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

FEDERAL COMMUNICATIONS COMMISSION,

Petitioner,

v.

CONSUMERS’ RESEARCH ET AL,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL FOREIGN TRADE COUNCIL

IN SUPPORT OF PETITIONER

January 15, 2025

Alan B. Morrison

Counsel of Record

George Washington

University Law School

2000 H Street, NW

Washington, DC 20052

202 994 7120

abmorrison@law.gwu.edu

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

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

INTRODUCTION & SUMMARY OF ARGUMENT .3

ARGUMENT .............................................................. 6

THE

COURT

SHOULD

REVERSE

THE

JUDGMENT BELOW, AND IT SHOULD REFINE

THE INTELLIGIBLE PRINCIPLE TEST USED TO

DETERMINE WHETHER A STATUTE VIOLATES

THE NONDELEGATION DOCTRINE…… 6

A. The Delegation to the FCC in 47 U.S.C. § 254 is

Constitutional………………………………………….…8

B. This Court Should Refine Its Nondelegation Test

to Require That the Statute Include Limits on What

the Delegated Entity May Not Do Under the Law….12

C. There Are Meaningful Guardrails in the Statutes

in this Court’s Major Delegation Cases……………..19

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

ii

TABLE OF AUTHORITIES

CASES

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

U.S. 495 (1935) ……………….……… 6, 10, 12, 13, 23

Am. Inst. for Int’l Steel v. United States, 806

Fed.Appx. 982 (Fed. Cir), cert. denied, 141 S. Ct. 133

(2020)…………………………………………………….14

Federal Energy Administration v. Algonquin SNG,

Inc., 426 U.S. 548 (1976)……………………….7, 13-14

Gundy v. United States, 588 U.S. 128 (2019)

…………………………………………...2-5, 7, 11, 12, 21

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

394 (1928)…………………………………………6, 19-20

Loper Bright Enterprises v. Raimondo, 144 S. Ct 224

(2024)……………………………………………………...6

Marshall Field & Co. v. Clark, 143 U.S. 649 (1892)

…………………………………………………………19-21

Mistretta v. United States, 488 U.S. 361 (1989).19, 21

Paul v. United States, 140 S. Ct. 342 (2019)………. 3

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

(2001)…………………………………………………19-21

CONSTITUTIONAL PROVISION

Article I…………………………………...………….2-4, 7

iii

STATUTES

National Industrial Recovery Act, 48 Stat.

195…………………………………………………………1

2, 23

Sentencing Reform Act of 1984, 18 U.S.C. § 3501,

et seq, ………………………………………………….....21

Tariff Act of 1922, 42 Stat. 858...…………………….20

Trade Expansion Act of 1962, 19 U.S.C. § 1862

……………………………………………... 2, 5, 13, 14-17

5 U.S.C. § 551(1)……………………………………..…17

5 U.S.C. § 706…………………………………………...17

42 U.S.C. § 7408……………………………………… 22

42 U.S.C. § 7409(b)(1)………………………………….22

47 U.S.C. § 254…………………………………. 8, 12, 24

47 U.S.C. §

254(b)(3)…………………………………………9

47 U.S.C. §

254(b)(4)…………………………………………8

47 U.S.C. §

254(d)…………………………………………….8

47 U.S.C. §

254(b)(7)……………………………………….10

47 U.S.C. § 402………………………………………….10

iv

OTHER AUTHORITIES

Defs.’ Mot. to Dismiss, Severstal Export GMBH, et al.

v. United States, No. 18-00057 (#30) (Ct. Int’l Trade)

2018 WL

1779351……………………………………………...……1

8

83 Fed. Reg. 12106 (Mar. 19, 2018).

………………………18

Proclamation No. 9704, 83 Fed. Reg. 11,619 (Mar.

15,

2018)…………………………………………………………

…14

Proclamation No. 9705, 83 Fed. Reg. 11625 (Mar. 15,

2018)…………………………………………………….…..

....14

Proclamation No. 9772, 83 Fed. Reg. 40,429 (Aug.

15,

2018)…………………………………………………………

…16

Proclamation No. 9886, 84 Fed. Reg. 23,421 (May 21,

2019)…………………………………………………….….'

….16

Proclamation No. 9894, 84 Fed. Reg. 23,987 (May 23,

2019)…………………………………………………….….

