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

NO. 24-354 and 24-422

IN THE

Supreme Court of the United States

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

Petitioners,

v.

CONSUMERS’ RESEARCH, ET AL.,

Respondents.

_____________________________

SHLB COALITION, ET AL.,

Petitioners,

v.

CONSUMERS’ RESEARCH, ET AL.,

Respondents.

On Writs of Certiorari to the United States Court of

Appeals for the Fifth Circuit

BRIEF OF ALLIANCE DEFENDING FREEDOM

AS AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

JACOB P. WARNER

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

(480) 444-0020

jwarner@ADFlegal.org

Counsel for Amicus Curiae

JAMES A. CAMPBELL

JOHN J. BURSCH

ALLIANCE DEFENDING

FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

i

TABLE OF CONTENTS

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

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

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT .............................................................. 2

I.

Article I vests legislative power in Congress,

prohibiting its further transfer. .......................... 2

A. Congress has legislative power. .................... 2

B. Congress must keep its legislative

power.............................................................. 4

C. Congress may delegate other power. .......... 11

1. Congress can make the application

of law depend on executive

factfinding. ............................................ 12

2. Congress can authorize the exercise

of inherent constitutional authority. ... 14

3. Congress can delegate to the

executive authority over public

rights. .................................................... 16

D. Congress must speak clearly. ..................... 19

II. This Court should adopt an originalist rule. .... 20

A. The intelligible-principle rule is wrong. ..... 21

ii

1. The rule veered from precedent. .......... 21

2. The rule collapsed federal power. ........ 23

B. The originalist rule is right and best.......... 24

1. The rule works in practice. ................... 24

2. The rule restores the Constitution’s

original meaning at a time when it

is sorely needed. .................................... 27

CONCLUSION ......................................................... 31

iii

TABLE OF AUTHORITIES

Cases

American Power & Light Co. v. SEC,

329 U.S. 90 (1946).............................................. 23

Cary v. Curtis,

44 U.S. 236 (1845).............................................. 18

Cheng v. Neumann,

51 F.4th 438 (1st Cir. 2022) .............................. 27

Commonwealth v. Duane,

1 Binn. 601 (Pa. 1809) ....................................... 17

Consumers’ Research v. FCC,

109 F.4th 743 (5th Cir. 2024) ............................ 29

Department of Transportation v. Association of

American Railroads,

575 U.S. 43 (2015)..... 3, 6, 7, 14, 16, 21, 22, 23, 27

Dobbs v. Jackson Women’s Health Organization,

597 U.S. 215 (2022).............................................. 2

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009)............................................ 24

FCC v. Fox Television Stations, Inc.,

567 U.S. 239 (2012)............................................ 18

Fletcher v. Peck,

10 U.S. 87 (1810).................................................. 3

Gundy v. United States,

588 U.S. 128 (2019)........... 7, 14, 16, 20, 23, 26, 27

Haynes v. Alfred A. Knopf, Inc.,

8 F.3d 1222 (7th Cir. 1993) ............................... 27

iv

In re Kollock,

165 U.S. 526 (1897)............................................ 19

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

276 U.S. 394 (1928)...................................... 21, 22

Lichter v. United States,

334 U.S. 742 (1948)............................................ 25

Little v. Barreme,

6 U.S. 170 (1804)................................................ 15

Loving v. United States,

517 U.S. 748 (1996)............................................ 16

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892)...................................... 21, 22

Mathews v. Eldridge,

424 U.S. 319 (1976)............................................ 18

McCafferty v. Newsweek Media Group, Ltd.,

955 F.3d 352 (3d Cir. 2020) ............................... 27

McCulloch v. Maryland,

17 U.S. 316 (1819)................................................ 5

MCI Express, Inc.-Petition for Declaratory OrderDSL Transportation Services, Inc.,

1999 WL 438985 (S.T.B. 1999) .......................... 18

Miller v. Mayor of New York,

109 U.S. 385 (1883)............................................ 12

Mistretta v. United States,

488 U.S. 361 (1989)........................................ 6, 24

Murray v. Hoboken Land & Improvement Co.,

59 U.S. 272 (1855).............................................. 18

National Broadcasting Co. v. United States,

319 U.S. 190 (1943)............................................ 25

v

New York State Rifle & Pistol Association, Inc. v.

Bruen,

597 U.S. 1 (2022)................................................ 11

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935)...................................... 22, 23

Partington v. Bugliosi,

56 F.3d 1147 (9th Cir. 1995) ............................. 27

Pennsylvania v. Wheeling & Belmont Bridge Co.,

59 U.S. 421 (1855).............................................. 17

Pickering v. Board of Education,

391 U.S. 563 (1968)............................................ 26

Shady Grove Orthopedic Associates, P.A. v.

Allstate Insurance Company,

559 U.S. 393 (2010)............................................ 23

The Cargo of the Brig Aurora v. United States,

11 U.S. 382 (1813).................................. 12, 13, 25

Touby v. United States,

500 U.S. 160 (1991)............................................ 19

United States v. Eliason,

41 U.S. 291 (1842).............................................. 16

United States v. Gratiot,

39 U.S. 526 (1840).............................................. 16

United States v. The William,

28 F. Cas. 614 (D. Mass. 1808) .......................... 25

Wayman v. Southard,

23 U.S. 1 (1825).............................7, 11, 14, 23, 25

Whitman v. American Trucking Association,

531 U.S. 457 (2001)............................................ 24

vi

Yakus v. United States,

321 U.S. 414 (1944)...................................... 20, 23

Statutes

1 Stat. 109 (1790) ..................................................... 17

1 Stat. 119 (1790) ..................................................... 15

1 Stat. 128 (1790) ..................................................... 15

1 Stat. 199 (1791) ..................................................... 17

1 Stat. 392 (1794) ..................................................... 17

1 Stat. 554 (1798) ..................................................... 15

1 Stat. 558 (1798) ..................................................... 10

1 Stat. 570-71 (1798) .......................................... 10, 17

1 Stat. 580 (1798) ..................................................... 13

1 Stat. 597 (1798) ..................................................... 12

1 Stat. 73 (1789) ....................................................... 14

15 U.S.C. 57a ............................................................ 30

19 U.S.C. 154 (1925) ................................................ 21

2 Stat. 606 (1810) ............................................... 12, 24

34 U.S.C. 20913 ........................................................ 26

42 U.S.C. 300gg-13 ................................................... 30

47 U.S.C. 254 ...................................................... 28, 29

Other Authorities

1 The Records of the Federal Convention of 1787

(Max Farrand ed., 1911) ...................................... 9

1 William Blackstone, Commentaries ........................ 3

vii

17 The Papers of James Madison (David B.

Mattern, et al. Perdue eds., 1991)..................... 19

3 Annals of Cong. (1791) ...................................... 9, 10

4 William Blackstone, Commentaries ...................... 17

8 Annals of Cong. (1798) .............................. 10, 11, 13

A.J. Jeffries, Making the Nondelegation Doctrine

Work: Toward A Functional Test for

Delegations, 60 U. Louisville L. Rev. 237

(2021)............................................................ 20, 30

Aaron Gordon, Nondelegation, 12 N.Y.U. J.L.

