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

Nos. 24-354 & 24-422

In the Supreme Court of the United States

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

Petitioners,

v.

CONSUMERS’ RESEARCH, ET AL.

Respondents.

SCHOOLS, HEALTH & LIBRARIES BROADBAND

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 AMICI CURIAE FIREARMS POLICY

COALITION, INC. AND FPC ACTION

FOUNDATION IN SUPPORT OF RESPONDENTS

David H. Thompson

Counsel of Record

Peter A. Patterson

Bradley L. Larson

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amici Curiae

February 18, 2025

i

TABLE OF CONTENTS

PAGE

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

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF THE

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

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

I.

A Plaintiff Need Not Move for Preliminary

Relief to Avail Itself of Mootness

Exceptions. ........................................................ 4

A. The Injury to the Respondents is Capable of

Repetition, Yet Evading Review. ..................... 4

B. A Plaintiff’s Decision Not to Seek Preliminary

Relief has No Relevance to Justiciability. ....... 5

II.

The Original Understanding of the Public and

Private Nondelegation Doctrines. .................... 7

A. Legislative Powers Granted via the

Constitution Must Remain in Congress. .... 8

1. The intelligible-principle test cannot be

squared with the text and history of the

Legislative Vesting Clause........................ 13

B. Private Parties Cannot Exercise the

“Executive Power.” .................................... 14

1. Permissible Roles for Private

Entities. ................................................ 18

C. This Court Should Assess “Public”

Delegations Under the Same Strict

Standards as and “Private” Ones. ............ 20

ii

III.

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

is Unconstitutional. ........................................ 24

IV.

The Subdelegation to USAC is

Unconstitutional. ............................................ 27

A. The FCC’s Delegation to USAC is Inconsistent

with the Private Nondelegation Doctrine. ..... 27

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

iii

TABLE OF AUTHORITIES

CASES

PAGE(S)

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

295 U.S. 495 (1935) ....................... 2, 3, 7, 20, 21

Alpine Sec. Corp. v. FINRA,

121 F.4th 1314 (D.C. Cir. 2024) ......... 16, 17, 19

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

721 F.3d 666 (D.C. Cir. 2013) ........................... 3

Buckley v. Valeo,

424 U.S. 1 (1976) ................................. 15, 16, 29

Carter v. Carter Coal Co.,

298 U.S. 238 (1936) .............................. 3, 21, 28

CFPB v. Comty. Fin. Servs. Of Am.,

601 U.S. 416 (2024) ......................................... 25

Church of Scientology of Cal. v. United States,

506 U.S. 9 (1992) ............................................... 4

Cohens v. Virginia,

19 US 264 (1821) ............................................... 5

Collins v. Yellen,

594 U.S. 220 (2021) ......................................... 24

Consumers’ Rsch. v. FCC,

88 F.4th 917 (11th Cir. 2023) ........... 2, 4, 23, 25

Currin v. Wallace,

306 U.S. 1 (1939) ............................................. 21

Davis v. United States,

564 U.S. 229 (2011) ........................................... 7

Den ex dem. Murray v. Hoboken Land &

Improvement Co.,

18 How. 272 (1855) ......................................... 24

iv

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

575 U.S. 43 (2015) ..................... 3, 16, 17, 22, 29

Fletcher v. Peck,

10 U.S. 87 (1810) ............................................. 11

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) ............................ 17, 24, 28

Freytag v. Commissioner,

501 U.S. 868 (1991) ......................................... 30

Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC), Inc.,

528 U.S. 167 (2000) ........................................... 6

Glickman v. Wileman Bros. & Elliot, Inc.,

521 U.S. 457 (1997) ......................................... 19

Gundy v. United States,

588 U.S. 128 (2019) ........ 3, 4, 11, 13, 14, 22, 23

Hall v. Beals,

396 U.S. 45 (1969) ........................................ 5, 6

Hirschfield v. ATF,

14 F.4th 322 (4th Cir. 2021) ......................... 1, 2

Humphrey's Ex’r v. United States,

295 U.S. 602 (1935) ......................................... 24

In re Incomnet, Inc.,

463 F.3d 1064 (9th Cir. 2006)............. 27, 28, 29

INS v. Chadha,

462 U.S. 919 (1983) ......................................... 24

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

276 U.S. 394 (1928) ............................. 14, 21, 22

Jarkesy v. SEC,

603 U.S. 109 (2024) ......................................... 24

v

Kendall v. United States ex rel Stokes,

37 U.S. 524 (1838) ........................................... 19

Kingdomware Techs., Inc. v. United States,

579 U.S. 162 (2016) ........................................... 5

Loving v. United States,

517 U.S. 748 (1996) ......................................... 14

Lucia v. SEC,

585 U.S. 237 (2018) ......................................... 30

Marbury v. Madison,

5 U.S. 137 (1803) ............................................. 19

Martin v. Hunter's Lessee,

14 U.S. 304 (1816) ..................................... 15, 16

Morrison v. Olson,

487 U.S. 654 (1988) ......................................... 24

Myers v. United States,

272 U.S. 52 (1926) ........................................... 16

Nat’l Horsemen’s Benevolent & Protective Ass’n v.

Black, 53 F.4th 869 (5th Cir. 2022).......... 20, 22

New York State Rifle & Pistol Ass’n, Inc. v. City of

New York, 590 U.S. 336 (2020)..................... 1, 2

Newdow v. Roberts,

603 F.3d 1002 (D.C. Cir. 2010) ......................... 5

NLRB v. S.W. Gen., Inc.,

580 U.S. 288 (2017) ......................................... 17

Oklahoma v. United States,

62 F.4th 221 (6th Cir. 2023) ......... 18, 19, 20, 27

Pittston Co. v. United States,

368 F.3d 385 (4th Cir. 2004)..................... 19, 20

vi

Preiser v. Newkirk,

422 U.S. 395 (1975) ........................................... 4

Printz v. United States,

521 U.S. 898 (1997) ......................................... 18

Salazar v. Buono,

559 U.S. 700 (2010) ......................................... 30

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) ....................... 15, 16, 24, 29