…..16

Proclamation No.10406, 87 Fed. Reg. 33,591 (June 3,

2022) ……………………………………………………..16

v

Proclamation No. 10588, 88 Fed. Reg. 36,437 (June

5, 2023)…………………………………………………..17

Proclamation No. 10783, 89 Fed. Reg. 57,347 (July

15, 2024)…………………………………………………17

Proclamation No. 10782, 89 Fed. Reg. 57339 (July

15, 2024)…………………………………………………17

1

INTEREST OF AMICUS CURIAE 1

The National Foreign Trade Council (NFTC) is

the premier association for leadership, expertise, and

influence on international tax and trade policy issues.

Founded in 1914, the NFTC promotes an open, rulesbased global economy on behalf of a diverse

membership of U.S.-based businesses. The Council

works on behalf of its member companies to engage in

advocacy and education on international tax,

international trade, global supply chains, and

national security policies.

The NFTC’s mission is to promote efficient and

fair global commerce by advocating public policies

that foster an open international trade and

investment regime. The NFTC’s membership includes

over 100 companies, representing most major sectors

of the U.S. economy, including manufacturing,

technology, energy, retail and agribusiness. The

NFTC’s membership consists primarily of U.S. firms

engaged in all aspects of international business,

trade, and investment. Its members represent over

half of total U.S. exports and U.S. private foreign

investment.

Neither amicus NFTC nor its members have

any interest in the outcome of this case which involves

a challenge to the statute administered by the

petitioner Federal Communications Commission

(FCC) that administers its Universal Service

program, Respondents claim that the statute contains

1 Pursuant to Supreme Court Rule 37.6, undersigned counsel

states that no party’s counsel authored this brief in whole or in

part and no person or entity other than the amicus or its counsel

contributed money to its preparation or submission.

2

an unconstitutional delegation of legislative power in

violation of Article I of the Constitution. Amicus does,

however, have an interest in the application of the

nondelegation doctrine as applied to various trade

laws of the United States, in particular section 232 of

the Trade Expansion Act of 1962, 19 U.S.C. § 1862, as

shown by the amicus brief that it filed in this Court in

American Institute for International Steel, Inc. v.

United States, No. 18-1317.

As this brief explains, the delegation at issue in

this case is valid, whereas delegations like that in

section 232 are invalid because they contain no limits

whatsoever on the power of the President (or an

administrative agency) to take action under the

applicable law.

The FCC statute, by contrast,

contains significant boundaries that assure the

agency will comply with Congress’s directions.

Moreover, if the objections raised by the Fifth Circuit

and respondents were sustained, there would be

nothing that Congress could do, short of directly

managing the Universal Service Program itself, that

would make the statute constitutional. Amicus

recognizes that the Court cannot adjudicate the

validity of the delegation in section 232 in this case,

but it can and should provide guidance to implement

the position of the dissenters in Gundy v. United

States, 588 U.S. 128 (2019) that in some cases

Congress has delegated powers to the executive

branch that violate Article I.

3

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Fifth Circuit held that the Universal

Service Program, established by Congress and

administered

by

the

petitioner

Federal

Communications Commission, violated Article I of the

Constitution by delegating legislative powers that

only Congress may exercise. It found that the

principal delegation to the FCC was problematic, as

was its sub-delegation to the non-profit Universal

Service Administrative Company (USAC), which the

FCC created to administer the program, and that the

combination of the two further violated the

Constitution. Pet App. 10a-11a. This brief will only

address the question of the propriety of the delegation

to the FCC and on that question amicus agrees that

the statute is constitutional.

Upholding this delegation should not be the

end of the Court’s work in this case because, as the

dissent concluded in Gundy v. United States, 588 U.S.

128 (2019), the current “intelligible principle” test for

determining excessive delegations has resulted in a

number of cases in which Congress has, in effect,

transferred its policymaking responsibility to the

executive branch. However, the four Justices who did

not join the four Justice plurality could not agree on

the standard to employ in nondelegation cases, but

they now appear to be joined by Justice Kavanaugh,

who did not participate in Gundy. In a case involving

the same issue as Gundy, Justice Kavanaugh

indicated his willingness to reconsider the applicable

test. Paul v. United States, 140 S. Ct. 342 (2019)

(statement respecting denial of rehearing). Amicus

agrees that in some cases that test has produced

4

results that are inconsistent with the principle of

Article I that the legislative power belongs to

Congress and that it cannot constitutionally delegate

significant policy making functions to the executive

branch. For that reason, they urge the Court to

uphold the delegation here while also using this case

to refine the existing test to assure that Congress

retains its role as the policymaking branch of

government.

