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 AMICUS CURIAE OF THE

NEW CIVIL LIBERTIES ALLIANCE

IN SUPPORT OF RESPONDENTS

Zhonette M. Brown

Counsel of Record

Kaitlyn D. Schiraldi

Markham S. Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

4250 N. Fairfax Dr., Suite 300

Arlington, VA 22203

Phone: (202) 869-5210

zhonette.brown@ncla.legal

i

TABLE OF CONTENTS

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

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

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

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

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

I.

THE NONDELEGATION DOCTRINE IS FAILING ........ 4

II. VESTED POWERS PRECEDENT ONCE DEMANDED

THAT CONGRESS SET LEGISLATIVE STANDARDS .... 7

A. Early Vested Powers Precedent

Demanded That Congress Set Legislative

Standards ....................................................... 7

B. The “Principle” of the Intelligible

Principle Test Once Required Standards

for Agency Conduct ...................................... 14

III. THE PUBLIC-INTEREST FALLACY PETITIONERS

EMBRACE AND ITS ORIGIN IN THIS COURT .......... 15

A. American Power & Light’s Public-Interest

Fallacy .......................................................... 16

B. Other Unfortunate Consequences of

American Power & Light ............................. 20

IV. PETITIONERS’ OTHER ARGUMENTS FOR BROAD

DISCRETION DEPEND ON CASES ADDRESSING

PRIVILEGES OR AUTHORITY CONSTITUTIONALLY

VESTED IN THE EXECUTIVE; CIRCUMSTANCES

INAPPLICABLE HERE ........................................... 23

ii

A. Administering Public Benefits and

Franchises Is Constitutionally Distinct

from Altering Private Rights....................... 24

B. Petitioners Misplace Reliance on Cases

Considering Authority Constitutionally

Granted to the Executive; There Is No

Inherent Executive Power to Convert

Private Funds .............................................. 27

CONCLUSION ..........................................................32

iii

TABLE OF AUTHORITIES

Page(s)

Cases

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

295 U.S. 495 (1935) .................................3, 8, 10, 17

Acheson Hotels, LLC v. Laufer,

601 U.S. 1 (2023) .................................................. 25

Am. Power & Light Co. v. SEC,

329 U.S. 90 (1946) .................................... 16, 17, 21

Axon Enter., Inc. v. FTC and SEC v. Cochran,

598 U.S. 175 (2023) ........................................ 24, 25

CFPB v. All Am. Check Cashing,

33 F.4th 218 (5th Cir. 2022) ................................. 30

Consumers’ Rsch. v. FCC,

109 F.4th 743 (5th Cir. 2024) ............................... 30

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

575 U.S. 43 (2001) ............................................ 5, 28

Fahey v. Mallonee,

332 U.S. 245 (1947) .............................................. 18

Fed. Power Comm’n v. Hope Nat. Gas Co.,

320 U.S. 591 (1944) .............................................. 18

Frost v. Corp. Comm’n,

278 U.S. 515 (1929) .............................................. 25

Gundy v. United States,

588 U.S. 128 (2019) .......................................... 6, 28

INS v. Chadha,

462 U.S. 919 (1983) ................................................ 5

iv

Int’l Union, United Auto. v. Gen. Dynamics Land

Sys. Div.,

815 F.2d 1570 (D.C. Cir. 1987)............................... 6

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

276 U.S. 394 (1928) .................................6, 8, 14, 15

Johnson v. City of Detroit,

446 F.3d 614 (6th Cir. 2006) .................................. 6

Lichter v. United States,

334 U.S. 742 (1948) .............................................. 19

Loving v. United States,

517 U.S. 748 (1996) .................................... 6, 22, 29

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ................................................ 8

Mich. Gambling Opposition v. Kempthorne,

525 F.3d 23 (D.C. Cir. 2008) ................................ 22

Mistretta v. United States,

488 U.S. 361 (1989) .......................................... 5, 11

N. Sec. Co. v. United States,

193 U.S. 197 (1904) .............................................. 26

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

287 U.S. 12 (1932) .................................... 17, 18, 26

Nat’l Broad. Co. v. United States,

319 U.S. 190 (1943) .................................. 19, 20, 26

Oil States Energy Srvs., LLC v. Greene’s Energy

Grp., LLC,

584 U.S. 325 (2018) .............................................. 25

Opp Cotton Mills v.

Adm’r of Wage and Hour Div.,

312 U.S. 126 (1941) ...................................... 3, 8, 11

v

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ........................................ 3, 8, 9

Richards v. Wash. Terminal Co.,

233 U.S. 546 (1914) .............................................. 25

Rodriguez v. United States,

480 U.S. 522 (1987) .............................................. 10

South Dakota v. U.S. Dep’t of Interior,

423 F.3d 790 (8th Cir. 2005) .................................. 6

Union Bridge Co. v. United States,

204 U.S. 364 (1907) .............................................. 26

United States v. Bruce,

950 F.3d 173 (3d Cir. 2020) .................................... 6

United States v. Curtiss-Wright Export Corp.,

299 U.S. 304 (1936) .............................................. 28

United States v. Erskine,

717 F.3d 131 (2nd Cir. 2013) .................................. 6

United States v. Grimaud,

220 U.S. 506 (1911) ........................................ 26, 27

United States v. Martinez-Flores,

428 F.3d 22 (1st Cir. 2005) ................................... 22

United States v. Rickett,

535 F. App’x 668 (10th Cir. 2013) .......................... 6

United States v. Rock Royal Co-operative, Inc.,

307 U.S. 533 (1943) .............................................. 20

Wayman v. Southard,

23 U.S. 1 (1825) ...................................................... 8

Yakus v. United States,

321 U.S. 414 (1944) ...................................... 3, 8, 12

vi

Constitutional Provisions

U.S. CONST. amend. V .............................................. 25

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

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

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

U.S. CONST. Preamble .............................................. 25

Statutes

47 U.S.C. § 254 ........................................................... 2

Communications Act of 1934,

Pub. L. No. 73-416, 48. Stat. 1064 ....................... 20

Other Authorities

DECLARATION OF INDEPENDENCE (U.S. 1776) .......... 25

Discretion,

BLACK’S LAW DICTIONARY (12th ed. 2024) ........... 22

James Madison,

The Report of 1800,

NATIONAL ARCHIVES (Jan. 7, 1800) ...................... 13

Mark Chenoweth & Richard Samp,

Reinvigorating Nondelegation with Core

Legislative Power,

in THE ADMINISTRATIVE STATE BEFORE THE

SUPREME COURT:

