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

Nos. 24-354 and 24-422

In the Supreme Court of the United States

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

v.

CONSUMERS’ RESEARCH , ET AL .

SCHOOLS, HEALTH & LIBRARIES BROADBAND COALITION,

ET AL .,

v.

CONSUMERS’ RESEARCH , ET AL .

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA AS AMICUS

CURIAE IN SUPPORT OF NEITHER PARTY

MARIA C. MONAGHAN

CHRISTOPHER J. WALKER

U.S. CHAMBER LITIGATION

CENTER

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

JEFFREY B. WALL

Counsel of Record

MORGAN L. RATNER

ELIZABETH M. FRITZ

PETER L. BYRNE

SULLIVAN & CROMWELL LLP

1700 New York Avenue NW

Suite 700

Washington, DC 20006

(202) 956-7660

wallj@sullcrom.com

TABLE OF CONTENTS

Interest of amicus curiae.......................................................1

Introduction and summary of argument ............................2

Argument ................................................................................3

I. The Court should revitalize the nondelegation

doctrine...............................................................................4

A. Constitutional structure supports a

proportionality principle.............................................5

B. This Court’s early cases apply a proportionality

principle ........................................................................8

C. Early Congresses legislated consistently with a

proportionality principle...........................................11

II. A proportional approach to nondelegation is both

workable and desirable ..................................................17

A. A revitalized nondelegation doctrine would be

administrable .............................................................18

1. A proportional approach is principled...............18

2. Courts frequently apply proportional

approaches in other constitutional contexts .....23

B. A revitalized nondelegation doctrine would

promote constitutional values ..................................25

1. The intelligible-principle test is insufficient.....25

2. A proportional approach would better protect

important constitutional values ..........................26

Conclusion .............................................................................31

(I)

II

TABLE OF AUTHORITIES

Page(s)

Cases:

Alabama Association of Realtors v.

Department of Health & Human Services,

594 U.S. 758 (2021) ................................................... 28

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ......................................... 20, 22

Bond v. United States,

564 U.S. 211 (2011) ................................................... 28

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) ................................................... 19

City of Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985) ................................................... 24

Collins v. Yellen,

594 U.S. 220 (2021) ................................................... 27

Department of Transportation v. Association

of American Railroads,

575 U.S. 43 (2015) ................................................. 6, 27

Field v. Clark,

143 U.S. 649 (1892) ....................................... 10-11, 30

Financial Oversight & Management

Board for Puerto Rico v. Aurelius

Investment, LLC,

590 U.S. 448 (2020) ................................................... 11

Gonzales v. Oregon,

546 U.S. 243 (2006) ................................................... 23

Gundy v. United States,

588 U.S. 128 (2019) ............................................... 2, 25

III

Cases—Continued:

Industrial Union Department, AFL-CIO v.

American Petroeum Institute,

448 U.S. 607 (1980) ................................................... 27

Immigration & Naturalization Service v.

Chadha,

462 U.S. 919 (1983) ..................................................... 6

Lange v. California,

594 U.S. 295 (2021) ................................................... 24

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) ......................................... 5, 18, 20

Lucia v. Securities & Exchange Commission,

585 U.S. 237 (2018) ................................................... 23

Mathews v. Eldridge,

424 U.S. 319 (1976) ................................................... 24

Mistretta v. United States,

488 U.S. 361 (1989) ..................................................... 8

Morrison v. Olson,

487 U.S. 654 (1988) ................................................... 27

Myers v. United States,

272 U.S. 52 (1926) ....................................................... 6

National Federation of Independent Business

v. Department of Labor, Occupational

Safety & Health Administration,

595 U.S. 109 (2022) ............................................. 21-23

Nixon v. Fitzgerald,

457 U.S. 731 (1982) ..................................................... 7

Paul v. United States,

140 S. Ct. 342 (2019) ................................................. 21

Sackett v. Environmental Protection Agency,

598 U.S. 651 (2023) ................................................... 28

IV

Cases—Continued:

Solid Waste Agency of Northern Cook County

v. U.S. Army Corps of Engineers,

531 U.S. 159 (2001) ................................................... 28

The Brig Aurora,

11 U.S. 382 (1813) ..................................................... 10

Trump v. United States,

603 U.S. 593 (2024) ..................................................... 7

Turner Broadcasting System, Inc. v. Federal

Communications Commission,

512 U.S. 622 (1994) ................................................... 24

United States v. Arthrex, Inc.,

594 U.S. 1 (2021) ....................................................... 23

United States v. James Daniel Good

Real Property,

510 U.S. 43 (1993) ..................................................... 24

Wayman v. Southard,

23 U.S. 1 (1825) ...................2, 5, 8-9, 11-12, 18-19, 21

West Virginia v. Environmental

Protection Agency,

597 U.S. 697 (2022) ............................................. 22-23

Constitution and Statutes:

U.S. Const.:

Art. I, § 1 ...................................................................... 5

Art. I, § 8, cl. 4 ........................................................... 12

Art. II, § 1, cl. 1 ....................................................... 5, 7

Art. II, § 3 .................................................................... 7

Art. III, § 1, cl. 1 ......................................................... 5

V

Statutes—Continued:

Act of July 4, 1789, ch. 2, § 1, 1 Stat. 25-26 ................. 16

Act of July 31, 1789, ch. 5, § 1, 1 Stat. 30-34 ............... 16

Act of Sept. 24, 1789, ch. 20, § 17, 1 Stat. 83 ............... 11

Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103-104 .......... 12

Act of Apr. 10, 1790, ch. 7, § 1, 1 Stat. 109-110........... 17

Act of Apr. 30, 1790, ch. 10, § 11, 1 Stat. 121 .............. 13

Act of July 16, 1790, ch. 28:

§ 1, 1 Stat. 130 ..................................................... 13-14

§ 2, 1 Stat. 130 ........................................................... 13

§ 3, 1 Stat. 130 ..................................................... 13-14

Act of Aug. 12, 1790, ch. 47:

§ 1, 1 Stat. 186 ........................................................... 16

§ 2, 1 Stat. 186 ........................................................... 16

Act of Mar. 3, 1791, ch. 15:

§ 43, 1 Stat. 209 ......................................................... 17

§ 58, 1 Stat. 213 ......................................................... 17

Act of Feb. 20, 1792, ch. 7:

§ 1, 1 Stat. 232-233 .................................................... 14

§ 2, 1 Stat. 233 ........................................................... 14

§ 3, 1 Stat. 234 ........................................................... 14

§ 7, 1 Stat. 234-235 .................................................... 14

Act of July 9, 1798, ch. 70:

§ 8, 1 Stat. 585 ........................................................... 15

§ 22, 1 Stat. 589 ......................................................... 15

Act of July 14, 1798, ch. 75:

§ 1, 1 Stat. 597-598 .................................................... 15

§ 2, 1 Stat. 598 ........................................................... 15

VI

Statutes—Continued:

