

problematic agency undertaking. See Amicus Br. of W.

Va., et al., Consumers’ Research v. FCC, 144 S. Ct. 2629

(2024) (No. 23-743), rehearing sought, June 18, 2024.

Every year, the Federal Communications Commission

extracts billions from American consumers based on a

vague statute that says telecommunications providers

“should make an equitable and nondiscriminatory

contribution to the preservation and advancement of

universal service.” 47 U.S.C. § 254(b)(4). The only limits

on this multi-billion-dollar fee are vague notions like

“quality” service.

Id. § 254(b)(1)-(3).

And the

Commission—an independent agency already shielded

from accountability in its own right—doesn’t even set

these rates itself. Instead, a private company picks a

number that the Commission rubberstamps later.

Time has since shown that the States were right to be

worried. The en banc Fifth Circuit held below that the

Fund’s problematic blend of standardless decisionmaking and missing executive oversight violates Article I

of the Constitution. So now even the Government agrees

that the Court should consider whether the lack of Fund’s

lack of standards violates the non-deglegation doctrine,

whether the subdelegation to a private entity violates the

private non-delegation, and whether the combination of

the two poses special problems. Pet.28-29. Although the

Government has the wrong side of the ultimate merits

Under Supreme Court Rule 37.2(a), amici timely notified counsel

of record of their intent to file this brief.

*

2

argument, it’s at least right that the Court should take this

issue up now.

Amici States file this brief to reiterate the importance

of these issues. Much of what’s said here should sound

familiar, as the States have pressed these points before.

(Indeed, the Court could just as easily tackle these

questions by granting the pending petitions for rehearing

in one of the earlier cases.) But the considerations should

also feel all too familiar because entities have been

exercising legislative power without meaningful

legislative oversight for far too long. So the States are

speaking up again to highlight the critical nature of this

question for the modern administrative state.

Make no mistake: Amici States recognize the goal of

securing universal telecommunications service is laudable.

Congress can and should find a way to provide these

services for everyone. But it’s a “fundamental principle

that, no matter how laudable its purposes, the actions of

our government are always subject to the limitations of

the Constitution.” Barr v. DOJ, 819 F.2d 25, 25 (2d Cir.

1987). Congress needs to be the one to act here, not a

private band of unaccountable industry participants. The

Court should grant the Petition to say so.

SUMMARY OF ARGUMENT

I. The nondelegation doctrine is vital to our

constitutional system. But despite the encouraging

decision below, the doctrine has morphed into an anemic

version of its original self. This twisting of the doctrine

has left many confused. And agencies are unleashed. The

Court should grant the Petition to reinfuse the doctrine

with clarity, energy, and meaning.

3

II. Those that would warn the Court away from

reaching these issues are wrong. The benefits of the

present state of play are overstated. Meanwhile, the

supposed harms that would flow from holding Congress

accountable are no real harms at all. We don’t even have

to guess at these consequences because we can look to the

States’ experiences to gain confidence.

III. The States need a real nondelegation doctrine to

ensure that lawmaking happens before Congress. States

can participate in lawmaking before that body much more

effectively than they can before agencies, especially

independent agencies. Federalism matters, and a weak

nondelegation doctrine weakens federalism in turn.

IV. This statutory regime presents the right time to

address these issues. As the Fifth Circuit recognized, the

statute here contains some of the feeblest constraints on

the agency’s discretion to be found in the code books. It

directs core congressional functions—taxing and

spending—to an independent agency. And it piles on by

giving broad authority in this process to a private entity,

rendering the whole process doubly wrong. Especially in

the face of a plain-as-day circuit split, the Court should act

quickly to resolve these issues.

REASONS FOR GRANTING THE PETITION

I.

The States—And Our Country—Need Guidance

On the Nondelegation Doctrine.

A. The Founders thought the greatest threat to

liberty is governmental power—and the “accumulation of

all powers, legislative, executive, and judiciary, in the

same hands” is a tyranny. THE FEDERALIST NO. 47 (J.

Madison). Responding to that threat, they defined the

power the federal government could hold and then divvied

4

it up among three co-equal branches. Divided power, the

Founders said, would force one branch’s ambition “to

counteract” another’s. THE FEDERALIST NO. 51 (J.

Madison). And as part of that division, keeping legislative

power out of the hands of the executive has been

“universally recognized as vital to the integrity and

maintenance of the system of government ordained by the

constitution.” Marshall Field & Co. v. Clark, 143 U.S. 649,

692 (1892).

The Court intended to put these separation-of-powers

principles into action through the nondelegation doctrine.

