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 AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF RESPONDENTS

————

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

February 18, 2025

i

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................ 1

Argument ..................................................................... 6

I.

The Separation of Powers Protects Liberty ....6

II.

The Constitution Bars Congress From

Transferring Its Legislative Power .................. 8

III.

The Universal Service Fund Makes a Mockery

of the Constitution .......................................... 12

IV.

This Court Should Restore Equilibrium Among

the Branches ................................................... 18

A. Delegation Run Riot Has Had Awful Effects on

Our Constitutional Republic .......................... 18

B. This Court Should Jettison the “Intelligible

Principle” Remark .......................................... 21

C. Line-Drawing Questions Cannot Justify

Ignoring the Constitution’s Demands ............ 22

D. There Are Judicially Manageable Standards

For Enforcing Nondelegation ......................... 24

E. Enforcing Article I’s Vesting Clause Will Have

Salutary Effects .............................................. 28

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

ii

TABLE OF AUTHORITIES

Page(s)

Cases

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

States,

295 U.S. 495 (1935) ......................... 16, 17, 26, 27

Allstates Refractory Contractors, LLC v. Su,

144 S. Ct. 2490 (2024) ....................................... 21

Allstates Refractory Contractors, LLC v. Su,

79 F.4th 755 (6th Cir. 2023) ........... 6, 8, 9, 11, 27

AT&T Corp. v. Iowa Utils. Bd.,

525 U.S. 366 (1999) ........................................... 13

Biden v. Nebraska,

600 U.S. 477 (2023) ....................................... 1, 26

BST Holdings, L.L.C. v. OSHA,

17 F.4th 604 (5th Cir. 2021) ............................. 27

Carter v. Carter Coal Co.,

298 U.S. 238 (1936) ............................................. 3

City of Arlington v. FCC,

569 U.S. 290 (2013) ........................................... 11

Clinton v. City of N.Y.,

524 U.S. 417 (1998) ........................................... 26

iii

Collins v. Yellen,

594 U.S. 220 (2021) ............................................. 6

Consumer Fin. Prot. Bureau v. Cmty. Fin.

Servs. Ass’n of Am., Ltd.,

601 U.S. 416 (2024) ............................................. 4

Consumers’ Rsch. v. FCC,

63 F.4th 441 (5th Cir. 2023) ............................. 14

Consumers’ Rsch. v. FCC,

88 F.4th 917 (11th Cir. 2023) . …8, 14, 15, 17, 21,

22, 23, 29

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

575 U.S. 43 (2015) ....................... 7, 11, 22, 23, 24

FEC v. Ted Cruz for Senate,

596 U.S. 289 (2022) ........................................... 19

Fletcher v. Peck,

10 U.S. (6 Cranch) 87 (1810) .............................. 9

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd.,

561 U.S. 477 (2010) ............................................. 6

Gundy v. United States,

139 S. Ct. 2116 (2019) ............. 6, 8, 21, 22, 23, 30

Huawei Techs. USA, Inc. v. FCC,

2 F.4th 421 (5th Cir. 2021) ............................... 16

Indus. Union Dep’t, AFL-CIO v. API,

448 U.S. 607 (1980) ......................................... 4, 9

iv

In re Incomnet, Inc.,

463 F.3d 1064 (9th Cir. 2006) ............... 14, 15, 17

Jarkesy v. SEC,

34 F.4th 446 (5th Cir. 2022) ............................... 8

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

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

Knickerbocker Ice Co. v. Stewart,

253 U.S. 149 (1920) ........................................... 27

Little Sisters of the Poor Saints Peter &

Paul Home v. Pennsylvania,

591 U.S. 657 (2020) ........................................... 16

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ................................. 7, 22, 29

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................ 24

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ........................... 26

Mistretta v. United States,

488 U.S. 361 (1989) ........................................... 22

Morrison v. Olson,

487 U.S. 654 (1988) ................................... 2, 6, 18

Nat’l Cable Television Ass’n v. United

States,

415 U.S. 336 (1974) ......................................... 3, 9

v

Nat’l Labor Relations Bd. v. Canning,

573 U.S. 513 (2014) ......................................... 6, 7

NFIB v. OSHA,

595 U.S. 109 (2022) ............................................. 8

NFIB v. Sebelius,

567 U.S. 519 (2012) ........................................... 28

Panama Ref. Co. v. Ryan,

293 U.S. 388 (1935) ..................................... 16, 26

Paul v. United States,

140 S. Ct. 342 (2019) ......................................... 30

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ............................................... 7

Plyler v. Doe,

457 U.S. 202 (1982) ........................................... 30

Seila Law LLC v. Consumer Fin. Prot.

Bureau,

591 U.S. 197 (2020) ....................................... 6, 27

Shankland v. Washington,

30 U.S. 390 (1831) ............................................... 8

Skinner v. Mid-America Pipeline Co.,

490 U.S. 212 (1989) ........................................... 26

Texas v. Commissioner,

142 S. Ct. 1308 (2022) ....................................... 17

vi

Texas v. Rettig,

993 F.3d 408 (5th Cir. 2021) ................... 7, 18, 21

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

183 F.3d 393 (5th Cir. 1999) ............................. 12

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

265 F.3d 313 (5th Cir. 2001) ............................. 13

Tiger Lily, LLC v. HUD,

5 F.4th 666 (6th Cir. 2021) ............. 19, 20, 21, 28

United States v. L. Cohen Grocery Co.,

255 U.S. 81 (1921) ............................................. 26

United States v. Lopez,

514 U.S. 549 (1995) ........................................... 29

United States v. Nichols,

784 F.3d 666 (10th Cir. 2015) ............... 16, 24, 26

United States ex rel. Shupe v. Cisco Sys.,

759 F.3d 379 (5th Cir. 2014) ....................... 14, 17

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825)... 3, 4, 6, 8, 9, 23, 30