8 U.S.C. § 1154(b)........................................................... 19

12 U.S.C. § 1842(c) ......................................................... 21

12 U.S.C. § 1842(d)(2) .................................................... 21

29 U.S.C. § 213(a)(1) ...................................................... 19

33 U.S.C. § 1312(a) ......................................................... 20

41 U.S.C. § 1708(e) ......................................................... 19

47 U.S.C. § 254(b)........................................................... 29

47 U.S.C. § 254(c) ........................................................... 29

47 U.S.C. § 254(d)........................................................... 29

47 U.S.C. § 254(e) ........................................................... 29

49 U.S.C. § 5105(b)......................................................... 20

49 U.S.C. § 5105(c) ......................................................... 20

Other Authorities:

Jonathan H. Adler & Christopher J. Walker,

Delegation and Time,

105 Iowa L. Rev. 1931 (2020) .................................. 26

3 Annals of Congress 229 (1791) .................................. 14

Kevin Arlyck, Delegation, Administration,

and Improvisation,

97 Notre Dame L. Rev. 243 (2021) ......................... 16

Stephen Breyer, Judicial Review of

Questions of Law and Policy,

38 Admin. L. Rev. 363 (1986) .................................. 22

Ronald A. Cass, Delegation Reconsidered:

A Delegation Doctrine for the Modern

Administrative State,

40 Harv. J. L. & Pub. Pol’y 147 (2017)................... 22

VII

Other Authorities:

Congressional Research Service, Counting

Regulations: An Overview of Rulemaking,

Types of Federal Regulations, and Pages

in the Federal Register (Sept. 3, 2019) .................... 7

Bradley Custer, Being a Good College

Student: The History of Good Moral

Character Rules In State Financial Aid

Programs, 1850 To Now,

2020 B.Y.U. Educ. & L. J. 44 .................................. 12

Exec. Order No. 12,866,

58 Fed. Reg. 51735 (Sept. 30, 1993) ......................... 7

Richard H. Fallon, Jr., Judicially Manageable

Standards & Constitutional Meaning,

119 Harv. L. Rev. 1274 (2006) ................................. 18

The Federalist (George W. Carey & James

McClellan eds., 2001):

No. 47 (James Madison) ...................................... 6, 27

No. 51 (James Madison) .......................................... 30

No. 75 (Alexander Hamilton) ................................ 5, 8

Aaron Gordon, Nondelegation,

12 N.Y.U. J. L. & Liberty 718 (2019) ..................... 28

Elena Kagan, Presidential Administration,

114 Harv. L. Rev. 2245 (2001) ................................... 7

Gary Lawson, Delegation and Original

Meaning,

88 Va. L. Rev. 327 (2002) ................................. 6, 8, 26

Jennifer Mascott, Early Customs Laws

and Delegation,

87 Geo. Wash. L. Rev. 1388 (2019) ......................... 16

VIII

Other Authorities:

Michael B. Rappaport, A Two Tiered

Categorical Approach to the Nondelegation

Doctrine, in The Administrative State Before the Supreme Court

(Peter J. Wallison & John Yoo eds., 2022) ............ 29

David Schoenbrod, Delegation and

Democracy: A Reply to My Critics,

20 Cardozo L. Rev. 731 (1999) ................................ 26

David Schoenbrod, The Delegation Doctrine:

Could the Court Give it Substance?,

83 Mich. L. Rev. 1223 (1985) ................................... 26

Cass R. Sunstein, Is the Clean Air Act

Unconstitutional?,

98 Mich. L. Rev. 303 (1999) ..................................... 26

Cass R. Sunstein, Nondelegation Canons,

67 U. Chi. L. Rev. 315 (2000)................................... 18

Ilan Wurman, Nondelegation at the

Founding,

130 Yale L. J. 1490 (2010) .................................. 13, 15

INTEREST OF AMICUS CURIAE

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members and

indirectly represents the interests of more than 3 million companies and professional organizations of every

size, in every industry sector, and from every region of

the country. An important function of the Chamber is

to represent the interests of its members in matters

before Congress, the Executive Branch, and the

courts. To that end, the Chamber regularly files amicus curiae briefs in cases, like this one, that raise issues

of concern to the Nation’s business community.

This case presents important questions about the

public nondelegation doctrine. The Chamber’s members,

which include businesses regulated and supervised by

federal administrative agencies, have an interest in the

proper application of that doctrine. The Chamber

therefore submits this amicus brief to offer an administrable approach to the public nondelegation doctrine

that ensures each branch of government operates

within its constitutional role. The Chamber does not

take a position on the other issues in this case or on

how the public nondelegation doctrine applies to the

specific statutory scheme under review. 1

No counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus curiae, its members,

or its counsel, made any monetary contribution intended to fund the

preparation or submission of this brief.

1

(1)

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Founders had a simple yet inspiring vision for

the structure of our government: “the legislature

makes, the executive executes, and the judiciary construes the law.” Wayman v. Southard, 23 U.S. 1, 46

(1825). But for the last 80 years, the basic boundaries

of that system have been left unguarded. Instead, this

Court has adopted a nondelegation doctrine that has

become virtually impossible for Congress to violate.

See Gundy v. United States, 588 U.S. 128, 163-164

(2019) (Gorsuch, J., dissenting). And in its wake, the

Executive has become the branch primarily responsible

for setting the rules that American businesses and individuals must follow.

This case presents an opportunity for this Court to

return to first principles and ground the public nondelegation doctrine more firmly in the structure and

history of the Constitution and its separation of powers.

Under a proper conception of the doctrine, Congress

may assign modest administrative tasks to an agency

with little or no guidance. Once the authority granted

to an agency becomes more significant, however, Congress must provide more specificity by supplying both an

object and a route to guide the agency’s discretion. And

when it comes to the most important policy questions,

Congress cannot delegate the hard choices to the

agency at all, and instead must answer those questions

itself—a constraint that complements the existing

major-questions doctrine.

This approach has several critical attributes that

are missing from the current intelligible-principle test.

Demanding guidance in proportion to the significance

3

of the authority granted has roots in our constitutional

structure and in this Court’s earliest cases. It fits with

how Congress originally framed its grants of authority.

And it would be administrable for courts to apply.

Hard cases will no doubt arise on the margins, but

courts frequently apply tests that ratchet up the level

of scrutiny as the importance of the interest increases.

The same should be true here. The Court should make

clear that the more power Congress wants to hand over

to the Executive, the more instruction it must supply

for the exercise of that power.

ARGUMENT

The Constitution vests the Legislature with discretion

in making policy and vests the Executive with discretion

in executing the law. It is an easy enough line to recite,

but a more difficult one to police. For almost a century,

the intelligible-principle test has not proven up to the

task. Further elaboration of the nondelegation doctrine is needed.