State v. Rettig,

987 F.3d 518 (5th Cir. 2021)........................... 22

Stern v. Marshall,

564 U.S. 462 (2011) ......................................... 24

Sunshine Anthracite Coal Co. v. Adkins,

310 U.S. 381 (1940) ...................... 21, 27, 29, 30

Tex. Off. of Pub. Util. Counsel v. FCC,

265 F.3d 313 (5th Cir. 2001) .......................... 26

Turner v. Rogers,

564 U.S. 431 (2011) ........................................... 5

United States v. Frame,

885 F.2d 1119 (3d Cir. 1989) .................... 19, 22

United States v. Germaine,

99 U.S. 508 (1878) ........................................... 17

United States v. Sanchez-Gomez,

584 U.S. 381 (2018) ....................................... 4, 5

United States v. Texas,

599 U.S. 670 (2023) ....................................... 5, 6

vii

Wayman v. Southard,

23 U.S. 1 (1825) ....................... 2, 3, 8, 11, 14, 24

Wilson v. Hawaii,

No. 23-7517, 2024 WL 5036306 (U.S. 2024) .... 6

Winter v. NRDC,

555 U.S. 7 (2008) ............................................... 6

CONSTITUTIONAL PROVISIONS AND STATUTES

47 C.F.R.

§ 54.703(b)(1)–(13) .......................................... 29

§ 54.703(c)(1) ................................................... 28

§ 54.703(c)(3) ................................................... 28

§ 53.709(a)(3) ............................................. 29, 30

47 U.S.C.

§ 254(b) ........................................................ 2, 25

§ 254(b)(1) .................................................. 25, 26

§ 254(b)(3) ........................................................ 26

§ 254(b)(7) .................................................. 26, 27

§ 254(c)(1) .................................................... 2, 25

§ 254(d) ............................................................ 25

U.S. CONST. art. I,

§ 1................................................. 8, 9, 11, 12, 15

§ 8, cl. 2 ............................................................ 12

§ 8, cl. 3 ............................................................ 12

§ 8, cl. 8 ............................................................ 12

U.S. CONST. art. II,

§ 1 ................................................ 4, 8, 14, 15, 27

§ 2 .................................................................... 15

§ 2, cl. 2 ............................................................ 17

§ 3..................................................................... 16

U.S. CONST. art. III, § 2 ............................................... 4

U.S. CONST. art. VI .................................................... 29

viii

Act of Apr. 30, 1790, ch. 10, § 11, 1 Stat. 119

(1790) ............................................................... 12

Act of Aug. 4, 1790, ch. 34, 1 Stat. 138 (1790).......... 12

Act of July 22, 1790, ch. 33, § 1, 1 Stat. 137

(1790) ............................................................... 12

National Industrial Recovery Act, Act of June 16,

1933, c. 90, 48 Stat. 195 (1933) ...................... 20

Patent Act of Apr. 10, 1790, ch. 7, § 1, 1 Stat. 109

(1790) ............................................................... 12

The Telecommunications Act of 1996, Pub. L. No.

104-104, 110 Stat. 56 (1996) ............................. 2

OTHER AUTHORITIES

1 Edw. 6, c12 § VI (1547) ........................................... 10

1 WILLIAM BLACKSTONE, COMMENTARIES ON THE

LAWS OF ENGLAND 271 (1765) ..................... 9, 10

Adrian Vermeule & Eric A. Posner, Interring the

Nondelegation Doctrine, 69 U. CHI. L. REV.

1721 (2002) .................................................... 7, 8

Alexander Volokh, The Myth of the Private

Nondelegation Doctrine, 99 N.D. L. REV. 203

(2023) ......................................................... 17, 23

Case of Proclamations (1610), 77 Eng. Rep. 1352 .... 10

GARY LAWSON & GUY SEIDMAN, “A GREAT POWER OF

ATTORNEY”: UNDERSTANDING THE FIDUCIARY

CONSTITUTION (2017) ...................................... 19

JACK P. GREENE, THE CONSTITUTIONAL ORIGINS OF

THE AMERICAN REVOLUTION (2010) ................ 10

Jennifer L. Mascott, Who Are “Officers of the United

States,” 70 STAN. L. REV. 443 (2018) ....... 17, 18

ix

MICHAEL W. MCCONNELL, THE PRESIDENT WHO

WOULD NOT BE KING: EXECUTIVE POWER

UNDER THE CONSTITUTION

(2020) ............................................... 9, 10, 11, 24

Officers of the United States Within the Meaning of

the Appointments Clause, 31 Op. OLC 73 (Apr.

16, 2007), http://bit.ly/4i0iRXg ....................... 18

Philip A. Hamburger, Nondelegation Blues, 91 GEO.

WASH. L. REV. 1083 (2023) ................................ 8

PHILIP HAMBURGER, IS ADMINISTRATIVE LAW

UNLAWFUL? (2014) ............................... 9, 10, 13

PROCLAMATION BY THE CROWN , 31 HENRY 8 C.8 in

THE STATUTES AT LARGE FROM THE FIRST YEAR

OF KING RICHARD III (Danby Pickering, ed.

1539) .................................................................. 9

ROBERT L. SCHUYLER, PARLIAMENT AND THE BRITISH

EMPIRE: SOME CONSTITUTIONAL

CONTROVERSIES CONCERNING IMPERIAL

LEGISLATIVE JURISDICTION (1929) .................... 9

Shall, SAMUEL JOHNSON, A DICTIONARY OF THE

ENGLISH LANGUAGE (1755) ............................... 8

Universal Serv. Admin. Co., 2021 Annual Report at

20 (2021), https://perma.cc/9CPT-H5LM ....... 25

USAC BYLAWS art. II, § 7 (last revised July 18, 2000),

https://bit.ly/4bb489K ............................... 28, 29

1

INTEREST OF AMICI CURIAE1

Amicus Firearms Policy Coalition, Inc. (“FPC”)

is a nonprofit membership organization that works to

create a world of maximal human liberty and freedom

and to promote and protect individual liberty, private

property, and economic freedoms. It seeks to protect,

defend, and advance the People’s rights, especially but

not limited to the inalienable, fundamental, and

individual right to keep and bear arms. FPC serves its

members and the public through legislative advocacy,

grassroots advocacy, litigation and legal efforts,

research, education, outreach, and other programs.

Amicus FPC Action Foundation (“FPCAF”) is a

nonprofit organization dedicated to preserving the

rights and liberties protected by the Constitution.

FPCAF focuses on litigation, research, education, and

other related efforts to inform the public about the

importance of constitutionally protected rights—why

they were enshrined in the Constitution and their

continuing significance. FPCAF is determined to

ensure that the freedoms guaranteed by the

Constitution are secured for future generations.

FPCAF’s research and amicus curiae briefs have been

relied on by judges and advocates across the nation.

Amici have a particular interest in this case for

two reasons. Amici litigate cases in federal court

around the country, and the question added by the

Court concerning the availability of mootness

exceptions is of great importance to Amici. Whether

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

part, and no person or entity other than amici, their members, or

counsel made a monetary contribution to its preparation or

submission.

2

by happenstance or strategic maneuvering, compare

Hirschfield v. ATF, 14 F.4th 322 (4th Cir. 2021)

(happenstance), with New York State Rifle & Pistol

Ass’n, Inc. v. City of New York, 590 U.S. 336 (2020)

(strategic), firearms cases frequently risk becoming

moot, and the contours of the mootness doctrine are

thus extremely important to Amici. Of even greater

import to Amici is reigning in unconstitutional

delegations of legislative power. Individual liberty,

including the right to keep and bear arms, is routinely

violated under the guise of broad delegations to

administrative agencies.

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

Congress

has

granted

the

Federal

Communications Commission (“FCC”) authority to

exact a regressive multi-billion-dollar tax on

Americans each year. The Telecommunications Act of

1996, Pub. L. No. 104-104, 110 Stat. 56 (1996), allows

the FCC to take however much money it pleases to

provide “universal [telecommunications] service” in

the United States, which is an “evolving level of

telecommunications services” that the FCC itself

defines. 47 U.S.C. § 254(c)(1). Congress has laid out

six non-exhaustive “principles” for the FCC to

consider when “advanc[ing]” universal-service policy,

id. § 254(b), but none of them actually constrain the

FCC. As Judge Newsom has explained, “Section

254 gives the FCC only the faintest, most vacuous

guidance” on how to tax Americans. Consumers’ Rsch.

v. FCC, 88 F.4th 917, 930 (11th Cir. 2023) (Newsom,

J., concurring). This broad grant of authority violates

the nondelegation doctrine. See Wayman v. Southard,

3

23 U.S. 1, 42–43 (1825); A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495, 538 (1935).

The constitutionally infirm delegation in 47

U.S.C. § 254 is compounded by the fact that the FCC

has subdelegated, without authorization, its

unconstitutional taxing authority to a private

corporation that serves the interests of the very

parties that benefit from the tax. The Universal

Service Administrative Company (“USAC”), which is

staffed by various interest-group leaders, has not even

a “fig-leaf” of constitutional authority, Dep’t of Transp.

v. Ass’n of Am. R.R.s, 575 U.S. 43, 62 (2015) (Alito, J.,

concurring), yet is the true entity now in charge of

taxing Americans billions of dollars each year.

