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, ET AL.,

Petitioners,

v.

CONSUMERS’ RESEARCH, ET AL.,

Respondents.

──────────────────────────

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

──────────────────────────

AMICUS CURIAE BRIEF OF

THE BUCKEYE INSTITUTE

IN SUPPORT OF RESPONDENTS

──────────────────────────

David C. Tryon

Counsel of Record for Amicus Curiae

Alex M. Certo

THE BUCKEYE INSTITUTE

88 East Broad Street, Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

i

QUESTIONS PRESENTED

1. Whether this case is moot in light of the

challengers’ failure to seek preliminary relief before

the Fifth Circuit.

2. Whether Congress violated the nondelegation

doctrine by authorizing the Commission to determine,

within the limits set forth in Section 254, the amount

that providers must contribute to the Fund.

3. Whether the Commission violated the

nondelegation doctrine by using the Administrator’s

financial projections in computing universal service

contribution rates.

4. Whether the combination of Congress’s

conferral of authority on the Commission and the

Commission’s

delegation

of

administrative

responsibilities to the Administrator violates the

nondelegation doctrine.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................... i

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

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

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ................................................................. 1

ARGUMENT ................................................................. 4

I. The nondelegation doctrine plays an

important role in determining what powers

have—and can be—delegated .............................. 4

II. Congress should not be “liberated” from the

constitutional lawmaking process ....................... 8

III. The “Gorsuch-Gundy” test is a useful starting

point for an originalist nondelegation test ....... 11

A. The Court should establish a clear

baseline for lawmaking to avoid improper

delegation disguised as details .................... 13

B. History illustrates that the Framers

understood the distinction between filling

up the details and lawmaking ..................... 18

IV. The Court should reexamine and revive the

not-quite-dead-yet nondelegation doctrine ...... 22

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

iii

TABLE OF AUTHORITIES

Cases

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

295 U.S. 495 (1935) ................................................. 17

Allstates Refractory Contractors, LLC v. Su,

144 S. Ct. 2490 (2024) ................................... 7, 16, 22

Am. Power & Light Co. v. Sec. & Exch. Comm’n,

329 U.S. 90 (1946)...................................................... 6

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ............................................... 5

Buckley v. Valeo,

424 U.S. 1 (1976)........................................................ 5

Caring Hearts Pers. Home Servs., Inc. v. Burwell,

824 F.3d 968 (10th Cir. 2016) ................................... 6

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

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

Gundy v. United States,

588 U.S. 128 (2019) ........................... 3, 5, 6, 7, 11, 12

Immigr. & Naturalization Serv. v. Chadha,

462 U.S. 919 (1983) ............................................... 6, 7

In re Kollock,

165 U.S. 526 (1897) ................................................. 13

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) ................................................. 14

Myers v. United States,

272 U.S. 52 (1926)...................................................... 2

National Broadcasting Co. v. United States,

319 U.S. 190 (1943) ................................................. 22

iv

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ................................................. 22

Paul v. United States,

140 S. Ct. 342 (2019) ............................................... 11

Rogers v. Grewal,

140 S. Ct. 1865 (2020) ............................................... 3

Ryan L.L.C. v. FTC,

No 24-10951 (5th Cir. appealed on Oct. 18,

2024) ......................................................................... 17

SeaWorld of Florida, LLC v. Perez,

748 F.3d 1202 (D.C. Cir. 2014) ............................... 16

Sessions v. Dimaya,

584 U.S. 148 (2018) ................................................... 4

United States v. Eaton,

144 U.S. 677 (1892) ................................................. 14

United States v. Lopez,

514 U.S. 549 (1995) ................................................. 16

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ............................... 5, 13

Yakus v. United States,

321 U.S. 414 (1944) ................................................. 22

Statutes

15 U.S.C. § 45(a)(2) ..................................................... 17

26 U.S.C. § 170 .............................................................. 9

26 U.S.C. § 170(a)(1) ..................................................... 9

29 U.S.C. § 651(b)(3) ................................................... 16

29 U.S.C. § 652(8) ....................................................... 16

v

29 U.S.C. § 655(b) ....................................................... 15

29 U.S.C. § 658(a) ....................................................... 17

42 U.S.C. § 12181 .......................................................... 9

42 U.S.C. § 12182 .......................................................... 9

42 U.S.C. § 415 ............................................................ 10

42 U.S.C. § 423 ............................................................ 10

47 U.S.C. § 254 ............................................................ 23

5 U.S.C. § 551(4)............................................................ 6

An Act Concerning Aliens, 1 Stat. 570 (1798) .......... 19

Violent Crime Control and Law Enforcement

Act of 1994, Pub. L. No. 103-322, 108 Stat.

1796 (1994) ............................................................... 10

Other Authorities

8 Annals of Cong. 1963 (1798) ................................... 22

Aditya Bamzai, Delegation and Interpretive

Discretion: Gundy, Kisor, and the Formation

and Future of Administrative Law, 133 Harv.

L. Rev. 164 (2019) ...................................................... 2

Brief of American Bar Association as Amicus

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

(Nos. 80-1832, 80-2170, 80-2171), 1982 U.S.