The Judiciary should reaffirm its constitutionally

prescribed role in holding the other branches to their

own spheres. This Court need not demand that Congress

decide every minute policymaking detail. But when the

Legislature abdicates its lawmaking authority in favor of

mere goalmaking, the Judiciary can and should intervene. It should require Congress to provide more instruction as it vests the Executive with the authority to

make more and more important judgment calls. And it

should follow the guidance from early sources on how

Congress can properly grant authority to other

branches: by supplying both an object to achieve and a

route to get there.

4

This proportional approach to nondelegation will

change little about how the Court treats cases at both

extremes. Statutes directing the Executive to fill up

details have always survived scrutiny and will continue

to do so, while ostensible delegations on extremely important and politically sensitive issues will often fail anyway under the related major-questions doctrine.

Where a revitalized nondelegation doctrine will have

the most impact is in the middle, for questions that are

significant but not so significant that it is implausible

that Congress granted the agency the authority to answer them. For those cases, a faithful application of

nondelegation principles protects political accountability

and individual liberty while still preserving regulatory

flexibility. And although the test would be more

rigorous—and thus might pose more edge cases—than

the current intelligible-principle test, it is still an administrable standard akin to other constitutional tests

that courts regularly apply.

We urge this Court to adopt this proportional approach to the public nondelegation doctrine and remand the case. The detailed instructions that Congress provided in establishing the Universal Service

Fund’s funding mechanism may very well be sufficient

to provide the Executive with both an object to achieve

and a route to get there. The court of appeals is well

positioned to decide that question in the first instance,

after the parties have an opportunity to address the

statute under the appropriate framework.

I. THE COURT SHOULD REVITALIZE THE

NONDELEGATION DOCTRINE

Constitutional structure, this Court’s early cases,

and the practice of early Congresses do not support the

5

current application of the intelligible-principle test.

They instead support the basic notion that Congress

must supply guidance to the Executive commensurate

with the significance of Congress’s delegation. For administrative or implementation matters, Congress can

authorize the Executive to “fill up the details” of its

statutes. Loper Bright Enters. v. Raimondo, 603 U.S.

369, 395 (2024) (citing Wayman, 23 U.S. at 43). But

when Congress confers greater power, it must give the

agency an object to work toward and some route to follow.

And the more significant the authority, the more instruction Congress must provide.

A. Constitutional

Structure

Supports

A

Proportionality Principle

Several constitutional provisions and principles underlie the nondelegation doctrine. All of them suggest that

the doctrine should be understood in flexible terms reflecting the scope of authority granted.

1. The nondelegation doctrine ultimately rests on

the Legislative Vesting Clause. That Clause vests

“[a]ll legislative Powers herein granted” in Congress.

U.S. Const. art. I, § 1 (emphasis added). “The essence”

of legislative power is “to enact laws, or, in other words,

to prescribe rules for the regulation of the society.”

The Federalist No. 75, at 388 (Alexander Hamilton)

(George W. Carey & James McClellan eds., 2001). Articles

II and III contain their own Vesting Clauses, which

vest “executive Power” in the President and “judicial

Power” in the federal courts. U.S. Const. art. II, § 1,

cl. 1; id. art. III, § 1, cl. 1. These three provisions form

the bedrock of the separation of powers, “assur[ing], as

nearly as possible, that each Branch of government

6

would confine itself to its assigned responsibility.”

INS v. Chadha, 462 U.S. 919, 951 (1983).

By vesting each branch with a “separate and distinct

power,” the Constitution forbids the “accumulation” or

“mixture of powers” in one branch, except as expressly

set forth in the document. The Federalist No. 47, supra,

at 249 (James Madison). As relevant here, “[w]hen the

Government is called upon to perform a function that

requires an exercise of legislative . . . power, only

[Congress as] the vested recipient of that power can

perform it.” Dep’t of Transp. v. Ass’n of Am. R.Rs.,

575 U.S. 43, 68 (2015) (Thomas, J., concurring). “The

Vesting Clauses, and indeed the entire structure of the

Constitution, make no sense otherwise.” Gary Lawson,

Delegation and Original Meaning, 88 Va. L. Rev. 327,

340 (2002).

2. The Constitution’s grant of legislative power to

Congress came with the “accountability checkpoints”

of bicameralism and presentment. Ass’n of Am. R.Rs.,

575 U.S. at 61 (Alito, J., concurring). Bicameralism ensures that legislation is “carefully and fully considered

by the Nation’s elected officials,” with “study and debate” occurring in “separate settings.” Chadha, 462

U.S. at 949, 951. Presentment, in turn, submits legislation to “the President[,] elected by all the people,” to

“protect the whole people from improvident laws.” Id.

at 948, 951 (citing Myers v. United States, 272 U.S. 52,

123 (1926)).

“[I]f Congress could give its power away” to the Executive Branch, “[i]t would dash the whole scheme.”

Ass’n of Am. R.Rs., 575 U.S. at 61 (Alito, J., concurring). After all, there is no approximation of bicameralism and presentment in the agency rulemaking pro-

7

cess. Executive “choices consistent with broad delegations are not the equivalent of legislative decisions” because

they lack the “reflectiveness” of a “deliberative body

reflecting the views of representatives from various

states of the union.” Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2367-2368 (2001)

(citation omitted). And most agency regulations will

never even get the President’s sign-off. See Exec. Order

No. 12,866, §§ 6-7, 58 Fed. Reg. 51735, 51740-51743

(Sept. 30, 1993) (creating a centralized process for

White House review of only “significant regulatory actions”); Congressional Research Service, Counting

Regulations: An Overview of Rulemaking, Types of

Federal Regulations, and Pages in the Federal Register 7, 12 (Sept. 3, 2019), https://sgp.fas.org/crs/misc/

R43056.pdf (finding that only a small fraction of published regulations go through the centralized review

process).

3. The limited powers allocated to the Executive

Branch confirm that it cannot substitute for the Legislative Branch. The Constitution grants “[t]he executive

Power” to the President. U.S. Const. art. II, § 1, cl. 1.

It thus “vest[s] the President with ‘supervisory and

policy responsibilities of utmost discretion and sensitivity.’ ” Trump v. United States, 603 U.S. 593, 610-611

(2024) (citing Nixon v. Fitzgerald, 457 U.S. 731, 750

(1982)). But the Constitution does not give the President

lawmaking power over domestic affairs. Instead, it requires the President to “take Care that the Laws be

faithfully executed.” U.S. Const. art. II, § 3. That

responsibility requires the President’s judgment (to

decide how best to “take Care”), but presumes that the

laws enacted through bicameralism and presentment

give the President enough guidance to be “faithful” to.

8

In short, the Constitution envisions a real distinction

between legislative policymaking and permissible executive discretion. The task of policing that line—in

assessing whether Congress ceded its authority to

make laws or merely commanded the Executive

Branch to implement laws—turns on both the question

Congress directed the agency to decide and “the degree

of generality contained in the authorization.” Mistretta v.