PERSPECTIVES ON THE NONDELEGATION

DOCTRINE

(Peter J. Wallison & John Yoo eds., 2022) ...... 2, 30

Philip Hamburger,

Nondelegation Blues,

91 GEO. WASH. L. REV. 1083 (2023) ..2, 5, 24, 25, 28

vii

THE FEDERALIST NO. 70,

(A. Hamilton) (J. Cooke ed. 1961) .......................... 5

WEBSTER’S NEW MODERN ENGLISH DICTIONARY

(1922) .................................................................... 14

1

INTEREST OF AMICUS CURIAE1

Amicus curiae the New Civil Liberties Alliance

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

organization devoted to defending constitutional

freedoms

from

the

administrative

state’s

depredations. The “civil liberties” at issue include

rights at least as old as the U.S. Constitution, such as

the right to have laws made by the Nation’s elected

lawmakers through constitutionally prescribed

channels (i.e., the right to self-government). These

civil rights are also very contemporary—and in dire

need of renewed vindication—because Congress,

Presidents, federal administrative agencies, and even

the judiciary, have neglected them for so long.

NCLA defends civil liberties mainly by asserting

constitutional constraints on the administrative

state. Although Americans still enjoy the shell of their

Republic, there has developed within it a different

sort of government—a type the Constitution was

designed to prevent. NCLA trains its focus on this

unconstitutional administrative state.

NCLA

represents

clients

harmed

by

unconstitutional divesting of legislative power to

administrative agencies who would benefit from

enforcement of the constitutional mandate that

legislative power be exercised by Congress or not at

all. See Pet’r’s Opening Br., RMS of Georgia, LLC v.

EPA, No. 23-1263 (D.C. Cir. Jan. 5, 2024).

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

this brief. No person or entity other than amicus curiae paid for

the brief’s preparation or submission.

2

SUMMARY OF ARGUMENT

The “nondelegation” doctrine is failing.2 It was

intended to prevent legislative power, which the

Constitution vests exclusively in the Legislative

Branch, from being divested or transferred3 to any

other branch of government. Today, however, lower

courts frequently cite language from this Court to

support the conclusion that Congress can divest or

transfer legislative power to executive agencies so

long as certain conditions are met.

Here, Petitioners premise their arguments on the

notion that the statutory authority4 empowering the

Federal Communications Commission (“FCC”) to

determine the charges for the Universal Service Fund

(“USF”), the “evolving” level of funding the

Commission obtains from American pocketbooks for a

social benefit program, passes constitutional muster

when compared to prior cases approving Congress’s

“broad” grants of authority. FCC Br. at 11, 21–22, 36;

Competitive Carriers Ass’n, NTCA, and USTelecom

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

REV. 1083, 1089 (2023) (the nondelegation doctrine “is the

fulcrum of a sobering crisis of governance and legitimacy”).

3 This brief refers to transfers of legislative power rather than

“delegations.” Once conveyed, Congress cannot end statutory

transfers without a supermajority or the assistance of the

Executive Branch. See Mark Chenoweth & Richard Samp,

Reinvigorating Nondelegation with Core Legislative Power, in

THE ADMINISTRATIVE STATE BEFORE THE SUPREME COURT:

PERSPECTIVES ON THE NONDELEGATION DOCTRINE 81, 98 (Peter

J. Wallison & John Yoo eds., 2022).

4

47 U.S.C. § 254.

3

(“CCA”) Br. at 27–28. Close examination of the bases

for Petitioners’ claims demonstrates how their

arguments improperly hobble already atrophied

caselaw and how the Vested Powers precedent has

gone awry. By enforcing constitutional limits on who

may wield legislative power, the Court can return to

fulfilling its duty to protect the right to have laws

made by elected lawmakers.

First, Petitioners mischaracterize this Court’s

early cases which appropriately demanded that

Congress set discernible standards, later known as

intelligible principles, to provide an agency with

decision-making criteria and allow courts and the

public to determine when an agency fulfilled or

exceeded the will of Congress. See Opp Cotton Mills v.

Adm’r of Wage and Hour Div., 312 U.S. 126 (1941);

Yakus v. United States, 321 U.S. 414 (1944); see also

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

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

U.S. 495 (1935).

Petitioners oversimplify these cases and argue

that general policy statements, such as an instruction

to act in “the public interest” provide sufficient

legislative constraints on agency discretion. FCC Br.

at 11, 20, 30, 32–33; CCA Br. at 23–24; Schools,

Health & Libraries Broadband Coalition (“SHLB”) Br.

at 32–33. This common misconception arises from

widely propagated but erroneous dicta. This Court

has never held that “public interest” or similarly

vague directional statements, standing alone, suffice

to prevent the executive from wielding legislative

power to impinge rights—and it should not do so here.

4

Second, Petitioners improperly rely on cases

evaluating congressional guidance concerning

privileges or authority constitutionally vested in both

the Legislative and Executive Branches. In our

constitutional scheme it is appropriate that Congress

could give an agency policy-oriented, directional

suggestions for doling out discretionary use of public

land, rivers, or airwaves or for managing tasks

affecting shared governmental authority. But

Congress must provide a more constraining dictate to

authorize interfering with liberty or private property.

Today, what remains of the nondelegation

doctrine is cited to legitimize divesting legislative

power to the Executive Branch. While the Fifth

Circuit reached the correct result, other courts

applied this Court’s cases to approve a scheme that

gives the FCC ongoing power to evolve its authority

and associated conversion of private funds. A proper

Vested Powers test that requires judicially discernible

standards for laws intended to limit rights would

reveal that the FCC’s power here is unconstitutional.

ARGUMENT

I.

THE NONDELEGATION DOCTRINE IS FAILING

This Court developed the nondelegation doctrine

to ensure that the legislative power5 the Constitution

vested in Congress would remain there.

5

The power to legislate has been described as the power through

an exercise of will to make general, prospective, binding rules

meant to limit liberty. See INS v. Chadha, 462 U.S. 919, 952

5

Through the Constitution the People consented to

Congress, and Congress alone, exercising all

legislative power. U.S. CONST. art. I, § 1 (“All

legislative powers … shall be vested in a Congress[.]”)