& Liberty 718 (2019)...................10, 18, 19, 27, 28

Aditya Bamzai, Alexander Hamilton, the

Nondelegation Doctrine, and the Creation of

the United States, 45 Harv. J.L. & Pub.

Pol’y 795 (2022) .................................................... 8

Akhil Reed Amar, The Bill of Rights: Creation and

Reconstruction (Yale 2008) ................................ 10

Alexander Hamilton, The Letters of Pacificus No.

1 (1793)............................................................... 15

Amy Coney Barrett, Suspension & Delegation,

99 Cornell L. Rev. 251 (2014) ................ 12, 20, 23

Caleb Nelson, Adjudication in the Political

Branches, 107 Colum. L. Rev. 559 (2007) ......... 17

Cary Coglianese, Dimensions of Delegation,

167 U. Pa. L. Rev. 1849 (2019) .......................... 31

David Currie, The Constitution in the Supreme

Court: The First Hundred Years, 1789–1888

(Univ. of Chi. Press 1985).............................. 6, 20

viii

David P. Currie, The Constitution in Congress:

The Federalist Period 1789-1801 (1997) ........... 20

David Schoenbrod, The Delegation Doctrine:

Could the Court Give It Substance?, 83 Mich.

L. Rev. 1223 (1985) ...................................... 14, 16

Elena Kagan, Presidential Administration,

114 Harv. L. Rev. 2245 (2001)........................... 24

Gary Lawson, Delegation & Original Meaning,

88 Va. L. Rev. 327 (2002)................................... 12

Ilan Wurman, Nondelegation at the Founding,

130 Yale L.J. 1490 (2021) ............................ 13, 19

James Otis, The Rights of the British Colonies

Asserted and Proved (1763) ................................. 8

Jerry L. Mashaw, Recovering American

Administrative Law: Federalist Foundations,

1787-1801, 115 Yale L.J. 1256 (2006) ............... 15

John Harrison, Public Rights, Private Privileges,

and Article III, 54 Ga. L. Rev. 143 (2019)......... 17

John Locke, Second Treatise of Civil Government

(J. Gough ed. 1947) .............................................. 6

John Locke, Two Treatises of Government (Peter

Laslett ed., Cambridge Univ. Press 2d ed.

1967) ..................................................................... 7

John Quincy Adams, The Jubilee of the

Constitution: A Discourse (1839) ......................... 7

Nathaniel Chipman, Sketches of the Principles of

Government (Vt., J. Lyon 1793) .......................... 5

Philip Hamburger, Nondelegation Blues, 91 Geo.

Wash. L. Rev. 1083 (2023) ......3, 4, 5, 8, 13, 14, 27

ix

Saint George Tucker, 1 Blackstone’s

Commentaries: with Notes of Reference, to the

Constitution & Laws, of the Federal

Government of the United States; and of the

Commonwealth of Virginia (Birch & Small

1803) ................................................................... 16

The Federalist No. 37 (James Madison) .................. 11

The Federalist No. 47 (James Madison) .................... 6

The Federalist No. 73 (Alexander Hamilton) .......... 27

The Federalist No. 78 (Alexander Hamilton) .. 3, 4, 26

William Baude, Adjudication Outside Article III,

133 Harv. L. Rev. 1511 (2020 ............................ 26

William Rawle, A View of the Constitution of the

United States of America (2d. ed. 1829) ............ 16

Constitutional Provisions

U.S. Const. art. I ........................................................ 2

U.S. Const. art. I, § 1.................................................. 4

U.S. Const. art. I, § 8.............................................. 3, 5

U.S. Const. art. II, § 3 ................................................ 5

U.S. Const. art. IV, § 3 ............................................. 16

1

INTEREST OF AMICUS CURIAE 1

Alliance Defending Freedom advances the Godgiven right to live and speak the truth. It promotes

religious freedom, the freedom of speech, the sanctity

of human life, parental rights, and God’s design for

marriage and family. To advance constitutional freedoms for all Americans, ADF represents ordinary people who face extraordinary threats from government

overreach. ADF has a strong interest in preserving

constitutionally separated power to ensure that basic

freedoms endure in this generation and those to come.

SUMMARY OF THE ARGUMENT

Article I vests legislative power in Congress. Legislative power is the power to make binding law. As

the Constitution’s text, structure, and history show,

Congress alone can make binding law. It cannot give

this power away. But Congress can delegate other authority. It can make the application of law turn on executive factfinding, allow other government branches

to exercise their inherent constitutional power, and

give the executive authority over public rights.

The current delegation rule has veered from this

principle and collapsed separated power. This Court

should restore separated power by adopting the following originalist rule:

A statute unconstitutionally delegates legislative power when it (1) enables a government

agent to make, outside its inherent

1 No counsel for a party authored this brief in whole or in part,

and no person other than amicus and its counsel made any monetary contribution intended to fund the preparation or submission of this brief.

2

constitutional authority, generally applicable

rules that bind private conduct and (2) makes

the content or effectiveness of those rules turn

on the agent’s policy judgment, rather than a

factual contingency that could be subject to judicial review.

This rule respects the Constitution, works in

practice, and restores an originalist understanding at

a time of great need. In recent years, Government has

swelled exponentially. The Code of Federal Regulation now has over 100 million words. Too many arise

from Congress delegating its exclusive power. Restoring the original delegation doctrine keeps lawmaking

power where it belongs—Congress.

ARGUMENT

I.

Article I vests legislative power in Congress,

prohibiting its further transfer.

Constitutional analysis starts with “the language

of the instrument.” Dobbs v. Jackson Women’s Health

Org., 597 U.S. 215, 235 (2022). That language “offers

a fixed standard for ascertaining what our founding

document means.” Ibid. (cleaned up). Article I of the

Constitution states: “All legislative Powers herein

granted shall be vested in a Congress of the United

States.” Because this provision vests all legislative

power in Congress, it prohibits the transfer of legislative power to coordinate branches.

A. Congress has legislative power.

Article I vests legislative power in Congress. Legislative power is the power to make “generally applicable rules of private conduct.” Dep’t of Transp. v.

3

Ass’n of Am. Railroads, 575 U.S. 43, 70 (2015)

(Thomas, J., concurring). As Alexander Hamilton

said, “[t]he essence of the legislative authority is to

enact laws”—to prescribe “rules by which the duties

and rights of every citizen are to be regulated.” The

Federalist No. 78; accord 1 William Blackstone, Commentaries *44. Chief Justice Marshall agreed: “It is

the peculiar province of the legislature to prescribe

general rules for the government of society.” Fletcher

v. Peck, 10 U.S. 87, 136 (1810). Legislative power was

no mere power to vote on legislation; it was the power

to make general rules binding private conduct.