United States, 488 U.S. 361, 419 (1989) (Scalia, J., dissenting). Such questions of degree necessarily vary with

the importance of the authority granted. See Lawson,

supra, at 339-340, 396. The more significant the question, the more detail the statute must provide to ensure

that the Executive is overseeing the “execution of the

subsisting laws,” rather than exercising the legislative

powers vested solely in Congress. The Federalist

No. 75, supra, at 388 (Alexander Hamilton).

B. This Court’s Early Cases Apply A

Proportionality Principle

A proportionality principle traces back to this

Court’s earliest nondelegation cases, predating the

intelligible-principle test that grabbed hold in the 1940s.

The Court explicitly endorsed a proportional approach

to nondelegation in 1825 in Wayman v. Southard, and

other early case law adopted that framework. In the

subsequent two centuries, jurists and scholars have not

improved on Chief Justice Marshall’s work.

1. In Wayman, the Court confronted a constitutional challenge to a statute linking the “forms” and

“executions” of “the writs” in federal courts to state

law, but authorizing federal courts to make “alterations”

when “expedient.” 23 U.S. at 31. The central question

was whether the statute constituted a “delegation of

9

legislative authority,” which Congress “has not the

power to make.” Id. at 42.

Chief Justice Marshall, writing for the Court, grappled

with the “delicate and difficult inquiry” of discerning

between permissible and impermissible grants of authority. Wayman, 23 U.S. at 46. He explained that Congress

has no power to delegate “powers which are strictly and

exclusively legislative,” yet it “may certainly delegate”

other powers that it could—but need not—“rightfully

exercise itself.” Id. at 42-43. The difference, although

murky at times, lay in the “extent” of the power given.

Id. at 43. As Chief Justice Marshall put it, “[t]he line

has not been exactly drawn which separates those important subjects, which must be entirely regulated by

the legislature itself, from those of less interest, in

which a general provision may be made.” Ibid. For

minor subjects, Congress need only provide “great outlines” within which the delegate must stay. Id. at 45.

“[M]ore important” subjects could also be permissibly

delegated, but would require the Legislature “to prescribe the manner” in which the delegate must act. Id.

at 45-46. Meanwhile, the most “important subjects”

“must be entirely regulated by the legislature itself.”

Id. at 43, 45.

Applying that tripartite framework, the Court held

that the judicial-forms statute passed muster. Wayman, 23 U.S. at 45. That statute gave the judiciary “a

power to vary minor regulations” concerning the “superintendence” of how the courts operated—which was

an administrative matter “properly within the judicial

province.” Id. at 43, 45. Congress therefore needed

only to supply the “great outlines” for “directing” the

courts. Id. at 45.

10

2. This Court’s other early cases are consistent

with Wayman’s proportional approach. Throughout

the nineteenth century, the Court upheld laws where

Congress gave enough instruction as the significance

of the delegation demanded.

The Brig Aurora, for example, upheld Congress’s

grant of authority to the President on the significant

question of whether United States merchants could import goods from Great Britain and France. 11 U.S. 382,

388 (1813). Congress mostly supplied the answer to the

question: no, so long as those countries continued “to

violate the neutral commerce of the United States.” Id.

at 383. Congress gave the President only the obligation

to issue a proclamation if either country “cease[d]” its

violations. Id. at 384. Congress, in other words, did

the bulk of the important policymaking work. The

modest, fact-finding obligation it left to the President

was not an abdication of legislative authority, and the

Court could “see no sufficient reason” why Congress

could not condition an embargo on the President’s fact

finding. Id. at 388.

Field v. Clark is another instructive example.

143 U.S. 649 (1892). There, Congress passed a law

“permitting the free introduction of” certain agricultural products. Id. at 692. But if the President determined that another country had imposed “reciprocally

unequal and unreasonable” “duties or other exactions

upon the agricultural . . . products of the United

States,” he was required “to suspend . . . the provisions

of th[e] act relating to the free introduction” of goods

and instead to impose tariffs that Congress had “prescribed.” Id. at 680, 692. This Court held that the law

did not pose a nondelegation problem. Although the

11

law authorized the President to determine whether another country’s duties were “reciprocally unequal and

unreasonable,” the Court found that determination was

“simply in execution of the act of [C]ongress” and not

“the making of law.” Id. at 693. By setting tariffs and

requiring reciprocity from other countries, Congress

gave the President a clear method to determine

whether other countries’ duties were unreasonable—

by comparing our tariffs and theirs. In other words,

even though the statute authorized the President’s exercise of discretion, Congress retained its lawmaking

prerogative. Ibid.

C. Early Congresses Legislated Consistently

With A Proportionality Principle

Early Congresses recognized the need to provide

more instruction when delegating more significant

power to the Executive or Judicial Branches. This

early congressional practice provides strong evidence

that a proportional approach is consistent with the

Constitution’s original meaning. See Fin. Oversight &

Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 590 U.S.

448, 462 (2020).

1. When early Congresses granted modest administrative or implementation authority to the Judiciary

or the Executive, they often provided minimal guidance.

Judicial procedures. In the Judiciary Act of 1789,

the First Congress authorized the courts “to make and

establish all necessary rules for the orderly conducting

[of] business in said courts, provided such rules are not

repugnant to the laws of the United States.” Act of

Sept. 24, 1789, ch. 20, § 17, 1 Stat. 83. In Wayman, the

Court identified this statute as the quintessential example of a permissible grant of authority. 23 U.S. at 43.

12

The provision did not concern any “important subjects”

to citizens, but rather touched on the administrative

issue of how the judiciary could superintend its own

procedures—so no further congressional instruction

was required. Id. at 43. That the granted authority

“seem[ed] to be properly within the judicial province”

further bolstered the Court’s conclusion that minimal

instruction sufficed. Id. at 45.

Citizenship determinations.

The Constitution

grants Congress the power to “establish an uniform

Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4.

The First Congress exercised this power itself, and

tasked the courts with implementing its decision. Act

of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103-104. Congress

decreed that a “free white person” who “shall have resided within . . . the United States for the term of two

years” and was “of good character” could submit an

“application” for citizenship “to any common law court

of record.” Ibid. If the applicant produced “proof to

the satisfaction of such court” and took an oath to support the Constitution, he became a citizen. Ibid. The

courts’ discretion was thus limited to determining

whether the application satisfied the “good character”

requirement. And Congress could properly delegate

that narrow question. Cf. Bradley Custer, Being a

Good College Student: The History of Good Moral

Character Rules In State Financial Aid Programs,

1850 To Now, 2020 B.Y.U. Educ. & L. J. 44, 50 (“The

use of good moral character rules in American law is

ubiquitous.”).

2. When an issue was more important to citizens,

Congress provided more instructions. Specifically,

Congress both identified an object for the Executive to

13

achieve and supplied a route for the Executive to follow.

A few examples illustrate the practice.

War pensions. Following the Revolutionary War,

Congress faced the significant questions of whether to

award pensions to veterans, and how much to award.