(emphasis added). This consent of the governed is

fundamental to the legitimacy of the government. See

Hamburger, supra n. 2, at 1105–08.

To protect liberty, the Constitution then placed

various procedural burdens on the legislative process,

see THE FEDERALIST NO. 70, at 475 (A. Hamilton) (J.

Cooke ed. 1961), and isolated the legislative and other

governmental powers, vesting executive and judicial

power in separate branches. U.S. CONST. art. II, § 1;

U.S. CONST. art. III, § 1.

Although limiting legislative power to Congress is

essential to respect the consent of the governed and to

uphold individual liberty, the recent precedent meant

to serve those purposes falls short. Even this Court

erroneously qualified what the Constitution makes

absolute, stating “Congress generally cannot delegate

its legislative power.” Mistretta v. United States, 488

U.S. 361, 372 (1989) (emphasis added).

As a result, judges on at least four federal courts

of appeal have cited this Court for the proposition that

Congress may transfer legislative power. See Int’l

Union, United Auto. v. Gen. Dynamics Land Sys. Div.,

(1983) (legislative action has “the purpose and effect of altering

the legal rights, duties and relations of persons”); see also Dep’t

of Transp. v. Ass’n of Am. R.R.s, 575 U.S. 43, 76 (2001) (Thomas,

J., concurring) (“[T]he core of the legislative power … is the

power to make ‘law’ in the Blackstonian sense of generally

applicable rules of private conduct.”)

6

815 F.2d 1570, 1574 (D.C. Cir. 1987) (“Because

Congress may delegate its legislative power … .”)

(citing Chevron v. NRDC, 467 U.S. 837, 843–44

(1984)); United States v. Erskine, 717 F.3d 131, 138

(2nd Cir. 2013) (“Congress may delegate its legislative

power so long as it provides … ‘an intelligible

principle … .’”) (citing Mistretta, 488 U.S. at 371–72

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

U.S. 394 (1928)); United States v. Bruce, 950 F.3d 173,

175 (3d Cir. 2020) (same) (citing Gundy v. United

States, 588 U.S. 128, 135 (2019), Mistretta, 488 U.S.

at 372, and Whitman v. Am. Trucking Ass’ns, 531 U.S.

457, 472 (2001)); South Dakota v. U.S. Dep’t of

Interior, 423 F.3d 790, 795 (8th Cir. 2005) (same)

(citing J.W. Hampton, 276 U.S. at 409); see also

Johnson v. City of Detroit, 446 F.3d 614, 631 (6th Cir.

2006) (Martin, J., concurring in part, dissenting in

part, and concurring in the judgment) (“[T]he

Supreme

Court

has

permitted

Congress

tremendously broad authority to delegate legislative

power to administrative agencies …”) (citing

Mistretta, 488 U.S. at 372 and Loving v. United

States, 517 U.S. 748, 758 (1996)). One panel on the

Tenth Circuit even stated that the nondelegation

doctrine has been long dormant, to the point of being

deemed a “dead letter” never properly interred.

United States v. Rickett, 535 F. App’x 668, 674–75

(10th Cir. 2013) (citing Mistretta, 488 U.S. at 373).

The modern nondelegation doctrine no longer

adequately protects the separation of powers built

into the Constitution as a bulwark for individual

liberty. To honor the Constitution’s design, this Court

must return to its earlier, less deferential holdings.

7

II. VESTED POWERS PRECEDENT ONCE DEMANDED

THAT CONGRESS SET LEGISLATIVE STANDARDS

To protect the separately Vested Powers, this

Court once demanded that Congress provide a rule of

decision, a standard, for applying a policy, before

empowering an agency to administer a statute with

substantive authority to limit rights. An appropriate

legislative standard would allow courts to determine

when the legislated policy was accomplished or when

it must give way.

In this case, for instance, precedent predating

1946 would have required that a court and the public

be able to point to the language of the statute and

identify a standard that would allow them, not the

FCC, to determine when the agency has not done

enough, has complied with the will of Congress, or has

exercised authority beyond what Congress intended

when laying claim to private funds for a public

purpose.

Even the now-maligned intelligible-principle test,

as originally applied by this Court, required Congress

to set standards to limit the authority it conveyed to

the Executive.

A. Early

Vested

Powers

Precedent

Demanded

That

Congress

Set

Legislative Standards

For over 150 years after the founding of our

republic, this Court dutifully observed the

constitutional mandate to limit legislative power to

Congress. See Marshall Field & Co. v. Clark, 143 U.S.

8

649, 692 (1892) (“That [C]ongress cannot delegate

legislative power to the president is a principle

universally recognized as vital to the integrity and

maintenance of the system of government ordained by

the constitution.”); Wayman v. Southard, 23 U.S. 1,

42 (1825) (“It will not be contended that Congress can

delegate … powers which are strictly and exclusively

legislative.”); J.W. Hampton, 276 U.S. 394, 406 (1928)

(“it is a breach of the national fundamental law if

Congress gives up its legislative power …”).

In the 1930s and early 1940s, as the

administrative state started expanding its reach, this

Court took care to define what Congress must do

before it could delegate authority to an executive

agency. Specifically, it would not suffice for Congress

to identify a broad policy, then grant power to advance

the policy. To keep legislative power in the Legislative

Branch, Congress also had to set standards, to

establish rules of decision and conduct, in a manner

that would allow courts and the public to determine

whether the administrative acts of the executive were

consistent with the legislative will expressed in the

statute. See Panama Refining, 293 U.S. at 422–26;

Schechter Poultry Corp., 295 U.S. at 530; Opp Cotton

Mills, 312 U.S. at 144–45; Yakus, 321 U.S. at 424–26.

In Panama Refining, the Court held § 9(c) of the

National Industrial Recovery Act unconstitutional

because while there were numerous policy goals, the

statute did not provide a standard that determined

when the specific power at issue should be applied.

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

President to prohibit the transportation of certain oil

but provided no principle for when to do so. Id. at 414–

9

16. The broader Act identified several policy

objectives including “to promote the fullest possible

utilization of the present productive capacity” and “to

conserve natural resources,” but the Court found that

this “general outline of policy” did nothing to establish

a standard for when the granted power should be

used. Id. at 416–17.