The delegation of governmental power to

private organizations violates the very nature of

representative government, as this Court has

recognized. See Carter v. Carter Coal Co., 298 U.S.

238, 311–12 (1936). It also very likely violates the Due

Process Clause, which prohibits self-interested

regulators from exercising governmental power. See

Ass’n of Am. R.R. v. U.S. Dep’t of Transp., 721 F.3d

666, 675 (D.C. Cir. 2013). Amici, however, concentrate

on a third reason these delegations are unlawful: the

Vesting Clauses of the Constitution.

The original public meaning of the Legislative

Vesting Clause prohibits Congress from granting

legislative authority to the FCC and to the private

corporation USAC. This Court has properly applied

the Clause in the context of private delegations but

has slowly strayed away from the meaning of the text

when it comes to intra-governmental or “public”

delegations. See Gundy v. United States, 588 U.S. 128,

4

167 (2019) (Gorsuch, J., dissenting) (tracking the

unfortunate development). This Court should revisit

its public-delegation caselaw to hold Congress to the

same high standards in that context as it is held to in

the private-delegation context. Even, in the

alternative, if USAC has been delegated executive

power by the FCC, see Consumers’ Rsch., 88 F.4th at

934 (Newsom, J., concurring), the original public

meaning of Article II’s vesting of the “executive

Power” in the President prohibits private parties from

exercising such power, U.S. CONST. art. II, § 1. Only

officers who are properly appointed and responsible to

the head of the executive branch may execute the

laws. This Court should affirm.

ARGUMENT

I.

A Plaintiff Need Not Move for Preliminary

Relief to Avail Itself of Mootness

Exceptions.

A. The Injury to the Respondents is Capable

of Repetition, Yet Evading Review.

A “case” or “controversy” must exist throughout

the course of litigation for a federal court to exercise

jurisdiction. Preiser v. Newkirk, 422 U.S. 395, 401

(1975); U.S. CONST. art. III, § 2. The default rule is

that when a plaintiff’s injury can no longer be

redressed by a favorable judgment, there is no longer

a valid case or controversy between the parties, and

the court must dismiss. See Church of Scientology of

Cal. v. United States, 506 U.S. 9, 12 (1992). But that

default rule has exceptions. If the injury suffered by

the plaintiff is “capable of repetition,” yet the

lawfulness of the action that inflicted the injury may

“evade[] review,” a justiciable case or controversy

5

remains between the parties. United States v.

Sanchez-Gomez, 584 U.S. 381, 391 (2018) (internal

quotation marks omitted). In such instances, federal

courts continue to possess jurisdiction and cannot

decline to exercise it. See Cohens v. Virginia, 19 US

264, 404 (1821).

As the Fifth Circuit concluded (which the United

States does not contest), this case falls into the

capable-of-repetition-yet-evading-review exception.

The contribution factor set by USAC and (nominally)

the FCC only applies for a single quarter, which is far

too short to fully litigate. Kingdomware Techs., Inc. v.

United States, 579 U.S. 162, 170 (2016) (stating that

even “two years” is usually not enough time). And

because a new contribution factor is set every quarter,

there is no doubt that this exact controversy will arise

again between these same parties. See Turner v.

Rogers, 564 U.S. 431, 439–440 (2011). No additional

inquiry is necessary to conclude that an Article III

“Case” or “Controversy” remains.

B. A Plaintiff’s Decision Not to Seek

Preliminary Relief has No Relevance to

Justiciability.

Although Respondents satisfy the traditional

formulation of the capable-of-repetition-yet-evadingreview exception, some courts have refused to exercise

jurisdiction when interim equitable relief could have

prevented mootness. See, e.g., Newdow v. Roberts, 603

F.3d 1002, 1009 (D.C. Cir. 2010). These cases fail to

grapple with basic Article III principles and are

plainly incorrect.

Article III justiciability turns on the “character” of

the plaintiff’s claim, not his litigation tactics. See Hall

6

v. Beals, 396 U.S. 45, 48 (1969) (per curiam); cf.

United States v. Texas, 599 U.S. 670, 676 (2023)

(asking whether a claim is of a judicially cognizable

nature). This basic principle holds true when

determining if a dispute is live or moot. As the dueling

opinions of Justice Ginsburg (majority) and Justice

Scalia (dissent) in Friends of the Earth, Inc. v.

Laidlaw Environmental Services (TOC), Inc., agree,

the proper question to ask when a case may be moot

is whether a continuing controversy exists between

the parties. 528 U.S. 167, 190–92 (2000); id. at 213–

14 (Scalia, J., dissenting). Given the forward-looking

nature of the mootness inquiry, there is no reason why

a past decision not to make an optional motion for

interim equitable relief would be relevant.

A plaintiff’s decision not to seek interim equitable

relief does not mean that the lawfulness of his injury

is incapable of evading review. Despite having an

airtight case on the merits, for instance, a plaintiff

may reasonably decide not to move for preliminary

equitable relief because it believed it would lose such

motion on other grounds, such as a lack of irreparable

harm or unfavorable balance of the hardships. See

Winter v. NRDC, 555 U.S. 7, 20 (2008). Or a plaintiff

may believe seeking a final judgment rather than

interim relief would be the fastest and most likely

means of obtaining this Court’s review. See, e.g.,

Wilson v. Hawaii, No. 23-7517, 2024 WL 5036306, at

*1 (U.S. 2024) (Statement of Thomas, J., respecting

the denial of certiorari) (noting that “the interlocutory

posture of the petition weigh[ed] against” review in

that case). Interpreting Article III of the Constitution

to require a plaintiff to seek preliminary relief to

utilize mootness exceptions would thus unjustly

7

punish litigants who have meritorious claims but

have legitimate reasons for foregoing interim relief.

If a plaintiff’s decision to move for interim

equitable relief determines whether the court has

jurisdiction, then courts will be forced to examine the

merits of a hypothetical motion to determine subjectmatter jurisdiction. Analyzing this hypothetical

motion would not only require looking at the merits of

the claim, which is generally impermissible when

determining jurisdiction, see Davis v. United States,

564 U.S. 229, 249 n.10 (2011), but also entail

conducting a hypothetical balancing of the equities to

determine if the plaintiff could have obtained the

relief hypothetically sought. There is no principled or

administrable way to conduct such an inquiry,

indicating that the Constitution does not require it.

II.

The Original Understanding of the Public

and Private Nondelegation Doctrines.

The Legislative Vesting Clause prohibits

delegations of legislative authority to administrative

agencies (public nondelegation) and to private entities

(private nondelegation). Until the 1940s, both

doctrines identically prohibited Congress from

delegating discretionary power to create binding rules

respecting life, liberty, or property. See Schechter

Poultry, 295 U.S. at 537–38. As even critics of the

nondelegation doctrine have observed, there exists no

reason to apply a less stringent test to determine

whether Congress has delegated its legislative

authority to the executive branch than to private

parties. See Adrian Vermeule & Eric A. Posner,

8

Interring the Nondelegation Doctrine, 69 U. CHI. L.