That doctrine contemplates that Congress “can[not]

delegate to the Courts, or to any other tribunals,” or to

anyone else, really, “powers which are strictly and

exclusively legislative.” Wayman v. Southard, 23 U.S. 1,

42 (1825); accord Gundy v. United States, 139 S. Ct. 2116,

2123 (2019) (plurality op.). For nearly 200 years, the

Court’s nondelegation cases have at least recognized that

truly legislative power resides with Congress. See, e.g.,

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472

(2001); A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495, 537 (1935); Panama Refin. Co. v. Ryan, 293

U.S. 388, 421 (1935); J. W. Hampton & Co. v. United

States, 276 U.S. 394, 406 (1928); Marshall Field, 143 U.S.

at 693-94.

The originalist understanding, too,

contemplated a rigorous division between legislative and

executive functions—one fully consistent with a fullthroated nondelegation doctrine. See generally, e.g.,

Aaron Gordon, Nondelegation Misinformation: A Reply

to the Skeptics, 75 BAYLOR L. REV. 152 (2023); Richard A.

Epstein, Delegation of Powers: A Historical and

Functional Analysis, 24 CHAP. L. REV. 659, 663 (2021);

Ilan Wurman, Nondelegation at the Founding, 130 YALE

L.J. 1490 (2021).

5

But the Court’s tests slipped from an originalist

understanding based on these constitutional first

principles. Early cases, at least, were promising. When

the Court confronted overly broad legislative delegations

in the 1930s, for example, it rebuffed them. Schechter

Poultry, 295 U.S. at 551; Panama Refin., 293 U.S. at 43233. The Court at that time stood against “delegation

running riot.” Schechter Poultry, 295 U.S. at 553

(Cardozo, J., concurring). Yet things soon began to

unravel. “To the confusion of lower courts and the

frustration of legal scholars, sweeping grants of what

appear[ed] to be embarrassingly legislative powers [were]

consistently upheld against nondelegation challenges.”

Sean P. Sullivan, Powers, But How Much Power? Game

Theory and the Nondelegation Principle, 104 VA. L. REV.

1229, 1231-32 (2018). For about ninety years, “the Court

has averted its eyes while Congress has enacted a host of

expansive delegations with only minimal policy guidance.”

Evan J. Criddle, When Delegation Begets Domination:

Due Process of Administrative Lawmaking, 46 GA. L.

REV. 117, 143-44 (2011).

The Court’s more hands-off approach led to the

intelligible-principle standard. See, e.g., Gary Lawson,

Delegation and Original Meaning, 88 VA. L. REV. 327,

371 (2002). In its earlier version, the theory said that a

congressional act does not violate the separation of powers

if Congress articulates “an intelligible principle” to guide

an agency’s discretion. J.W. Hampton, 276 U.S. at 409;

see also Pet.App.39a (explaining that J.W. Hampton

authorized nothing more than “a fact-finding role” for the

agency”). This standard has since “mutated” into one with

no footing “in the original meaning of the Constitution, in

history, or even in” J.W. Hampton itself. Gundy, 139 S.

Ct. at 2139-41 (Gorsuch, J., dissenting).

Now, it

sometimes seems like effectively any standard will do. See

6

Pet.App.37a (“[T]he Supreme Court has upheld seemingly

broad congressional delegations of core legislative

functions.”). And under this “notoriously lax” test, Amy

Coney Barrett, Suspension and Delegation, 99 CORNELL

L. REV. 251, 318 (2014), the administrative state has

flourished, “with hundreds of federal agencies poking into

every nook and cranny of daily life,” City of Arlington v.

FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting).

This decades-long watering down of the nondelegation

doctrine has left many confused. See Dep’t of Transp. v.

Ass’n of Am. R.R., 575 U.S. 43, 76-86 (2015) (Thomas, J.,

concurring in the judgment) (tracing the doctrine’s long

decline). It is unclear to some today whether the

nondelegation doctrine retains any power. Leading

scholars have attacked the present test’s “untruth,”

“laxity,” and “fictional” nature, raising questions about

why we even go through the farce of applying the test at

all. Philip Hamburger, Nondelegation Blues, 91 GEO.

WASH. L. REV. 1083, 1091-92 (2023). And even those who

oppose the doctrine have said its “continual appearance in

the case law has confused administrative law as a whole.”

Kathryn A. Watts, Rulemaking As Legislating, 103 GEO.

L.J. 1003, 1007 (2015).

Several members of the Court have also openly

questioned at least some aspects of the present doctrine,

intensifying the uncertainty. See Gundy, 139 S. Ct. at

2131 (Alito, J., concurring in the judgment); id. (Gorsuch,

J., with Roberts, C.J., and Thomas, J., dissenting); Paul v.

United States, 140 S. Ct. 342 (2019) (Kavanaugh, J.,

respecting the denial of certiorari). Aside from express

statements like these, the Court has been creeping back

toward using the nondelegation doctrine for years without

using the word “nondelegation.” At least one scholar, for

instance, described the Court’s decision in Clinton v. City

7

of New York, 524 U.S. 417 (1998), as a “non-delegation

doctrine case masquerading as a bicameralism and

presentment case.” Steven G. Calabresi, Separation of

Powers and the Rehnquist Court: The Centrality of

Clinton v. City of New York, 99 NW. U. L. REV. 77, 85

(2004); see also, e.g., Cass R. Sunstein, Nondelegation

Canons, 67 U. CHI. L. REV. 315, 316-17 (2000) (arguing

that “a set of seemingly disparate cases … actually

constitute a coherent and flourishing doctrine, amounting

to the contemporary nondelegation doctrine”).