The Court identified the key distinction between

§ 9(c) and other cases where delegations were held

permissible. Id. at 421–30. In the other cases,

Congress had established not only policies, but

standards or rules of conduct; leaving the executive to

develop “subordinate” rules or to find facts needed to

apply the legislative standard. Id. at 421; see id. at

422–26. For example, Congress could have mandated

that transportation of oil be prohibited when

production exceeded a specified volume range or when

prices deviated from a certain price range.

Where Congress set the standard, the President

“was the mere agent of the law-making department to

ascertain and declare the event upon which [the

legislature’s] expressed will was to take effect.” Id. at

426 (quoting Marshall Field, 143 U.S. at 692–93). In

Panama Refining, “Congress ha[d] declared no policy,

ha[d] established no standard, ha[d] laid down no

rule,” specifically as to the transportation of hot oil,

even though there were various other standards for

other authority scattered throughout the statute.

Panama Refining, 293 U.S. at 430; see id. at 432.

Later the Court struck another part of the Act,

holding again that Congress must “itself establish[]

the standards of legal obligation, thus performing its

10

essential legislative function.” Schechter Poultry, 295

U.S. at 530 (addressing codes approved by the

President to regulate wages, hours, and competitive

practices). “[F]ailure to enact such standards”

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

function to others.” Id. The Court rejected the

suggestion that the context of a “national crisis”

should lessen its inquiry, stating instead that,

“[e]xtraordinary conditions do not create or enlarge

constitutional power.” Id. at 528. As to legislative

power, when the purpose of a statute is not to

establish law, but to authorize the executive to make

“new and controlling prohibitions [i.e., restrictions on

liberty] through codes of laws,” and when any

congressional restrictions “leave virtually untouched

the field of policy envisaged,” Congress has exceeded

the bounds of its lawful authority. Id. at 535, 538.

Standards are necessary in part because, “no

legislation pursues its purposes at all costs.”

Rodriguez v. United States, 480 U.S. 522, 525–26

(1987). But when a statute’s guidance provides no

more than aspirational policy statements, there is not

a legislated determination of when rights need no

longer yield in favor of the policy. The Constitution

demands that Congress make these determinations

because “[d]eciding what competing values will or will

not be sacrificed to the achievement of a particular

objective is the very essence of legislative choice—and

it frustrates rather than effectuates legislative intent

simplistically to assume that whatever furthers the

statute’s primary objective must be the law.” Id. at

526.

11

As the Court put it in Opp Cotton Mills, the

“essentials of the legislative function are the

determination of the legislative policy and its

formulation as a rule of conduct.” 312 U.S. at 145

(emphasis added). In that case, the policy was to raise

the minimum wage to 40 cents per hour. Id. at 142–

43. Congress recognized, however, that an immediate

and in some cases drastic mandated wage increase

could have negative consequences. The statute thus

provided that a wage increase should occur “as

rapidly as is economically feasible without

substantially curtailing employment” in an industry

and required consideration of “economic and

competitive conditions” and related subfactors. Id. at

135. But see FCC Br. at 21 (ignoring statute’s

provision of standards explaining “as rapidly as [is]

economically feasible”). The Court found that the

standards provided a “definition of the circumstances

in which [the statute’s] command is to be effective,”

which together with the declared policy, “constitute

the performance, in the constitutional sense, of the

legislation function.” Opp Cotton Mills, 312 U.S. at

144. The Court later reiterated that where a statute

sets up standards “such that Congress, the courts[,]

and the public can ascertain whether the agency has

conformed to the standards …, there is no failure of

performance of the legislative function.” Id.

Judicially discernable standards serve an

additional constitutional purpose. The FCC suggests

that the Court continue with the current lax Vested

Powers precedent because of a claimed “practical

reality that constitutional limits on delegation are not

‘readily enforceable by the courts.’” FCC Br. at 24

(quoting Mistretta, 488 U.S. at 415). This alleged

12

difficulty is avoided if the Court returns to its prior

demand that standards be sufficient to ascertain

whether the agency has conformed to, contravened, or

exceeded the will of Congress. The FCC’s argument

demonstrates how current interpretation of the

nondelegation doctrine not only enables transfers of

legislative power, but also interferes with the exercise

of judicial power.

To accomplish their purpose, standards must thus

be “sufficiently definite and precise.” Yakus, 321 U.S.

at 425–26. While this prescription permits flexibility,

it negates the use of unqualified directional policy

statements. A statute must “mark[] the field within

which the [Commission] is to act so that it may be

known whether [it] has kept within it in compliance

with the legislative will.” Id. at 425. Yakus examined

an emergency wartime price control act. Id. at 420.

The Court noted that Section 1 declared its purposes

or policy objectives, while Section 2 and an amending

statute provided standards, prices prevailing on a

specific date, to be used in fixing maximum prices. Id.

at 420–21; but see FCC Br. at 21 (identifying only “fair

and equitable” as applicable statutory standard). It

was the standards that “define[d] the boundaries” for

agency action. Id. The Court repeated that the

essential of the legislative function was not only

determination of policy, but its “formulation and

promulgation as a defined and binding rule of

conduct.” Id. at 424.

The demand for a standard and rule of decision as

part of the legislative function was also made by

James Madison. In criticizing the Alien Act for

13

improperly uniting legislative, judicial, and executive

power, Madison observed:

However difficult it may be to mark … 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 an executive or judicial

nature; and may for that reason be

unconstitutional. … 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.

See James Madison, The Report of 1800, NATIONAL

ARCHIVES (Jan. 7, 1800); id. (“it must be enquired

whether [a statute] contains such details, definitions,

and rules, as appertain to the true character of a law;

especially, a law by which personal liberty is

invaded….”).6

To exercise and not divest its legislative power,

Congress must set standards sufficiently discernible

6 https://founders.archives.gov/documents/Madison/01-17-02-

0202.

14

to serve the purpose of establishing a rule of law for

when a statute is intended and should be applied to

impinge or reorder rights.

B. The “Principle” of the Intelligible

Principle

Test

Once

Required

Standards for Agency Conduct

While this Court came to refer to the need for

congressionally determined standards as the

requirement for an intelligible principle,7 that

formulation itself did not signal a dilution of Vested

Powers protection.

In J.W. Hampton, the Court dealt with a tariff

that could be used to advance the policy of raising

revenue, the policy of protecting domestic industry, or

both. Id. at 411. Either way, the Court found Congress

had set a “perfectly clear and perfectly intelligible”

standard for administration of the statute: it should

result in custom duties that would equal the

difference in cost between producing and selling a

foreign item in the United States and the cost of

producing and selling the item domestically to “enable

domestic producers to compete on terms of equality

with foreign producers … .” 275 U.S. at 404.