West Virginia v. EPA,

597 U.S. 697 (2022) ............................... 18, 23, 24

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ......................... 16, 22, 23, 29

Yakus v. United States,

321 U.S. 414 (1944) ........................................... 16

vii

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ........................................... 10

Constitution

U.S. Const. art. I, § 1 ............................ 3, 8, 9, 10, 22

U.S. Const. art. I, § 8 ............................................ 3, 9

U.S. Const. art. I, § 9, cl. 7 ..................................... 12

U.S. Const. art. II, § 1, cl. 1.............................. 10, 11

U.S. Const. art. III, § 1 ........................................... 10

U.S. Const. amend. V ............................................. 24

Statutes

47 U.S.C. § 254 ....................................................... 13

47 U.S.C. § 254(b) ................................................... 13

47 U.S.C. § 254(b)(7) .............................................. 14

47 U.S.C. § 254(c)(1) ............................................... 14

47 U.S.C. § 254(d) ............................................. 14, 15

47 U.S.C. § 254(d)(4) .............................................. 16

Regulations

47 C.F.R. § 54.701 .................................................. 17

47 C.F.R. § 54.701(a) .............................................. 17

viii

47 C.F.R. § 54.703 .................................................. 17

47 C.F.R. § 54.704(a) .............................................. 17

47 C.F.R. § 54.705 .................................................. 17

47 C.F.R. § 54.709(a) .............................................. 14

47 C.F.R. § 54.709(a)(3) .......................................... 17

47 C.F.R. § 54.715 .................................................. 17

Rules

Sup. Ct. R. 37.3 ......................................................... 1

Other Authorities

Aaron Gordon,

Nondelegation,

12 N.Y.U. J.L. & Liberty 718 (2019) .......... 19, 28

Amy Coney Barrett,

Suspension and Delegation,

99 Cornell L. Rev. 251 (2014) ........................... 21

Antonin Scalia,

A Note on the Benzene Case,

Reg., July/Aug. 1980 ..................................... 4, 30

Antonin Scalia,

Foreword: The Importance of Structure

in Constitutional Interpretation,

83 Notre Dame L. Rev. 1417 (2008) ................... 7

ix

Cong. Research Serv., LSB10904, Fifth

Circuit Considers Constitutionality of

the Universal Service Fund (2023) ............ 12, 13

David Schoenbrod,

Delegation and Democracy: A Reply to

My Critics,

20 Cardozo L. Rev. 731 (1999) .......................... 19

David Schoenbrod,

The Delegation Doctrine: Could the

Court Give It Substance,

83 Mich. L. Rev. 1223 (1985) ............................ 27

Declaration of Independence (1776) ...................... 11

Federalist No. 47 (Madison)..................................... 7

Federalist No. 51 (Madison)..................................... 8

Federalist No. 75 (Hamilton) ................................. 23

Federalist No. 78 (Hamilton) ................................. 24

Gary Lawson,

Delegation and Original Meaning,

88 Va. L. Rev. 327 (2002) ............................ 11, 26

Harold W. Furchtgott-Roth,

A Tough Act to Follow? (2006).......................... 15

Jennifer Mascott,

Private Delegation Outside of Executive

Supervision,

45 Harv. J.L. & Pub. Pol’y 837 (2022) .............. 11

x

John O. McGinnis & Michael B. Rappaport,

Presidential Polarization,

83 Ohio St. L.J. 5 (2022) ................................... 20

Louis J. Capozzi III,

The Past and Future of the Major

Questions Doctrine,

84 Ohio St. L.J. 191 (2023) ............................... 19

Mila Sohoni,

The Major Questions Quartet,

136 Harv. L. Rev. 262 (2022) ............................ 30

1 Montesquieu, The Spirit of Laws (Thomas

Nugent trans., 1914) ........................................... 7

Naomi Rao,

Administrative Collusion: How

Delegation Diminishes the Collective

Congress,

90 N.Y. U. L. Rev. 1463 (2015) ......................... 25

Paul Larkin,

Revitalizing the Nondelegation Doctrine,

23 Federalist Soc’y Rev. 238 (2022)............ 11, 25

Philip Hamburger,

Is Administrative Law Unlawful? (2014)........... 9

Philip Hamburger,

Nondelegation Blues,

91 Geo. Wash. L. Rev. 1083 (2023) ….4, 9, 10, 19,

20, 21, 22

xi

Randolph J. May and Andrew K.

Magloughlin,

NFIB v. OSHA: A Unified Separation of

Powers Doctrine and Chevron’s No Show,

74 S.C. L. Rev. 265 (2022)................................. 30

Ronald A. Cass,

Fixing Deference: Delegation, Discretion,

and Deference under Separated Powers,

17 NYU J.L. & Liberty 1 (2023) ........... 23, 25, 26

Ronald J. Krotoszynski, Jr.,

Reconsidering the Nondelegation

Doctrine: Universal Service, the Power to

Tax, and the Ratification Doctrine,

80 Ind. L.J. 239 (2005) .......................... 12, 14, 15

Steven G. Calabresi & Gary Lawson,

The Depravity of the 1930s and the

Modern Administrative State,

94 Notre Dame L. Rev. 821 (2019) ..................... 3

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

Under Supreme Court Rule 37.3, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Respondents.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society.

Some of those key ideas include the separation of

powers and constitutionally limited government. As

part of this mission, it appears as amicus curiae before

federal and state courts. Here, AFPF writes to

highlight the critical importance of enforcing the

Constitution’s bar against delegation of legislative

power and the stakes for representative selfgovernment, separation of powers, federalism, and

individual liberty.