Lower courts, including the Fifth Circuit, have begun

reevaluating the real reach of existing non-delegation

precedent. To be sure, showing appropriate respect for

that precedent, many of those courts still try to apply the

modern, mutated version of the intelligible-principle

formula. But others have been finding room to adopt, or

at least use bits of, the history-based ideas in Justice

Gorsuch’s Gundy dissent. See, e.g., Jarkesy v. SEC, 34

F.4th 446, 460 (5th Cir. 2022), aff’d on other grounds, 144

S. Ct. 2117 (2024); United States v. Melgar-Diaz, 2 F.4th

1263, 1266-68 (9th Cir. 2021); Granados v. Garland, 17

F.4th 475, 480 (4th Cir. 2021). And still others have

questioned the vitality of the nondelegation doctrine

entirely. See Bradford v. U.S. Dep’t of Lab., 582 F. Supp.

3d 819, 846 n.8 (D. Colo. 2022).

Taken together, these “[r]ecent events have upended

any assumption that the nondelegation doctrine will

continue to go unenforced in the federal courts.” Daniel

E. Walters & Elliott Ash, If We Build It, Will They

Legislate? Empirically Testing the Potential of the

Nondelegation Doctrine to Curb Congressional

“Abdication,” 108 CORNELL L. REV. 401, 408 (2023). In

short, “[t]he only certainty about the federal

nondelegation doctrine is that it is sure to change.”

8

Benjamin Silver, Nondelegation in the States, 75 VAND.

L. REV. 1211, 1271 (2022).

B. The Court should grant this Petition to dispel the

confusion and give courts some real clarity. “[C]lassifying

governmental power” is no doubt an “elusive venture,”

“[b]ut it is no less important for its difficulty.” Dep’t of

Transp., 575 U.S. at 76 (Thomas, J., concurring in the

judgment). Madison even called it “the great problem to

be solved.” THE FEDERALIST NO. 48 (J. Madison). After

all, the Constitution requires “call[ing] foul” when

necessary. Gundy, 139 S. Ct. at 2135 (Gorsuch, J.,

dissenting).

So the “inconvenience” of creating a

meaningful standard “does not mean that the … Court

may shy away from tackling the difficult questions and

enforcing the Constitution's checks on delegation.” Cody

Ray Milner, Into the Multiverse: Replacing the

Intelligible Principle Standard with A Modern MultiTheory of Nondelegation, 28 GEO. MASON L. REV. 395, 448

(2020); accord Pet.App.26a.

Remember that the nondelegation doctrine protects

liberty by keeping policy decisions where the voters can

see them—in Congress. It is human nature to work more

carefully when others are watching. The nondelegation

doctrine does its part “to protect liberty,” Dep’t of

Transp., 575 U.S. at 61 (Alito, J., concurring in the

judgment), by keeping lawmaking power “with the

people’s elected representatives” and away from

unaccountable officials hidden inside bureaucracies, Nat’l

Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 668 (2022)

(Gorsuch, J., concurring) (emphasis added). At the same

time, half-loaf approaches to nondelegation—such as

enforcing it through a canon of constitutional avoidance—

can undermine accountability by upsetting “the fruits of

legislative compromise.”

John M. Manning, The

9

Nondelegation Doctrine As A Canon of Avoidance, 2000

SUP. CT. REV. 223, 228 (2000).

Keeping lawmaking power in Congress is also

important because lawmakers—like everyone else—can

sometimes shirk tough decisions. See Ronald Cass,

Delegation Reconsidered: A Delegation Doctrine for the

Modern Administrative State, 40 HARV. J.L. & PUB.

POL’Y 147, 154 (2017). There’s already some evidence that

Congress is doing that; a decline in legislative activity in

Congress has led two scholars to decry “the fall of

lawmaking by legislation.” Jonathan H. Adler &

Christopher J. Walker, Delegation & Time, 105 IOWA L.

REV. 1931, 1937 (2020).

Worse, lawmakers might try “to take credit for

addressing a pressing social problem by” offloading it to

the executive and then “blaming the executive for the

problems that attend whatever measures he chooses to

pursue.” Gundy, 139 S. Ct. at 2135 (Gorsuch, J.,

dissenting). That’s what Justice Rehnquist thought was

happening when Congress “pass[ed] th[e] difficult choice”

of how to address benzene exposure on to OSHA. Indus.

Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S.