REV. 1721, 1757–58 (2002).

Although Congress may generally delegate to the

executive branch powers not “strictly and exclusively

legislative,” Wayman, 23 U.S. at 42–43, Article II’s

Vesting Clause prohibits such delegations of

“executive” power to private entities, U.S. CONST. art.

II, § 1. The very nature of our Constitution, creating

three separate branches and granting them unique

powers, prohibits private parties from exercising

governmental power. At most they can serve the

government in an advisory or ministerial capacity.

A. Legislative Powers Granted via the

Constitution Must Remain in Congress.

Article I of the Constitution establishes that “[a]ll

legislative Powers herein granted” by the

Constitution “shall be vested in a Congress of the

United States.” U.S. CONST. art. I, § 1 (emphasis

added). The text of the Clause affirmatively speaks to

where “legislative Powers” must remain. Id. It uses

the future-tense verb “shall,” instead of a presenttense verb like “are,” to make clear that the vesting of

the legislative powers was not a mere initial allocation

but a permanent, “mandatory” assignment of where

they must remain. Philip A. Hamburger,

Nondelegation Blues, 91 GEO. WASH. L. REV. 1083,

1148 (2023); see Shall, SAMUEL JOHNSON, A

DICTIONARY OF THE ENGLISH LANGUAGE (1755) (“a sign

of the future tense”). The Framers of the Constitution

could have easily chosen language that did not create

a continuing obligation, such as “the legislative

powers herein granted are given” or even “the

legislative powers herein granted are hereby vested.”

9

But the Framers instead chose a future-tense verb

that created a permanent obligation for the

“legislative Powers herein granted” to be vested in

Congress. U.S. CONST. art. I, § 1.

The Framers’ choice to keep all “legislative”

powers in the legislature was neither groundbreaking

nor accidental. It reflected a long-settled principle in

English and Colonial law that the executive could not

exercise inherently “legislative” powers.

In medieval times, when parliament was merely a

council of the king’s advisors, the king himself could

make laws for his subjects. See, e.g., ROBERT L.

SCHUYLER, PARLIAMENT AND THE BRITISH EMPIRE:

SOME CONSTITUTIONAL CONTROVERSIES CONCERNING

IMPERIAL LEGISLATIVE JURISDICTION 1–39 (1929). Yet

as parliament grew more powerful, it secured the

power to enact law itself, and by 1470 the monarch

only exercised a veto over legislation proposed by

parliament. See MICHAEL W. MCCONNELL, THE

PRESIDENT WHO WOULD NOT BE KING: EXECUTIVE

POWER UNDER THE CONSTITUTION 109 (2020). But the

fight did not end there. Starting in 1538, Henry VIII

began a campaign to revive the authority of the king

to unilaterally make his will into law. See PHILIP

HAMBURGER, IS ADMINISTRATIVE LAW UNLAWFUL? 36

(2014). To further his claim of lawmaking authority,

Henry VIII obtained from parliament the power to

issue “proclamations” with the force of law. See

PROCLAMATION BY THE CROWN, 31 HENRY 8 C.8 in THE

STATUTES AT LARGE FROM THE FIRST YEAR OF KING

RICHARD III (Danby Pickering, ed. 1539). This

infamous delegation of authority to legislate at a

whim authorized a short reign of “despotic tyranny,”

1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS

10

OF ENGLAND 271 (1765), that only ended with Henry

VIII’s death and the repeal of the proclamation’s

statute in 1547, see 1 Edw. 6, c12 § VI (1547). King

James I later reignited the issue of legally binding

royal proclamations, but his attempt to regulate the

seemingly innocuous subject of “the making of [s]tarch

of [w]heat,” Case of Proclamations (1610), 77 Eng.

Rep. 1352, was stymied by Chief Justice Coke, who

ruled that King James I had no such power. See

McConnell, supra, at 109–11 (recounting the affair).

The Framers drafted our Constitution against

this background of victories over an imperial crown.

See Hamburger, Is Administrative Law Unlawful,

supra, at 39 & n.17 (describing the prevailing view

that binding proclamations were in “total subversion

of the English constitution” (quoting D. Hume, 5 THE

HISTORY OF ENGLAND FROM INVASION OF JULIUS

CEASER TO THE WAR OF 1688 266–67 (Liberty Classics

ed. 1983)). Preventing executive lawmaking, both the

delegated kind that Henry VIII briefly exercised, and

the undelegated kind that James I attempted to

exercise, was a core mission in the summer of 1787.

See McConnell, supra, 110–11. Although the king had

given up using proclamations as a way of legislating

in England, he continued to claim the power to

legislate through binding proclamations in the

colonies. See JACK P. GREENE, THE CONSTITUTIONAL

ORIGINS OF THE AMERICAN REVOLUTION 31–32 (2010).

Yet in the years leading up to the Revolutionary War,

the colonies rejected this attempt to legislate through

proclamations “unless the people who it concerned

adopted it.” Id. (cleaned up).

The fact that the Constitution mandates Congress

keep its “legislative Powers” to itself only resolves half

11

of the nondelegation inquiry. The question that

remains is “what are the ‘legislative Powers’ granted

to Congress via the Constitution in the first place?” At

a minimum, the “legislative Powers” conferred via the

Constitution are those powers which were

traditionally the exclusive domain of the legislature—

i.e., those that are “strictly and exclusively

legislative,” Wayman, 23 U.S. at 42–43. These powers

are broadly described as those “to adopt generally

applicable rules of conduct governing future actions

by private persons.” Gundy, 588 U.S. at 153 (Gorsuch,

J., dissenting); Fletcher v. Peck, 10 U.S. 87, 136 (1810).

Not every power granted to Congress met this

definition. Some powers, such as regulating interstate

commerce, were “strictly” legislative.2 See Wayman,

23 U.S. at 42–43. But others, such as the powers to

coin money, regulate trade with foreign nations, and

govern the territories, were not necessarily

“legislative” or “executive.” See McConnell, supra, at

97–99. These powers, often described as “prerogative

powers,” had traditionally been exercised by the king

and, although legislation could be passed upon them,

that was not necessary to authorize the king’s actions.

See id. at 95.

The fact that the Framers flipped the default

placement of these powers from the executive to the

legislature did not necessarily alter the nature of the

powers themselves. Thus, to decide this case, which

involves a power (taxation) that is the epitome of a

legislative power, the Court need not decide whether

2 Relatedly, powers such as “executing the laws,” were

strictly executive and by their nature could only be exercised by

the executive branch. See McConnell, supra, at 97.

12

a power being properly considered “prerogative” and

not “legislative” would mean that the power is not

covered by Article I’s “vest[ing]” of “legislative” powers

in Congress. U.S. CONST. art. I, § 1 (emphasis added).