While the standard was clear and fixed, the

circumstances to which the policy and standard

applied were complex and variable. Domestic and

foreign production costs may be unknown by

Congress and unknowable on an ongoing basis. Id. at

See WEBSTER’S NEW MODERN ENGLISH DICTIONARY (1922)

(defining “principle” to include, among other meanings, a

“settled rule or law of action or conduct[.]”).

7

15

404–05. In such situations, Congress “having laid

down the general rules of action” for an agency to

follow, may require the agency to apply “such rules to

particular situations and the investigation of facts,

with a view to making orders … within the rules laid

down by the Congress.” Id. at 408 (quoting ICC v.

Goodrich Transit Co., 224 U.S. 194, 214 (1912)).

After citing repeated instances of courts

approving statutory designs where Congress provided

standards for when and how the Executive Branch

should apply legislated authority, the Court observed

that “[i]f Congress shall lay down by legislative act an

intelligible principle to which the person or body

authorized to [administer the law] is directed to

conform, such legislative action is not a forbidden

delegation of legislative power.” Id. at 409. Contra

FCC Br. at 11, 25 (conflating principles and policy).

So, the Court once properly required that

Congress establish judicially discernible standards

for agency action intended to affect rights, but its

dicta later led the doctrine astray.

III. THE PUBLIC-INTEREST FALLACY PETITIONERS

EMBRACE AND ITS ORIGIN IN THIS COURT

Rather than reckon with the need for judicially

discernible, congressionally established standards,

Petitioners argue that a statute does not fail the

nondelegation test so long as it identifies a general

policy, the agency to pursue the policy, and

boundaries for the agency’s power. FCC Br. at 11;

CCA Br. at 19. Moreover, according to Petitioners’

recounting, even a policy and boundary combination

16

so amorphous as telling an agency to act in the “public

interest” as to a particular subject matter will suffice.

See FCC Br. at 11, 20, 30, 32–33; CCA Br. at 23–24.

This public-interest fallacy and other weaknesses

in Vested Powers precedent arose in large part from

unfortunate and erroneous dicta uttered by this

Court. In American Power & Light Co. v. SEC, 329

U.S. 90, 105 (1946), the Court stated that “public

interest” and similar precatory aspirations had been

accepted as sufficient security to prevent an agency

from exercising legislative power. But this Court had

not so held. The statutes previously approved relied

on additional statutory language, statutory

interpretations predating the statute at issue, or

settled common law to discern the rule of action or

standard that Congress intended an agency to apply.

A. American Power & Light’s PublicInterest Fallacy

In American Power & Light, the Court rejected a

Vested Powers challenge to the Public Utility Holding

Company Act of 1935. The Act prohibited nested

holding company structures that “unduly or

unnecessarily complicate the structure, or unfairly or

inequitably distribute voting power among security

holders,” methods that had been used to deprive some

investors of governance or distributions proportionate

to their investment. 329 U.S. at 97 (quotations

omitted). The Court found that for “those familiar

with corporate realities[,]” the challenged phrases

held meaning “standing alone.” Id. at 104. Even so,

the phrases did not stand alone. After surveying the

statute, the Court found that the legislation provided

17

“a veritable code of rules” “for the Commission to

follow in giving effect to the standards.” Id. at 105.

What followed, however, was dicta that has been

widely and uncritically adopted, leading to ongoing

misunderstandings of when Vested Powers are

transferred. After the analysis above, the American

Power Court stated that the standards at issue were

“certainly no less definite in nature than … ‘public

interest,’ ‘just and reasonable rates,’ ‘unfair methods

of competition’ or ‘relevant factors.’ The approval

which this Court has given in the past to those

standards thus compels the sanctioning of the ones in

issue.” Id. The Court justified these alleged prior

decisions stating that “[t]he judicial approval

accorded these ‘broad’ standards for administrative

action is a reflection of the necessities of modern

legislation dealing with complex economic and social

problems,” id., apparently abandoning its statement

in Schechter Poultry, that even “[e]xtraordinary

conditions do not create or enlarge constitutional

power.” 295 U.S. at 258.

The American Power “public interest” statement

was not only unnecessary, it was also flatly wrong.

American Power cited New York Central Securities

Corp. v. United States, 287 U.S. 12 (1932), but ignored

that Court’s explicit observation that it was a

“mistaken assumption that [the ‘public interest’

mentioned in the statute] is a mere general reference

to public welfare without any standard to guide

determinations.” N.Y. Cent. Sec. Corp., 287 U.S. at 24.

New York Central dealt with the issue of railroad

consolidation under the Transportation Act of 1920.

To identify standards in that Act, the Court stated

18

that it must consider, “[t]he purpose of the Act, the

requirements it imposes, and the context of the

provision in question.” Id. Given the purpose of the

Act and its language, the Court found that “the term

‘public interest’” had a “direct relation to adequacy of

transportation service, to its essential conditions of

economy and efficiency, and to appropriate provision

and best use of transportation facilities[.]” Id. at 25.

Just as importantly, New York Central and the

statute at issue touched upon “questions to which the

Interstate Commerce Commission ha[d] constantly

addressed itself.” Id. By the time the Act was adopted,

the ICC had been operating for over 30 years, and

there were dozens of cases, on top of a wealth of other

laws, that provided meaning to the terms of the

statute when it was passed. Courts regularly rely

upon settled precedent and common law to provide

meaning to statutory terms, including standards. See,

e.g., Fahey v. Mallonee, 332 U.S. 245, 250 (1947)

(regulations dealt with problems “as old as banking

enterprise” and “precedents have crystallized into

well-known and generally acceptable standards”);

Fed. Power Comm’n v. Hope Nat. Gas Co., 320 U.S.

591, 621 (1944) (Reed, J., dissenting) (noting

“reasonable return” is discernible from daily

transactions and “fair value” “had been worked out in

fairness to investor and consumer” by cases predating

the statute); contra FCC Br. at 21 (citing “just and

reasonable” standing alone).8 New York Central relied

8

For similar reasons, the American Power statement that the

Court had approved “unfair methods of competition,” standing

alone, as an adequate legislative standard is also incorrect.