This power is distinct from executive and judicial

power. Whereas core judicial power is the power to

make binding judgments about binding rules in individual cases, core legislative power is the power to

make binding rules. The Federalist No. 78 (Alexander

Hamilton); Executive power is neither. It is the nation’s strength, action, and force. Ibid.; see Philip

Hamburger, Nondelegation Blues, 91 Geo. Wash. L.

Rev. 1083, 1122–25 (2023). It does not include the authority to create binding rules or judgments.

Binding rules impose legal obligation; nonbinding

rules do not. Article I gives Congress authority to create some of both. As Alexander Hamilton said, “The

legislature not only commands the purse, but prescribes the rules by which the duties and rights of

every citizen are to be regulated.” The Federalist No.

78. Congress, for example, has the power to borrow

and coin money, establish post roads, raise and support armies, provide and maintain a navy, and so

forth. U.S. Const. art. I, § 8. “The physical establishing, constituting, supporting, and maintaining of such

things”—and the directing of “executive officers” to

4

accomplish them—“[are] executive acts, vested in the

executive.” Hamburger, supra, at 1116.

Though “some of these powers, at least in conjunction with the Necessary and Proper Clause, could justify the making of binding laws, they more broadly”

let Congress work through “nonbinding enactments.”

Hamburger, supra, at 1115–16. Congress must “authorize” such actions, but it may allow the executive

to carry them out. Id. at 1116.

Authorizing laws do not legally obligate the public. Or as Hamilton would say: they do not prescribe

“rules by which the duties and rights of every citizen

are to be regulated.” The Federalist No. 78. So Article I gives Congress limited power to form binding

law—generally applicable rules of private conduct—

and more “authority to make a range of relatively

nonbinding rules.” Hamburger, supra, at 1117.

B. Congress

power.

must

keep

its

legislative

Article I then ensures that Congress alone may

enact binding law. It says all legislative power “shall

be vested” in Congress. U.S. Const. art. I, § 1. This

mandatory text conveys legislative power to Congress

and fixes it there. If Article I “had merely said that the

legislative powers are hereby vested in Congress, one

might [believe] the Constitution only transferred its

powers, without any express textual indication that

[those powers] must stay in Congress.” Hamburger,

supra, at 1172. But the Constitution says “shall be

vested” instead—mandating both “the transfer” of

legislative power and its fixed “location.” Id. at 1173.

5

Because legislative power “shall be vested” with Congress, it shall not be vested elsewhere.

Article I’s Necessary and Proper Clause does not

undo this structure. It states: “Congress shall have

Power … To make all Laws which shall be necessary

and proper for carrying into Execution the foregoing

Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any

Department or Officer thereof.” U.S. Const. art. I, § 8.

This “necessary and proper” limit is not conjoined.

Consider the broader structure—though the executive may recommend measures it considers “necessary and expedient,” U.S. Const. art. II, § 3, this provision ensures Congress may enact laws only that are

“necessary and proper,” id. art. I, § 8. This textual variation suggests that each adjective imposes a separate

condition in its respective clause. McCulloch v. Maryland, 17 U.S. 316, 367 (1819). So Congress may not

delegate powers as it pleases—only as “proper.”

Shifting separated power is not “proper.” Besides

subverting Article I’s Vesting Clause, such a grant

would violate the Necessary and Proper Clause,

which allows Congress to make laws enabling the exercise of powers only as “vested by [the] Constitution”

in the three branches. U.S. Const. art. I, § 8; see Nathaniel Chipman, Sketches of the Principles of Government (Vt., J. Lyon 1793) (Congress is “empowered,

to make all laws necessary and proper for carrying

into effect, in the government, or any department, or

office of the United States, all the powers, with which

they are invested, by the constitution.”). This provision doesn’t allow Congress to redraw constitutional

lines. It allows Congress to delegate authority within

those lines. Hamburger, supra, at 1177–80.

6

History supports this construction. Start with the

framers’ well-documented commitment to the separation of powers. Mistretta v. United States, 488 U.S.

361, 380–81 (1989). Madison wrote that “[n]o political

truth is certainly of greater intrinsic value, or is

stamped with the authority of more enlightened patrons of liberty, than” the separation of powers. The

Federalist No. 47 (James Madison). For “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, ... may justly be pronounced the very definition of tyranny.” Ibid. So as

the framers understood, separated power is “essential” to “liberty.” Mistretta, 488 U.S. at 380; see The

Federalist No. 47 (James Madison) (quoting Baron de

Montesquieu: “There can be no liberty where the legislative and executive powers are united in the same

person” or body of rulers.).

This liberty was not “freedom from all constraint,”

but the liberty “to have a standing rule to live by …

made by the legislative power” and to be free from the

“arbitrary will of another man.” Am. Railroads, 575

U.S. at 75–76 (Thomas, J., concurring) (quoting John

Locke, Second Treatise of Civil Government § 22, at 13

(J. Gough ed. 1947)). Central to this liberty were “the

Lockean private rights: life, liberty, and property. If a

person could be deprived of these private rights on the

basis of a rule … not enacted by the legislature, then

he was not truly free.” Id. at 76; accord David Currie,

The Constitution in the Supreme Court: The First

Hundred Years, 1789–1888 at 272 & n.268 (Univ. of

Chi. Press 1985). This shows that the core legislative

power that the framers sought to protect from consolidation with the executive was the power to make

“generally applicable rules of private conduct.” Am.

7

Railroads, 575 U.S. at 76 (Thomas, J., concurring); §

I.A (defining legislative power).

To prevent consolidated power, the Constitution

vests legislative, executive, and judicial power separately in three branches of government. That arrangement serves to bar further delegations of power. Take

it from John Locke, who most profoundly influenced

the framers’ understanding of separated power,

Gundy v. United States, 588 U.S. 128, 153 (2019)

(Gorsuch, J, dissenting); John Quincy Adams, The Jubilee of the Constitution: A Discourse (1839),

https://perma.cc/JW63-7LAS:

The power of the Legislative being derived

from the People by a … voluntary Grant …,

can be no other, than what that positive Grant

conveyed, which being only to make Laws,

and not to make Legislators, the Legislative

can have no power to transfer their Authority

of making Laws, and place it in other hands.

John Locke, Two Treatises of Government 381 (Peter

Laslett ed., Cambridge Univ. Press 2d ed. 1967)

(1690). Implicit in delegated political power is a bar

on its further transfer; only with an additional grant

of authority to make legislators could a legislature enable others to make binding law. See Wayman v.

Southard, 23 U.S. 1, 42–43 (1825).

Ordinary Americans accepted this tenet. Consider

American revolutionary James Otis, an early hero in

the patriot cause of the 1760s. He endorsed Locke’s

words condemning the delegation of legislative power

in his widely circulated 1763 pamphlet, “The Rights

of the British Colonies Asserted and Proved.” James

8

Otis, The Rights of the British Colonies Asserted and

Proved (1763), archived at https://perma.cc/NLF8TMNW (“The legislature cannot transfer the power of

making laws to any other hands.”). As did Thomas

Jefferson in another widely circulated tract that condemned an act enabling King George III to reopen

American wharves whenever he pleased. Thomas Jefferson Randolph, ed., A Summary View of the Rights

of British America (1774), in 1 Memoirs, Correspondence, and Private Papers of Thomas Jefferson 112–13

(Colburn & Bentley 1829). Jefferson called this delegation of legislative power “despotism.” Ibid.