SUMMARY OF ARGUMENT

This case is not about what constitutes sound

telecommunications policy or the wisdom of universal

services. “The question here is not whether something

should be done; it is who has the authority to do it.”

Biden v. Nebraska, 600 U.S. 477, 501 (2023). And by

1 Amicus curiae states that no counsel for any party authored

this brief in whole or in part, and no entity or person, aside from

amicus curiae or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

2

what process. “That is what this suit is about. Power.”

Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J.,

dissenting).

At its core this case is about two competing

governance paradigms. The first is a top-down

command-and-control model based on the idea that

because modern society is purportedly too complex

(and Congress too dysfunctional) for the political

branches to make policy choices through duly enacted

legislation, those decisions must instead be made by a

caste of unelected, unaccountable “experts” whose

choices aim to promote the collective good. The second

is a bottom-up model based on the idea that vertical

and horizontal separation of powers protect individual

liberty and promote government accountability by

empowering the American People to govern

themselves through their elected representatives,

generally at the state and local level. The former

model is a modern innovation that maximizes the

coercive power of the federal government to restrict

individual liberty. The latter model, by contrast, is

deeply rooted in our history and tradition and

enshrined in the Constitution to guard against

tyranny and government oppression. This Court

should take this opportunity to reaffirm it.

After all, in this country, all governmental power

must flow from its proper source: We the People. Our

system of government relies on the consent of the

governed, memorialized in the Constitution. Our

Constitution exclusively tasks the People’s elected

representatives with making policy choices and

accessing the People’s pocketbooks, subject to

constitutional limits on federal power. And under the

Constitution, the political branches may only do so

3

through duly enacted legislation that survives

bicameralism and presentment, a deliberately

difficult process designed to ensure such laws reflect

broad political consensus.

Toward this end, the Constitution flatly prohibits

Congress from transferring any of its legislative

power to other entities, U.S. Const. art. I, § 1,

including the power “to lay and collect Taxes,” U.S.

Const. art. I, § 8. This means that such matters “must

be entirely regulated by the legislature itself[.]”

Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825).

Congress “is the sole organ for levying taxes[.]” Nat’l

Cable Television Ass’n v. United States, 415 U.S. 336,

340 (1974). And a fortiori Congress cannot transfer

“power to regulate the affairs of an unwilling

minority” to private parties; this is “legislative

delegation in its most obnoxious form[.]” Carter v.

Carter Coal Co., 298 U.S. 238, 311 (1936).

Here, Congress has done just that, transferring the

power to make legislative policy choices and levy taxes

to fund those choices to unelected administrators who,

in turn, transferred these powers to a private

company staffed by industry insiders. The Universal

Service Fund (“USF”) is unprecedented and uniquely

constitutionally offensive. And as the en banc Fifth

Circuit found, “this misbegotten tax violates Article I,

§ 1 of the Constitution.” Pet. App. 2a.

The USF is emblematic of a broader problem: “the

vast subdelegation of legislative authority that

permeates modern government.” Steven G. Calabresi

& Gary Lawson, The Depravity of the 1930s and the

Modern Administrative State, 94 Notre Dame L. Rev.

821, 853 (2019). “The administrative degradation of

4

consensual lawmaking is eating away at our

government’s

legitimacy.”

Philip

Hamburger,

Nondelegation Blues, 91 Geo. Wash. L. Rev. 1083,

1108 (2023). And as elsewhere, “here, the threats to

democracy presented by the administrative state are

not inadvertent, but intentional—a deliberate design

to turn consent of the governed into an illusion.” Pet.

App. 86a (Ho, J., concurring).

There is no way to sweep this constitutional

disorder under the rug. It is long past time for the

judiciary to “reshoulder the burden of ensuring that

Congress itself make the critical policy decisions,”

Indus. Union Dep’t, AFL-CIO v. API, 448 U.S. 607,

687 (1980) (Rehnquist, C.J., concurring in judgment),

by “hewing” the nondelegation doctrine “from the ice,”

Antonin Scalia, A Note on the Benzene Case, Reg.,

July/Aug. 1980, at 28. “There are times when it is [this

Court’s] duty to say simply that a law that blatantly

attempts to circumvent the Constitution goes too far.”

Consumer Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass’n

of Am., Ltd., 601 U.S. 416, 471 (2024) (Alito, J.,

dissenting). This is one of them.

The search for an administrable principle to

delineate the nondelegation doctrine’s metes and

bounds has been a difficult one. To be sure, “the

precise boundary” delimiting the power Congress may

permissibly delegate to other entities “is a subject of

delicate and difficult inquiry[.]” Wayman, 23 U.S. (10

Wheat.) at 46. But amicus respectfully submits that

the Constitution’s protection of liberty through the

concept of nondelegation is best understood through

multiple overlapping principles and tests.

5

These include prohibitions on delegations of

government power to private entities, delegations of

core congressional functions like taxing and spending,

delegations of power to decide major questions,

delegations that lack meaningful standards to give

fair notice of required or prohibited conduct and

permit arbitrary-and-capricious review of agency

actions, and delegations of legislative policymaking

power to make general rules that bind the public and

impact private rights. Each of these guardrails has

surfaced at important moments in the past in one

form or another, and each will require thoughtful

development moving forward. Instead of searching for

an all-encompassing nondelegation theory, amicus

suggests the Court spin each of these threads to weave

a tapestry to protect the separation of powers.

This case presents an ideal opportunity to begin to

articulate judicially manageable standards for

meaningfully enforcing Article I’s Vesting Clause and

put Congress on notice that it must do its job. And

enough ink has been spilled to allow this Court to

address line-drawing questions, as necessary, on a

context-specific case-by-case basis. The sky will not

fall if this Court enforces Article I’s demands over

time. To the contrary, our constitutional Republic will

be all the healthier for it.