S. Ct. Briefs LEXIS 1633 .................................... 8, 11

Cass R. Sunstein, Nondelegation Canons, 67 U.

Chi. L. Rev. 315 (2000) ............................................ 10

Colleen Walsh, Challenging the Constitution,

Harvard Gazette (Sept. 18, 2009) ............................ 8

vi

Daniel E. Walters, Decoding Nondelegation

After Gundy: What the Experience in State

Courts Tells Us About What to Expect When

We’re Expecting, 71 Emory L.J. 417 (2022) ..... 2, 4, 5

Gary Lawson, Delegation and Original

Meaning, 88 Va. L. Rev. 327 (2002) ................. 22, 23

Ilan Wurman, Nondelegation at the Founding,

130 Yale L.J. 1490 (2021)............... 14, 18, 19, 21, 22

Jacob Loshin & Aaron Nielson, Hiding

Nondelegation in Mouseholes, 62 Admin. L.

Rev. 19 (2010)........................................................... 10

James Madison, The Report of 1800 (Jan. 7,

1800) ................................................................... 20, 21

John F. Manning, Lawmaking Made Easy, 10

Green Bag 2d 191 (2007)........................................... 8

John Locke, Second Treatise of Civil

Government (J. Gough ed. 1947) .............................. 8

John Locke, Second Treatise of Government 75

(C.B. Macpherson ed., 1980) ..................................... 2

Johnathan Hall, Note, The Gorsuch Test:

Gundy v. United States, Limiting the

Administrative State, and the Future of

Nondelegation, 70 Duke L.J. 175 (2020) ..... 3, 12, 13

Letter from Everett Ruess to his friend Bill

(Mar 9, 1931), in W.L. Rusho, Everett Ruess:

A Vagabond for Beauty & Wilderness

Journals (Peregrine Smith Books 1983).................. 4

Letter From Thomas Jefferson to James

Madison (May 31, 1798) .......................................... 19

vii

Monty Python and the Holy Grail (Python

(Monty) Pictures 1975) ............................................ 23

The Federalist No. 47 (James Madison) (Fall

River Press ed. 2021) ................................................. 5

Regulations

16 C.F.R. § 910 ...................................................... 17, 18

29 C.F.R. § 1910.243(e)............................................... 16

Constitutional Provisions

U.S. Const. art. I, § 1 .................................................... 1

U.S. Const. art. I, § 8, cl. 1 ......................................... 14

1

INTEREST OF AMICUS CURIAE1

The Buckeye Institute was founded in 1989 as an

independent research and educational institution—a

think tank—to formulate and promote free-market

policy in the states. The Buckeye Institute

accomplishes its mission by performing timely and

reliable research on key issues, compiling and

synthesizing data, formulating free-market policies,

and

marketing

those

policy

solutions

for

implementation in Ohio and replication across the

country. The Buckeye Institute works to restrain

governmental overreach at all levels of government.

The Buckeye Institute files lawsuits and submits

amicus briefs to fulfill its mission. The Buckeye

Institute is a nonpartisan, nonprofit, tax-exempt

organization, as defined by I.R.C. section 501(c)(3).

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Supreme power resides solely in the people.

Through the Constitution, the people granted limited

power to the government. The Constitution separates

and vests the legislative, executive, and judicial

powers in their respective branches to ensure a

government that is both responsive and effective.

In Article I, the people conferred “legislative

Powers” and “vested [them] in a Congress of the

United States, which shall consist of a Senate and

House of Representatives.” U.S. Const. art. I, § 1.

1 Pursuant to Supreme Court Rule 37.6, no counsel for any party

authored this brief in whole or in part and no entity or person,

aside from amicus curiae made any monetary contribution toward

the preparation or submission of this brief.

2

(emphasis added). Article I’s additional separation of

powers “forces Congress to exercise those ‘Powers’

through an elaborate process of enacting the same

legal text in two legislative chambers and presenting

the passed bill to the President for approval.” Aditya

Bamzai, Delegation and Interpretive Discretion:

Gundy, Kisor, and the Formation and Future of

Administrative Law, 133 Harv. L. Rev. 164, 164 (2019).

The Convention of 1787 adopted the doctrine of

separation of powers between the three branches “not

to promote efficiency but to preclude the exercise of

arbitrary power.” Myers v. United States, 272 U.S. 52,

293 (1926) (Brandeis, J., dissenting). To protect the

separation of powers, the nondelegation doctrine, as

traditionally understood, prohibits the transfer of

“quintessentially legislative powers—the power to

make laws—to actors outside the legislative branch.”

Daniel E. Walters, Decoding Nondelegation After

Gundy: What the Experience in State Courts Tells Us

About What to Expect When We’re Expecting, 71 Emory

L.J. 417, 424 (2022). For “the legislative can have no

power to transfer their authority of making laws, and

place it in other hands.” John Locke, Second Treatise

of Government 75 (C.B. Macpherson ed., 1980). When

Congress allows agencies or private parties to create

rules and regulations with the effect of laws, Congress

has abdicated the lawmaking function.