This common understanding prompted the crisis

that led to the framing of the U.S. Constitution. Aditya Bamzai, Alexander Hamilton, the Nondelegation

Doctrine, and the Creation of the United States,

45 Harv. J.L. & Pub. Pol’y 795, 836 (2022). When the

Articles of Confederation were still in place, Congress

sought to impose a tax on goods. Id. at 796. It needed

the States’ consent. But the New York Constitution

proved to be a roadblock; it said “legislative power

within this State shall be vested in two separate and

distinct bodies of men”—the State’s Assembly and

Senate. Id. at 797 (emphasis added). It was accepted

that this provision prohibited delegations of legislative power “within [the] State” (which suffices to support the construction of Article I here), but Hamilton

said it did not forbid delegations outside the State,

e.g., to a federal Congress. Id. at 821 (cleaned up). His

nuanced point did not prevail, and New York rejected

the tax—prompting calls for a constitutional convention where the American people (not the states) could

review federal power. Id. at 826–27; Hamburger, supra, at 1161–62. Those calls were soon answered.

9

At the convention, legislative delegation arose

when Madison proposed that the executive have, in

addition to the power to carry into effect the national

laws, the power to execute congressionally delegated

powers. 1 The Records of the Federal Convention

of 1787 at 66–67 (Max Farrand ed., 1911). This proposal assumed the executive could not exercise congressionally delegated power without express constitutional authorization, and it provoked fear that “improper powers might … be delegated.” Id. at 67. So

Madison clarified his proposal to vest the executive

with the “power to carry into effect, the national laws

… and to execute such other powers not Legislative

nor Judiciary in their nature, as may from time to

time be delegated by the national Legislature.” Id. at

66–67 (emphasis added; cleaned up).

After this edit, another member moved to strike

the delegation provision—calling it “unnecessary” because such power is “included” in the “power to carry

into effect the national laws.” Id. at 67. Madison conceded the provision’s excess but said keeping it may

“prevent doubts and misconstructions.” Ibid. Madison’s measure failed, ensuring the executive lacked

the power to execute congressionally delegated powers.

Post-ratification debates sounded much the same.

In 1791, the House of Representatives debated a proposed bill establishing a network of post offices and

post roads, during which someone introduced an

amendment that would have allowed mail deliveries

“by such route as the President of the United States

shall, from time to time, cause to be established.” 3

Annals of Cong. 229 (1791). This proposal sparked

tension. One member said that because Congress

10

alone had the power “to establish post offices and post

roads,” it would be unconstitutional to give that power

to the executive. Id. at 229–30. The amendment’s

sponsor answered not by denying Article I barred delegating legislative power, but by calling the power

delegated by his proposal executive, rather than legislative, in nature. Id. at 230. Critically, no one defending the bill argued that Congress could delegate

legislative power, which baffles if it were widely accepted that such power could be given. The measure

failed.

Consider also the Alien and Sedition Acts of 1798,

which were broadly condemned as unconstitutional.

Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 6 (Yale 2008). The Alien Act was criticized in part for enabling the president “to order all

such aliens as he shall judge dangerous to the peace

and safety of the United States … to depart out” of the

country. 1 Stat. 570-71 (1798). A member denounced

this provision because Congress alone can make general “rule[s] of action,” and the Act empowered the

president to “make the law” as he went. 8 Annals of

Cong. 2007–08 (1798). Another said the Constitution

forbids transferring power “in this manner.” Id. at

1963. The Act, they warned, sanctioned “despotism.”

Id. at 2008. Though the Act passed, it quickly expired

after severe condemnation. Aaron Gordon, Nondelegation, 12 N.Y.U. J.L. & Liberty 718, 747–48 (2019).

The same year, Congress debated another bill allowing the President, under certain conditions, to

raise an army of no more than 10,000 men. 1 Stat. 558

(1798). Some objected that the act unconstitutionally

delegated legislative power to the executive. 8 Annals

of Cong. 1525, 1535 (1798). Others said it only allowed

11

the President to act “until a certain contingency” occurred. Id. at 1528. Then critics warned, if that were

correct, Congress could let the President establish tax

rates. Id. at 1529. Supporters disagreed, saying only

Congress can fix a tax, but Congress could allow the

President to collect the tax when he found that “a certain event” has occurred. Id. at 1530. The measure

passed, but again, no one defending the law said Congress could delegate its legislative power to the president. And as will be shown below, neither this Act nor

the Alien Act violated the separation of powers.

As text, structure, and history show, Congress

alone can make general rules binding private conduct.

C. Congress may delegate other power.

This rule is clear, but it needs shape. The Federalist No. 37 (James Madison) (“[N]o skill in the science of government has yet been able to … define,

with sufficient certainty,” the line between “the legislative, executive, and judiciary.”); Wayman, 23 U.S. at

46 (admitting this necessary but “difficult” task).

When the application of a constitutional rule needs

refining, “history” and “practice” show the way. N.Y.

State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1,

35–36 (2022). Those guides show that Congress can,

without delegating legislative power, (1) condition the

application of law on executive factfinding, (2) enable

the exercise of inherent constitutional power, and (3)

give the executive authority over public rights.

12

1. Congress can make the application of

law depend on executive factfinding.

Start with conditional legislation. During the Napoleonic Wars, Congress imposed a trade embargo on

France and Great Britain until the president had determined that one side had changed its “edicts” to respect “the neutral commerce of the United States.” 2

Stat. 606 (1810). This Court upheld that grant of

power because Congress exercised legislative judgment in setting the rule while enabling the executive

only to adjudicate whether a certain “fact” was true

before it “[went] into effect.” The Cargo of the Brig Aurora v. United States, 11 U.S. 382, 387 (1813).

That’s because factfinding is an inherent executive function. Gary Lawson, Delegation & Original

Meaning, 88 Va. L. Rev. 327, 364 (2002); cf. Amy Coney Barrett, Suspension & Delegation, 99 Cornell L.

Rev. 251, 293 (2014) (“Congress has passed contingent legislation since the early … Republic.”). This issue reappeared a half-century later when Congress

made construction of the Brooklyn Bridge turn on a

finding by the Secretary of War that the bridge would

not impede ships traveling on the East River. This

Court upheld that delegation on the same logic. Miller

v. Mayor of N.Y., 109 U.S. 385, 393 (1883). Congress

may, without delegating legislative power, condition

the application of law on executive factfinding.

This logic justifies other early laws like the Direct

Tax of 1798, in which Congress levied a tax to be

raised in part based on property valuations made by

executive officials. 1 Stat. 597, 598 (1798). Congress

made the policy; it fixed the tax amount. Then, because the Constitution provided that direct taxes

13

must be proportional to the states’ populations, Congress decided how each state would contribute— a 50cent head tax on slaves and a fixed-rate tax on houses

per their monetary value. Any shortfall would be covered by a land tax at a rate sufficient to satisfy the

state’s obligation. Finally, Congress settled whether

houses should be taxed apart from land, to ensure

that wealthy city dwellers, not rural farmers, would

bear most of the burden. Ilan Wurman, Nondelegation

at the Founding, 130 Yale L.J. 1490, 1550 (2021).