Likewise, the FCC’s reliance on Lichter v. United States, 334

19

on a rich tapestry woven from the Act’s purpose,

requirements, context, and language as well as

decades of precedent, not a threadbare invocation of

aspirational “public interest.”

National Broadcasting Co. v. United States, 319

U.S. 190 (1943), is also frequently, but wrongly, cited

as approving “public interest” as an intelligible

principle. National Broadcasting addressed FCC

regulations

concerning

“chain”

or

network

broadcasting. The FCC determined that contracts

associated with network obligations unduly restricted

the operations of a radio licensee, interfering with the

ability to select programming for its local audience.

Id. at 194–209. While the Court identified “public

interest, convenience, or necessity” as a “touchstone”

criterion, id. at 216, the statute provided much more.

As particularly relevant to that case, Congress

mandated that the Commission should “generally

encourage the larger and more effective use of radio.”

Id. at 215–19. The Court returned over and over to

this statutory mandate and FCC’s finding that

contractual restrictions on content prevented

licensees from the fullest and best use of their

federally licensed facilities to the detriment of the

U.S. 742, 774–87 (1948), FCC Br. at 21, as approving a bare

“excessive profits” standard is misplaced. See Lichter, 334 U.S.

at 783–86 (relying on wartime powers, prior statutes, and

administrative principles and procedures previously presented

to Congress as controlling implementation of the statute).

20

local listeners.9 Id. at 216–17, 224. Less relevant to

the specific holding in that case but important when

evaluating the need for standards to constrain

discretion, the Communications Act at issue also

expressly forbade interference between stations and

it required a fair, efficient, and equitable distribution

of radio services among states and communities. Id.

at 215; see Communications Act of 1934, Pub. L. No.

73-416, 48. Stat. 1064, 1070, 1081–86.10

American Power’s implication that vague policy

directions, unadorned by purpose, context, and legal

history, can provide an intelligible principle was

error.

B. Other Unfortunate Consequences of

American Power & Light

American Power bears blame for other language

and decisions that have weakened protections for

As explained further below, National Broadcasting is also

distinguishable because it dealt with the privilege associated

with using limited radio frequencies. There was not a private

right to monopolize the limited availability of radio

programming.

9

10 FCC cites United States v. Rock Royal Co-operative, Inc., 307

U.S. 533 (1943) as another case that allegedly approved a “public

interest” standard. FCC Br. at 20. Not so. In that case the statute

provided that USDA was to “establish prices … that will give

agricultural commodities a purchasing power … equivalent to

the purchasing power … in” a specified base period, with further

standards for when and how to allow variances. 307 U.S. at 574–

76. Discretion was limited between that price needed to provide

adequate purchasing power (maximum price) and that low

enough to provide an adequate supply (minimum price). It was

not determined by public interest. See id. at 575–76.

21

Vested Powers. That Court stated that rather than

“detailed rules,” it is “constitutionally sufficient if

Congress clearly delineates the general policy, the

public agency which is to apply it, and the boundaries

of this delegated authority.” 329 U.S. at 105. This

purported reframing of the intelligible principle test

has been diluted and then embraced by advocates of

administrative power. See FCC Br. at 11, 19; CCA Br.

at 19. “General policy” erroneously came to be

understood as the “principle” in the intelligible

principle test, loosing that test from its standards

mooring. Additionally, “boundaries of authority” came

to refer to not only extent, but scope of authority, and

is now argued to be found in any limitation a statute

may place on agency authority.

Petitioners, for example, argue that the limits on

whom the USF is initially collected from, the purpose

of the USF, and the beneficiaries of the USF provide

boundaries that will allow a court to determine if the

FCC has exceeded its authority. See FCC Br. at 12,

26; CCA Br. at 20. None of these limitations, however,

provides a boundary for deciding how deeply the FCC

may reach into consumer pockets, the specific power

that is challenged. So long as the technology

continues to evolve or advance, and especially so long

as the statute allows the FCC to set its own

“principles,” then the FCC can expand its mandate

indefinitely to justify taking more and more private

funds.

Petitioners’ arguments are not surprising,

however, as courts have reasoned that “boundaries of

authority,” may refer to regulatory jurisdiction, the

breadth of the agency authority. Following this logic,

22

courts have surmised that if the delegation is narrow

enough, Congress “need not cabin the [agency’s]

discretion.” United States v. Martinez-Flores, 428

F.3d 22, 27 (1st Cir. 2005). See also Mich. Gambling

Opposition v. Kempthorne, 525 F.3d 23, 34–35 (D.C.

Cir. 2008) (Brown, J., dissenting in part) (quoting

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475

(2001)) (stating boundaries of authority are

adequately established if Congress provides either

“standards to guide an agency’s judgment or, in their

absence, stringent limits on the scope of the delegated

authority” such that “‘Congress need not provide any

direction’ if the ‘scope of the power congressionally

conferred’ is sufficiently small.”).

The problem, of course, is that even a “narrow”

delegation of legislative power is forbidden by the

Constitution. See Loving v. United States, 517 U.S.

748, 776–77 (1996) (Scalia, J., concurring in part)

(“While it has become the practice in our opinions to

refer to ‘unconstitutional delegations of legislative

authority’ versus ‘lawful delegations of legislative

authority,’ in fact the latter category does not exist.

Legislative power is nondelegable.”). The exercise of

legislative power is not converted into an exercise of

administrative power by reducing its scope.11

Similarly, even an “unimportant” right, if such a

thing exists, or the rights of people deemed by an

11 To avoid this issue, the FCC carefully avoids classifying the

power it exercises, referring only to “discretionary” power. FCC

Br. at 19, 24. Discretion, however, refers to decision-making

power, not a specific type of governmental power. See Discretion,

BLACK’S LAW DICTIONARY (12th ed. 2024) (defining “discretion”

as “Freedom in the exercise of judgment; the power of free

decision-making.”).

23

agency to be “unimportant” cannot be stripped away

during lawmaking other than by legislative power.

American Power mischaracterized the thenexisting Vested Powers law and instituted an

alternative test that led to erroneous judicial

statements that Congress can delegate legislative

power to advance specific policies or in small

increments. Allowing the FCC to determine how to

prioritize funding for Universal Service among the

other demands on American taxpayers conveys

legislative power and, regardless of how one views the

breadth of that power, the Constitution bars it from

being exercised by the Executive Branch.