Some legislators and courts seem to treat the

intelligent principle doctrine as permission to delegate

rather than a restriction on delegation. But that is

backwards. The Court should recognize that the

nondelegation doctrine restricts delegation and

honors the separation of powers.

3

Some members of the Court have explored

alternatives to the intelligible principle test, see, e.g.,

Gundy v. United States, 588 U.S. 128, 157–159 (2019)

(Gorsuch, J., dissenting), to revive the nondelegation

doctrine. For example, under the “Gorsuch-Gundy”

test, Congress can only give power: “(1) to ‘fill up the

details’; (2) to make the application of a rule

dependent on certain executive fact-finding; or (3) to

assign nonlegislative responsibilities to either the

judicial or executive branch.” Johnathan Hall, Note,

The Gorsuch Test: Gundy v. United States, Limiting

the Administrative State, and the Future of

Nondelegation, 70 Duke L.J. 175, 177 (2020) (quoting

Gundy, 588 U.S. at 157–159 (Gorsuch, J., dissenting)).

While the Gorsuch-Gundy test properly looks to

history and the Court’s pre-intelligible principle cases,

the Court must ensure that an alternative test does

not render the nondelegation doctrine ineffective, see,

e.g., Rogers v. Grewal, 140 S. Ct. 1865, 1866 (2020)

(Thomas, J., dissenting from the denial of cert.)

(noting that “[i]nstead of following the guidance

provided in Heller, [lower] courts minimized that

decision’s framework. . . . They then ‘filled’ the selfcreated ‘analytical vacuum’”).

The “filling up the details” framework seemingly

restricts the broad intelligible principle test. However,

“the devil is in the details.” A detail to one may be a

fundamental concept to another—depending on the

context or how it affects a person. The Court should

provide a baseline for congressional enactments to

limit the holes where filling up the details could

overwhelm the principles of the nondelegation

doctrine.

4

ARGUMENT

“I am still alive, and while I am alive, I intend to

live.” – The nondelegation doctrine. 2

I. The nondelegation doctrine plays an

important role in determining what powers

have—and can be—delegated.

When assessing laws that allegedly grant

authority to the executive branch, three fundamental

questions must be answered: (1) Does Congress

possess constitutional authority to regulate the

matter in question; (2) Did Congress delegate

regulatory authority to another branch; and (3) Is

Congress permitted to delegate this authority to

another branch?

The answer to the first question naturally depends

on an examination of the powers granted to Congress

in Article I and in other sections of the Constitution.

For the second, the Court must analyze the

statute’s language. If the language suggests a broad

delegation of authority, the Court applies the major

questions doctrine and examines “the closely related

domain of review for unconstitutional vagueness,”

Walters, supra, at 432 (citing Sessions v. Dimaya, 584

U.S. 148, 216 (2018) (Thomas, J., concurring). This

approach is taken because “in a system of separated

powers, a reasonably informed interpreter would

expect Congress to legislate on ‘important subjects’

while delegating away only ‘the details.’” Biden v.

2 Quote adapted from Letter from Everett Ruess to his friend Bill

(Mar 9, 1931), in W.L. Rusho, Everett Ruess: A Vagabond for

Beauty & Wilderness Journals 31 (Peregrine Smith Books 1983).

5

Nebraska, 143 S. Ct. 2355, 2380–81 (2023) (Barrett, J.,

concurring) (quoting Wayman v. Southard, 23 U.S. (10

Wheat.) 1, 43 (1825)). The Court applies the major

questions doctrine “in service of the constitutional

rule” that answers the third question: “Congress may

not divest itself of its legislative power by transferring

that power to an executive agency.” Gundy, 588 U.S.

at 167 (Gorsuch, J., dissenting).

As one scholar noted,

[t]he nondelegation doctrine reflects deep

and unresolved ambiguities about the

extent to which the U.S. Constitution

requires that the three branches of

government be hermetically sealed off

from one another, subject to certain

explicit exceptions where the framers

chose to subject the exercise of one power

to the checks of a coordinate branch of

government.

Walters, supra, at 424. While the Framers understood

that a complete hermetic seal would not allow the

nation to thrive, Buckley v. Valeo, 424 U.S. 1, 120–121

(1976), certain limits and precautions against the

“accumulation of all powers, legislative, executive, and

judiciary, in the same hands,” The Federalist No. 47,

at 273 (James Madison) (Fall River Press ed. 2021),

had to be instituted.

The separation of powers is much like an airlock

and the nondelegation doctrine acts like the doors.

Before passing contents (powers) from one side (the

legislature) to the other (the executive), the former

side must complete certain tasks like decompression

6

(lawmaking). If those tasks are not completed before

opening the doors, the system fails.

The current nondelegation test is a weak seal if not

an open door. The test requires Congress to articulate

an “intelligible principle.” “[I]n a related formulation,

the Court has stated that a delegation is permissible

if Congress has made clear to the delegee ‘the general

policy’ he must pursue and the ‘boundaries of [his]

authority.’” Gundy, 588 U.S. at 146 (quoting Am.