Early Congresses did not authorize private

entities or the executive branch to wield strictly

legislative powers. Every identified delegation of

discretionary rulemaking authority involved a

prerogative power given back to the executive, not an

exclusively legislative one. For instance, Congress

gave the executive broad discretion to determine how

to structure the pensions for soldiers “wounded or

disabled while in the line of … duty,” Act of Apr. 30,

1790, ch. 10, § 11, 1 Stat. 119, 121 (1790), which falls

under the prerogative power of dispensing public

monies, U.S. CONST. art. I, § 8, cl. 2. Congress gave the

executive branch the authority to grant patents,

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

(1790), which falls under the prerogative power of

granting patents and monopolies, U.S. CONST. art. I,

§ 8, cl. 8. Congress gave the executive branch the

authority to regulate trade with Indians, Act of July

22, 1790, ch. 33, § 1, 1 Stat. 137, 137 (1790), which

falls under the prerogative power of regulating trade

with foreign entities, U.S. CONST. art. I, § 8, cl. 3.

Congress gave the executive branch the authority to

borrow up to $12 million and restructure the national

debt, Act of Aug. 4, 1790, ch. 34, 1 Stat. 138, 139

(1790), which falls under the prerogative powers of

borrowing money, U.S. CONST. art. I, § 8, cl. 2. The

records from the First Congress thus show a distinct

pattern: while Congress delegated some discretionary

authority, none of the delegations concerned a strictly

legislative power.

13

None of this is to say that Congress was or should

be hamstrung in exercising the powers assigned to it

by the Constitution. As discussed above, it is possible

that non-legislative powers may be more freely

delegable. Additionally, Congress can “condition a

statutory duty on an executive determination of fact.”

See Hamburger, Is Administrative Law Unlawful,

supra, at 107. The legislative aspect of such

conditional statutes is enacted by Congress, and the

President is only left with the objective question of

whether the predicate has been satisfied. As such, the

President is not properly defined as exercising

discretion or will, which are the hallmarks of

“legislative” power. Id.; see also Gundy, 588, U.S. at

163 (Gorsuch, J., dissenting) (“The President's factfinding responsibility may . . . require[] intricate

calculations, but it could be argued that Congress had

made all the relevant policy decisions.”).3

1. The intelligible-principle test cannot be

squared with the text and history of the

Legislative Vesting Clause.

The modern “intelligible principle” test to

determine whether a delegation has occurred has no

basis in the Constitution. Against text and history,

that test deems grants of discretionary authority to

set binding rules regarding liberty and property as

“executive” power so long as Congress gives some

general hint to the executive branch. See id. at 135

(plurality). But as explained above, the nature of the

3 Given that some delegations of factfinding authority were

vague or potentially aspirational, this category often overlaps or

is coterminous with the sometimes-recognized category of

delegations allowing the executive to “fill up details” in a statute.

See Gundy, 588 U.S. at 163 (Gorsuch, J., dissenting).

14

power, not the amount of discretion afforded the

delegee, is what determines whether it is “legislative.”

Even when Congress gives an administrative

agency an “intelligible principle” to guide its

discretion, that agency is still exercising discretion in

making rules on a “legislative” subject. Because the

Framers considered some governmental powers

“strictly and exclusively legislative,” Wayman, 23 U.S.

at 42–43, the intelligible-principle doctrine cannot be

a valid way to distinguish between legislative and

executive powers.

It should come as no surprise that the

intelligible-principle doctrine does not reflect the

original meaning of the Constitution because it

entered into Supreme Court lore with minimal

scrutiny. The phrase was originally used in passing in

a tariff case, J. W. Hampton, Jr., & Co. v. United

States, 276 U.S. 394, 409 (1928), and then sat on a

shelf for two decades before being thrust back into the

limelight in the late 1940s, see Gundy, 588 U.S. at 163

(Gorsuch, J., dissenting). Ironically, the intelligibleprinciple doctrine came into existence in a case

involving a nonexclusive power.

B. Private Parties Cannot Exercise the

“Executive Power.”

When Congress grants the executive branch

discretion to exercise government power that is

neither legislative nor judicial, the delegee is properly

considered exercising “executive power.” Cf. Loving v.

United States, 517 U.S. 748, 768 (1996); id. at 776–77

(Scalia, J., concurring in part and concurring in the

judgment). This arrangement generally presents no

constitutional issue because the head of the executive

15

branch is vested with “[t]he executive Power.” U.S.

CONST. art II, § 1.

But none of the “executive Power” is vested in

private entities, so they cannot exercise it, id., just as

they cannot exercise the “legislative Powers” granted

to Congress, id. art. I, § 1. The original meaning of the

Constitution, this Court’s precedents on private

delegation, and this Court’s precedents on the

assignment of executive power are all in agreement.

As Justice Story explained in 1816, it would be

“utterly inadmissible” for Congress to vest the

executive power “in any other person” but the

President. Martin v. Hunter's Lessee, 14 U.S. 304,

329–30 (1816).

“The executive Power shall be vested in a

President of the United States of America.” U.S.

CONST. art. II, § 1. “Because no single person could

fulfill that responsibility alone, the Framers expected

that the President would rely on subordinate officers

for assistance.” Seila Law LLC v. CFPB, 591 U.S. 197,

203–04 (2020). The primary officers upon which the

President relies are appointed by him, U.S. CONST.

art. II, § 2, and officers inferior to those ones can

either be appointed by him, heads of the departments

of the executive branch, or by the courts, id. These

officers, subject to a handful of exceptional

circumstances, are removable at the will of the

President. Seila Law, 591 U.S. at 204. After all,

“[t]hese lesser [executive] officers must remain

accountable to the President, whose authority they

wield.” Id. at 213.

The vesting of the executive power in the

President and procedures for appointing his

16

subordinates do not merely concern “etiquette or

protocol.” Buckley v. Valeo, 424 U.S. 1, 125 (1976).

They preserve the liberty of the American people by

creating clear lines of authority and channeling

accountability to the President of the United States,

who is the only person in the American government

(along with his Vice President) who is elected by the

Nation as a whole. See Seila Law, 591 U.S. at 224.

Courts thus strictly enforce the requirements

pertaining to executive supervision, removal, and

appointment.

Private parties do not fit into that picture. To

begin with, they are not “the President or one of his

[officers].” Ass’n of Am. R.Rs., 575 U.S. at 68, 87–88

(Thomas, J., concurring); id. (“When the Government

is called upon to perform a function that requires an

exercise of legislative, executive, or judicial power,

only the vested recipient of that power can perform

it.”). Thus, if they exercise executive power, the

“executive Power” is no longer “vested” in the

President but another entity that is seeking its own

private interest and not the public interest of the

executive. See Martin, 14 U.S. at 329–30. Likewise, if

the executive power is placed in a person not under

the President’s control or even aligned with his

mission, there is no way for him to fulfill his duty to

ensure the laws are faithfully executed. U.S. CONST.

art. II, § 3; see Seila Law, 591 U.S. at 213. This Court

(correctly) held as much in Myers v. United States, 272

U.S. 52, 164 (1926). Thus, as Justice Alito put it,

“private entities” lack “even a fig leaf of constitutional

justification” to execute the law because they are not

“vested with the ‘executive Power,’ which “belongs to

the President.” Ass’n of Am. R.Rs., 575 U.S. at 62

17

(Alito, J., concurring) (quoting U.S. CONST. art. II, § 1,

cl. 1); see also See Alpine Sec. Corp. v. FINRA, 121

F.4th 1314, 1342–43 (D.C. Cir. 2024) (Walker, J.,

concurring in part and dissenting in part) (“[J]ust as

Congress cannot delegate its legislative power to the

President, the President’s executive power cannot be

delegated away from the Executive Branch.”).