Ilan Wurman, Nondelegation at the Founding, 130

Yale L. J. 1490, 1540-1541 (2010). Congress itself made

the choice to award the pensions. It gave the Executive

some discretion in calculating them, but bounded that

discretion in important ways. It authorized the President

to award pensions for veterans wounded in the line of

duty “at such rate of pay, and under such regulations

as shall be directed,” provided that pensions for fully

disabled commissioned officers “never exceed . . .

half . . . pay,” and pensions for all other fully disabled

veterans “never exceed five dollars per month.” Act of

Apr. 30, 1790, ch. 10, § 11, 1 Stat. 121. Partially disabled

veterans, in turn, would “receive only a sum in proportion to the highest disability.” Ibid. Congress constrained

the President’s discretion by setting the maximum

amount for each pension, and guided that discretion by

providing a controlling principle (seriousness of disability) for partial-disability pensions. Both constraints

clearly made some executive decisions out-of-bounds.

Location of the capital. One of the first important

questions Congress confronted was where to establish

a permanent capital for the federal government. Congress tasked three commissioners, appointed by the

President, with locating the proper site. Act of July 16,

1790, ch. 28, §§ 1, 2, 1 Stat. 130. To achieve this object,

Congress provided the commissioners with a set of constraints. The capital district had to be located “on the

river Potomac, at some place between the mouths of

the Eastern Branch and Connogochegue.” Id. § 1. It

14

had to be located on the “eastern side” of that river. Id.

§ 3. And it could “not exceed[] ten miles square.” Id.

§ 1. Congress provided that once the commissioners

found an appropriate location, they could purchase the

land. Id. § 3. The commissioners’ authority, however,

was quite literally bounded.

Postal system. The establishment of the postal system

was a significant issue at the Founding—so significant

that Congress rejected a proposed bill that would have

allowed the President to establish all of the postal

“route[s].” 3 Annals of Cong. 229, 241 (1791). As Representative Page asserted, if such an important issue

as the postal system could constitutionally be left to the

President, then Congress could also “leave to him any

other business of legislation,” and they could all just

“adjourn” and “mak[e] a short session of it.” Id. at 233.

At least four other representatives—including James

Madison—similarly argued that a broad delegation to

establish postal routes would be unconstitutional. Id.

at 229-239. Congress thus settled on a much narrower

grant of authority, naming as waypoints the cities that

would be served by the postal roads, and leaving the

Executive with the intermediate powers to temporarily

extend the network and to fix the location of post offices

as “necessary” for receiving and processing mail along

the roads. Act of Feb. 20, 1792, ch. 7, §§ 1-3, 7, 1 Stat.

232-235. It also granted the Postmaster General various

administrative powers, including the authority to “provide for carrying the mail . . . by stage carriage or

horses, as he may judge most expedient,” and to “prescribe such regulations” over his employees “as may be

found necessary.” Id. § 3. In other words, Congress

decided the “important question of the day”—which

15

cities would get the roads—and left the “less significant” details to the Executive Branch. Wurman, supra,

at 1511.

3. For the most significant questions, Congress

recognized that it was the proper decisionmaker.

Early Congresses resolved the most politically and

economically consequential issues of the day for themselves, leaving the Executive with administrative and

implementation duties.

Tax on all real property. One such critical question

concerned whether to lay a direct tax on all real property in the country. Congress decided for itself to impose

the tax, along with certain key attendant questions:

the total amount of the tax ($2 million), the property

that would be taxed (houses and real property), the

property that would be exempted (government property and real property worth less than $100), how land

should be valued, and how the tax would be apportioned among the States. Act of July 9, 1798, ch. 70,

§ 8, 1 Stat. 585; Act of July 14, 1798, ch. 75, §§ 1-2, 1

Stat. 597-598. After Congress decided those policy

questions, all that was left for the Executive was to implement Congress’s instructions. It was to send out local

assessors to calculate the value of each individual parcel,

and then to account for variations between assessors

by “revis[ing], adjust[ing] and vary[ing]” valuations on

a district-by-district basis at a “rate per centum[] as

shall appear to be just and equitable[,]” keeping steady

“the relative valuations” of property within each district. Act of July 9, 1798, ch. 70, § 22, 1 Stat. 589; see

Wurman, supra, at 1552-1553.

Customs statutes. Another major issue before the

First Congress concerned customs duties on imported

16

goods, which represented 90% of the federal government’s total revenue for the first 20 years of the Republic. Kevin Arlyck, Delegation, Administration, and

Improvisation, 97 Notre Dame L. Rev. 243, 262 (2021).

Not surprisingly, Congress set out these vitally important customs duties in great detail. For example,

Congress set 12 different duties on tea, taking into account the type of tea, country of origin, and nationality

of the importing vessel. See Act of July 4, 1789, ch. 2,

§ 1, 1 Stat. 25-26 (taxing a pound of “bohea tea” at a rate

of “six cents” when imported from China or India and

“eight cents” when imported from Europe). Congress

also legislated in similar detail when establishing the

infrastructure for collecting those duties: it divided

States into dozens of different customs districts, set

the metes and bounds of each, and established each district’s individual ports of entry and delivery. See Act

of July 31, 1789, ch. 5, § 1, 1 Stat. 30-34. In the end, the

First Congress made the key policy decisions itself,

leaving to customs officials the administrative task of

collecting customs duties. See Jennifer Mascott, Early

Customs Laws & Delegation, 87 Geo. Wash. L. Rev.

1388, 1399-1400, 1404-1405 (2019).

To be sure, these early laws provide just a few examples of permissible grants of authority to other

branches. They do not represent the full extent of Congress’s ability to assign tasks to the Judiciary or Executive. But they still provide telling evidence of the type

of authority that could permissibly be exercised at the

Founding: Congress answered the important policy

questions for itself, but it left the Executive either with

17

pure administrative duties or with implementation discretion cabined in proportion to the significance of the

question. 2

II. A PROPORTIONAL APPROACH TO NONDELEGATION IS BOTH WORKABLE AND

DESIRABLE

The Court should return to this proportional approach to nondelegation. A revitalized nondelegation

doctrine would prevent Congress from delegating significant swaths of power with the barest of goals. And

although it could sometimes prove challenging at the

margins, tests that give more scrutiny to more important questions are ubiquitous in constitutional law.

The government cites various other statutes concerning domestic policy from early Congresses. See FCC Br. 21-23 (collecting

statutes). Its various examples generally involve narrow authority

and ample instructions, and thus fit the taxonomy here. See, e.g., Act

of Mar. 3, 1791, ch. 15, § 58, 1 Stat. 213 (administrative statute authorizing the President to set “reasonable and proper” salaries for customs employees so long as “the aggregate amount” of those salaries

does “not exceed seven per cent” of customs duties on “spirits distilled in the United States”); Act of Mar. 3, 1791, ch. 15, § 43, 1 Stat.