607, 685 (1980) (Rehnquist, J., concurring in the

judgment). He wasn’t imagining things; legislators have

admitted it happens. Congressman Elliott Levitas

confessed that “[w]hen hard decisions have to be made,

[Congress] pass[es] the buck to the agencies with vaguely

worded statutes.” 122 CONG. REC. 31,628 (1976). Another

of his colleagues confirmed the consequences: “[T]hen we

stand back and say when our constituents are aggrieved

or oppressed by various rules and regulations, ‘Hey, it’s

not me. We didn’t mean that. We passed this well-meaning

legislation.’” Id. at 31,622 (statement of Rep. Flowers). A

meaningful nondelegation doctrine ensures Congress

10

can’t shirk—decisionmakers reap the benefits and bear

the blame.

II.

Those Who Mean To Scare The Court Away

From These Issues Are Wrong.

In the face of these salutary benefits, some insist that

the risks of reembracing the nondelegation doctrine are

just too great. But the evidence doesn’t bear that

worrying out.

For instance, some think agencies act faster than

Congress—but Congress can legislate quickly when it

wants to. President Bush signed the PATRIOT Act just

three days after it was introduced. See Pub. L. No. 10756, 115 Stat. 272 (2001); see also Tiger Lily, LLC v. U.S.

Dep’t of Hous. & Urb. Dev., 5 F.4th 666, 674 (6th Cir. 2021)

(Thapar, J., concurring) (giving more examples).

Legislating by notice-and-comment rulemaking is not

faster than legislating by bill in non-emergency situations,

either. On average, it takes about 18 months. See Jason

Webb Yackee & Susan Webb Yackee, Delay in Notice and

Comment Rulemaking: Evidence of Systemic Regulatory

Breakdown?, in REGULATORY BREAKDOWN: THE CRISIS

OF CONFIDENCE IN U.S. REGULATION 163, 168 (2012).

Anyway, deliberative lawmaking is a feature of our

republic—not a bug. The Founders deliberately “went to

great lengths to make lawmaking difficult.” Gundy, 139

S. Ct. at 2134 (Gorsuch, J., dissenting).

Some also regard agencies as better experts, and they

worry we’ll lose the benefit of agencies’ expertise if

nondelegation becomes real again. There’s strong reason

to question “the myth of expertise as an inviolable shield

for agency action.”

Martin B. Louis, Allocating

Adjudicative Decision Making Authority Between the

Trial and Appellate Levels: A Unified View of the Scope

11

of Review, the Judge/Jury Question, and Procedural

Discretion, 64 N.C. L. REV. 993, 1011 (1986). This case is

a great example: the dissent fretted about the loss of

FCC’s expertise, Pet.App.119a (Higginson, J.,

dissenting), even though the statute “involves policy

judgments, not technical ones,” Pet.App.35a.

Even if one were to assume that agency personnel are

the most qualified to decide, “this faith in [agency]

deliberation and administrative expertise stands at odds

with” originalist understandings of “democracy itself.”

D.A. Candeub, Tyranny and Administrative Law, 59

ARIZ. L. REV. 49, 88 (2017). But in any event, Congress

can ensure that laws are technically sound by using its own

experts, eliciting testimony from others, or commissioning

reports from executive-branch experts, agencies like the

FCC included. The Congressional Budget Office has topnotch experts on financial, economic, and budget matters,

for example. Tiger Lily, LLC, 5 F.4th at 675 (Thapar, J.,

concurring). And fact-gathering and investigation is the

reason committees and (especially) subcommittees exist.

Congress can access the same information that executive

branch agencies have.

A more robust nondelegation doctrine also need not

disrupt efficient governing. Most obviously, Congress can

adopt existing regulations as statutes—it already does.

See Whitman, 531 U.S. at 472 (noting “a subsequent

Congress had incorporated the regulations into a revised

version of the statute”). And applying a more rigorous

nondelegation doctrine wouldn’t require Congress to draft

every fine detail into the statute. It would only require

Congress to do the meaningful work of legislating—the

kind of work it has shown itself more than equipped to do.

See Cass R. Sunstein, Is the Clean Air Act

Unconstitutional?, 98 MICH. L. REV. 303, 356 (1999)

12

(predicting that “[t]here should not be many” “extreme

cases” requiring the Court to strike down “open-ended

grants of authority,” even under a more rigorous

conception of the doctrine).

Many States have also refused to abandon true

versions of the nondelegation doctrine, and their

experience provides reassurance, too. See MICHAEL

ASIMOW & RONALD M. LEVIN, STATE AND FEDERAL

ADMINISTRATIVE LAW 450 (4th ed. 2014) (“The

nondelegation doctrine has much greater practical

significance at the state level than at the federal level.”).

Michigan’s legislature, for instance, stepped up when the

Michigan Supreme Court reinvigorated its state-lawbased nondelegation doctrine and invalidated certain

executive orders. See Samuel Dodge, Whitmer bill

signings include tightened sex offender registration

protocols, boosts in medical staffing, MLIVE (Dec. 30,

2020, 11:09 a.m.), https://bit.ly/3WXARXC. Life moved on

in Michigan even though the state court “reached a result

far out of step with federal law.” Evan C. Zoldan, The

Major Questions Doctrine in the States, 101 WASH. U.L.