Private parties are likewise prohibited from

exercising executive power, at least on a continuing

basis, by the Appointments Clause. See U.S. CONST.

art. II, § 2, cl. 2. Only officers of the United States can

exercise “significant authority”4 under our laws, Free

Enter. Fund v. PCAOB, 561 U.S. 477, 486 (2010)

(internal quotation marks omitted), and by definition,

a private party has not been properly appointed as an

“officer of the United States.” If a purportedly private

party were given such an appointment, it would no

longer be acting in a private capacity but as a

government official. See Alexander Volokh, The Myth

of the Private Nondelegation Doctrine, 99 N.D. L. REV.

203, 230 (2023).

Thus, if a private party is attempting to exercise

“significant

authority,”

such

authority

is

definitionally invalid under the Appointments Clause

unless it is on an interim or ad hoc basis. See United

States v. Germaine, 99 U.S. 508, 509 (1878); Jennifer

L. Mascott, Who Are “Officers of the United States,”

Although this Court has often asked whether a person

exercises “significant authority” to determine whether such

person is an “officer” or “employee,” there is strong Founding-era

evidence that any authority exercised on a continuing basis is

enough to make someone an “officer.” See Mascott, supra, at 450–

53; NLRB v. S.W. Gen., Inc., 580 U.S. 288, 314 (2017) (Thomas,

J., concurring).

4

18

70 STAN. L. REV. 443, 450 (2018). This ad hoc

exception generally allows for contractors and other

private parties to assist the executive branch so long

as they themselves are not the ones exercising the

executive power by binding the government or private

parties. Officers of the United States Within the

Meaning of the Appointments Clause, 31 Op. OLC 73,

77 (Apr. 16, 2007), http://bit.ly/4i0iRXg.

The Constitutional provisions, principles, and

cases discussed above are often expounded upon in the

context of separation-of-powers controversies within

the federal government, such as delegation to a

headless fourth branch. Yet they do not apply to those

instances alone. A prime example of these principles

applying outside of intra-federal disputes is in Printz

v. United States, which involved a statute delegating

executive authority to state officers. 521 U.S. 898,

922–23 (1997). This Court explained that this

delegation outside the executive branch left the

President without any “meaningful Presidential

control” over the execution of the laws. Id. Allowing

non-executive officers, like state officers or private

parties, to wield the executive power would sap the

power of the President at the expense of Congress,

who could simply dispose of him when it found the

structure of our Constitution inconvenient. Id.

1. Permissible Roles for Private Entities.

Although private entities cannot exercise

executive power, that fact does not mean they can play

no role whatsoever in governance. For instance, there

has been no delegation of “executive power” if a

private entity is acting in a purely advisory role. See

Oklahoma v. United States, 62 F.4th 221, 228–29 (6th

19

Cir. 2023). If private parties can play any nonadvisory role in government, it must be a purely

“ministerial” one. Id. at 229. There is some support in

Founding-era caselaw that distinguishes between

exercises of “discretionary” or “executive” power,

which is placed purely in the hands of the executive

branch, and “ministerial” duties, which are those that

require no discretion to carry out. See e.g., Marbury v.

Madison, 5 U.S. 137, 165–66 (1803); Kendall v. United

States ex rel Stokes, 37 U.S. 524, 595 (1838). Decisions

relating to the former are thought of as the exclusive

domain of the executive branch, and the duty to carry

out the latter are thought of as delegable. Inside and

outside of government, ministerial duties were

considered delegable in Founding-era, unlike

discretionary ones. GARY LAWSON & GUY SEIDMAN, “A

GREAT POWER OF ATTORNEY”: UNDERSTANDING THE

FIDUCIARY CONSTITUTION 115 (2017).

Caselaw in the lower courts generally accords

with the history. As Judge Sutton observed in

Oklahoma v. United States, private parties “may

undertake ministerial functions” without running

afoul of the Executive Vesting Clause. 62 F.4th at 229;

see also Pittston Co. v. United States, 368 F.3d 385,

395–97 (4th Cir. 2004); United States v. Frame, 885

F.2d 1119, 1128–29 (3d Cir. 1989), abrogated on other

grounds, 521 U.S. 457 (1997). But if the private party

steps past the mere ministerial role, then Article II

applies. See Alpine Sec. Corp., 121 F.4th at 1343

(Walker, J., concurring in part and dissenting in part).

20

C. This Court Should Assess “Public”

Delegations Under the Same Strict

Standards as and “Private” Ones.

Although the federal courts have largely

abdicated enforcement of Article I’s Vesting Clause in

the context of delegations to administrative agencies,

they have consistently enforced it against private

parties. See Oklahoma, 62 F.4th at 229 (“Decisions

from the courts of appeals hold this line.”); Nat’l

Horsemen’s Benevolent & Protective Ass’n v. Black, 53

F.4th 869 (5th Cir. 2022); Pittston Co., 368 F.3d at

397; Frame, 885 F.2d at1128–29. There is no textual

or historical reason that public delegations should be

treated more deferentially under the Legislative

Vesting Clause.

Starting in the early 1930s, the New Deal

Congresses attempted to delegate legislative

authority not only to the growing executive branch but

also to private parties. Consistent with the text of the

Legislative Vesting Clause, this Court treated the two

delegations as equally impermissible.

In the famed case of A.L.A. Schechter Poultry

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

delegated the power in the National Industrial

Recovery Act, Act of June 16, 1933, c. 90, 48 Stat. 195,

196 (1933), to create binding private codes of conduct

to both industry groups and the President. This Court

rejected both delegations in one fell swoop. Allowing

“trade or industrial associations or groups” to exercise

such power was “utterly inconsistent with the

constitutional prerogatives and duties of Congress.”

A.L.A. Schechter Poultry Corp., 295 U.S. at 537. As

was allowing the President to do the same. Id. at 537–

21

38. Schechter Poultry thus analyzed both a publicdelegation and private-delegation issue in the same

manner, without distinguishing based on recipient.

Carter v. Carter Coal Co., 298 U.S. 238 (1936),

which was decided only a year after Schechter Poultry,

accords. In that case, the Court reviewed a

congressional statute that allowed private entities to

set minimum prices on coal. Id. at 282–83. It took only

a paragraph to conclude that this delegation was

“legislative” in the most “obnoxious form.” Id. at 311.

The Court did not analyze whether the statute gave

an intelligible principle to the private organizations.

The final two cases involving purported

delegations to private entities upheld the statutes, but

only because they would have passed muster under

the public-delegation test. For instance, in Currin v.

Wallace, 306 U.S. 1, 7, 15–16 (1939), Congress enacted

a law allowing the Secretary of Agriculture to regulate

tobacco markets. Part of the regulatory scheme

required the approval of two-thirds of growers in

specific areas to grant their approval before such

regulations would take effect. Id.at 15. This scheme

was not odious to the Constitution because it was an

exercise of conditional legislation, not a delegation of

“essential legislative functions,” just like the one that

the Court approved of in J.W. Hampton. Id. Finally,

in Sunshine Anthracite Coal Co. v. Adkins, 310 U.S.

381 (1940), this Court upheld a reworked version of

the statute it disapproved of in Carter Coal. After the

Carter Coal decision, Congress made the private

entities serve in a purely advisory capacity, which the

Court held cured the nondelegation violation, so long

as they were sufficiently supervised by the agency. Id.

at 399.