Power & Light Co. v. Sec. & Exch. Comm’n, 329 U.S.

90, 105 (1946)). Because that standard is “not

demanding,” id., it has proven insufficient in policing

unconstitutional delegation.

“For some time, the sheer amount of law—the

substantive rules that regulate private conduct and

direct the operation of government—made by the

agencies has far outnumbered the lawmaking engaged

in by Congress through the traditional process.”

Immigr. & Naturalization Serv. v. Chadha, 462 U.S.

919, 985 (1983) (White, J., dissenting). “The number

of formal rules these agencies have issued thanks to

their delegated legislative authority has grown so

exuberantly it’s hard to keep up.” Caring Hearts Pers.

Home Servs., Inc. v. Burwell, 824 F.3d 968, 969 (10th

Cir. 2016) (Gorsuch, J.). “There is no question but that

agency rulemaking is lawmaking in any functional or

realistic sense of the term. The Administrative

Procedure Act, 5 U.S.C. § 551(4) provides that a ‘rule’

is an agency statement ‘designed to implement,

interpret, or prescribe law or policy.’” Chadha, 462

U.S. at 986 (White, J., dissenting) (emphasis added);

see also id. at 989 (White, J., dissenting) (noting that

the Court agrees that agency rulemaking resembles

7

legislation, the Court has described agency

rulemaking as “‘quasi-legislative’ in character,” and

that “[s]uch rules and adjudications by the agencies

meet the Court’s own definition of legislative action”).

These regulations “may pre-empt state law and grant

rights to and impose obligations on the public. In sum,

they have the force of law.” Id. at 986 (White, J.,

dissenting) (internal citations omitted).

The broken valve of the intelligible principle test

has allowed nearly every incomplete law to slip past

the seal between Article I lawmaking powers and

Article II enforcement powers. It has simply failed to

stop impermissible delegations. See, e.g., Gundy, 588

U.S. at 146 (Gorsuch, J., dissenting) (noting that the

Court has rarely found an impermissible delegation);

Chadha, 462 U.S. at 985 (White, J., dissenting) (“In

practice, [ ] restrictions on the scope of the power that

could be delegated diminished and all but

disappeared.”); Allstates Refractory Contractors, LLC

v. Su, 144 S. Ct. 2490, 2490 (2024) (Thomas, J.,

dissenting from the denial of cert.) (noting that the

Occupational Safety and Health Administration’s

power “to impose whatever workplace-safety

standards it deems ‘appropriate’” “may be the

broadest delegation of power to an administrative

agency found in the United States Code”). The

intelligible principle test “serves to encourage broader

and vaguer delegations by the implicit promise

(which, as a practical matter, can rarely be redeemed)

that actions pursuant to those delegations will be

scrutinized by Congress; and its major effect is

augmentation of the power of” Congress, see Brief of

American Bar Association as Amicus Curiae at *46,

INS v. Chadha, 462 U.S. 919 (1983) (Nos. 80-1832, 80-

8

2170, 80-2171), 1982 U.S. S. Ct. Briefs LEXIS 1633

(Antonin Scalia as co-counsel).

II. Congress should not be “liberated” from the

constitutional lawmaking process.

The filling-up-the-details exception to the

nondelegation doctrine—and to a greater extent the

intelligible principle test—are premised on the notion

that Congress cannot do it all and we must liberate it

from some of its responsibilities. See John F. Manning,

Lawmaking Made Easy, 10 Green Bag 2d 191, 193

(2007). But this is no excuse for sloppy or incomplete

lawmaking. Indeed, “[e]ven the quickest look at the

constitutional structure reveals that the design of

bicameralism and presentment disfavors easygoing,

high volume lawmaking.” Id. at 198. “The very point

of the structural element of the Constitution is to

make some things difficult.” Colleen Walsh,

Challenging the Constitution, Harvard Gazette (Sept.

18, 2009), https://tinyurl.com/4npbwnyp (quoting

Justice Souter). As Locke recognized, the large and

slow nature of a legislative body is a benefit for

lawmaking because “the creation of rules of private

conduct should be an irregular and infrequent

occurrence. The Framers, it appears, were inclined to

agree.” Dep’t of Transp. v. Ass’n of Am. Railroads, 575

U.S. 43, 86 (2015) (Thomas, J., concurring in the

judgment) (citing John Locke, Second Treatise of Civil

Government 72, 80 (J. Gough ed. 1947)).

While it may be more efficient for administrative

agencies to handle certain administrative details, the

fundamental task of lawmaking is better left to—and

constitutionally remains with—Congress.

9

The “regulations” outlined in the Code of Federal

Regulations—setting out standards supposedly

derived from Congress’s broad policy statements—

demonstrate that lawmakers can draft precise laws. If

Congress does not draft and pass legislation as specific

as the federal agencies, it is likely due to a lack of

political will. If such political will is lacking, this

indicates that the Constitution’s structure is

functioning as intended.