REV. 359, 394 (2023).

Dozens of other state-court decisions have invalidated

statutes on a strong conception of nondelegation grounds

without catastrophic effect. See Jason Iuliano & Keith E.

Whittington, The Nondelegation Doctrine: Alive and

Well, 93 NOTRE DAME L. REV. 619, 636 (2017) (cataloguing

151 successful nondelegation challenges in state courts).

And a recent study found “some evidence … that

enforcement of the nondelegation doctrine in the states

changed state legislative behavior and curbed delegation.”

Walters & Ash, supra, at 415. “[E]ven the vast majority

of [so-called] weak nondelegation state courts invalidate

statutes from time to time on nondelegation grounds,” and

13

yet no one has sounded the alarm in those States, either.

Zoldan, supra, at 393. So real-world experience confirms

that a meaningful nondelegation doctrine “would not lead

to apocalyptic results.” Joseph Postell & Randolph J.

May, The Myth of the State Nondelegation Doctrines, 74

ADMIN. L. REV. 263, 305 (2022).

* * * *

Continuing uncertainty over nondelegation is doing no

one any good. And it’s only becoming more important that

these issues get some clarity given this Court’s recent

“major questions” cases—for “without knowing what [the]

underlying [nondelegation] theory is, it becomes much

harder to accurately apply a rule that ostensibly exists ‘in

service of’ that underlying doctrine’” (at least to some).

Mila Sohoni, The Major Questions Quartet, 136 HARV. L.

REV. 262, 300 (2022) (quoting Gundy, 139 S. Ct. at 2142

(Gorsuch, J., dissenting)). Now that Chevron deference

has also come off the board, see generally Loper Bright

Enters. v. Raimondo, 144 S. Ct. 2244 (2024), it has become

even more important that Congress provide real

direction—otherwise, courts could be inappropriately

forced to go it alone in deciding issues of agency authority

drawing from ambiguous statutes. See Sidney J. Hardy

& Patrick M. Garry, Reinvigorating Congress's Role in

the Administrative State: What the Major Questions

Doctrine Suggests About Nondelegation, 69 S.D. L. REV.

24, 47 (2024). So the Court should grant the Petition and

take this issue head on.

III.

Preserving Congress’s Legislative

Protects The States’ Interests.

Power

States have a particular interest in seeing the

nondelegation doctrine meaningfully applied, as it ensures

that they retain their voice in our system of government.

14

For too long, an illusory nondelegation has given rise to

real federalism-related problems. See Scott A. Keller,

How Courts Can Protect State Autonomy from Federal

Administrative Encroachment, 82 S. CAL. L. REV. 45, 53

(2008) (arguing that the Court’s treatment of

nondelegation doctrine explains why “hard questions”

about federalism are now arising in administrative-law

cases).

Separating the powers of our federal government

preserves the “integrity, dignity, and residual sovereignty

of the States.” Bond v. United States, 564 U.S. 211, 221

(2011). Balancing powers among the branches helps

“ensure that States function as political entities in their

own right.” Id. On the other hand, “[p]ermitting the

federal government to avoid these constraints would allow

it to exercise more power than the Constitution

contemplates, at the expense of state authority.”

Bradford R. Clark, Separation of Powers As A Safeguard

of Federalism, 79 TEX. L. REV. 1321, 1324 (2001). Indeed,

the Framers chose the “structure of the Federal

Government” as the “principal means” “to ensure the role

of the States.” Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528, 550 (1985) (emphasis added); see also

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 707

(2012) (Scalia, Kennedy, Thomas, and Alito, JJ.,

dissenting) (calling “federalism and separation of powers”

two of the “most important” “structural protections” in

our Constitution).

Ensuring Congress retains the legislative-drafting pen

is better for the States because Congress can be better

“relied upon to respect th[ose] States.” Calvin R. Massey,

The Tao of Federalism, 20 HARV. J.L. & PUB. POL’Y 887,

891 (1997). Partly because they come to Washington from

specific communities, “[m]embers of Congress are more

15

responsive to the concerns of local regional

con[stituencies] than centralized regulatory agencies.”

Jonathan H. Adler, The Ducks Stop Here? The

Environmental Challenge to Federalism, 9 SUP. CT.

ECON. REV. 205, 221 (2001). In other words, the legislative

branch faces “localized accountability.” MARTIN H.

REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE

138 (1995).

But Congress doesn’t respect States just because its

members travel from everywhere. Rather, “political

checks and Congress’ political accountability”—like

State-centered involvement in congressional elections,

State-focused lobbying efforts, state political party

pressure, and more—are the political safeguards of

federalism. D. Bruce La Pierre, Political Accountability

in the National Political Process—the Alternative to

Judicial Review of Federalism Issues, 80 NW. U. L. REV.