Amicus also agrees with the Gundy dissenters

that “the exact line between policy and details,

lawmaking and fact-finding, and legislative and nonlegislative functions ha[s] sometimes invited

reasonable debate,” 588 U.S. at 162, and that where

to draw the line is the right question. They also agree

that any new test must be careful not to “spell doom

for what some call the ‘administrative state.’ ” Id. at

172. To achieve these dual goals, amicus proposes two

additional questions that should help the courts

provide constitutional and workable ways to draw the

line in this and other cases.

If a serious delegation challenge is made, the

Court should ask, if this delegation is alleged to be

excessive, what else could Congress have reasonably

done to cure the defect? In Gundy the answer is that

Congress could easily have decided whether the law

should apply to crimes committed before the effective

date, instead Congress passed on to the Attorney

General what is a clear policy choice that the

legislative, not the executive, branch should make. Id.

at 169. In this case, however, given the changing

world of telecommunications, and the widely varying

needs of the numerous underserved communities, it

is almost impossible to envision a way that the Fifth

5

Circuit majority would have been satisfied that

Congress had properly done its job without Congress

having to legislate the precise details of the proper

extent and payments for universal service on an

annual basis.

The second question assumes that the statute

contains an “intelligible principle,” such that

Congress has made the basic policy choice. However,

as the Gundy dissenters concluded, and amicus

further demonstrates below, the question of whether

the statute contains an intelligible principle is too

forgiving because that question is typically answered

at a high level of generality. As a result, it has been

satisfied in every case since 1935, despite challenges

to statutes in which Congress has provided no limits

whatsoever on what the agency can or cannot do. In

amicus’s view, to avoid a claim of excess delegation,

Congress must provide guardrails that the agency

cannot exceed if the constitutional requirement that

Congress, not the agency, must make the basic policy

choices that are the essence of legislating.

Accordingly, in order to detect unconstitutional

delegation, the Court should examine the details of

the law and ask, “is there any action that the agency

may not take to carry out its intelligible principle?” If

the agency (or the President) has no limits on their

choice of actions, then the delegation is

constitutionally excessive.

To illustrate the weakness in the intelligible

principle standard, this brief will focus on section 232

of the Trade Expansion Act of 1962, 19 U.S.C. § 1862

(section 232), which permits the President to take a

wide range of actions, including imposing tariffs,

when “the national security” may be threatened. Not

6

only is that term capacious on its own, but the law

places no limits on how much of an increase in tariff

rates are permitted, for what period of time, and on

which products it may be imposed. The law also

allows the President to impose greater tariffs on

products from some countries than for identical

products from other countries, and he may create an

exemption process that enables certain importers to

avoid these tariffs. On top of that, there is no judicial

review of any of the terms of these tariffs, with the

result, being contrary to the principle of Loper Bright

Enterprises v. Raimondo, 144 S. Ct 224 (2024), that it

would be the executive branch, not Congress or the

courts, that has the ultimate power to decide what the

law is. It is the absence of any limits whatsoever on

executive action that was the fundamental flaw in the

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

States, 295 U.S. 495 (1935), the last time that this

Court found an unconstitutional delegation almost 90

years ago.

ARGUMENT

THE COURT SHOULD REVERSE THE

JUDGMENT BELOW, AND IT SHOULD

REFINE THE INTELLIGIBLE PRINCIPLE

TEST USED TO DETERMINE WHETHER A

STATUTE VIOLATES

THE NONDELEGATION DOCTRINE.

Amicus agrees with the five Justices who did

not join the plurality opinion upholding the statute at

issue in Gundy that decisions of this Court have

relaxed the intelligible principle test first set forth in

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

7

394 (1928), to the point where the Court has allowed

Congress to delegate broad policymaking powers to

federal agencies and the President to an extent

inconsistent with Article I, which grants “all

legislative powers” to the Congress. The Gundy

dissent recognized the need for Congress to assign

fact finding duties to agencies and to allow an

intersticial policymaking role for the executive

branch, with the difficult question in each case being

one of line drawing.

Amicus also concurs with the overall

assessment of the Gundy dissenters that the

intelligible principle approach has not sufficed to stop

serious cases of excessive delegation. Other than

Gundy itself, which largely turned on whether the

majority’s interpretation of the statute at issue was

viable, it is unclear in which prior cases the dissenters

would come out the other way, and so amicus is not

prepared to provide a full endorsement of their

position. Because the principal interest of amicus on

the delegation issue is in the trade area, their focus

will be on Federal Energy Administration v.