22

After the New Deal era, Congress largely

acquiesced to the fact that private legislation is

unconstitutional. This Court thus has not resolved

another case involving a Legislative Vesting Clause

challenge to a private delegation. Lower courts facing

challenges to delegations of purportedly legislative

power accordingly and properly have continued to ask

whether the power exercised by the private

organization is “legislative” without referencing any

sort of intelligible-principle doctrine. See, e.g., State v.

Rettig, 987 F.3d 518, 531 (5th Cir. 2021); Black, 53

F.4th at 883 (5th Cir. 2022); Frame, 885 F.2d at 1128–

29; see also Ass’n of Am. R.R.s, 575 U.S. at 62 (Alito,

J., concurring).

As this Court is aware, however, the test to

determine whether Congress has impermissibly

delegated legislative authority to the executive

branch has undergone a slow-but-massive change. It

started in J. W. Hampton, where this Court noted in

passing that Congress provided an intelligible

principle to the President in a statute allowing him to

establish an additional tariff on certain goods to

equalize rates with foreign countries. 276 U.S. at 409.

But this observation did not purport to establish a

new test, which would have been odd because the

statute was regulating foreign commerce and merely

established a factual condition the President had to

find before the law took effect. See Gundy, 588 U.S. at

163 (Gorsuch, J., dissenting). For the following

decade-and-a-half, the Court went on analyzing

delegations of legislative authority under the

presumption that a mere “intelligible principle” was

insufficient to save an otherwise-unlawful delegation.

Id. It was not until the late 1940s did the “intelligible-

23

principle” test take root as an official doctrine instead

of a one-off observation. Id.

The Court’s retreat into the intelligible-principle

doctrine for delegations to administrative agencies

has created a sort of paradox. If Congress purports to

grant legislative power to a private corporation, even

if it provides an intelligible principle, the delegation is

of “legislative” power. Cf. Consumers’ Rsch., 88 F.4th

at 934 n.6 (Newsom, J., concurring). But if Congress

enacts the exact same statute giving the same

authority to an administrative agency, the

intelligible-principle doctrine declares that the power

granted is actually executive. As explained above,

there is no textual basis to treat delegations to the

executive less strictly. The Legislative Vesting Clause

cares not where the power is being exercised, and it

was well-accepted at the Founding that some powers

were strictly legislative.

The Court can fix the anomaly in the doctrine by

adopting Justice Gorsuch’s proposed test in his Gundy

dissent, which appears largely consistent with the law

governing private delegations of legislative power.

Doing so would not only bring this Court back in line

with the original understanding of the Constitution

but also fix a source of confusion in administrativelaw doctrine. See Volokh, supra, at 230 (“[I]t doesn’t

make sense to have a different formulation of the

Article I Nondelegation Doctrine that applies

differently in private cases.”).

Adopting Justice Gorsuch’s approach would also

bring the enforcement of the nondelegation doctrine

in line with the rest of the Court’s vesting-clause

jurisprudence. The “Judicial Power” is “vested” in the

24

federal courts and this Court routinely, and forcefully,

states that it cannot be relocated to other bodies. See

Den ex dem. Murray’s Lessee v. Hoboken Land &

Improvement Co., 18 How. 272, 284 (1855); Stern v.

Marshall, 564 U.S. 462, 484 (2011); Jarkesy v. SEC,

603 U.S. 109, 127 (2024). The fact that non-Article III

bodies may be more “efficient” is of no consequence to

the Article III Vesting Clause—“efficiency” was not

the basis for the Framers’ adoption of a strong

separation of powers. Jarkesy, 603 U.S. at 140; INS v.

Chadha, 462 U.S. 919, 944 (1983).

This Court has also strongly enforced the

Executive Vesting Clause, which, like the Legislative

Vesting Clause, is designed to funnel democratic

accountability. See Collins v. Yellen, 594 U.S. 220,

250–51 (2021); Seila Law, 591 U.S. at 224; Free Enter.

Fund, 561 U.S. at 496. Much like how Congress has

attempted to offload its legislative powers onto

agencies in the past decades, Congress has also

attempted to shift control of these agencies away from

the President. Yet this Court (with controversial

exceptions, see Humphrey's Ex’r v. United States, 295

U.S. 602 (1935), and Morrison v. Olson, 487 U.S. 654

(1988)), has held the line and enforced the Article II

Vesting Clause.

III.

The Delegation to the FCC in 47 U.S.C.

§ 254 is Unconstitutional.

The delegation in this case exemplifies the

Framers’ well-justified fears of Congress abdicating

its legislative powers. To begin with, the power to tax

is perhaps the quintessential “strictly and

exclusively” legislative power. Wayman, 23 U.S. at

42–43; see McConnell, supra, at 100–20.

25

It is also obvious that 47 U.S.C. § 254 is not a piece

of “conditional” legislation. It requires no factual

finding that triggers a preordained course of action.

Indeed, the discretion in the statute to tax American

consumers for “universal service” is practically

limitless. As Judge Newsom pointed out, section 254

“cannot possibly constrain the FCC’s policymaking

discretion in any meaningful way.” Consumers’ Rsch.,

88 F.4th at 931 (Newsom, J., concurring). Because

there is also no statutory cap on how much money the

FCC can raise, see CFPB v. Cmty. Fin. Servs. Of Am.,

601 U.S. 416, 422–23 (2024), the FCC’s spending has

increased from $1.37 billion to $9 billion in the past

three decades, see Universal Serv. Admin. Co., 2021

Annual Report at 20 (2021), https://perma.cc/9CPTH5LM.

The statutory provisions that allegedly cabin the

FCC’s discretion in determining how much money to

extract for “universal service” are of the most-vacuous

kind. Section 254(d) requires that the funding be

“sufficient” to “advance universal service.” 47 U.S.C.

§ 254(d). And section 254(b)(1) states that enough

money must be collected to make service “affordable.”

Id. § 254(b)(1). So-called “universal service,” the goal

of the program, is an “evolving” concept

“establish[ed]” by the FCC. Id. § 254(c)(1).

The United States points to the six “principles”

that the FCC “shall” consider while setting Universal

Service policy, id. § 254(b), which it says constrains

FCC’s discretion. Br. of Petitioners FCC at 31–32. But

these “principles,” even presuming that they are

mandatory and not precatory, do not provide nearly

the guidance that the United States suggests. It

admits that they must be “balanced . . . against one

26

another when they conflict.” Id. at 31 (cleaned up).

Given that the principles contain extremely openended suggestions like that the FCC should make

“quality” services available at “just, reasonable, and

affordable rates,” 47 U.S.C. § 254(b)(1), and offer

service in rural areas that is “reasonably comparable

to rates charged for similar services in urban areas,”

id. § 254(b)(3), these broad principles will always be

in some tension. Therefore, they will always need to

be “balance[d]” against each other. U.S. Br. at 31. The

United States does not pretend that 47 U.S.C. § 254

gives the FCC guidance on how to balance these

competing goals.

Because these “principles” are always in tension,

the debate between the Respondents and the United

States over the issue of whether they are merely

“aspirational” is largely irrelevant. Tex. Off. of Pub.

Util. Counsel v. FCC, 265 F.3d 313, 321 (5th Cir. 2001)

(accepting the United States’s previous argument that

these principles were “merely aspirational”). If the

principles are “merely aspirational,” as the Fifth

Circuit has held for decades, id., then they provide no

restriction on the FCC’s authority. If the principles

are not “aspirational,” they still necessarily must be

balanced according to the FCC’s discretion, meaning

that they provide no real restriction on the FCC’s

authority.