Having decided the policy, Congress sent officials

to value the homes. A three-step process controlled

their assessments: (1) initial assessors would value

property based on its monetary worth considering local geography and circumstances; (2) principal assessors could then adjust those valuations up or down;

and (3) commissioners could make further areawide

adjustments if equitable and just. This layered review

ensured impartiality and limited discretion—allowing adjustments only to “equalize” valuations. 1 Stat.

580, 588, § 20 (1798). Sure, Congress could have

based home valuations on a more concrete measure—

e.g., the number of rooms, doors, and more—but such

measures would not account for key factors like location that vastly affect home values. See 8 Annals of

Cong. 1848 (1798) (Without layered, individualized

review, “no equality of taxation could be expected.”).

Congress set the rule and sent officials to determine

facts. Wurman, supra, at 1549–53. No problem. Cf.

Hamburger, supra, at 1211 (“[A]s a matter of common

law, assessments were not considered legislative.”).

Congress could have exercised its legislative

“judgment” in these cases without executive factfinding. Brig Aurora, 11 U.S. at 388. It could have decided

14

under what circumstances to impose the embargo, to

build the bridge, or to raise the tax. But these historical examples show that, while “the Constitution’s

powers are exclusive,” the “authority exercised under”

those powers is sometimes not. Hamburger, supra, at

1145; Am. Railroads, 575 U.S. at 69 (Thomas, J., concurring). “[S]eparated powers come with much unseparated authority.” Hamburger, supra, at 1145.

2. Congress can authorize the exercise

of inherent constitutional authority.

Building on this principle, Congress may authorize executive and judicial rulemaking for internal administration. Take the Judiciary Act of 1789, which

empowered federal courts “to make all necessary

rules [to] orderly conduct[ ] [the] business” before

them. 1 Stat. 73 (1789). This act gave the judiciary

broad discretion to make rules regulating its internal

administration, but because this power is “properly

within the judicial province,” no legislative power was

given. Wayman, 23 U.S. at 45. While the legislative

and judicial powers are vested exclusively in their respective branches, the authority to make rules of

court is not exclusively legislative or judicial. See

Gundy, 588 U.S. at 159 (Gorsuch, J., dissenting). Congress may authorize the exercise of overlapping authority without delegating legislative power.

Similarly, when a statute gives wide discretion to

the executive, no delegation problem arises if “the discretion is to be exercised over matters already within

the scope of executive power.” Ibid.; see David Schoenbrod, The Delegation Doctrine: Could the Court Give

It Substance?, 83 Mich. L. Rev. 1223, 1260–65 (1985).

The First Congress, for example, passed an act

15

allowing the President “to call into service from time

to time [certain militia], as he may judge necessary,”

to protect American “frontiers.” 1 Stat. 119, 121

(1790). This act gave the president discretion to pursue a specific foreign policy, but it did not transfer

power because allocating military resources is quintessential executive work. Alexander Hamilton, The

Letters of Pacificus No. 1 (1793).

Indeed, early Congresses provided nearly “standardless regulatory authority” to the President in matters of war and foreign policy. Jerry L. Mashaw, Recovering American Administrative Law: Federalist

Foundations, 1787-1801, 115 Yale L.J. 1256, 1300

(2006). One statute gave the president $40,000 annually to “support … such persons as he shall commission to serve the United States in foreign parts.” 1

Stat. 128, 128 (1790). Another let him do whatever

necessary to protect the public when France menaced. 1 Stat. 554, 555 (1798). The exercise of such authority arguably did not need statutory authorization.

See Little v. Barreme, 6 U.S. 170, 177 (1804).

Contemporary commentators affirmed these statutes as consistent with the separation of powers. In

the same part of his 1803 treatise in which he affirmed the rule against delegation of legislative

power, George Tucker distinguished such early statutes from impermissible delegations of legislative

power by noting they delegated powers to the president in an area in which he possessed inherent power.

Saint George Tucker, 1 Blackstone’s Commentaries:

with Notes of Reference, to the Constitution & Laws, of

the Federal Government of the United States; and of

the Commonwealth of Virginia 346–47 (Birch & Small

16

1803); see William Rawle, A View of the Constitution

of the United States of America 196 (2d. ed. 1829).

As to war and foreign policy, Congress acts in

“precedence over, not exclusion of, [e]xecutive authority.” Loving v. United States, 517 U.S. 748, 767 (1996);

Gundy, 588 U.S. at 170–71 (Gorsuch, J., dissenting)

(“Congress may assign the President broad authority

regarding the conduct of foreign affairs or other matters where he enjoys his own inherent Article II powers.”); cf. United States v. Eliason, 41 U.S. 291, 301

(1842) (“The power of the executive to establish rules

and regulations for … the army, is undoubted”).

3. Congress can delegate to the executive authority over public rights.

Finally, Congress may delegate to the executive

broad authority over public rights. Article IV, section

III states: “Congress shall have Power to dispose of

and make all needful Rules and Regulations respecting the Property belonging to the United States.” An

exercise of power under this clause is not subject to

Article I’s limitations. Congress can manage public

property as it needs. United States v. Gratiot, 39 U.S.

526, 537 (1840) (Congress manages public “property

… without limitation.”). For example, it is “well established” that Congress manages public land as landowner rather than lawgiver. Schoenbrod, supra, at

1266; see Am. Railroads, 575 U.S. at 83 n.7 (Thomas,

J., concurring) (distinguishing rules binding private

conduct from rules for accessing “public land”).

In the early republic, Congress enabled the executive to dispense public rights. Public rights included

government-owned property interests, covering both

17

tangible interests, e.g., Pennsylvania v. Wheeling &

Belmont Bridge Co., 59 U.S. 421, 431 (1855) (public

servitudes), and intangible ones, e.g. Commonwealth

v. Duane, 1 Binn. 601, 606–07 (Pa. 1809) (compliance

with laws). See Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 566 (2007);

4 William Blackstone, Commentaries *7. Congress

had nearly limitless discretion to regulate these

rights. It could dispose property, allot benefits, and

award franchises itself—with or without judicial review—or it could “adopt general rules according to

which executive officials would dispense them.” John

Harrison, Public Rights, Private Privileges, and Article III, 54 Ga. L. Rev. 143, 158 (2019). When enabling

executive adjudication, Congress could give officials

“substantial discretion or none at all.” Ibid.