Algonquin SNG, Inc., 426 U.S. 548 (1976), which

upheld the delegation in section 232. Before turning

to that case, this brief will support the FCC in

defending the delegations in the Universal Service

Program assigned to it, including the application of

the two questions that amicus proposes be added to

the intelligible principle analysis: what else could

Congress have reasonably done in assigning this

program to the agency, and are there any limits on

what the agency can do under the governing statute?

8

A. The Delegation to the FCC in 47 U.S.C. § 254

is Constitutional.

The goal of enabling services on a universal

basis for all Americans was included in the 1934 act

FUHDWLQJ WKH SUHGHFHVVRU RI WKH )&&ɆWKH )HGHUDO

Radio Commission. The current authority for the FCC

to conduct the universal service program is contained

in 47 U.S.C. § 254, which was enacted in 1996. The

scope of the program and what is now covered under

the term “telecommunications” are very different

from the original version, but the overall goals of the

program remain the same. Prior to 1996, the program

was funded through a system in which

telecommunications carriers were allowed to charge

higher rates to large urban communities and lower

rates to rural areas even though the costs of

individual service were higher for the latter areas.

Congress ended this cross-subsidy through the rates

charged and instead required carriers to make direct

payments into a fund that would pay for service that

some consumers would otherwise be unable to afford.

The Fifth Circuit’s focus in finding an excessive

delegation related to the amounts that one of the

challengers would have to pay, which it concluded

was too open-ended to pass constitutional muster.

+RZHYHU WZR SURYLVLRQV RI VHFWLRQ ɆVXEVHFWLRQV

E   DQG G Ɇ UHTXLUH WKDW FDUUier payments be on

“an equitable and nondiscriminatory” basis.

Moreover, because the program had been in effect for

50 years before the change in the method of payment,

Congress and the carriers knew quite well what the

costs would be when the change took place, which

helps explain why no carrier objected to the payment

9

method for almost thirty years until the current

challenges. To be sure, costs have risen and the

program has expanded significantly in that

timeframe, as has the world of telecommunications,

but so have many other federal programs. However,

many of those increases, as well as complaints about

ill-advised and unauthorized spending, are matters

for Congress and not the nondelegation doctrine,

contrary to what the court of appeals appeared to

conclude. Pet. App. 8a-10a.

On the program and expenditure side, section

254(b)(3) is clear on

x

x

x

Who is to benefit from the program:

“Consumers in all regions of the Nation,

including low-income consumers and

those in rural, insular, and high cost

areas”;

What services they are entitled to

receive:

“telecommunications

and

information

services,

including

interexchange services and advanced

telecommunications and information

services, that are reasonably comparable

to those services provided in urban

areas;” and

What consumers should have to pay

after the program’s support payments:

“rates that are reasonably comparable to

rates charged for similar services in

urban areas.”

Subsection (b)(7) allows the FCC to expand the

program but only where “necessary and appropriate

10

for the protection of the public interest, convenience,

and necessity and [that] are consistent with this

chapter.”

There are other provisions discussed in

petitioner’s brief that further direct the FCC on how

to manage this program, but the point is clear: section

254 is a far cry from what Justice Cardozo in his

concurring opinion in Schechter Poultry saw as giving

the President “a roving commission to inquire into

evils and upon discovery correct them” and as

“delegation running riot.” 295 U.S. at 551, 553.

Turning to the two questions that amicus

suggests be included when excess delegation claims

are made, neither one would derail this statute. The

Fifth Circuit was concerned about non universal

service uses of the money raised (Pet. App. 27a-28a):

“Nothing in the statute precludes FCC from, for

example, imposing the USF Tax to create an

endowment that it could use to fund whatever

projects it might like.” Of course, there is no specific

prohibition

against

non-program

related

expenditures, and the court below pointed to nothing

in the statute that comes close to suggesting that such

a diversion of funds would be permitted. Moreover,

the courts of appeals stand ready under 47 U.S.C. §

402 to prevent unlawful actions, as they were here, if

a carrier objected to having to pay for such an

expenditure.

If a delegation challenge is made to a statute,

and, as here, there is no challenge to the “policy goal

of making telecommunications services available to

all Americans,” Pet. App. 10a, the opponent should be

asked what specifically could Congress have done in

11

the statute to narrow the delegation to an acceptable

level, while still enabling the agency to achieve the

stated goal? Cases like Gundy are easy because

Congress could have decided to make the law

prospective only, or fully or partially retroactive,

instead of finding it “expedient to hand off the job to

the executive and direct there the blame for any later

problems that might emerge.” 558 U.S. at 169

(Gorsuch dissenting). Unlike the Universal Service

Program, which will likely continue for decades and

will almost certainly evolve as it does, Congress’s

decision in Gundy only had to be made once and with

no need to consider future changes in circumstances.