For the foregoing reasons, this Court should affirm

the decision below.

6

ARGUMENT

I.

The Separation

Liberty.

of

Powers

Protects

“Our Constitution was adopted to enable the

people to govern themselves, through their elected

leaders.” Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd., 561 U.S. 477, 499 (2010). Underscoring

this, it “begins by declaring that ‘We the People . . .

ordain and establish this Constitution.’” Gundy v.

United States, 588 U.S. 128, 152 (2019) (Gorsuch, J.,

dissenting). In that document, the People agreed on a

system of checks and balances.

“The Constitution sets out three branches of

Government and provides each with a different form

of power—legislative, executive, and judicial.” Seila

Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S.

197, 239 (2020) (Thomas, J., concurring) (citations

omitted). “[T]he legislature makes, the executive

executes, and the judiciary construes the law[.]”

Wayman, 23 U.S. (10 Wheat.) at 46. “The purpose of

the separation and equilibration of powers” required

by the Constitution is “not merely to assure effective

government but to preserve individual freedom.”

Morrison, 487 U.S. at 727 (Scalia, J., dissenting); see

Collins v. Yellen, 594 U.S. 220, 245 (2021). It also

protects “democratic values.” Allstates Refractory

Contractors, LLC v. Su, 79 F.4th 755, 769 (6th Cir.

2023) (Nalbandian, J., dissenting).

“[T]he Constitution’s core, government-structuring

provisions are no less critical to preserving liberty

than are the later adopted provisions of the Bill of

Rights.” Nat’l Labor Relations Bd. v. Canning, 573

7

U.S. 513, 571 (2014) (Scalia, J., concurring in the

judgment). Indeed, “[t]o safeguard individual liberty,

‘[s]tructure is everything.’” Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 416 (2024) (Thomas, J.,

concurring) (quoting Antonin Scalia, Foreword: The

Importance

of

Structure

in

Constitutional

Interpretation, 83 Notre Dame L. Rev. 1417, 1418

(2008)). This separation “might seem inconvenient

and inefficient to those who wish to maximize

government’s coercive power.” Texas v. Rettig, 993

F.3d 408, 409 (5th Cir. 2021) (Ho, J., dissenting from

denial of rehearing en banc). But “[t]o the Framers,

the separation of powers and checks and balances

were more than just theories. They were practical and

real protections for individual liberty in the new

Constitution.”2 Perez v. Mortg. Bankers Ass’n, 575

U.S. 92, 118 (2015) (Thomas, J., concurring in the

judgment).

As James Madison explained, “[t]he accumulation

of all powers, legislative, executive, and judiciary, in

the same hands . . . may justly be pronounced the very

definition of tyranny.” Federalist No. 47; see 1

Montesquieu, The Spirit of Laws bk. 11, ch. 6, at 163

(Thomas Nugent trans., 1914) (“When the legislative

and executive powers are united in the same person .

. . there can be no liberty[.]”). And “the great security

against a gradual concentration of the several powers

in the same department, consists in giving to those

2 “At the heart of 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 (or a will) not enacted by the

legislature, then he was not truly free.” Dep’t. of Transp. v. Ass’n

of Am. R.R., 575 U.S. 43, 76 (2015) (Thomas, J., concurring).

8

who administer each department the necessary

constitutional means and personal motives to resist

encroachments of the others.” Federalist No. 51

(Madison). That remains true today.

II.

The Constitution Bars Congress From

Transferring Its Legislative Power.

“The Constitution imposes important limits on

how the government goes about doing its job.”

Consumers’ Rsch. v. FCC, 88 F.4th 917, 938 (11th Cir.

2023) (Newsom, J., concurring), and “provides strict

rules to ensure that Congress exercises the legislative

power in a way that comports with the People’s will,”

Jarkesy v. SEC, 34 F.4th 446, 459 (5th Cir. 2022), aff’d

on other grounds, 603 U.S. 109 (2024). To protect

liberty, “the framers went to great lengths to make

lawmaking difficult,” requiring “that any proposed

law must win the approval of two Houses of Congress

. . . and either secure the President’s approval or

obtain enough support to override his veto.” Gundy,

588 U.S. at 154 (Gorsuch, J., dissenting).

Congress may not duck the Constitution’s

accountability checkpoints by divesting itself of its

legislative responsibilities. See NFIB v. OSHA, 595

U.S. 109, 124–25 (2022) (per curiam) (Gorsuch, J.,

concurring). “Article I vests the ‘Senate and House of

Representatives’ (and them alone) with ‘[a]ll

legislative powers.’” Allstates, 79 F.4th at 769

(Nalbandian, J., dissenting) (quoting U.S. Const. art.

I, § 1). The Constitution bars Congress from

transferring “powers which are strictly and

exclusively legislative” to other entities. Wayman, 23

U.S. (10 Wheat.) at 42; see Shankland v. Washington,

30 U.S. 390, 395 (1831) (“[T]he general rule of law is,

9

that a delegated authority cannot be delegated.”).

That includes Congress’s power “to lay and collect

Taxes.” U.S. Const. art. I, § 8; see Nat’l Cable

Television Ass’n, 415 U.S. at 340 (“Taxation is a

legislative function, and Congress, [] is the sole organ

for levying taxes[.]”).

Instead, such matters “must be entirely regulated

by the legislature itself[.]” Wayman 23 U.S. (10

Wheat.) at 43; see Fletcher v. Peck, 10 U.S. (6 Cranch)

87, 136 (1810) (“It is the peculiar province of the

legislature to prescribe general rules for the

government of society[.]”). This means “the hard

choices” “must be made by the elected representatives

of the people.” Indus. Union Dep’t, 448 U.S. at 687

(Rehnquist, J., concurring in judgment). And

“Congress, not some official in the Executive Branch,

creates laws.” Allstates, 79 F.4th at 769 (Nalbandian,

J., dissenting).