577, 633 (1985). So over time, Congress has also come to

show its “peculiar institutional competence … in adjusting

federal power relationships,” including relationships

between the States and the federal government.

Laurence H. Tribe, Intergovernmental Immunities in

Litigation, Taxation, and Regulation: Separation of

Powers Issues in Controversies About Federalism, 89

HARV. L. REV. 682, 696 (1976).

In contrast, federal agencies are a particular threat to

States’ interests. “[U]nlike Congress, administrative

agencies are clearly not designed to represent the

interests of States.” Geier v. Am. Honda Motor Co., 529

U.S. 861, 908 (2000) (Stevens, J., dissenting). Rather, the

“‘political safeguards’ that give [S]tates a voice in

Congress’s lawmaking” do not extend to a “voice in the

executive branch’s activities.”

Charles Davant IV,

Sorcerer or Sorcerer’s Apprentice?: Federal Agencies and

16

the Creation of Individual Rights, 2003 WIS. L. REV. 613,

640 (2003). Even purportedly public rulemakings may

lack the transparency that ordinary lawmaking offers, as

“many substantive policy decisions happen before the

agency publishes the notice of proposed rulemaking.”

Jennifer Nou & Edward H. Stiglitz, Strategic

Rulemaking Disclosure, 89 S. CAL. L. REV. 733, 743

(2016).

Indeed, the “success of American federalism” might be

undermined “[i]f the federal government were free to

evade federal lawmaking procedures by shifting

substantial lawmaking authority to unelected officials

(such as independent agencies or federal courts).”

Bradford R. Clark, Putting the Safeguards Back into the

Political Safeguards of Federalism, 80 TEX. L. REV. 327,

337 (2001). That shift would undermine the state-focused

party system that some say deserves credit for

federalism’s success. Id.; see also La Pierre, supra, at 633.

After all, if all the real decisions are made by the “fourth

branch of the Government” ensconced safely in

Washington, FTC v. Ruberoid Co., 343 U.S. 470, 487 (1952)

(Jackson, J., dissenting), why would anyone feel beholden

to the people back home?

And more than ordinary agencies, independent

agencies like the FCC present big delegation headaches.

They are “virtually insulated from political forces.” David

A. Herrman, To Delegate or Not to Delegate—That Is the

Preemption: The Lack of Political Accountability in

Administrative

Preemption

Defies

Federalism

Constraints on Government Power, 28 PAC. L.J. 1157,

1181-82 (1997). These agencies even escape soft directives

from the President—coming in the form of various

executive orders—to respect federalism. See, e.g., Exec.

Order 13,132, 64 Fed. Reg. 43255, 43255 (Aug. 4, 1999); see

17

also Daniel Backman, The Antimonopoly Presidency, 133

YALE L.J. 342, 402 (2023) (noting delegations to

independent agencies might “lack sufficient accountability

to the President and should therefore be more heavily

scrutinized under a nondelegation test, not less”). So

these agencies have more room to ignore the States’

concerns. And indeed they have, as when the FCC tried

to “re-allocate decision-making power between the states

and their municipalities” in a broadband rule. Tennessee

v. FCC, 832 F.3d 597, 600 (6th Cir. 2016).

So “from a state’s perspective,” the legislative process

provides several concrete on-ramps for state

involvement—“more opportunities and more access

points to provide input to Congress than [there would be]

to the President” and his or her agencies. Michele E.

Gilman, Presidents, Preemption, and the States, 26

CONST. COMMENT. 339, 365 (2010). The nondelegation

doctrine ensures that those on-ramps remain open for all

legislative activities. In this way, “the nondelegation

doctrine can be conceptualized as a protector of

federalism.” Aaron Nielson, Erie As Nondelegation, 72

OHIO ST. L.J. 239, 265 (2011). And that federalism in turn

ups the accountability that the nondelegation doctrine is

designed to encourage, as “a State’s government will

represent and remain accountable to its own citizens.”

Printz v. United States, 521 U.S. 898, 920 (1997). It’s a

positive feedback cycle. Cf. Eric Berger, Constitutional

Conceits in Statutory Interpretation, 75 ADMIN. L. REV.

479, 505-08 (2023) (explaining how both nondelegation and

federalism conceits underlie several of the Court’s recent

administrative-law decisions).

* * * *

The Court should grant the Petition to reinvigorate the

nondelegation doctrine, restore the States’ rightful role in

18

the lawmaking process, and reinstate the checks the

Framers wanted.

IV.

This Court Should Evaluate This Statute.

Whether it comes through this case or another of the

two related pending petitions for rehearing, the Court

should take this statute up.

After all, both the

Government and the challengers agree that this case

warrants the Court’s attention.