It is unclear what the Fifth Circuit thought

Congress needed to do, and could do realistically, to

save section 254. Its focus was on the monetary

assessments on the carriers, but that seems quite

similar to the rate setting, based on facts found by

agencies, that agencies have done for more than 150

years since the Interstate Commerce Commission was

created. The goal of universal service, for what is

expected to be a continuous program, is definite, and

the principle of payments being made on an

“equitable and nondiscriminatory” basis is enshrined

in the law. Other than the unworkable solution of

having Congress annually approve the specific

payments to be made by the carriers and the details

of the services to be provided to each of the varied

constituencies that benefit from the program, there is

no answer to the question of what else Congress

should done. That is, unless the challenge is not to

the details of the program, but to the concept of the

12

program itself and it being subsidized by other

customers and their carriers, Congress could do no

more.

For these reasons, section 254 readily passes

any reasonable nondelegation test, and the contrary

decision of the Fifth Circuit should be reversed.

B. This Court Should Refine Its Nondelegation

Test to Require That the Statute Include

Limits on What the Delegated Entity

May Not Do Under the Law.

As the dissenters in Gundy recognized, the

intelligible principle test has been read so expansively

that it has not found a delegation to be

unconstitutional since 1935. In the view of amicus,

there are two related reasons why the test has become

so toothless. First, the test is not really a test, but

simply another way of announcing a court’s

conclusion that the law is constitutional. It does not

ask any independent questions, but only seeks to

decide whether a statute is definite enough so that it

can be upheld, which is just another way of asking

whether the law is constitutional.

Second, the courts typically employ a very high

level of generality when asking whether the statute

at issue contains an intelligible principle. Indeed, at

some level of generality, every statute satisfies that

test. Take the National Industrial Recovery Act, 48

Stat. 195, which this Court struck down in Schechter

Poultry. The intelligible principle that Congress

approved in that law was to turn over the regulation

13

of the entire economy to the President who would

employ private associations to assist him in that

endeavor. That is surely a principle, and its scope is

intelligible, but if there are any limits to the power of

Congress to delegate, asking the intelligible principle

question on its own will not locate them.

Although not discussed by the dissent in

Gundy,

the

decision

in

Federal

Energy

Administration v. Algonquin SNG, Inc., 426 U.S. 548

(1976), is an example of how the intelligible principle

test was used to uphold a statute that effectively

delegated to the President the power in the field of

international trade “to exercise an unfettered

discretion to make whatever laws he thinks may be

needed or advisable for the rehabilitation and

expansion of trade or industry.” Schechter Poultry,

295 U.S. at 537-38. The statute at issue in Algonquin

was section 232 of the Trade Expansion Act of 1962,

which gave the President power to “adjust imports”

when the national security of the United States was

threatened. In Algonquin the President had chosen to

impose license fees, rather than tariffs or import

quotas. Algonquin contended that the statute did not

include license fees as an option, and, to support that

position, it argued that if section 232 were read to

permit the use of license fees, it would be an

unconstitutional delegation of legislative authority.

In that posture, with no other claim of excess

presidential discretion, this Court upheld section 232

as providing the necessary intelligible principle and

rejected the limited challenge made there.

Forty-two years later, President Trump

exercised his authority under section 232 to impose a

14

25% tariff on most imported steel from all countries

except Canada and Mexico. Proclamation No. 9705,

83 Fed. Reg 11625 (Mar. 15, 2018). At the same time,

relying on the same section 232, he also imposed a

10% tariff on aluminum imports. Proclamation No.

9704, 83 Fed. Reg. 11,619 (Mar. 15, 2018). A

consortium of importers and users of steel products

challenged the tariffs on delegation grounds, but their

claims were rejected by the lower courts, which

concluded that they were bound by Algonquin, and

this Court denied review. Am. Inst. for Int’l Steel v.

United States, 806 Fed.Appx. 982 (Fed. Cir), cert.

denied, 141 S. Ct. 133 (2020).