IV. PETITIONERS’ OTHER ARGUMENTS FOR BROAD

DISCRETION DEPEND ON CASES ADDRESSING

BENEFITS OR AUTHORITY CONSTITUTIONALLY

VESTED IN THE EXECUTIVE; CIRCUMSTANCES

INAPPLICABLE HERE

Petitioners err not only by failing to recognize the

need for judicially discernible statutory standards,

but by failing to recognize the key distinction between

the type of power granted to the FCC and challenged

in this case and the types of authority exercised when

broad delegations have been judicially approved.

Most nondelegation precedent accepting vague

congressional guidance addresses administration of

public franchises or benefits (not the conversion of

private property to a public fund). Or it deals with an

exercise of authority already constitutionally vested

in both the Legislative and Executive Branches (such

as foreign affairs and military justice). The USF

24

statute creates a public benefit, but the FCC’s

authority to administer the benefit is not at issue.

Rather, what makes the USF scheme unlawful is

giving a nonlegislative body power to determine when

and how severely it may impinge upon rights.

Uncritically applying the reasoning from public

benefit cases to the FCC’s functionally unbridled

power to lay legal claim to private funding commits

dangerous error. The nature of the conversion power

and rights at issue in this case further counsel in

favor of the Court’s requiring, as it has before, that

Congress set a standard that delimits the bounds of

the legislative body’s will without requiring deference

to the FCC’s own agenda-setting.

A. Administering Public Benefits and

Franchises Is Constitutionally Distinct

from Altering Rights

The FCC cites a litany of cases that purportedly

stand for the proposition that the Supreme Court “has

repeatedly upheld broad statutory grants of

discretion to executive agencies.” FCC Br. at 20–21.

FCC’s menagerie of cases bears closer examination.

When properly classified, one finds that most of its

cases addressed administration of benefits, not rights.

The distinction between government-issued

benefits and individual rights is constitutionally

significant. Core rights include an individual’s “life,

liberty, and property.” Axon Enter., Inc. v. FTC and

SEC v. Cochran, 598 U.S. 175, 197 (2023)

(“Axon/Cochran”) (Thomas, J., concurring) (citation

omitted). The demand that government respect rights

25

motivated the Declaration of Independence as well as

various constitutional provisions. See DECLARATION

OF INDEPENDENCE para. 2 (U.S. 1776) (stating that

governments are created to secure unalienable

rights); U.S. CONST. Preamble; U.S. CONST. amend. V.

Benefits, as used here, refers to governmentcreated benefits and entitlements. Such “privileges

are created purely for reasons of public policy and

have no counterpart in the Lockean state of nature.”

Axon/Cochran, 598 U.S. at 199 (Thomas, J.,

concurring) (internal quotations and citations

omitted). See Acheson Hotels, LLC v. Laufer, 601 U.S.

1, 11 n. 2 (2023) (Thomas, J., concurring). These

benefits do not carry with them the power to interfere

with others’ rights. See Richards v. Wash. Terminal

Co., 233 U.S. 546, 556 (1914). Executive rulemaking

regarding benefits has long been recognized as

appropriate. See Hamburger, supra n. 2, at 1102.

The FCC relies extensively on cases that deal with

public franchises, a particular kind of benefit. FCC

Br. at 20–22. Public franchises are created by statute,

can be subject to revocation or amendment, and

provide only the protections conveyed by statute. See

Oil States Energy Srvs., LLC v. Greene’s Energy Grp.,

LLC, 584 U.S. 325, 337 (2018). This Court has

explained that “a franchise to operate a public utility

is not like the general right to engage in a lawful

business, part of the liberty of the citizen ….” Frost v.

Corp. Comm’n, 278 U.S. 515, 534 (1929). Rather, a

public franchise is conferred by the government and

“may be granted or withheld at the pleasure of the

state” while “the Federal Constitution imposes no

limits upon the State’s discretion in this respect.” Id.

26

The public franchise or utility cases the FCC relies

on include National Broadcasting Co.,12 New York

Central,13 Union Bridge Co. v. United States,14

Federal Power Comm’n v. Hope Natural Gas Co.,15

and American Power & Light. FCC Br. at 20–21; see

also FCC Br. at 22 (relying on statute dealing with

patents, which are also a type of public franchise).

United States v. Grimaud, 220 U.S. 506 (1911),

upon which FCC relies, Br. at 21, likewise deals with

a limited privilege, there using public land for

grazing. Grimaud is further distinguishable because

it addressed the government’s propriety management

of land it owned. The Court said that the regulations

at issue were not “of a legislative character,” but more

akin to the authority “an owner may delegate to his

principal agent ….” Id. at 516 (quoting Butte City

Water Co. v. Baker, 196 U.S. 119, 126 (1905)).

Additionally, whatever “policymaking discretion” the

statute conveyed was limited by congressionally set

standards. The Act allowed the Secretary “to make

provisions for the protection against destruction by

319 U.S. at 216 (“the facilities of radio are limited and

therefore precious”); id. at 218 (“the number of radio channels

[is] limited by natural factors”) (citation omitted).

13

287 U.S. 12 (addressing railroad merger); see also N. Sec. Co.

v. United States, 193 U.S. 197, 353 (1904) (railroads “operate

public highways, established primarily for the convenience of the

people” and “in the exercise of public franchises, engage in the

transportation of passengers and freight among the states.”

(quotations and citations omitted).

14

204 U.S. 364, 380, 401 (1907) (addressing the operation of a

bridge constructed pursuant to a state-issued charter, a public

franchise).

15

320 U.S. 591 (1944).

12

27

fire and depredations upon the public forests and

forest reservations[,]” and Congress set the

punishments. Id. at 509. Pasturing “sheep and cattle

on the reservation, at will and without restraint,

might interfere seriously with the accomplishment of

the purposes for which [the acts] were established.”

Id. at 516.

While the USF arguably provides a social benefit,

the power to distribute and condition funds is not at

issue. Instead, Respondents challenge the FCC’s

power to set its own standard for how much money it

will take from American pockets to fund that benefit.

Petitioners fail to consider important distinctions

between management of benefits and impingement of

rights. This Court, however, must not evaluate the

conversion of private funds using metrics approved

for guiding the administration of limited benefits.