And for good reason: if any statute violates the

nondelegation doctrine, then this is it. Congress charged

the Commission with determining a “contribution” that

telecommunications services carriers will make to

“preserve and advance universal service.” 47 U.S.C.

§ 254(d); see also id. § 254(b)(4). The Commission gets to

decide what constitutes universal service, considering

such unhelpful factors as what services are “consistent

with the public interest, convenience, and necessity.” Id.

§ 254(c)(1)(D). It can change that definition “periodically.”

Id. After that, the Commission can require any carrier to

“contribute … if the public interest so requires.” Id.

§ 254(d). The contributions are supposed to be “equitable”

and “nondiscriminatory,” though neither of those terms is

defined. Id. The statute also lists various aspirational

principles for universal service—but here, too, the

Commission gets to add any principles that it

“determine[s] are necessary and appropriate for the

protection of the public interest, convenience, and

necessity and are consistent with [the Federal

Communications Act.” Id. § 254(b)(7). Congress didn’t

cap the size of the “contribution.” And it didn’t say how

the Commission should exact the “contributions” from the

service-providers (let alone how service providers will

take the funds back from consumers).

19

Quite simply, “Congress painted in very broad strokes

and took virtually no responsibility for any of the major

details of implementing or funding the universal service

program.” Ronald J. Krotoszynski, Jr., Reconsidering the

Nondelegation Doctrine: Universal Service, the Power to

Tax, and the Ratification Doctrine, 80 IND. L.J. 239, 308

(2005).

Read together, these provisions give the

Commission two core legislative functions—taxing and

spending—with no real constraints on how to exercise

them.

Start with taxes. The Court said it well a century-anda-half ago: “the power of taxation belongs exclusively to

the legislative department of the government.” State ex

rel. S. Bank v. Pilsbury, 105 U.S. 278, 299 (1881). Given

that longstanding clarity, the nondelegation doctrine

should apply most rigorously when a tax is involved. See

James R. Hines Jr. & Kyle D. Logue, Delegating Tax, 114

MICH. L. REV. 235, 270–71 (2015). Indeed, “if we’re

serious about protecting our constitutional democracy, we

must enforce the principle that all legislative powers like

the power to tax are indeed exercised by the people we

elect.” Pet.App.85a (Ho, J., concurring).

And make no mistake, this “contribution” is a tax—

indeed, a “misbegotten” one at that. Pet.App.2a. When

monies collected “inure[] to the benefit of the public,” they

constitute taxes, not fees. Nat’l Cable Television Ass'n,

Inc. v. United States, 415 U.S. 336, 343 (1974). Further,

“the essential feature of any tax” is that “[i]t produces at

least some revenue for the Government.” NFIB, 567 U.S.

at 564. Fees, on the other hand, discourage conduct or

defray regulatory expenses. Norfolk S. Ry. Co. v. City of

Roanoke, 916 F.3d 315, 319 (4th Cir. 2019). The

“contribution” here checks all the tax boxes—it’s

distributed to the public at large, it produces billions in

20

revenue, and it serves none of the usual purposes of a fee.

See Pet.App.8a-10a, 21a-23a. So the Commission has

seized the power to levy. See Barbara A. Cherry & Donald

D. Nystrom, Universal Service Contributions: An

Unconstitutional Delegation of Taxing Power, 2000 L.

REV. MICH. ST. U. DET. C.L. 107, 133-37 (2000); Nichole L.

Millard, Universal Service, Section 254 of the

Telecommunications Act of 1996: A Hidden Tax?, 50

FED. COMM. L.J. 255, 267-72 (1997).

The Commission has also seized another legislative

power in deciding how to spend its spoils. “Among

Congress’s most important authorities is its control of the

purse.” Biden v. Nebraska, 143 S. Ct. 2355, 2375 (2023).

And the Appropriations Clause issues a “straightforward

and explicit command” that “no money can be paid out of

the Treasury unless it has been appropriated by an act of

Congress.” OPM v. Richmond, 496 U.S. 414, 424 (1990).

Its restraint is “absolute.” U.S. Dep’t of Navy v. FLRA,

665 F.3d 1339, 1348 (D.C. Cir. 2012) (Kavanaugh, J.). It

covers “any sum of money collected for the government.”

Ring v. Maxwell, 58 U.S. 147, 148 (1854). So “[w]hile

Congress can delegate some discretion to the President

[and his or her agencies] to decide how to spend

appropriated funds, any delegation and discretion is

cabined by these constitutional boundaries.” Cnty. of

Santa Clara v. Trump, 250 F. Supp. 3d 497, 531 (N.D. Cal.

2017).

The statute here ignores those constraints. No

appropriation appears anywhere in the text. Instead, the

Commission can spend as it wishes, so long as it can say

the spending falls under the umbrella of “universal

service.”

See Pet.App.32a.

This fund, existing

independent of the ordinary congressional oversight

process, dwarfs the budgets of several federal agencies.