The record in the steel tariffs case and the

manner in which the President exercised his powers

under section 232 presented a very different

delegation picture than Algonquin. The prior case

raised a narrow constitutional avoidance claim that

was used to bolster a statutory defense, with nothing

to indicate that the President had not acted in a way

well within the four corners of section 232. By

contrast, the steel tariffs case was a facial challenge

to section 232, and as the record discussed below

demonstrates, the President had imposed these

tariffs without having any limits imposed in the

statute passed by Congress.

For example, section 232(c) provides that, after

the President receives a report from the Secretary of

Commerce (which he is not obligated to follow), and

he concurs that the importation of an article of

commerce “may threaten to impair the national

security”, the President may, with no further

restrictions,

15

determine the nature and duration of the

action that, in [his] judgment … must be taken

to adjust the imports of [that] article and its

derivatives so that such imports will not

threaten to impair the national security.

Section 232(d) includes an essentially unlimited

definition of national security that goes far beyond

national defense and foreign relations to

encompass purely economic considerations and

almost anything else as well. 2

Section 232 also provides no limit or guidance

on the type and scope of import adjustments the

President may choose. The President may tax

imports by increasing existing tariffs by any amount

and may impose unlimited new tariffs on goods that

Congress has not previously subjected to import

duties. The President may also impose quotas—

whether or not there are existing quotas—with no

limit on the extent of the reduction from any existing

quota or import level. In addition, the President could

impose licensing fees for the subject article, either in

lieu of, or in addition to, any tariff or quota already in

place. And for all these actions, the President may

2 “[T]he Secretary and the President shall further recognize the

close relation of the economic welfare of the Nation to our

national security, and shall take into consideration the impact of

foreign competition on the economic welfare of individual

domestic industries; and any substantial unemployment,

decrease in revenues of government, loss of skills or investment,

or other serious effects resulting from the displacement of any

domestic products by excessive imports shall be considered,

without excluding other factors, in determining whether such

weakening of our internal economy may impair the national

security.” (Emphasis added).

16

select the duration of each such change without any

limits on his choice—or allow the adjustment to last

indefinitely—and he may make changes with no

advance notice or delay in implementation.

Most significantly, section 232 contains no

limits on the amount of any increase in tariffs, as

illustrated by the President decision to add 25% to

steel imports, but only 10% for aluminum. There is

also no limit on the duration of these “adjustments”,

and no requirement that they be applied to steel from

all countries (Mexico and Canada were initially

excluded and others were added later), and the tariffs

do not have to be the same for all countries. Indeed,

on August 10, 2018, President Trump issued

Proclamation No. 9772, which doubled the tariff on

steel imported from Turkey—and no other country—

from 25% to 50%. 83 Fed. Reg. 40,429 (Aug. 15, 2018).

Eventually, the President rescinded the doubled

tariffs on Turkish steel imports. Proclamation No.

9886, 84 Fed. Reg. 23,421 (May 21, 2019),

Proclamation No. 9894, 84 Fed. Reg. 23,987 (May 23,

2019).

The imposition of these section 232 tariffs

continued into the next Administration where

President Biden made further adjustments that

illustrate the breadth of authority available to the

President, including by

x

x

exempting steel products from Ukraine.

Proclamation No.10406, 87 Fed. Reg.

33,591 (June 3, 2022);

extending the exemption for Ukraine to

include Ukrainian steel products that

are further processed in the European

17

Union. Proclamation No. 10588, 88 Fed.

Reg. 36,437 (June 5, 2023); and

x

creating new rules of origin for steel and

aluminum products from Mexico to

qualify for exemption from the tariffs.

Proclamation No. 10783, 89 Fed. Reg.

57,347 (July 15, 2024) (steel), and

Proclamation No. 10782, 89 Fed. Reg.

57339 (July 15, 2024) (aluminum).

There is another feature of section 232 that

virtually guarantees the President may do whatever

he wishes: section 232 does not provide for judicial

review of orders issued by the President under it.

Because the President is not an agency under

5 U.S.C. § 551(1), judicial review is not available

under the Administrative Procedure Act, 5 U.S.C.

§ 706. Furthermore, the Department of Justice, on

behalf of the United States, has taken the position

that once

the President received the report that

constitutes the single precondition for his

exercise of discretion under Section 232(c),

concurred in its findings, and took the action to

adjust imports that was appropriate “in the

judgment of the President[,]” 19 U.S.C. §

1862(c), . . . his exercise of discretion is not

subject to challenge [in court].

Defs.’ Mot. to Dismiss at 16–17, Severstal Export

GMBH, et al. v. United States, No. 18-00057 (Ct. Int’l

Trade), 2018 WL 1779351 (#30); id. at 19 (“[T]he

President’s exercise of discretion pursuant to Section

232 is nonjusticiable.”).