And Congress has shown that it can legislate with

great detail and precision when it has the political will

to do so. Just a few examples:

•

The Internal Revenue Code is highly detailed,

specifying tax rates, deductions, credits,

penalties, and reporting requirements. Indeed,

it even details the rules for charitable

contribution deductions, including percentage

limits, record-keeping requirements, and

restrictions on certain types of donations. 26

U.S.C. § 170. Congress delegated only the detail

of prescribing regulations to verify the

charitable contribution. 26 U.S.C. § 170(a)(1).

•

The Americans with Disabilities Act (ADA)

includes detailed provisions on accessibility,

employment

discrimination,

public

accommodations,

and

enforcement

mechanisms. See, e.g., 42 U.S.C. § 12182. The

ADA defines “public accommodations” and

specifies the types of businesses covered under

the ADA. 42 U.S.C. § 12181.

•

The Social Security Act governs Social Security

benefits and includes detailed requirements

10

and benefit formulas. See, e.g., 42 U.S.C. § 415.

It even sets forth the criteria for disability

benefits, including medical conditions and work

history requirements. 42 U.S.C. § 423.

•

The Public Safety and Recreational Firearms

Use Protection Act, enacted in 1994 and

sunsetting in 2004, provided very specific

descriptions of characteristics of banned

firearms and included a long list of specific

firearms, leaving few details to any agency.

Violent Crime Control and Law Enforcement

Act of 1994, Pub. L. No. 103-322, §§ 110101–

110105, 108 Stat. 1796, 1996–2010 (1994).

These laws—and many others—show that Congress

can do it—it just does not want to.

By “requiring legislators to agree on a relatively

specific form of words, the nondelegation principle

seems to raise the [political] burdens and costs

associated with the enactment of federal law.” Jacob

Loshin & Aaron Nielson, Hiding Nondelegation in

Mouseholes, 62 Admin. L. Rev. 19, 55 (2010) (quoting

Cass R. Sunstein, Nondelegation Canons, 67 U. Chi.

L. Rev. 315, 320 (2000)). If Congress must make laws

with precision and care, it imposes a crucial safeguard

for individual liberty. Id. (citation omitted). They

“ensure that national governmental power may not be

brought to bear against individuals without a

consensus, established by legislative agreement on

relatively specific words.” Id. (citation omitted).

And the argument that Congress should be

liberated of its lawmaking responsibility because it

lacks the expertise of agencies holds little weight. The

11

Constitution’s nondelegation principle does not

prevent Congress from adopting rules and regulations

suggested by agencies or private parties through the

constitutionally prescribed lawmaking process. See

Brief of American Bar Association as Amicus Curiae,

supra, at *44 (“Instead of conferring authority to

promulgate rules, it may confer authority to propose

legislation—which was the power it originally granted

to the Federal Trade Commission.”). Congress could

even utilize the agencies to collect and summarize

comments on proposed laws, like what agencies do

now when rulemaking. This collaboration ensures an

accountable and responsive government that adheres

to the processes outlined in the Constitution.

III. The “Gorsuch-Gundy” test is a useful

starting

point

for

an

originalist

nondelegation test.

While Congress has proven that it can legislate

with precision and detail, it certainly does not always

do so. Until now, the Court has not insisted that

Congress always do so. So, the Court can and should

repair the nondelegation door seal so fewer incomplete

laws leak through to the executive branch.

In Gundy, Justice Gorsuch, joined by the Chief

Justice and Justice Thomas, outlined three

circumstances where Congress may permissibly grant

authority to another branch. Gundy, 588 U.S. at 157–

159 (Gorsuch, J., dissenting); see also Paul v. United

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

respecting the denial of cert.) (noting that “Justice

Gorsuch’s scholarly analysis of the Constitution’s

nondelegation in his Gundy dissent may warrant

further consideration in future cases”). According to

12

the “Gorsuch-Gundy” test, Congress can only give

power: “(1) to ‘fill up the details’; (2) to make the

application of a rule dependent on certain executive

fact-finding; or (3) to assign nonlegislative

responsibilities to either the judicial or executive

branch.” Hall, supra, at 177 (quoting Gundy, 588 U.S.

at 157–159 (Gorsuch, J., dissenting).

The latter two circumstances should, generally,

raise little disagreement. When Congress makes the

application of a rule contingent on certain executive

fact-finding, it has not only decided the policy but also

established specific standards that will trigger the

law. See, e.g., Gundy, 588 U.S. at 158 (Gorsuch, J.,

dissenting) (citing approvingly of “a statute

instructing that, if the President found that either

Great Britain or France stopped interfering with

American trade, a trade embargo would be imposed

against the other country”). The executive’s role then

is merely to determine whether the necessary

conditions have been met. It is essentially a

mathematical equation: If A, then B; If not A, then C.

Congress has not delegated lawmaking authority, it

has simply given instructions on how to execute the

law.

Similarly, assigning nonlegislative responsibilities

to the judicial or executive branches—provided that

such responsibilities rightfully belong to those

branches—does no more than having Congress

determine a policy and assigning tasks already within

the scope of the assignee’s powers. There is no

delegation concern as Congress is not delegating any

of its powers.