209 (authorizing the Secretary of the Treasury to return seized property if he makes certain findings, and authorizing him to impose “reasonable” “terms and conditions” in the narrow circumstance where

he is returning seized “spirits” to “proprietors”); Act of Apr. 10,

1790, ch. 7, § 1, 1 Stat. 109-110 (authorizing certain executive officers to

grant 14-year patents, with the instruction that a patent is warranted

only for an “invention or discovery” that is “sufficiently useful and

important” and shown to be “not before known or used”); Act of Aug.

12, 1790, ch. 47, §§ 1-2, 1 Stat. 186 (authorizing the Executive to allocate surpluses toward the purchase of debt securities and to regulate

such purchases, with the instruction that purchases must be “made

openly, and with due regard to the equal benefit of the several

states,” and must be at “market price, if not exceeding the par or true

value thereof”).

2

18

The advancement of critical constitutional values more

than outweighs the modest costs of applying such a test

here.

A. A Revitalized Nondelegation Doctrine Would

Be Administrable

Perhaps the most frequently expressed concern

about a revitalized nondelegation doctrine is administrability. See, e.g., Cass R. Sunstein, Nondelegation

Canons, 67 U. Chi. L. Rev. 315, 326-327 (2000); Richard

H. Fallon, Jr., Judicially Manageable Standards and

Constitutional Meaning, 119 Harv. L. Rev. 1274, 13021303 (2006). The proportional approach applied by

early Congresses and courts is principled, consistent

with existing doctrines, and familiar to courts.

1. A proportional approach is principled

As a practical matter, a proportionality principle

can be operationalized into three categories: administrative and implementation power, significant decisions,

and major decisions. Revitalizing the nondelegation

doctrine would have little effect at either extreme.

Grants of administrative and implementation authority

would continue to pass muster, while delegations of the

most important questions are already scrutinized under

the separate (but related) major-questions doctrine. A

proportional approach to nondelegation would primarily impose a reasonable constraint in the middle.

a. When Congress grants the Executive Branch

the authority to carry out administrative or implementation tasks, minimal guidance will suffice. No one disputes that Congress can authorize another branch to

“fill up the details” on minor questions. See Loper

Bright Enters., 603 U.S. at 395 (citing Wayman, 23

19

U.S. at 43). When Congress does so, it need only supply the “great outlines,” such as an object to achieve.

Wayman, 23 U.S. at 43.

So, for example, Congress may authorize the Secretary of Labor to define what an “outside salesman” is

for purposes of exemptions to the Fair Labor Standards Act. See 29 U.S.C. § 213(a)(1); Christopher v.

SmithKline Beecham Corp., 567 U.S. 142, 147 (2012).

Congress can likewise authorize the Attorney General

to ascertain whether the facts in a visa petition are

true. 8 U.S.C. § 1154(b). Or it can give an agency the

power to set a deadline for submitting bids on a procurement contract. 41 U.S.C. § 1708(e)(2). Nondelegation challenges to such administrative and implementation delegations will be infrequent and unsuccessful.

Federal agencies regularly make interstitial decisions

about how to carry out government programs, and under

a proportional approach, the nondelegation doctrine is

not concerned about with those minor subjects.

b. Where, however, Congress grants more than

minor gap-filling authority, Congress must also “prescribe the manner” of execution to keep the Executive

from pure policymaking. Wayman, 23 U.S. at 45-46.

In other words, it is not enough for Congress to provide

the agency with a destination to work toward—which

is all that the current intelligible-principle test requires. Congress must also prescribe a route for the

agency to get there.

Of course, Congress can use a variety of verbal formulations to provide a route for the Executive. In navigation, a route can take different forms. It can consist

of step-by-step instructions (“go forward 20 paces and

then turn 90 degrees”); it can provide waypoints (“go

to the mountaintop and then you’ll see the cabin”); it

20

can give a backstop (“if you see the river, you need to

turn around”); or it can be conditioned on the existence

of outside facts (“walk along the trail, so long as it is

clear”). Similarly, there is more than one way for Congress to chart a path for an agency. It can give step-bystep instructions; it can establish milestones; it can set

boundaries or guardrails that narrow the path; it can

tell the agency to apply a particular standard to the

facts that it finds; or it can tell the agency to proceed

with a specified activity only so long as certain conditions are satisfied. See Biden v. Nebraska, 143 S. Ct.

2355, 2379-2380 (2023) (Barrett, J., concurring) (explaining that instructions can vary with context).

Whatever the formulation, Congress must provide

enough instruction to tell the agency where to go and

how to get there, even if it does not prescribe every

step along the way.

Such instructions are commonplace and varied.

Congress, for example, has directed the Administrator

of the EPA to establish effluent limitations when he determines that the discharge of pollutants “would interfere with the attainment or maintenance of that water

quality” necessary to ensure five different outcomes.

33 U.S.C. § 1312(a); see Loper Bright Enters., 369 U.S.

at 395 n.6. Elsewhere, Congress has directed the Secretary of Transportation to “conduct a study comparing

the safety of” different methods of transporting certain

radioactive materials by train and to “consider[] the results of the study” when issuing regulations “appropriate to provide for the safe rail transportation” of such

materials. 49 U.S.C. § 5105(b), (c). Employing still a

different formulation, Congress has directed the Board

of Governors of the Federal Reserve to consider seven

21

factors when evaluating a bank holding company’s acquisition of a bank, along with a backstop: “the Board

may not approve” an acquisition if the resulting entity

would control more than 30% of bank deposits in a single State or 10% of all bank deposits nationwide.

12 U.S.C. § 1842(c), (d)(2). These routes, although differently formulated, each provide enough instruction to

concretely guide the agency on how to proceed.

c. For the most “important subjects” with vast

political and economic significance, Congress must

“entirely regulate[]” for itself. Wayman, 23 U.S. at 43.

As Chief Justice Marshall recognized, any delegation

of decision-making authority on such subjects would

amount to an impermissible transfer of the legislative

power. See id. at 42-43. Under the nondelegation doctrine, Congress therefore must “expressly and specifically

decide the major policy question itself and delegate to

the agency the authority to regulate and enforce.”

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

J., statement respecting the denial of certiorari).

For those exceptionally important questions, this

Court already patrols the line between the Legislature

and the Executive under the major-questions doctrine.

The two doctrines are “closely related.” Nat’l Fed. of

Independent Bus v. Dep’t of Labor, Occupational

Safety & Health Admin., 595 U.S. 109, 124 (2022) (Gorsuch,

J., concurring). “Both are designed to protect the separation of powers and ensure that any new laws governing the lives of Americans are subject to the robust

democratic processes the Constitution demands.”

Ibid.

The doctrines simply approach the line between legislative and executive power from different perspectives.