18

Judged by the approach of the dissenters in

Gundy, President Trump’s use of section 232 might

not survive a constitutional challenge under the

current intelligible principle test. But that conclusion

would be reinforced by asking whether there is

anything that the President cannot do regarding

products imported into the United States if he is

willing to conclude that the importation may threaten

national security, a term that itself has almost no

limits. If the President wishes to utilize tariffs, he can

impose any percentage he chooses, for any length of

time he prefers, and may do so selectively, imposing

tariffs on products from some countries but not from

others. He is also at liberty to direct the creation of an

exclusion process, as he did through the Department

of Commerce, to remove the tariffs on imports of

certain products not produced in the United States.

83 Fed. Reg. 12106 (Mar 15, 2018). The President

could even make the payment of section 232 tariffs

not deductible as an ordinary business expense for

federal income tax purposes because nothing in

section 232 would preclude such action. Finally, even

if someone objected to a presidential action, there is

no judicial review of any of these decisions, which is

understandable because there are no guardrails that

confine the President in any meaningful way.

If there is literally nothing that the President

or an agency cannot do under the applicable statute,

that is the most direct evidence that Congress has

unconstitutionally delegated the legislative power to

make policy to the executive branch. Focusing on

whether there are statutory limits that cannot be

exceeded also has the advantage of posing a direct and

objective question, in contrast to the intelligible

principle approach which is both conclusory and

19

subject to manipulation based on the level of

generality at which it is answered. And as amicus

now shows, asking the “is there anything the agency

cannot do” would not produce a different outcome in

the nondelegation cases decided by this Court, as

illustrated by asking that question for four of the most

significant rulings.

C. There Are Meaningful Guardrails in the

Statutes in this Court’s Major Delegation

Cases.

Whenever a court is asked to refine a test that

it has used for decades, it should ask how the change

would affect its prior rulings, in this instance, those

that upheld statutes against an excess delegation

challenge. This brief cannot examine all of this

Court’s delegation cases, but will discuss four: two

trade cases, J.W. Hampton, Jr., & Co. v. United

States, 276 U.S. 394 (1928) (which spawned the

intelligible principle test), and Marshall Field & Co.

v. Clark, 143 U.S. 649 (1892), and two recent decisions

in which the Court dealt extensively with the issue,

Mistretta v. United States, 488 U.S. 361 (1989), and

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001).

The Court sustained the laws in all four, and in all of

them there were significant limits on the powers of

the entity authorized to implement the challenged

law.

In Hampton, duties could be imposed only in

order to “equalize the . . . differences in costs of

production in the United States and the principal

competing country” for the product at issue. 276 U.S.

at 401 (quoting section 315 of title 3 of the Tariff Act

of 1922, 42 Stat. 858). Production costs are an

20

objectively verifiable fact, which provide a concrete

limit on when duties can be increased, and then the

duties can only be used to “equalize” those costs, not

in any amount that the President chose. Those duties

can be applied only with respect to “the principal

competing country” which further limited the

statute’s reach, and the statute expressly provided

that any increase may not exceed “50 per centum of

the rates specified in” existing law. Id. Those limits

were enforceable through judicial review in the

United States Customs Court and eventually in this

Court. Because the intelligible principle and its

boundaries were easy to discern in Hampton, asking

amicus’s questions would not have changed the

decision upholding the statute.

Clark further illustrates how Congress can

provide meaningful limits on the President’s powers

without having to write a law that eliminates his

discretion entirely. The statute at issue there was

limited to countries that produced any of five

enumerated duty-free products. 143 U.S. at 680. If

that country imposed “duties or other exactions upon

the agricultural or other products of the United

States,” and if the President concluded that those

duties were “reciprocally unequal and unreasonable,”

his only remedy was to suspend the duty-free status

of the imported products from the offending country.

Moreover, the President had no discretion as to the

remedy: if he made the requisite findings, he was

required to re-impose the suspended duties, but could

not impose additional duties on his own. Id. at 693.

At issue in Mistretta was the constitutionality

of the Sentencing Reform Act of 1984, 18 U.S.C. §

21

3501, et seq, in which Congress established the

Sentencing Commission within the judicial branch.

Congress assigned it the responsibility to create

guidelines that district judges would be required to

follow in imposing sentences for persons found guilty

of federal crimes.