13

The first circumstance, however, remains

imprecise. While the “filling up the details” language

originates in this Court’s early explorations of

nondelegation, see Wayman, 23 U.S. (10 Wheat.) at 43,

few judicial guardrails have been established to

determine what constitutes “a detail.” The Court’s

intelligible principle test is premised on the idea that

if Congress sets forth an overarching policy, it can

delegate the “details”—no matter the scope—to an

agency. See Hall, supra, at 189 (noting that requiring

a “guiding principle” and “filling up the details” are

“ideas mirrored two sides of the same issue”). It is now

up to the Court to ensure that both Congress and the

courts can clearly understand and faithfully adhere to

the test.

A. The Court should establish a clear

baseline for lawmaking to avoid improper

delegation disguised as details.

There are some types of details that few would

claim constitute unlawful delegation. For example,

delegating administrative or procedural rules

necessary for executing the law—such as hiring and

firing employees, setting work hours for employees,

determining the time and location of administrative

hearings, deciding radio frequency allocations, or the

design of tax stamps. See, e.g., Wayman, 23 U.S. at 41–

43 (finding no delegation problem where federal courts

are allowed to make procedural rules and adopt rules

enacted by state law up to that point); In re Kollock,

165 U.S. 526, 533 (1897) (finding no delegation

problem where Congress “fully and completely”

defined the offense requiring packages to be marked

and branded before sale, and the “regulations simply

14

described the particular marks, stamps, and brands to

be used”); see also United States v. Eaton, 144 U.S.

677, 685 (1892) (not questioning the authority to

require wholesale dealers to keep logbooks through

the general grant of authority to “make all needful

regulations for the carrying into effect” the law, but

finding that failing to abide by the regulation is not

failing “to do a thing ‘required by law . . .’ so as to be

liable to the penalty prescribed by” the law); Ilan

Wurman, Nondelegation at the Founding, 130 Yale

L.J. 1490, 1538 (2021) (noting possibly permissible

details). Other details might include processes, due

dates (within parameters), steps to reach a required

result, or finer points that help explain how a law will

be enforced.

Such details, however, should not include broad

discretion to interpret what a written law means.

While some interpretation may be necessary, as laws

cannot always be drafted with perfect precision, the

establishment of standards by an agency that are

intended to interpret broad policies, “or prescribe law

or policy,” represents too wide a discretion to qualify

as mere details. Cf. Loper Bright Enterprises v.

Raimondo, 603 U.S. 369 (2024). Similarly, laws

conferring the power to levy taxes without setting the

amount or rate of the tax, unless it has a clear

mechanism for calculating the tax, as revenue raising

is the quintessential legislative power. See Resp’ts’

Reply Br. at 19–42; U.S. Const. art. I, § 8, cl. 1

(granting Congress the power “to lay and collect Taxes,

Duties, Imposts and Excises”).

To prevent details from replacing the lawmaking

process, the Court should establish a baseline for what

15

is required of Congress. Initially, laws should

articulate a policy that allows courts to evaluate

whether a rule or regulation deviates from the

statutory intent. Beyond that, a realistic baseline

should at least provide the following, where

applicable:

(1) clearly describe the activity or item(s) to be

regulated; (2) clearly identify the regulated

entities, and—where applicable—those entities not

to be regulated; (3) well-defined standards and

guidelines for applying those standards; and (4)

designate the agency authorized to enforce the

standards and the manner in which it can enforce

the standards.

While this proposed baseline may not capture all of the

improper delegations, it ensures that the holes to be

filled are limited. A couple of examples of how

Congress could have met the baseline—but failed to do

so—show how Congress can avoid an improper

delegation.

In the Occupational Safety and Health Act of 1970

(OSH Act), Congress delegated to the Occupational

Safety and Health Administration (OSHA) the

authority to promulgate “any occupational safety or

health standard . . . .” See 29 U.S.C. § 655(b).

Congress defined an occupational safety or health

standard as “a standard which requires conditions, or

the adoption or use of one or more practices, means,

methods, operations, or processes, reasonably

necessary or appropriate to provide safe or healthful

employment and places of employment.” 29 U.S.C.

§ 652(8). But what “reasonably necessary or

appropriate” means in this context is anyone’s guess—

16

including OSHA’s. It is no overstatement to

characterize OSHA’s actions as guesses because, even

as OSHA conducts studies, attempts to balance costs

and benefits, consults with industry, and even seeks

comments under the Administrative Procedures Act,

it still can only guess what Congress meant when it

charged the agency with deciding what is reasonably

necessary or appropriate. OSHA now “claims

authority to regulate everything from a power

lawnmower’s design, 29 C.F.R. § 1910.243(e) (2023), to

the level of ‘contact between trainers and whales at

SeaWorld,’ SeaWorld of Florida, LLC v. Perez, 748 F.3d

1202, 1220 (C.A.D.C. 2014) (Kavanaugh, J.,

dissenting).” Allstates Refractory Contractors, LLC,

144 S. Ct. at 2490 (Thomas, J., dissenting from the

denial of cert.).

To fix this improper delegation, Congress could

have, for example, stated: (1) that it is regulating the

design of powered lawnmowers, see 29 C.F.R.