21

And this setup has become common “[t]o an

unprecedented extent.” Christopher C. DeMuth, Sr. &

Michael S. Greve, Agency Finance in the Age of Executive

Government, 24 GEO. MASON L. REV. 555, 556–57 (2017).

Even under the current test, the statute has no

intelligible principle. See Pet.App.27a. “Instead of

prescribing rules of conduct, it authorizes the making of

codes to prescribe them.” Schechter Poultry, 295 U.S. at

541. It delegates to the Commission wide-open discretion

to do whatever it feels is “necessary,” “appropriate,”

“convenient,” or in the “public interest.” Under any

ordinary understanding, words like these do not provide

“intelligible” limits when piled on in separate disjunctives.

In fact, all these words are problematic in their own way.

“[T]he citizen confronting thousands of pages of

regulations—promulgated by an agency directed by

Congress to regulate, say, ‘in the public interest’—can

perhaps be excused for thinking that it is the agency really

doing the legislating.” City of Arlington, 569 U.S. at 315

(Roberts, C.J., dissenting). “Appropriate,” too, is “allencompassing term that naturally and traditionally

includes consideration of all the relevant factors.”

Michigan v. EPA, 576 U.S. 743, 752 (2015). “‘[N]ecessary”

does not mean ‘absolutely necessary,’” but just things that

are convenient or useful. United States v. Comstock, 560

U.S. 126, 134 (2010). And convenient just means “suited

to personal comfort or to easy performance.” Convenient,

MERRIAM-WEBSTER, https://bit.ly/42ujiSV (last visited

Feb. 6, 2024). Each of these ambiguous words ultimately

condition “universal service,” “a concept … so amorphous

that Congress’s instruction to raise ‘sufficient’ funds

amounts to a suggestion that FCC exact as much tax

revenue for universal service projects as FCC thinks is

good.” Pet.App.27a. And each is merely “aspirational.”

Pet.App.28a.

22

A last concern lurks on top of all that’s already been

said: this whole process is really pushed forward by a

private entity. See Pet.App.64a (stressing that this

combination of separation-of-powers problems matters).

Even experts who are somewhat critical of a muscular

nondelegation doctrine have noted the special dangers of

subdelegation of this sort. Cf. David J. Barron & Elena

Kagan, Chveron’s Nondelegation Doctrine, 2001 SUP. CT.

REV. 201, 204 (2001). Private delegation is “legislative

delegation in its most obnoxious form; for it is not even

delegation to an official or an official body, presumptively

disinterested, but to private persons whose interests may

be and often are adverse to the interests of others in the

same business.” Carter v. Carter Coal Co., 298 U.S. 238,

311 (1936).

This case proves the point. Here, “[t]he FCC

essentially has abdicated its oversight responsibilities.”

Jonathan S. Marashlian et al., The Mis-Administration

and Misadventures of the Universal Service Fund: A

Study in the Importance of the Administrative Procedure

Act to Government Agency Rulemaking, 19 COMMLAW

CONSPECTUS 343, 381 (2011); accord Pet.App.50a (calling

this structure a “de facto abdication”). The FCC does not

formally approve the private actor’s actions—and does not

practically check that private actor’s actions in any actual

way. See Pet.App.49a-50a. And where is this private

actor described in the statute? The answer: nowhere.

Pet.App.59a-60a.

This “contribution” comes by way of a doubly unlawful

delegation. This case can and should serve as an excellent

signal to other agencies (and Congress) about what it

means to go too far.

23

CONCLUSION

The Court should grant the Petition.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

Counsel for Amicus Curiae State of West Virginia

24

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

DAVE YOST

Attorney General

State of Ohio

TIM GRIFFIN

Attorney General

State of Arkansas

GENTNER DRUMMOND

Attorney General

State of Oklahoma

THEODORE E. ROKITA

Attorney General

State of Indiana

ALAN WILSON

Attorney General

State of South Carolina

KRIS KOBACH

Attorney General

State of Kansas

JONATHAN SKRMETTI

Attorney General and

Reporter

State of Tennessee

LIZ MURRILL

Attorney General

State of Louisiana

ANDREW BAILEY

Attorney General

State of Missouri

AUSTIN KNUDSEN

Attorney General

State of Montana

MICHAEL T. HILGERS

Attorney General

State of Nebraska

KEN PAXTON

Attorney General

State of Texas

JASON MIYARES

Attorney General

Commonwealth of Virginia

WARREN PETERSEN

President of the Senate

State of Arizona

By counsel:

Rusty D. Crandell

Majority General Counsel

Arizona State Senate

25

1700 W. Washington St.

Phoenix, Arizona 85007

rcrandell@azleg.gov

(602) 926-3137

BEN TOMA

Speaker of the House of

Representatives

State of Arizona

By counsel:

Linley Wilson

Majority General Counsel

Arizona House of

Representatives

1700 W. Washington St.

Phoenix, Arizona 85007

LWilson@azleg.gov

(602) 926-5418