Standing alone, these “principles” do not give

enough guidance to meaningfully constrain the FCC’s

discretion and they are certainly not contingent on

any executive factfinding. The fact that they are nonexhaustive only makes things worse. The

Telecommunications Act permits the FCC, in its

discretion, to formulate additional principles, if it

27

finds them to be “necessary and appropriate for the

protection of the public interest, convenience, and

necessity.” 47 U.S.C. § 254(b)(7).

IV.

The

Subdelegation

Unconstitutional.

to

USAC

is

If the Court does not wish to reconsider the

intelligible-principle doctrine in this case, it should

affirm the Fifth Circuit’s judgment under the private

nondelegation principles discussed above.

A. The FCC’s Delegation to

Inconsistent

with

the

Nondelegation Doctrine.

USAC is

Private

Delegations to private parties of the taxing power

are unconstitutional, see U.S. CONST. art. I, § 1; Carter

Coal, 298 U.S. at 311–12, and the United States does

not contend otherwise, see U.S. Br. at 38–39

(collecting cases). USAC’s role in determining the size

of the universal-service tax can only be constitutional

if it not actually exercising legislative power. To

determine whether it is exercising legislative power in

this taxing scheme, this Court has asked whether the

private entity is “subordinat[e]” to the agency and

whether the agency exercises both “authority and

surveillance” over it. Sunshine Anthracite Coal Co.,

310 U.S. at 399; Oklahoma, 62 F.4th at 231. In other

words, the FCC must control the content of USAC’s

final product and the process by which the product

comes about. The FCC’s authority over USAC is too

limited to satisfy these requirements.

Start with the FCC (lack of) “surveillance” or

supervision over USAC’s work. Sunshine Anthracite

Coal Co., 310 U.S. at 399. As the Ninth Circuit has

28

explained, USAC largely operates independently of

the FCC. See In re Incomnet, Inc., 463 F.3d 1064, 1074

(9th Cir. 2006). USAC board members are selected by

“the industry or non-industry group that is

represented

by

such

director.”

47

C.F.R.

§ 54.703(c)(1), (3). Only if “an industry or nonindustry group does not reach consensus on a nominee

or fails to submit a nomination” will the Chairman of

the FCC, not the Commission as a whole, pick a

person to represent that group. Id. § 54.703(c)(3). The

directors are similarly insulated from FCC control

through the removal process. “Removal may only

occur upon the affirmative vote of the stockholder or

the majority of Board members that are not facing

removal, and upon the prior written approval of the

FCC Chairperson.” USAC BYLAWS art. II, § 7 (last

revised July 18, 2000), https://bit.ly/4bb489K. The

“[S]tockholder” here is not the FCC, but the National

Exchange Carrier Association. Id. And the “majority

of [USAC] Board members” is obviously not the FCC

either. See 47 C.F.R. § 54.703(c)(3).

The appointment and removal processes are

complicated, but this much is clear. The FCC as a

whole has little control over who is staffed on the

USAC board. Interest groups make appointments, see

id. § 54.703(c)(1). which are then finalized by the

Chairman, id. § 540703(c)(3), not the agency acting

qua agency, see Free Enter. Fund, 561 U.S. at 513

(explaining that a commission as a whole is “head of

the department,” not chairman of the commission

(internal quotation marks omitted)). The Commission

itself also appears to play no role in removal, as

USAC’s bylaws allow removal based on the vote of

other board members of the NECA. USAC Bylaws

29

Article II, § 7. This Court has made crystal clear that

appointment and removal are key to a principal’s

authority over his agent. See Buckley, 424 U.S. at 125;

Seila Law, 591 U.S at 214.

Even worse, the regulatory scheme concocted by

the FCC does not even purport to have directors

represent the interests of the agency that USAC is

supposed to be aiding. It instead consciously states

that directors will “represent” the industry that puts

them on the Board. 47 CFR § 54.703(b)(1)–(13). And,

of course, because the Board members are not “officers

of the United States,” they are not “bound by Oath or

Affirmation, to support th[e] Constitution.” U.S.

CONST. art. VI; Ass’n of Am. R.Rs., 575 U.S. at 57–58

(Alito, J., concurring) (“[A] commission from the

President” has never been treated “as a mere wall

ornament.”). With the FCC playing a limited role, if

any, in appointment and removal of the USAC board

members and the members not even purporting to

represent the FCC’s interests, the FCC cannot be

exercising sufficient “surveillance” over USAC’s

independent activities. Sunshine Anthracite, 310 U.S.

at 399; see also In re Incomnet, Inc., 463 F.3d at 1074

(describing USAC’s independence from the FCC).

The FCC also fails to exercise “authority” over

USAC’s policy judgments, making USAC the

“legislator” in this scheme. As explained in the Fifth

Circuit en banc opinion, USAC’s proposed tax is

“deemed approved” by the Commission 14 days after

it is publicly posted without any FCC action. 47 C.F.R.

§ 54.709(a)(3). This tail-wags-the-dog arrangement

functions exactly as one would imagine, with the FCC

never making a substantive change to USAC’s

calculations prior to this litigation.

30

The United States defends the decision to allow

USAC to tax Americans for billions of dollars every

year because the FCC retains nominal control over

Universal Service contributions. It argues that the

only “relevant question is whether the FCC has

authority to reject the Administrator’s advice,” even if

such authority is only on paper. U.S. Br. at 45. But the

“Constitution deals with substance, not shadows,” and

nominal control is thus insufficient control. See

Salazar v. Buono, 559 U.S. 700, 723 (2010) (Roberts,

C.J., concurring) (quoting Cummings v. Missouri, 4

Wall. 277, 325 (1867)). This Court has repeatedly

made the same point in the context of determining

whether an officer exercises “significant authority.”

Whether a supervisor could elect to overrule him is

not dispositive. Freytag v. Commissioner, 501 U.S.

868, 873 (1991); Lucia v. SEC, 585 U.S. 237, 248–49

(2018).

Even if this Court were inclined to conclude that

an agency’s veto authority may be enough to deem the

private corporation as acting in a nonlegislative

manner, the veto here is insufficient. Once the “Total

Contribution Base” submitted by USAC is

ministerially calculated into a “contribution factor,”

the FCC only has 14 days before it “shall be deemed

approved

by

the Commission,”

47

C.F.R.

§ 53.709(a)(3), which is plainly insufficient to conduct

a true de novo review and come to an independent

decision.

Imagine if the FCC had authority to reject or

modify USAC’s proposal, but it had only 12 hours to

decide, or else the proposal would be “deemed

approved.” Id. It could not be plausibly argued that

the FCC in such an example is the entity that is

31

actually legislating. Formal “authority” over the final

decision is certainly a necessary requirement when an

agency allows a private entity to formulate policy, see

Sunshine Anthracite, 310 U.S. at 398–99, but it

cannot be sufficient. Some level of practical, or de

facto, authority must exist as well for a decision to

truly be one of the agency. And as explained above,

the de facto authority is missing here.

CONCLUSION

This Court should affirm the judgment of the Fifth

Circuit.

February 18, 2025

Respectfully submitted,

David H. Thompson

Counsel of Record

Peter A. Patterson

Bradley L. Larson

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amici Curiae