§ 1910.243(e); (2) that the law applies only to

“businesses affecting interstate commerce,”3 see 29

U.S.C. § 651(b)(3); (3) that “[a]ll power-driven chains,

belts, and gears shall be so positioned or otherwise

guarded to prevent the operator’s accidental contact

therewith, during normal starting, mounting, and

operation

of

the

machine,”

29

C.F.R.

§ 1910.243(e)(1)(ii); and (5) that OSHA can enforce the

law through citations, see 29 U.S.C. § 658(a).

3 While the scope of the Interstate Commerce Clause is broad, it is

not unlimited. See, e.g., United States v. Lopez, 514 U.S. 549, 553

(1995) (“[L]imitations on the commerce power are inherent in the

very language of the Commerce Clause.”).

17

As this example shows, Congress improperly

delegated the two most crucial elements of the law—

(i) that the law is regulating the design of powered

lawnmowers and (ii) that all power-driven chains,

belts, and gears shall be so positioned or otherwise

guarded to prevent the operator’s accidental contact

therewith, during normal starting, mounting, and

operation of the machine—in a manner to be decided

by the agency. These intentional holes are not details

to be filled by the agency. They are standards

governing private conduct—laws—to be determined

by Congress.

Another current example of an overly broad

delegation “running riot,” A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495, 553 (1935)

(Cardozo, J., concurring)—if ultimately upheld—is the

FTC’s recent rule banning non-compete agreements.

Relying on its broad statutory authority to “prevent

persons, partnerships, or corporations . . . from using

unfair methods of competition in or affecting

commerce,” 15 U.S.C. § 45(a)(2), the FTC declared

non-compete agreements as unfair methods of

competition and banned their use for certain

categories of employees, explicitly nullifying legally

entered agreements, 16 C.F.R. § 910. See, e.g., Ryan

L.L.C. v. FTC, No 24-10951 (5th Cir. appealed on Oct.

18, 2024).

The law uses the ambiguous term “unfair method

of competition.” This term is undefined and allows for

the implementation of whatever policy the FTC

chooses to implement. Congress could have avoided

this impermissible delegation if it had written in the

law (1) a description of what specific types of non-

18

compete agreements are deemed unfair methods of

competition, e.g., employment, post-employment, key

employee provisions, business sale incentive

provisions, or agreements to protect trade secrets; (2)

identify what types of entities are regulated, e.g., only

entities with locations in multiple states, only

businesses with a certain number of employees, or

business that are not classified as “small businesses”

as defined elsewhere; (3) the terms of non-compete

agreements that make them prohibited, e.g.,

geographic scope or specific duration; and (4) what the

penalties are for non-compliance, who can enforce

them, and how. See generally 16 C.F.R. § 910.

Examples of permissible “details” would be allowing

the FTC to choose which statutorily specified

administrative or judicial actions to use to enforce the

ban, how to determine if a non-compete agreement is

to facilitate the sale of a business, and other

unforeseen—but statutorily consistent—issues.

B. History illustrates that the Framers

understood the distinction between filling

up the details and lawmaking.

Many of the First Congress’s acts appropriately

imposed limits on executive discretion. See Wurman,

supra, at 1540–1544 (examining early acts and

concluding

that

they

are

consistent

with

nondelegation principles). For example, when the first

Congress established military pensions, “Congress

decided all the important subjects: that the disabled

veterans shall be paid, and how much. The President

then merely had to decide when the payments should

be made—the statute required they be made within

19

one year . . .—and what proofs would be necessary.”

Id. at 1540.

When Congress began delegating broad legislative

authority, however, influential Founders voiced their

concerns. For instance, in An Act Concerning Aliens, 1

Stat. 570 (1798), Congress empowered the president

to order the deportation of “aliens as he shall judge

dangerous to the peace and safety of the United

States, or shall have reasonable grounds to suspect

are concerned in any treasonable or secret

machinations against the government.” The act also

granted the president the discretion to issue residence

licenses, require bonds of indeterminate amounts, and

revoke such licenses. Id.

Thomas Jefferson called the law “a most detestable

thing” and was “glad” “that laws of the US. subsequent

to a treaty, controul [sic] it’s operation, and that the

legislature is the only power which can controul [sic] a

treaty.” Letter From Thomas Jefferson to James

Madison

(May

31,

1798),

https://tinyurl.com/48nzt9ud.

James Madison similarly responded and made

clear that each of the powers granted by the act

violated the nondelegation principle. Madison

declared that

[h]owever difficult it may be to mark, in

every case, with clearness and certainty,

the line which divides legislative power,

from the other departments of power; all

will agree, that the powers referred to

these departments may be so general and

undefined, as to be of a legislative, not of

20

an executive or judicial nature; and may

for that reason be unconstitutional.

James Madison, The Report of 1800 (Jan. 7, 1800),

https://tinyurl.com/bdf3fz43

(emphasis

added).