The major-questions doctrine is usually concerned

22

with the problem of the Executive’s “exploit[ing]” unclear statutory language to overreach. OSHA, 595 U.S.

at 125 (Gorsuch, J., concurring). The nondelegation

doctrine, meanwhile, kicks in only if Congress intentionally passes the buck on its constitutional obligations to

the Executive “to ‘reduc[e] the degree to which they

will be held accountable for unpopular actions.’ ” Id. at

124 (citing Ronald A. Cass, Delegation Reconsidered:

A Delegation Doctrine for the Modern Administrative

State, 40 Harv. J. L. & Pub. Pol’y 147, 154 (2017)); see

Cass, supra, at 153-155 (contrasting “encroachment”

with “delegation” as reciprocal separation-of-powers

concerns).

As a real-world matter, the major-questions doctrine

will likely continue to be more salient than the nondelegation doctrine. After all, we typically assume that

Congress does not willingly give the Executive the

authority to decide the most consequential issues of

the day. Indeed, that is one of the justifications for the

major-questions doctrine: “Congress normally ‘intends to make major policy decisions itself, not leave

those decisions to agencies.’ ” Nebraska, 143 S. Ct. at

2380 (Barrett, J., concurring) (citation omitted); see

West Virginia v. EPA, 597 U.S. 697, 721-723 (2022)

(collecting cases); see also Stephen Breyer, Judicial

Review of Questions of Law and Policy, 38 Admin. L.

Rev. 363, 370 (1986). But where Congress does clearly

authorize the Executive Branch to make major policy

decisions, the nondelegation doctrine acts as an important and independent backstop.

Whatever garb a challenge comes in, the results under the major-questions doctrine and a proportional

nondelegation doctrine converge: Congress must give

an agency “clear” authority to act. West Virginia,

23

597 U.S. at 723 (citation omitted). An agency may not

seize—nor be given—the unbounded power to decide,

for example, whether to criminalize physician-assisted

suicide or to require all American workers to get a

vaccine. See Gonzales v. Oregon, 546 U.S. 243, 262-263

(2006); OSHA, 595 U.S. at 117-118. Congress must

make those decisions itself and must bound the

agency’s discretion over any ancillary issues with an

object and a route.

2. Courts frequently apply proportional

approaches in other constitutional contexts

Although any test based on proportionality will (and

should) require more nuanced analysis than the current

intelligible-principle test, this is familiar terrain. In

other constitutional contexts, this Court routinely applies

comparable tests. And while there will always be edge

cases on which judges disagree, that has not disqualified

other constitutional guarantees from enforcement.

Examples abound where this Court has imposed

proportional or multi-tiered analyses to evaluate constitutional claims:

•

The constitutionally required method for appointing an officer turns in part on the significance of

the power the officer wields. When evaluating

whether someone is an officer subject to the Appointments Clause, courts ask whether an individual

“exercise[s] significant authority.” Lucia v. SEC,

585 U.S. 237, 245 (2018). And when distinguishing

between inferior and principal officers, the Court

looks to several factors, including whether the

officer has final decision-making authority.

United States v. Arthrex, Inc., 594 U.S. 1, 13-14

(2021).

24

•

Under the Fourth Amendment, the applicability

of the warrant requirement turns in part on the

interests of the government in conducting a

search and the interests of private parties in the

property being searched. For example, a warrant

is not required when “the exigencies of the situation

make the needs of law enforcement so compelling

that a warrantless search is objectively reasonable.” Lange v. California, 594 U.S. 295, 301

(2021) (citation omitted).

• For procedural due process claims, courts weigh

the strength of the asserted private and governmental

interests alongside “the risk of an erroneous deprivation” and the “probable value” of additional

procedures. Mathews v. Eldridge, 424 U.S. 319,

335 (1976). Where the private interest “weigh[s]

heavily,” the risk of error is “unacceptabl[y]”

high, and requiring additional procedures “creates

no significant administrative burden,” more process is due. United States v. James Daniel Good

Real Prop., 510 U.S. 43, 54-59 (1993).

• For claims under the First Amendment and

Equal Protection Clause, some statutes are

subject to “most exacting scrutiny,” while others

receive only “an intermediate level of scrutiny,”

or even rational-basis review, depending on the

nature of the interest at stake. Turner Broad.

Sys. v. FCC, 512 U.S. 622, 642 (1994) (First

Amendment); City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 440-441 (1985) (Equal Protection).

The list could stretch on. As these examples illustrate,

federal courts are capable of tailoring their analysis to

some assessment of importance, and they are frequently

25

called upon to do so when deciding constitutional

claims. There will no doubt be some hard cases in determining whether Congress has provided enough instruction to satisfy nondelegation concerns, just as

there are hard cases under all of the doctrines above.

But experience has proved that courts are comfortable

applying such tests in the vast majority of cases. There

is little reason to doubt that they can do so here. Nor

is there any reason why the limitations enshrined in

Articles I and II should be less deserving of this kind

of nuanced analysis.

B. A Revitalized Nondelegation Doctrine Would

Promote Constitutional Values

A shift from today’s intelligible-principle test to a

proportionality-centered approach will prompt modest

additional work for litigants, courts, and Congress.

But the Constitution requires that work, which in all

events produces a net benefit to our system of government.

1. The

intelligible-principle

test

is

insufficient

As it is currently applied, the intelligible-principle

test has failed to stand guard over the Constitution’s

separation of powers. This Court has never invalidated

a congressional delegation since it began employing

that test in the 1940s. Gundy, 588 U.S. at 162, 164

(Gorsuch, J., dissenting). As the United States correctly

explains, the test is “not demanding” and has historically been satisfied so long as Congress “articulate[s]

any policy or standard.” Pet. 11 (citing Gundy, 588

U.S. at 146 (plurality op.)). Commentators agree that

the test “has become so ephemeral and elastic as to lose

26

its meaning.” David Schoenbrod, The Delegation Doctrine: Could the Court Give it Substance?, 83 Mich. L.

Rev. 1223, 1231 (1985). Courts routinely find intelligible principles “where less discerning readers find gibberish.” Lawson, supra, at 329.

The current intelligible-principle test suffers from

other flaws, too. Because it allows for limitless delegations, it enables Congress to “skirt the hard choices,”

claiming all the credit and none of the blame for a law.

David Schoenbrod, Delegation and Democracy: A Reply

to My Critics, 20 Cardozo L. Rev. 731, 740 (1999). It

also allows federal agencies to leverage old statutes to

address novel policy issues in ways that were wholly

unanticipated by the enacting Congress and would not

receive support in the current Congress. Jonathan H.

Adler & Christopher J. Walker, Delegation and Time,

105 Iowa L. Rev. 1931, 1945 (2020). And it undermines

“rule-of-law values” by depriving “ordinary people” of

the ability to shape the content of the law through their

elected representatives and instead burying the “law”

in the depths of the Federal Register. Cass R. Sunstein, Is the Clean Air Act Unconstitutional?, 98 Mich.