B. Petitioners Misplace Reliance on Cases

Considering Authority Constitutionally

Granted to the Executive; There Is No

Inherent Executive Power to Convert

Private Funds

In addition to missteps stemming from American

Power and failing to appreciate the difference

between the Constitution’s treatment of rights versus

benefits, Petitioners also misplace their reliance on

shared-authority cases. Cases that address authority

constitutionally vested in both the Legislative and

Executive Branches are inapplicable here because the

Executive Branch has no inherent authority to raise

revenue through a domestic tax or its equivalent.

28

There are some government activities that rest on

authority the Constitution placed in both the

Legislative and Executive Branches. See Gundy v.

United States, 588 U.S. 128, 159 (2019) (Gorsuch, J.,

dissenting) (“[W]hen a congressional statute confers

wide discretion to the executive, no separation-ofpowers problem may arise if the discretion is to be

exercised over matters already within the scope of

executive power.”) (quotations and citations omitted);

Ass’n of Am. R.Rs., 575 U.S. at 69 (Thomas, J.,

concurring) (“Certain functions may be performed by

two or more branches without either exceeding its

enumerated powers under the Constitution.”); see also

Hamburger, supra n. 2, at 1145–48 (distinguishing

exclusive government power and shared government

authority).

As explained in Respondents’ Brief, foreign affairs

is a common example. Consumers’ Rsch. Br. at 38–41.

Further, not only does the Executive Branch have

constitutional authority concerning foreign relations,

but constitutional protections for American subjects

cannot be compared to the breadth of government

power when interacting with foreign nations and

agents. See United States v. Curtiss-Wright Export

Corp., 299 U.S. 304, 315 (1936) (the differences

between internal and external affairs are

“fundamental” to the point that a delegation “confined

to internal affairs” may be invalid when the same

delegation affecting foreign affairs is permissible).

Petitioners’ cited cases and statutes addressing

tariffs, embargoes, and other import privileges are

thus not comparable to the FCC’s power here to

determine domestic funding for its program. See FCC

Br. at 36 (addressing tariffs and citing Federal Energy

29

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

558–60 (1976), Marshall Field, 143 U.S. at 683–89,

and J.W. Hampton, 276 U.S. at 409).

There are other contexts, including Loving v.

United States, 517 U.S. 748, 771 (1996), cited by the

SHLB Petitioners, SHLB Br. at 31, where the Court

has recognized that broad delegations that are

acceptable where the Executive has explicit

constitutional authority may not have been

acceptable otherwise. In Loving the issue was

whether the President, not Congress, could “make the

fundamental policy determination respecting the

factors that warrant the death penalty” for cases tried

in military tribunals. Id. at 755. After finding that the

Constitution did not give Congress exclusive power

over military judgments and that such power had

historically been shared between the Crown and

Parliament in England, Loving, 517 U.S. at 760–61,

the Court considered whether the statute provided an

intelligible principle. The Court stated that because

“[t]he delegated duty, then, is interlinked with [the

Commander in Chief] duties already assigned to the

President by express terms of the Constitution, and

the same limitations on delegation do not apply where

the entity exercising the delegated authority itself

possesses independent authority over the subject

matter,” the direction provided was adequate. See id.

at 772 (quotations and citations omitted). The Court

noted, however, that had the delegation “called for the

exercise of judgment or discretion that lies beyond the

traditional authority of the President,” the

nondelegation argument may have had more weight.

Id. at 772.

30

These shared authority cases and the shared

authority statutes that Petitioners rely upon16 are not

comparable to Congress’s granting FCC the power to

decide what amount of private funds to take to further

its program. Unlike the centuries-long practice of

multi-branch authority over foreign relations and

armed forces, the power to involuntarily convert

private funds into public money to support a social

benefit is not a shared authority. Consumers’ Rsch. v.

FCC, 109 F.4th 743, 767 (5th Cir. 2024) (“Unlike

delegations implicating the power to impose criminal

sentences, taxation has always been an exclusively

legislative function.”).

Regardless of its title—a tax, a fee, a king’s

ransom—§ 254 allows the FCC to unilaterally raise

revenue that adds up to roughly 20 times its

congressionally-appropriated budget. See Consumers’

Rsch. Br. at 12. Congress effectively gives the FCC a

blank check written on consumer accounts. Section

254 also allows the FCC to partially evade a core

legislative power that cannot be delegated nor shared

with agencies without special consideration. See

Chenoweth & Samp, supra n. 3, at 98. CFPB v. All

Am. Check Cashing, 33 F.4th 218, 241 (5th Cir. 2022)

(Jones, J., concurring) (“Congress may no more

lawfully chip away at its own obligation to regularly

appropriate money than it may abdicate that

obligation entirely.”).

16 The statutes cited address, among other things, the salary of

government employees, but not the associated raising of funds,

embargoes, postal operations, and the temporary relocation of

the government during an epidemic. FCC Br. at 21–23.

31

The power that the FCC is exercising in

determining the funding level for the USF is the

power to convert private money into public funds.

This is not a power already within the Executive’s

constitutional authority, and there is no justification

in this case for watering down the constitutional

protections arising from the separation of powers and

the burden of the legislative process.



The exclusive vesting of legislative power in

Congress is fundamental to the legitimacy of

government and the purpose for which it was

created—securing rights and liberty. While the Court

once demanded that Congress set the legislative

standards by which rights could be infringed, case law

has departed from these first principles. Through a

series of imprecise statements and stray dicta now

sometimes adopted as precedent, courts have come to

contradict the Constitution.

Petitioners and others further compound these

errors by failing to distinguish the extent of

government authority over benefits versus the limits

on government authority to interfere with rights.

They also fail to acknowledge that the Executive has

no traditional or constitutional authority to

determine appropriate funding for social welfare

programs. After almost 80 years of crumbling

protection for Vested Powers, it is long past time for

the Court to return to enforcing constitutional

prohibitions on the transfer of legislative power.

32

CONCLUSION

This Court should take the opportunity to reestablish the requirement for congressionally

established and judicially discernible legislative

standards as a barrier to keep legislative power in the

Legislative Branch. By that measure, 47 U.S.C. § 254,

to the extent that it gives the FCC discretion to

determine how severely to infringe rights, must fall.

February 18, 2025

Respectfully submitted,

/s/ Zhonette M. Brown

Zhonette M. Brown

Counsel of Record

Kaitlyn D. Schiraldi

Markham S. Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

4250 N. Fairfax Dr., Suite 300

Arlington, VA 22203

Phone: (202) 869-5210

zhonette.brown@ncla.legal

Counsel for Amicus Curiae

New Civil Liberties Alliance