Madison then expounded on “details”:

Details, to a certain degree, are essential

to the nature and character of a law; and,

on criminal subjects, it is proper, that

details should leave as little as possible

to the discretion of those who are to apply

and to execute the law. If nothing more

were required, in exercising a legislative

trust, than a general conveyance of

authority, without laying down any

precise rules, by which the authority

conveyed, should be carried into effect; it

would follow, that the whole power of

legislation might be transferred by the

legislature from itself, and proclamations

might become substitutes for laws. A

delegation of power in this latitude,

would not be denied to be a union of the

different powers.

To determine then, whether the

appropriate powers of the distinct

departments are united by the act

authorising [sic] the executive to remove

aliens, it must be enquired whether it

contains such details, definitions, and

rules, as appertain [sic] to the true

character of a law . . . .

Id.

21

Madison pondered whether a power could be “well

given in terms less definite, less particular, and less

precise” than allowing the President to judge an alien

“dangerous to the peace and safety of the United

States,” or to “suspect” that they “are concerned in any

treasonable, or secret machinations” against the

government. Id. For these terms are not “legal rules or

certain definitions. They leave every thing to the

President. His will is the law.” Id.

Madison concluded that the law not only gave

legislative power to the president, but

[h]e is to stand in the place of the

judiciary also. His suspicion is the only

evidence which is to convict: his order the

only judgment which is to be executed.

...

It is rightly affirmed therefore, that the

act [unconstitutionally] unites legislative

and judicial powers to those of the

executive.

Id.

At least two members of Congress expressed

concerns about nondelegation when the act was

debated. Wurman, supra, at 1513. Representative

Williams stated that “it is inconsistent with the

provisions of our Constitution, and our modes of

jurisprudence, to transfer power in this manner.” Id.

at 1514. And Representative Livingston argued that

“[l]egislative power prescribes the rule of action; the

Judiciary applies that general rule to particular cases,

and it is the province of the Executive to see that the

laws are carried into full effect.” Id. Livingston further

22

contended that the act granted the president

legislative power because it empowered the president

alone “to make the law, to fix in his mind what acts,

what words, what thoughts or looks, shall constitute

the crime contemplated by the bill.” 8 Annals of Cong.

1963 (1798). He concurred with Madison that the act

unconstitutionally vested the president with all three

powers. See Wurman, supra, at 1514.

IV. The Court should reexamine and revive the

not-quite-dead-yet nondelegation doctrine.

Delegating

authority

to

prevent

“unfair

competition,” Panama Refining Co. v. Ryan, 293 U.S.

388 (1935), to fix prices that “will be generally fair and

equitable,” Yakus v. United States, 321 U.S. 414, 420

(1944), to create standards that are in the “public

interest,” National Broadcasting Co. v. United States,

319 U.S. 190, 225–226 (1943), or are “appropriate,”

Allstates Refractory Contractors, LLC, 144 S. Ct. at

2490 (Thomas, J., dissenting from the denial of cert.),

or any other broad delegation is no different than

forbidding “all transactions that fail to promote

goodness and niceness.” “These words are not literally

gibberish, but they are so vacuous that any attempt to

implement th[e] law would amount to creation of a

new law.” Gary Lawson, Delegation and Original

Meaning, 88 Va. L. Rev. 327, 340 (2002). The language

“leaves so much undetermined that it would constitute

an act of legislation to attribute any meaning to it.” Id.

Likewise, if a court tried to give the statute effect, it

would not be exercising the judicial power because it

could not engage in “interpretation.” Id.

The nondelegation doctrine has been injured, put

to sleep, and ignored, but is not dead. On the other

23

hand, the intelligible principle doctrine should be

carted away. See Monty Python and the Holy Grail

(Python (Monty) Pictures 1975). It just does not work.

Congress did not finish its lawmaking job when

enacting 47 U.S.C. § 254. The law appears to, as a

whole, provide a policy adequate for the courts to

compare to the FCC’s actions. And Congress did state

that the law applies to “telecommunications carriers”;

that telecommunications carriers may be “required to

contribute to the preservation and advancement of

universal service”; and that the FCC shall regulate the

program. But that is not enough to satisfy prong (3)

above. Congress left many of the key terms and

conditions to be determined by the FCC. Congress

should have taken “into account advances in

telecommunications and information technologies and

services,” 47 U.S.C. § 254(c)(1), and specified which of

those technologies and services were to be regulated—

rather than telling the FCC to do it. Further, Congress

should have set forth the “standards” to be enforced,

specifically the rates that telecommunication carriers

would be required to pay. Even though adjustments

may need to be made because of the “evolving level of

telecommunications services,” id., those changes

should be made by Congress. It could have at least

limited the tax rates, or set formulas based on usage

or some other metric. Congress created the Internal

Revenue Code; surely it can formulate this tax as well.

CONCLUSION

The Court should ensure that Congress produces

legislation with the necessary precision, rather than

delegating its lawmaking function to executive

agencies. The Court should affirm the holding below.

24

Respectfully submitted,

David C. Tryon

Counsel of Record for Amicus Curiae

Alex M. Certo

THE BUCKEYE INSTITUTE

88 East Broad Street, Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

February 18, 2025