The Constitution’s text makes this pellucidly clear.

Article I provides: “All legislative Powers herein

granted shall be vested in a Congress[.]” U.S. Const.

art. I, § 1; see Philip Hamburger, Is Administrative

Law Unlawful? 388 (2014) (“Americans clearly

understood how to write constitutions that expressly

permitted the subdelegation of legislative power to

the executive, and they did not do this in the federal

constitution.”). This provision “speaks of what shall be

vested and thereby bars delegation of the legislative

10

powers.”3 Hamburger, 91 Geo. Wash. L. Rev. at 1168.

“The phrase shall be vested is decisive. It emphatically

reinforces what already should be clear, that the

Constitution’s vesting of powers is not just an initial

distribution—like an initial dealing out of cards.” Id.

at 1174 (emphasis in original).

The Constitution’s structure reenforces this

understanding. For example, by contrast to Article I’s

Vesting Clause, the Constitution “expressly

acknowledged” circumstances “when Congress can

designate the location of one of the tripartite powers,”

such as in Article III’s judicial vesting clause. Id. at

1175; see U.S. Const. art. III, § 1. “Given that Article

III spells out that Congress may determine the

location of some judicial power, it is nearly comic to

observe so much scholarship strive to show that

Article I did this for legislative power.” Hamburger,

91 Geo. Wash. L. Rev. at 1175. Article II’s executive

vesting clause “provides a third textual basis for

rejecting transfers of legislative power,” making clear

that the President “is not and cannot be vested with

either of the other tripartite powers.”4 Id. at 1176; see

“This conclusion is reinforced by other portions of the text:

Article III’s vesting of judicial power and Article II’s vesting of

executive power.” Hamburger, 91 Geo. Wash. L. Rev. at 1168

(citing U.S. Const. art. II, § 1, cl. 1; id. art. III, § 1). The

Constitution’s “shall be vested” language “textually emphasizes

that its powers cannot be rearranged.” Id. at 1071.

3

“[T]he President’s power to see that the laws are faithfully

executed refutes the idea that he is to be a lawmaker. The

Constitution limits his functions in the lawmaking process to the

recommending of laws he thinks wise and the vetoing of laws he

thinks bad.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 587 (1952); see id. at 632 (Douglas, J., concurring).

4

11

City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013)

(“[U]nder our constitutional structure” federal

agencies’

activities “must

be exercises

of—the

‘executive Power.’” (quoting Art. II, § 1, cl. 1)).

Founding-era practice further underscores that

Congress cannot delegate its legislative power.

Around the Framing, “statutes authorized the

executive to create rules that were only ‘binding’ on

executive officials, not members of the public.”

Allstates, 79 F.4th at 788 n.17 (Nalbandian, J.,

dissenting) (citation omitted). And “members of [the

First] Congress viewed themselves as the actors

responsible for reaching finely grained policy

determinations that would impact and bind the

public.” Jennifer Mascott, Early Customs Laws and

Delegation, 87 Geo. Wash. L. Rev. 1388, 1449 (2019).

Broader historical context lends additional

support. Prominent among the Founders’ grievances

against King George III was that he had “erected a

multitude of New Offices, and sent hither swarms of

Officers to harrass our people[.]” Decl. of

Independence ¶ 12 (1776); see id. ¶ 17 (“imposing

Taxes on us without our Consent”). Going back

further still, “Magna Carta [likewise] bolsters the

argument that the Constitution limits the type of

lawmaking that nonelected federal officials may

undertake. Would the English barons have

understood the term ‘law of the land’ to include

diktats from King John, the very person that Chapter

39 was designed to restrain?” Paul Larkin,

Revitalizing the Nondelegation Doctrine, 23 Federalist

Soc’y Rev. 238, 262 (2022).

12

In sum, “the Vesting Clauses are exclusive,” which

means “that the branch in which a power is vested

may not give it up or otherwise reallocate it.” Ass’n of

Am. R.R., 575 U.S. at 74 (Thomas, J., concurring).

“The Vesting Clauses, and indeed the entire structure

of the Constitution, make no sense otherwise.” Gary

Lawson, Delegation and Original Meaning, 88 Va. L.

Rev. 327, 340 (2002).

III.

The Universal Service Fund Makes a

Mockery of the Constitution.

Section 254 of the Telecommunications Act of 1996

runs roughshod over the Constitution’s structural

guardrails. Among delegations, “§ 254 stands alone.”

Pet. App. 40a. It not only transfers “to FCC the power

to make important policy judgments,” Pet. App. 40a,

but “bestowed upon FCC the power to levy taxes” to

fund those choices, Pet. App. 23a. On top of this, “the

statute insulates FCC from the principal tool

Congress has to control FCC’s universal service

decisions—the appropriations power.” Pet. App. 31a

(citing U.S. Const. art. I, § 9, cl. 7).

Since 1934,“Congress has made universal service

a basic goal of telecommunications regulation.”5 Tex.

Office of Pub. Util. Counsel (TOPUC I) v. FCC, 183

F.3d 393, 405 (5th Cir. 1999). Today, it remains “a

significant part of U.S. telecom policy.” Cong.

The USF “is a social welfare subsidy program that benefits

certain consumers” “by imposing taxes on other consumers.”

Ronald J. Krotoszynski, Jr., Reconsidering the Nondelegation

Doctrine: Universal Service, the Power to Tax, and the

Ratification Doctrine, 80 Ind. L.J. 239, 278 (2005).