This Court rejected a dual

challenge on delegation and separation of powers

grounds, with only Justice Scalia dissenting. The

most legally significant boundaries were the statutory

maximums (and in some cases minimums) that

Congress had enacted and continued to enact and

amend for every federal crime. Beyond those limits,

the Court summarized in over four pages in the US

Reports the many other prohibitions and

requirements that Congress included in the statute.

488h U.S. at 374-77. Those directions did not provide

answers to every question, nor completely eliminate

the Commission’s discretion. Thus, as Justice Scalia

noted in his dissent, the law left open “decisions [that]

. . . . are far from technical, but are heavily laden (or

ought to be) with value judgments and policy

assessments.” 488 U.S. at 414. Whether those

guidelines, which are now only advisory, would be

upheld under the dissent in Gundy is unclear. What

is clear is that, unlike section 232, there were

significant limits on what the Commission could do.

The Clean Air Act at issue in Whitman directed

“the EPA to set

“ambient air quality standards …

which in the judgment of the Administrator, based on

[the] criteria [documents of § 108] and allowing an

adequate margin of safety, are requisite to protect the

public health.” 42 U.S.C. § 7409(b)(1). 531 U.S. at

472. Those standards, which had to be reviewed every

five years, could only be issued for air pollutants

22

found on a public list promulgated by the agency

under 42 U.S.C. § 7408. Id. at 462. The opinion for

the Court, written by Justice Scalia, who dissented in

Mistretta, read the statute to require that these

standards must “ reflect the latest scientific

knowledge,” that “EPA must establish uniform

national standards” and that the agency must set

them “at a level that is requisite to protect public

health from the adverse effects of the pollutant in the

ambient air,” and where requisite “mean[s] sufficient,

but not more than necessary.” Id. at 473. In

upholding the delegation, the Court concluded that

“we interpret [the law] as requiring the EPA to set air

quality standards at the level that is ‘requisite’ that

is, not lower or higher than is necessary—to protect

the public health with an adequate margin of safety,’

and that, as so construed, the Clean Air Act “fits

comfortably within the scope of discretion permitted

by our precedent.” Id. at 475-76.

Given the inherent indeterminacy in deciding

the proper level at which air pollutants were needed

to protect the public health, and the sensible mandate

to update those levels every five years to reflect the

latest scientific knowledge, there is almost nothing

that Congress could have done, short of taking on the

standard setting job itself, to make the law more

definite. As to amicus’s second question, as construed

by the Whitman Court, there is one significant policy

choice that Congress made and did not leave for the

EPA:

the

Act

“unambiguously

bars

cost

considerations from the NAAQS-setting process.” Id.

at 462. Although the Court recognized that EPA

exercised considerable discretion under the Act, id. at

23

472-76, there were substantial limitations on what

EPA could and could not do, unlike section 232.

***

The intelligible principle test for deciding

undue delegation cases is unhelpful in providing a

method to separate necessarily flexible laws from

those that turn over the decisions on major policy

issues to the executive branch. This brief proposes

that the Court ask two simple questions in delegation

cases that can provide objective answers to the

question of how much delegation is too much. The

first asks what else could Congress have done, and the

response can either be a basis to uphold the law or

overturn it. If the answer is that “Congress must

make all the decisions itself,” as is answer for the

FCC’s Universal Service Program at issue here, then

the law should be sustained. But if, as in Gundy,

there was a simple one-time decision of choosing

whether the law should apply retroactively and that

Congress could make instead of passing the buck to

the agency (and ducking responsibility), the Court

should set aside the delegation.

The second inquiry is a one way street: if there

are no limits in the statute on what the President (or

agency) may do, which is the case with section 232,

then the delegation is excessive and the law cannot

stand. That should be true even if the delegation is

not as much a blank check as was the National

Industrial Recovery Act in Schechter Poultry. The

answers to both these questions may not decide all

nondelegation cases, but they will surely be an

improvement of the current intelligible principle

approach.

24

CONCLUSION

For these reasons, the Court should reverse the

decision of the Fifth Circuit that 47 U.S.C. § 254 is

unconstitutional as an excessive delegation of

legislature power.

It should also take this

opportunity to refine the intelligible principle test by

adding two questions for the courts to ask of statutes

being challenged on delegation grounds: what else

could Congress have done to avoid this delegation,

and is there an action that the executive branch could

not take because the statute precludes it?

Respectfully Submitted,

.

January 15, 2025

Alan B. Morrison

Counsel of Record

George Washington

University Law School

2000 H Street, NW

Washington, DC 20052

202 994 7120

abmorrison@law.gwu.edu