In 1794, for example, Congress directed the Secretary of War to place on the invalid pension list individuals he found clearly within the provisions of an

earlier act regarding pensions. 1 Stat. 392, 392–93

(1794). That Act called for the application of law to

fact with no policy discretion. Ibid. A few years before,

Congress authorized the president to set compensation for excise officials at amounts he deemed “reasonable and proper,” provided his decisions were within

a specified range. 1 Stat. 199, 213 (1791). Similarly,

Congress enabled the president “to order all such aliens as he shall judge dangerous to the peace and

safety of the United States … to depart out” of the

country, 1 Stat. 570–71 (1798), and it let executive officials approve patents for inventions they “deem …

sufficiently useful and important,” 1 Stat. 109, 110

(1790). These were matters of license and privilege. In

18

nearly all these acts, Congress delegated to the executive broad discretion over public rights.

Then, in 1845, this Court rejected a constitutional

challenge to a federal statute providing that a person

who paid a duty under protest was entitled to a refund

“whenever it shall be shown to the satisfaction of the

Secretary of the Treasury, that … more money has

been paid … than the law requires should have been

paid.” Cary v. Curtis, 44 U.S. 236, 240–41 (1845). This

was no delegation problem as the law did not enable

the Secretary to issue general rules governing private

conduct; instead, the law allowed the Secretary “to apply such rules to particular cases, a duty inherent in

… executive power.” Gordon, supra, at 755; see Murray v. Hoboken Land & Improvement Co., 59 U.S. 272,

280 (1855). True, that law appears to delegate judicial

power: it makes the Secretary the sole “tribunal for

the examination of claims.” Cary, 44 U.S. at 242. But

because the dispute is between government and citizen, the public-rights doctrine allows Congress to resolve it outside Article III courts—provided there was

due process. Murray, 59 U.S. at 284; Mathews v. Eldridge, 424 U.S. 319, 333 (1976); FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012).

In sum, in the early republic, Congress appropriately allowed the executive to exercise broad discretion over public rights. 2

2 In modern practice, agencies can issue prospective decisions

that do not penalize past conduct but declare legal rights or obligations going forward. E.g. MCI Express, Inc.-Pet. for Declaratory Order-DSL Transp. Servs., Inc., 1999 WL 438985, at *1

(S.T.B. 1999) (“the [Surface Transportation] Board has discretionary authority to issue a declaratory order to terminate a

19

D. Congress must speak clearly.

Early practice shows that Congress may give discretion to other branches, and though the scope of that

discretion was important, its nature was paramount.

For example, Congress had more latitude to delegate discretion when it enabled other government

branches to exercise inherent constitutional power.

But when making conditional legislation and allowing

discretion that edged on private liberty, it spoke more

precisely. Clarity is key. As Madison said, “[d]etails …

are essential to the nature and character of a law.”

17 The Papers of James Madison 303, 324 (David B.

Mattern, et al. Perdue eds., 1991). Without “precise

rules,” a law could be so vague as to enable an exercise

of power far beyond constitutional limits. Ibid.

The clarity required varies by the law. As Madison explained, all laws need sufficient detail to show

their “true character” as laws, but those affecting private rights—a person’s right to “life,” “liberty,” or

“property”—require more precision. 17 The Papers of

James Madison 325; see Wurman, supra, at 1512–14;

Gordon, supra, at 747–48. When telling the IRS to design a stamp, for example, Congress need not give

specific direction, In re Kollock, 165 U.S. 526, 533

(1897); but when Congress lets the Attorney General

ban a drug, it must provide detailed instructions, e.g.,

Touby v. United States, 500 U.S. 160, 166 (1991); A.J.

Jeffries, Making the Nondelegation Doctrine Work:

controversy or remove uncertainty.”). Those decisions require no

fair warning. That practice should be reviewed if this Court restores the nondelegation doctrine consistent with its original understanding. Gordon, supra, at 756–57.

20

Toward A Functional Test for Delegations, 60 U. Louisville L. Rev. 237, 253–57 (2021). “The specificity

needed … will vary with the” type of authority that

Congress is allowing. Id. at 257; cf. David P. Currie,

The Constitution in Congress: The Federalist Period

1789-1801 at 247 (1997) (opining that delegation

“must … be more narrowly defined, when the authority [given] is one the Framers specifically” reserved

for Congress).

This means grants affecting private liberty require the most detail, while those authorizing inherent authority require less. Cf. Barrett, supra, at 318

n.286 (noting this sliding “scale”). But in all cases,

Congress must provide standards “sufficiently definite and precise to enable Congress, the courts, and

the public to ascertain” whether Congress’s guidance

has been followed. Gundy, 588 U.S. at 158 (Gorsuch,

J, dissenting) (quoting Yakus v. United States, 321

U.S. 414, 426 (1944)).

II. This Court should adopt an originalist rule.

Tying text, structure, and history together, a conceptual thread appears: A statute unconstitutionally

delegates legislative power when it (1) enables a government agent to make, outside its inherent constitutional authority, generally applicable rules that bind

private conduct and (2) makes the content or effectiveness of those rules turn on the agent’s policy judgment, rather than a factual contingency that could be

subject to judicial review. The current delegation test

does not fully respect this rule. It veers from precedent and has collapsed separated power. This Court

should affirm the originalist understanding of the

separation of powers and right the republic.

21

A. The intelligible-principle rule is wrong.

This Court first introduced the intelligible-principle test in J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394 (1928), which involved a challenge to a

tariff assessed on a shipment of barium dioxide. Id. at

400. The president set the tariff rate by proclamation

per the Tariff Act of 1922. Ibid. That Act allowed him

to adjust up or down a duty set by statute if he found

that the duty did not “‘equalize ... differences in costs

of production [of the item to which the duty applied]

in the United States and the principal competing

country.’” Id. at 401 (quoting 19 U.S.C. § 154 (1925)).

An importer challenged this authority as an unconstitutional delegation of legislative power. Id. at 404.

This Court affirmed that Congress could not delegate such power. But it nonetheless upheld the Act

under newfound logic: “If Congress shall lay down by

legislative act an intelligible principle to which the

person or body authorized to fix such rates is directed

to conform, such legislative action is not a forbidden

delegation of legislative power.” Id. at 409. This atextual and ahistorical rule veered sharply from precedent and inadvertently combined federal power.

1. The rule veered from precedent.

This broad rule also “rested on a narrow foundation.” Am. Railroads, 575 U.S. at 78 (Thomas, J., concurring). When J.W. Hampton was decided, most congressional delegations to the executive, including the

one at issue in that case, “had taken the form of conditional legislation.” Ibid.; see Marshall Field & Co.

v. Clark, 143 U.S. 649, 683–89 (1892); see § I.C.1. And

this Court affirmed that practice in Brig Aurora. The

22

president does not exercise legislative power when

Congress makes the “rule of private conduct” while

enabling the president only to find a fact “caus[ing]

that rule to go into effect.” Am. Railroads, 575 U.S. at

78 (Thomas, J., concurring).

As a result, J.W. Hampton required no new thinking. The conditional-legislation rule applied. In fact,

this Court concluded its analysis in J.W. Hampton not

by touting an intelligible principle but by citing

Field—showing that the Tariff Act did not give the

“President … the power of legislation, because” no policymaking was left to his discretion. 276 U.S. at 410;

see Field, 143 U.S. at 692. Congress had conditioned

the application of law on a “named contingency,” and

enabled the President “to ascertain and declare the

event upon which” the law would “take effect.” J.W.