5

13

Research Serv., LSB10904, Fifth Circuit Considers

Constitutionality of the Universal Service Fund 4

(2023).6 To further this broad goal, Congress enacted

§ 254 of the Telecommunications Act of 1996, which

created the USF and delegated to FCC effectively

untrammeled power to administer it. See generally 47

U.S.C. § 254. Problematically, the 1996 Act—which

“profoundly affects a crucial segment of the economy

worth tens of billions of dollars”—“is in many

important respects a model of ambiguity,” granting

“‘most promiscuous rights’ to the FCC[.]” AT&T Corp.

v. Iowa Utils. Bd., 525 U.S. 366, 397 (1999). That well

describes § 254.

There, Congress tasked the FCC (and a FederalState Joint Board) with setting “policies for the

preservation and advancement of universal service[.]”

47 U.S.C. § 254(b). Congress, however, said precious

little about how to do this, instead punting the policy

choices necessary to achieve these broad, abstract

aims to unelected Executive officials, who, in turn,

promptly punted this duty to a private corporation. In

§ 254(b) Congress used “lofty and expansive language”

to announce seven “aspirational” principles,

“reflect[ing] congressional intent to delegate difficult

policy choices to the Commission’s discretion.” Tex.

Office of Pub. Util. Counsel (TOPUC II) v. FCC, 265

F.3d 313, 321 (5th Cir. 2001) (cleaned up).

Section

254

mandates

that

“[e]very

telecommunications carrier that provides interstate

telecommunications services shall contribute, on an

6 https://crsreports.congress.gov/product/pdf/LSB/LSB10904.

14

equitable and nondiscriminatory basis, to the specific,

predictable, and sufficient mechanisms established by

the [FCC] to preserve and advance universal service.”

47 U.S.C. § 254(d). “Notably, Congress declined to

define ‘universal service’ itself.” Pet. App. 3a; see 47

U.S.C. § 254(c)(1) (“Universal service is an evolving

level . . . that the Commission shall establish

periodically[.]”).

For

that

matter,

Congress

empowered the FCC with boundless discretion to add

universal service principles it deems “necessary and

appropriate for the protection of the public interest,

convenience, and necessity[.]” 47 U.S.C. § 254(b)(7);

see Krotoszynski, 80 Ind. L.J. at 312. In other words,

§ 254(b)’s “hazy ‘principles’” “leave the agency all the

room it needs to do essentially whatever it wants.”

Consumers’ Rsch., 88 F.4th at 931 (Newsom, J.,

concurring).

Making matters worse, “Congress delegated its

taxing power to FCC,” Pet. App. 23a, through a

“unique revenue raising mechanism,” Consumers’

Rsch. v. FCC, 63 F.4th 441, 450 (5th Cir. 2023), reh’g

en banc granted, opinion vacated, 72 F.4th 107 (5th

Cir. 2023), that grants the agency untrammeled

power to force carriers to fund its social welfare

program. The FCC does this by regulation at a rate

set quarterly known as the Contribution Factor. See

47 C.F.R. § 54.709(a); In re Incomnet, Inc., 463 F.3d

1064, 1066 (9th Cir. 2006). “The money in the USF is

provided by private telecommunication providers[.]”

United States ex rel. Shupe v. Cisco Sys., 759 F.3d 379,

387–88 (5th Cir. 2014). “The telecommunications

companies pass this cost through to their subscribers;

the charge generally appears on phone bills as the

‘Universal Service Fund Fee.’” In re Incomnet, 463

15

F.3d at 1066. This means that “American

telecommunications consumers are subject to a multibillion-dollar tax nobody voted for.” Pet. App. 81a.

Section 254 gives “essentially no[] direction about

how much telecom companies should actually be

charged[.]” Consumers’ Rsch., 88 F.4th at 931

(Newsom, J., concurring); see 47 U.S.C. § 254(d).

“[B]ecause Congress has failed to limit either the

amount of revenue to be raised or the particular

purposes to which the revenue may be used, it has

essentially given the Commission a blank check.” 7

Krotoszynski, 80 Ind. L.J. at 246. “Nothing in the

statute precludes FCC from, for example, imposing

the USF Tax to create an endowment that it could use

to fund whatever projects it might like.” Pet. App.

28a–29a. Cf. Harold W. Furchtgott-Roth, A Tough Act

to Follow? 62 (2006) (“FCC, by its own logic, had as

much authority to spend $2.25 trillion as it had to

spend $2.25 billion.”).

In sum, the statute “limits neither the objects of

the universal service program nor the funds to be

expended to achieve them[.]” Krotoszynski, 80 Ind.

L.J. at 318. Indeed, the FCC has argued “that so long

as the Commission does not violate an express

statutory command, it may use the universal-service

mechanism to achieve policy objectives contained

elsewhere in the Act.” Huawei Techs. USA, Inc. v.

FCC, 2 F.4th 421, 436 (5th Cir. 2021) (cleaned up).

Here, “Congress pointed to a problem that needed

This arrangement “permits Congress to take credit for the

benefits it provides without being accountable for the taxes used

to pay for them.” Krotoszynski, 80 Ind. L.J. at 246.

7

16

fixing and more or less told the Executive to go forth

and figure it out.”8 United States v. Nichols, 784 F.3d

666, 674 (10th Cir. 2015) (Gorsuch, J., dissenting from

denial of rehearing en banc).