L. Rev. 303, 337 (1999).

2. A proportional approach would better

protect important constitutional values

Requiring Congress to provide more instruction on

more significant questions would better preserve the

constitutional design—pushing Congress to perform

its legislative role while still allowing the Executive to

exercise appropriate discretion. That approach would

have several benefits, while avoiding some of the pitfalls of more exacting proposed nondelegation tests.

27

a. A revitalized nondelegation doctrine would foster

political accountability. When Congress broadly delegates its legislative power, the people can no longer

“readily identify the source of legislation or regulation

that affects their lives.” Ass’n of Am. R.Rs., 575 U.S.

at 57 (Alito, J., concurring). That, in turn, allows

“[g]overnment officials [to] wield power without owning up to the consequences.” Ibid. A meaningful nondelegation doctrine would prevent such a diffusion of

accountability. It would “ensure[] to the extent consistent with orderly governmental administration that

important choices of social policy are made by Congress, the branch of our Government most responsive

to the popular will.” Indus. Union Dep’t., AFL-CIO v.

Am. Petrol. Inst., 448 U.S. 607, 685 (1980) (Rehnquist,

J., concurring). Questions of how the agency must act

would remain in Congress’s hands—subject to a public

process with the constitutional checkpoints of bicameralism and presentment—instead of allowing each agency

to quietly choose its own path.

A revitalized nondelegation doctrine would also

“protect liberty.” Ass’n of Am. R.Rs., 575 U.S. at 61

(Alito, J., concurring). “[T]he separation of powers is designed to preserve the liberty of all people.” Collins v.

Yellen, 594 U.S. 220, 245 (2021); see Morrison v. Olson,

487 U.S. 654, 727 (1988) (Scalia, J., dissenting). The

Framers carefully structured the Constitution to separate the lawmaker from the executive official and the

judge, recognizing that “[t]here can be no liberty

where the legislative and executive powers are united

in the same person, or body of magistrates.” The Federalist No. 47, supra, at 251 (James Madison) (citation

omitted). Allowing unchecked delegations on signifi-

28

cant questions subverts the Framers’ design and increases the risk that a supercharged Executive could

run rampant over individual freedoms.

Finally, a revitalized nondelegation doctrine would

promote federalism. “The allocation of powers in our

federal system preserves the integrity, dignity, and residual sovereignty of the States.” Bond v. United States,

564 U.S. 211, 221 (2011). When that carefully calibrated

allocation is ignored, agencies can run roughshod over

States’ traditional authority. See e.g., Ala. Ass’n of

Realtors v. Dep’t of Health & Hum. Servs., 594 U.S.

758, 764 (2021) (per curiam) (explaining that federal

eviction moratorium “intrudes into an area that is the

particular domain of state law: the landlord-tenant relationship”); Solid Waste Agency of N. Cook Cnty. v.

U.S. Army Corps of Eng’rs, 531 U.S. 159, 174 (2001)

(reasoning that defining federally regulated “navigable

waters” to include “sand and gravel pit[s]” would “result

in a significant impingement of the States’ traditional

and primary power over land and water use”); Sackett

v. EPA, 598 U.S. 651, 679-680 (2023) (again rejecting

broad agency interpretation of “navigable waters” and

leaving States with greater leeway to regulate land and

water use).

b. At the same time, a proportional approach avoids

the pitfalls of an overzealous nondelegation approach,

which could inundate Congress with endless minutiae.

More extreme alternatives might prohibit the Executive from issuing rules based on any sort of “policy

judgment,” Aaron Gordon, Nondelegation, 12 N.Y.U.

J. L. & Liberty 718, 781 (2019), or from exercising “any

policymaking discretion” when issuing “rules that regulate the private rights of individuals in the domestic

29

sphere,” Michael B. Rappaport, A Two Tiered Categorical Approach to the Nondelegation Doctrine, in

The Administrative State Before the Supreme Court:

Perspectives on the Nondelegation Doctrine 156, 156157 (Peter J. Wallison & John Yoo eds., 2022). Those

categorical rules would hamstring the Executive, depriving it of its constitutional authority to make discretionary decisions.

A flexible and proportional approach to nondelegation is far superior. It leaves Congress with the option

of giving authority to the Executive on most questions

so long as it provides sufficient instruction—as Congress

did at the Founding and often still does today. Indeed,

the funding mechanism for the Universal Service Fund

may very well satisfy a revitalized and proportional

nondelegation doctrine, given the detailed instructions

that Congress provided to the FCC in the relevant

statute. See, e.g., 47 U.S.C. § 254(b) (directing FCC to

“base policies for the preservation and advancement of

universal service” on certain principles); id. § 254(c)

(instructing FCC to consider specified criteria in determining which services are supported by universalservice support mechanisms); id. § 254(d) (providing

that “[e]very telecommunications carrier that provides

interstate telecommunications services shall contribute, on an equitable and nondiscriminatory basis, to the

specific, predictable, and sufficient mechanisms established by the Commission to preserve and advance

universal service”); id. § 254(e) (stating that carriers

may receive support only “sufficient to achieve” the

30

purposes of universal service).3 The key point is that

the nondelegation doctrine does not exist to minimize

the Executive or to “stop the wheels of government”

altogether. Field, 143 U.S. at 694. It exists to keep

each branch within its constitutionally prescribed role.

* * *

The Framers believed that the Legislature would

“predominate[]” among the three branches, and that

the “great security against a gradual concentration of

the several powers in the same department” would be

that each would have the “constitutional means and

personal motives to resist encroachments of the others.” The Federalist No. 51, supra, at 268-269 (James

Madison). They likely did not foresee that the Legislature would willingly try to hand over significant power

to the Executive. But even if they had, they would not

have worried: they knew that the Judiciary would

“keep[] [the] other[s] in their proper places.” Id. at

267. This Court has the opportunity to restore the

boundary between the Legislative and Executive

Branches by embracing an administrable nondelegation

test that is consistent with the text and structure of the

Constitution, early Supreme Court precedents, and the

approach of early Congresses. It should not let that

opportunity pass.

The Chamber takes no position on this issue. Neither the parties nor the Fifth Circuit had an opportunity to address the Universal

Service Fund under this framework. Consistent with its usual practice, this Court should remand to the court of appeals to apply the

appropriate test in the first instance.

3

31

CONCLUSION

The judgment of the court of appeals should be vacated and the case remanded for further proceedings.

Respectfully submitted.

MARIA C. MONAGHAN

CHRISTOPHER J. WALKER

U.S. CHAMBER LITIGATION

CENTER

1615 H Street NW

Washington, DC 20062

JEFFREY B. WALL

Counsel of Record

MORGAN L. RATNER

ELIZABETH M. FRITZ

PETER L. BYRNE

SULLIVAN & CROMWELL LLP

1700 New York Avenue NW

Suite 700

Washington, DC 20006

(202) 956-7660

wallj@sullcrom.com

Counsel for Amicus Curiae

JANUARY 16, 2025