Hampton, 276 U.S. at 410–11; see Am. Railroads, 575

U.S. at 81 (Thomas, J., concurring). Neither J.W.

Hampton nor Field suggests that the executive can

make general rules binding private conduct.

To be sure, courts then had begun to uphold statutes under which the executive could make “subordinate rules within prescribed limits.” Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935); see id. at

429. But “[t]o the extent that these cases endorsed authorizing the Executive to craft generally applicable

rules of private conduct, they departed from the precedents on which they purported to rely.” Am. Railroads, 575 U.S. at 82 (Thomas, J., concurring). Many

such cases invoked Wayman, but that opinion

“strongly suggests” that no one but Congress may create such rules. Ibid. Internal management rules differ

from generally applicable rules of private conduct.

§ I.C.2. And two key premises lie beneath Wayman:

23

(1) the quality—not the quantity—of delegated discretion shows whether an authorization is constitutional, and (2) the rules “for which the legislature

must expressly and directly provide” are those binding private conduct, not public officials. 23 U.S. at 46;

see Am. Railroads, 575 U.S. at 83 (Thomas, J., concurring).

So when Wayman notes the “difficulty” in discerning exactly when Congress may delegate authority, it

does not concern the “difficulty in discerning whether”

Congress’s guidance is “sufficiently defined,” but instead “the difficulty in discerning which rules” bind

private conduct and “which [do] not.” Ibid. (citing

Panama Refining, 293 U.S. at 429); accord Gundy,

588 U.S. at 157 (Gorsuch, J., dissenting). This Court

continues to “wrestle” with a similar distinction in its

“decisions distinguishing between substantive and

procedural rules both in diversity cases and under the

Rules Enabling Act.” Am. Railroads, 575 U.S. at 83

(Thomas, J., concurring); e.g. Shady Grove Orthopedic

Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 406–

407 (2010).

2. The rule collapsed federal power.

J.W. Hampton’s error collapsed federal power. The

intelligible-principle test “is notoriously lax.” Barrett,

supra, at 318. It requires only a “minimal degree of

specificity” for Congress to enable executive officials

to “make rules having the force and effect of [binding]

law.” Am. Railroads, 575 U.S. at 85 (Thomas, J., concurring). It has allowed executive officials to decide

politically what is “unfair,” Am. Power & Light Co. v.

SEC, 329 U.S. 90, 104–05 (1946), pick policy goals,

Yakus, 321 U.S. at 420, 423–26; Entergy Corp. v.

24

Riverkeeper, Inc., 556 U.S. 208, 218–23 (2009), and

bind private conduct, Whitman v. Am. Trucking Ass’n,

531 U.S. 457, 472–76 (2001).

But clarity is a mean—not the end. As a standalone rule, clarity has sapped the nondelegation doctrine. Modern precedent has turned the “nondelegation doctrine” into “no doctrine at all.” Elena Kagan,

Presidential Administration, 114 Harv. L. Rev. 2245,

2364 (2001). Clarity is necessary but not sufficient to

ensure that separated power is respected.

B. The originalist rule is right and best.

The intelligible-principle rule is wrong. But to restore separated powers, the originalist rule must be

correct, § I, and “readily enforceable.” Mistretta, 488

U.S. at 415 (Scalia, J., dissenting). Recall the correct

rule: A statute unconstitutionally delegates legislative power when it (1) enables a government agent to

make, outside its inherent constitutional authority,

generally applicable rules that bind private conduct

and (2) makes the content or effectiveness of those

rules turn on the agent’s policy judgment, rather than

a factual contingency that could be subject to judicial

review. This rule is readily administrable.

1. The rule works in practice.

Early cases are a good litmus. Go back to Brig Aurora. That ruling would be affirmed on two independent bases. First, it was conditional legislation allowing the president to implement a law if he found that

another nation had changed its laws to respect “the

neutral commerce of the United States.” 2 Stat. 606

(1810). As the original holding shows, courts can

25

discern whether that predicate act had occurred. Brig

Aurora, 11 U.S. at 387. They are well equipped to review the application of law to fact.

Second, because this legislation concerned foreign

affairs, an area over which the president has inherent

authority, § I.C.2, Congress could have curbed presidential judgment even less. In fact, a federal court

had affirmed this same law on this exact logic a few

years before. United States v. The William, 28 F. Cas.

614, 622 (D. Mass. 1808). Brig Aurora stands. As does

Wayman: because the authority to regulate courts is

“within the judicial province,” Congress can authorize

the judiciary to exercise its inherent power to formulate rules of court. 23 U.S. at 45. All good here.

Newer cases may stand but on different logic.

Take Lichter v. United States, which affirmed under

the intelligible-principle rule a provision in the Renegotiation Act that created a cause of action for the

War Department to recover “excessive profits” from

defense contractors. 334 U.S. 742, 746 (1948). The Act

passes because Congress did not allow the Department to create generally applicable rules. Consider

also National Broadcasting Co. v. United States, in

which this Court deemed sufficiently “concrete” a

statute allowing the Federal Communications Commission to grant broadcast licenses for the “public interest, convenience, or necessity.” 319 U.S. 190, 193–

94, 216 (1943). This rule passes because Congress had

made radio operation a public right. § I.C.3. It banned

running a radio apparatus without a license—binding

private conduct—and let the Commission grant exceptions to that general rule in the form of license. An

exemption from a general ban is a “privilege.” William

Baude, Adjudication Outside Article III, 133 Harv. L.

26

Rev. 1511, 1579 (2020). Congress made the rule binding private conduct; the Commission did not.

That does not mean all precedent will stand. Take

Gundy, where this Court upheld as an intelligible

principle SORNA’s delegation to the Attorney General of authority to decide whether SORNA’s terms

would be applicable to “sex offenders convicted before”

the act was passed. 34 U.S.C. 20913(d). This delegation “leaves the Attorney General free to impose on

500,000 pre-Act offenders all of the statute’s requirements, some of them, or none of them.” Gundy, 588

U.S. at 169 (Gorsuch, J., dissenting). It does not make

application of SORNA turn on objective “fact-finding.”

Id. at 170. Nor does SORNA “involve an area of overlapping authority with the executive.” Ibid. It allows

an executive officer “to ‘prescrib[e] the rules by which

the duties and rights’ of citizens are determined, a

quintessential[ ] legislative power.” Id. at 171 (quoting The Federalist No. 78 (Alexander Hamilton)). “If

the separation of powers means anything, it must

mean that Congress cannot give the executive branch

a blank check to write a code of conduct governing private conduct for a half-million people.” Ibid.

Some may criticize as undefined the line between

rules that bind private conduct and those that merely

affect it. For example, the originalist rule approves of

Congress enabling the executive to make rules covering the location of federal buildings and lands. § I.C.3.