“This is delegation running riot.” A.L.A. Schechter

Poultry Corp. v. United States, 295 U.S. 495, 553

(Cardozo, J., concurring). The statute grants the FCC

“an unlimited authority to determine the policy” as

the agency “may see fit.” Panama Ref. Co. v. Ryan, 293

U.S. 388, 415 (1935). FCC “is free to select as [it]

chooses . . . and then to act without making any

finding[s],” id. at 388, as it “roam[s] at will” “in that

wide field of legislative possibilities,” Schechter, 295

U.S. at 538. This “absence of standards” makes it

“impossible” “to ascertain whether the will of

Congress has been obeyed[.]” Yakus v. United States,

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

The statute is “so amorphous that no reviewing

court could ever possibly invalidate any FCC action

taken in its name.” Pet. App. 41a. Indeed, one federal

judge described the interpretive challenges posed by

vacuous language in § 254(d)(4) thus: “Candidly, I

have no idea what that means. . . . [S]uch empty,

mealymouthed shibboleths provide no meaningful

constraint; to the contrary, they confer front-line law-

Any effort by the FCC to save the statute by proposing a

limiting construction should be rejected. See Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 472 (2001). “It is [also] a

fundamental principle of statutory interpretation that absent

provisions cannot be supplied by the courts.” Little Sisters of the

Poor Saints Peter & Paul Home v. Pennsylvania, 591 U.S. 657,

677 (2020) (cleaned up).

8

17

and policymaking power on unelected, unaccountable

agency bureaucrats.” Consumers’ Rsch., 88 F.4th at

931 (Newsom, J., concurring). Exactly so.

On top of this, the FCC has re-delegated its

authority over the USF to the Universal Service

Administrative Company (“USAC”).9 See 47 C.F.R.

§ 54.701(a). “USAC is a not-for-profit private

organization that is structured pursuant to the FCC’s

regulations,” Pet. App. 13a (citing 47 C.F.R.

§§ 54.701, 54.703), and “owned by an industry trade

group,” Cisco Sys., 759 F.3d at 387. Cf. Schechter, 295

U.S. at 537 (“[W]ould it be seriously contended that

Congress could delegate its legislative authority to

trade or industrial associations or groups[?]”).

This private entity is tasked by regulation with

calculating the Contribution Factor and thus for all

practical purposes decides the rate at which the

carriers—and, by extension, the general public—are

taxed.10 See 47 C.F.R. § 54.709(a)(3); Pet. App. 6a–7a,

22a. Cf. Texas v. Commissioner, 142 S. Ct. 1308, 1309

(2022) (statement of Alito, J., respecting denial of

certiorari) (describing setting Medicaid “actuarial

standards”

as

“essentially

a

legislative

determination”). “USAC sets its own budget” and

subject to limited FCC oversight “decides if, when,

and how it disburses funds on behalf of the USF’s

beneficiaries.” In re Incomnet, 463 F.3d at 1076 (citing

47 C.F.R. §§ 54.701(a), 54.704(a), 54.705, 54.715).

9 The statute “does not even mention USAC[.]” Pet. App. 59a.

10 “As a practical matter, USAC sets the USF Tax—subject only

to FCC’s rubber stamp.” Pet. App. 7a.

18

This makes a mockery of the Constitution’s

separation of powers. And it breaks the Constitution’s

promise that only the People’s elected representatives

in Congress may make legislative choices restricting

their liberty and imposing obligations upon them.

IV.

This Court Should Restore Equilibrium

Among the Branches.

This Court should not turn a blind eye to these

serious constitutional problems. “The modern

administrative state illustrates what happens when

we ignore the Constitution: Congress passes problems

to the executive branch and then engages in fingerpointing for any problems that might result. The

bureaucracy triumphs—while democracy suffers.”

Rettig, 993 F.3d at 409 (Ho, J., dissenting from denial

of rehearing en banc) (cleaned up). That well describes

the sweeping and unprecedented dual-layer

subdelegation of legislative power at issue here.

“[T]his wolf comes as a wolf.” Morrison, 487 U.S. at

699. And it should not be allowed to stand. It is past

time for this Court to protect our Republic by

enforcing the Constitution’s structural protections.

A. Delegation Run Riot Has Had Awful

Effects on Our Constitutional Republic.

The stakes here could not be higher and involve

“basic questions about self-government, equality, fair

notice, federalism, and the separation of powers.”

West Virginia v. EPA, 597 U.S. 697, 742 (2022)

(Gorsuch, J., concurring).

The baseline Article I sets is that agencies have no

authority to act unless and until Congress confers

19

power on them via duly enacted legislation. See FEC

v. Ted Cruz for Senate, 596 U.S. 289, 301 (2022). The

Constitution deliberately makes it difficult to alter

this liberty-tilted baseline. “[T]he legitimate status

quo ante is that a government wish is not law until

Congress goes through Article I’s rigorous process for

enacting laws.” Louis J. Capozzi III, The Past and

Future of the Major Questions Doctrine, 84 Ohio St.

L.J. 191, 235 (2023). And “the Constitution’s

procedure for enacting statutes, with its several veto

points, is biased toward inaction—or, rather, toward

action only where a fairly broad consensus supports

it.” Aaron Gordon, Nondelegation, 12 N.Y.U. J.L. &

Liberty 718, 801 (2019).

By contrast, legislative delegations have “the effect

of inverting the decision-making process: a legislative

rule will go into effect unless a sufficiently broad

consensus disapproves, whereas in the absence of

legislative delegation, such a rule would go into effect

only if an equally broad consensus approves.” Id. at

802. This “reverses the burden that the Constitution

places on those who want to expand the powers of

government by imposing a new law.” David

Schoenbrod, Delegation and Democracy: A Reply to My

Critics, 20 Cardozo L. Rev. 731, 739 (1999).

In addition, “[v]ague congressional delegations

undermine representative government because they

give unelected bureaucrats—rather than elected

representatives—the final say over matters that

affect the lives, liberty, and property of Americans.”