These choices can affect private people just as much

as rules. But here, Government acts as owner, employer, or market participant rather than legislator—

distinctions familiar in other legal contexts. E.g. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (First

Amendment); Reeves, Inc. v. Stake, 447 U.S. 429, 436-

27

37 (1980) (Dormant Commerce Clause). Such activities may interfere with private conduct but do not

bind it. Hamburger, supra, at 1116.

Others may criticize as too undefined the line between rules that go into effect based on a factual contingency and those that turn on a policy call. But

courts routinely untangle fact from opinion. Take defamation law. An opinion expresses “a subjective view,

an interpretation, a theory, conjecture, or surmise,”

while a fact is “objectively verifiable,” Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993),

meaning it can be “proved true or false” to a court,

Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir.

1995); accord Cheng v. Neumann, 51 F.4th 438, 444

(1st Cir. 2022); McCafferty v. Newsweek Media Grp.,

Ltd., 955 F.3d 352, 359 (3d Cir. 2020). If these standards suffice when First Amendment freedom is at

stake, they suffice here. Gordon, supra, at 789.

2. The rule restores the Constitution’s

original meaning at a time when it is

sorely needed.

This Court should resurrect “the original understanding” of the separation of powers. Am. Railroads,

575 U.S. at 77 (Thomas, J., concurring). It has “not

hesitated” to do so elsewhere. Gundy, 588 U.S. at 168

(Gorsuch, J., dissenting) (collecting examples).

True, adopting this rule would slow government.

But it would strengthen deliberation. The framers accepted this trade, for while patience may defeat “a few

good laws,” it will prevent many “bad ones.” The Federalist No. 73 (Alexander Hamilton). The evolution of

the modern bureaucratic state shows that wisdom.

28

Between 1975 and 2016, the Code of Federal Regulations’ page count grew from less than 75,000 to

over 175,000, with its word count now exceeding 103

million. Gordon, supra, at 813. The restrictive-word

count—a count of words like “shall,” “must,” “may

not,” “required,” and “prohibited”—similarly increased over that span, from just under 500,000 to

nearly 1.1 million. Id. at 813–14.

Unsurprisingly, that enormous regulatory growth

has produced trouble. Take the case here. The Telecommunications Act of 1996 authorizes the FCC to establish “specific, predictable[,] and sufficient … mechanisms to preserve and advance universal service.” 47

U.S.C. 254(b)(5). To fund these efforts, the Commission levies “contributions” to a Universal Service

Fund from telecommunications carriers and distributes the money raised to other people and entities to

expand and advance “universal service”—i.e., telecommunication services that Congress left undefined

and committed to the Commission’s discretion.

The Commission doesn’t administer these universal service programs itself. Instead, it established a

private nonprofit corporation—the Universal Service

Administrative Company (USAC)—to bill contributors, collect contributions, and disburse universal service funds. USAC is managed by representatives from

interest groups affected by and interested in universal service programs, who are nominated by their respective interest groups. Critically, the Commission

delegates to USAC the responsibility of deciding the

quarterly universal service fund contribution

amount—a projection of the dollar value of demand

for universal support programs and the costs of administering

them—that

telecommunications

29

providers must pay. Because carriers may pass these

“contributions” on to their customers, they have a financial incentive to increase the size of universal service programs and may do so through the USAC.

The Commission has 14 days to review and revise

the contribution amount, but it seems to accept the

USAC’s proposal uncritically and has no documented

process for checking USAC’s work. The Commission

then uses USAC’s contribution amount to impose an

effective tax on America’s telecommunication carriers, who then pass that tax on to consumers. That

amount has risen exponentially in recent years. By

the end of 2021, Universal Service Fund “contributions” totaled over $9 billion. Recent Universal Service Fund taxes have been set as high as 34.5%. Waste

and fraud contributed to this growth. Consumers’ Research v. FCC, 109 F.4th 743, 748–58 (5th Cir. 2024)

(en banc) (detailing the Act’s history). And carriers’

customers—taxpayers—bear the burden of that tax.

This scheme combines separated powers. It allows the executive to decide the policy that preserves

and advances “universal service.” 47 U.S.C. 254(b)(5).

This isn’t contingent legislation. Congress gave no objective parameters for the “mechanisms” the executive must use to support universal service. Unlike the

Direct Tax of 1798, for example, Congress did not fix

the tax amount, decide the collection process, and

curb executive discretion with specific factfinding controls. § I.C.1. Instead, Congress delegated all those

policy decisions to the Commission—which then delegated those decisions to private actors. What’s more,

the executive has no inherent power to tax. And levying a nine-billion-dollar tax against nearly all Americans binds private conduct through a generally

30

applicable rule. This Court should reject this scheme

as an unconstitutional delegation of exclusive legislative power. It’s not a hard call to make.

Other modern grants should also fail. Take the

Affordable Care Act’s instruction to the Health Resources and Services Administration to promulgate

“comprehensive guidelines” as to what “additional

preventive care and screenings” insurers must provide for women. 42 U.S.C. 300gg-13(a)(4). It offers no

direction as to what those guidelines should say, delegating to the agency full discretion to make the policy itself. This delegation allows the executive to issue

general rules binding private conduct when the executive has no inherent power over healthcare. And

Congress gave no rule turning only on agency factfinding. Cf. Transcript of Oral Argument at 13:16-17,

Trump v. Pennsylvania, 140 S. Ct. 918 (2020) (No. 19454) (Justice Thomas questioning whether this provision

violates

nondelegation

doctrine),

https://perma.cc/87Q5-H2UP. The Government has

admitted this law gives the agency total discretion to

decide insurance policy. Id. at 12:16-22; Jeffries, supra, at 267. Under the originalist delegation test, this

provision should fail.

Consider also the Magnuson-Moss Act, which enables the Federal Trade Commission to issue rules defining “unfair or deceptive trade acts or practices in or

affecting commerce.” 15 U.S.C. 57a. Those rules carry

criminal and civil penalties. Under this delegation of

power, the Commission can target any sector of the

economy and any type of activity it pleases if the Commission, in its sole discretion, decides the activity is

“unfair or deceptive.” Cary Coglianese, Dimensions of

31

Delegation, 167 U. Pa. L. Rev. 1849, 1885–86 (2019).

Nothing in the statute defines those terms.

As scholars note, this provision “bears a striking

resemblance to the National Industrial Recovery Act’s

unconstitutional authorization of the President to

adopt ‘codes of fair competition.’” Coglianese, supra,

at 1885 (cleaned up). And its threat is palpable. State

attorneys general, for example, have misused a similar law to target pregnancy centers that promote

views the state disagrees with. E.g. Pet. for a Writ of

Cert., First Choice Women’s Resource Centers, Inc. v.

Platkin, No. 24-781 (U.S. Jan. 21, 2025) (pending review). This delegation should likewise fail.

***

Restoring the original delegation doctrine would

uphold constitutionally separated powers and keep

lawmaking power where it belongs—Congress.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

JAMES A. CAMPBELL

JOHN J. BURSCH

ALLIANCE DEFENDING

FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

FEBRUARY 2025

JACOB P. WARNER

Counsel of Record

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

(480) 444-0020

jwarner@ADFlegal.org