Pet. App. 25a. “By shifting responsibility to a less

accountable branch, Congress protects itself from

political censure—and deprives the people of the say

the framers intended them to have.” Tiger Lily, LLC

20

v. HUD, 5 F.4th 666, 674 (6th Cir. 2021) (Thapar, J.,

concurring). Further still, “the transfer of legislative

power to agencies dilutes voting rights.” Hamburger,

91 Geo. Wash. L. Rev. at 1181. Such power-transfers

are also slanted against disfavored groups. See id. at

1183–87. In short, “[d]elegation is never just about

delegation. It also is about rendering legislation

unrepresentative” and “diluting the value of equal

suffrage[.]” Id. at 1187; see Pet. App. 87a (Ho, J.,

concurring) (“There’s no point in voting if the real

power rests in the hands of unelected bureaucrats—

or their private delegates.”).

Even

worse,

unconstitutional

delegations

undermine

political

stability,

leading

to

“administratively induced irresponsibility, alienation,

and political conflict.” Hamburger, 91 Geo. Wash. L.

Rev. at 1192. This state of affairs “tends to infantilize

the Constitution’s elements of government,” “leaving

Americans with ever less confidence in government.”

Id. at 1193. It “deprives Americans of their sense of

connection to government,” leaving “growing numbers

of Americans, left and right, feel[ing] politically

alienated.” Id. at 1194.

Finally, delegation of legislative power to

administrative bodies contributes to political

polarization. See John O. McGinnis & Michael B.

Rappaport, Presidential Polarization, 83 Ohio St. L.J.

5, 7 (2022) (“Delegation by Congress probably has the

most pervasive polarizing effects.”). “The breadth of

centralized legislative power” housed within the

Executive branch today “displaces much state politics.

It also reaches deep into private institutions and life.”

Hamburger, 91 Geo. Wash. L. Rev. at 1195. This “not

only nationalizes American politics but also politicizes

21

American life,” turning Presidential elections into “door-die battles[.]” Id.

B. This

Court

Should

Jettison

“Intelligible Principle” Remark.

the

This Court should confront the root cause of these

serious constitutional problems: the modern,

judicially created intelligible-principle regime. “[T]he

standard this Court currently applies to determine

whether Congress has impermissibly delegated

legislative power largely abdicates [this Court’s] duty

to enforce that prohibition[.]” Allstates Refractory

Contractors, LLC v. Su, 144 S. Ct. 2490, 2490 (2024)

(Thomas, J., dissenting from denial of certiorari)

(cleaned up). The test is “notoriously lax,” Amy Coney

Barrett, Suspension and Delegation, 99 Cornell L.

Rev. 251, 318 (2014), and “has become a punchline,”

Consumers’ Rsch., 88 F.4th at 929 (Newsom, J.,

concurring). “[T]he nondelegation doctrine has been

more honored in the breach than in the observance.”

Rettig, 993 at 410 (Ho, J., dissenting from denial of

rehearing en banc), and “over the years, the

guardrails have crumbled,” Tiger Lily, 5 F.4th at 674

(Thapar, J., concurring). Today’s “nondelegation

doctrine serves as little more than an open gate for the

delegation of legislative power—even if the sign above

the gate declares the opposite.” Hamburger, 91 Geo.

Wash. L. Rev. at 1091. It is past time to close and

padlock it.

The “mutated version of the ‘intelligible principle’

remark” in J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928), that forms the basis of the

modern “intelligible principle” test “has no basis in the

original meaning of the Constitution, in history, or

22

even in the decision from which it was plucked.”

Gundy, 588 U.S. at 164 (Gorsuch, J., dissenting); see

Whitman, 531 U.S. at 487 (Thomas, J., concurring);

Ass’n of Am. R.R., 575 U.S. at 76 (Thomas, J.,

concurring in the judgment); Consumers’ Rsch., 88

F.4th at 928 (Newsom, J., concurring in judgment); id.

at 938 (Lagoa, J., concurring); Hamburger, 91 Geo.

Wash. L. Rev. at 1095 (“[T]he current nondelegation

doctrine has no originalist foundation.”).

This Court should clearly announce the end of this

failed experiment. Cf. Loper Bright, 603 U.S. at 412.

After all, “[a]lthough this Court since 1928 has treated

the ‘intelligible principle’ requirement as the only

constitutional limit on congressional grants of power

to administrative agencies, the Constitution does not

speak of ‘intelligible principles.’ Rather, it speaks in

much simpler terms: ‘All legislative Powers herein

granted shall be vested in a Congress.’” Whitman, 531

U.S. at 487 (Thomas, J., concurring) (quoting U.S.

Const. art. I, § 1). While the “doctrine long seemed

acceptable while the shift of legislative and judicial

powers to the executive was moderated by political

restraint,” “such restraint has been thrown to the

winds[.]” Hamburger, 91 Geo. Wash. L. Rev. at 1093.

C. Line-Drawing Questions Cannot Justify

Ignoring the Constitution’s Demands.

Nor should line-drawing challenges stand in the

way of enforcing the Constitution’s bar against

subdelegation of legislative power. “Strictly speaking,

there is no acceptable delegation of legislative power.”

Mistretta v. United States, 488 U.S. 361, 419–20

(1989) (Scalia, J., dissenting). This raises the question

23

what is “legislative power” that Congress may not

delegate.11

To be sure, “[t]he line has not been exactly drawn”

between “important subjects, which must be entirely

regulated by the legislature itself” and matters of “less

interest” that Congress can delegate to others “to fill

up the details.” Wayman, 23 U.S. (10 Wheat.) at 43;

see West Virginia, 597 U.S. at 737 (Gorsuch, J.,

concurring) (“Doubtless, what qualifies as an

important subject and what constitutes a detail may

be debated.”). And “the hard question is how to specify

clearly—at least, as clearly as possible—what power

the Congress can and cannot assign to others.” Ronald

A. Cass, Fixing Deference: Delegation, Discretion, and

Deference under Separated Powers, 17 NYU J.L. &

Liberty 1, 36 (2023). Indeed, “[i]t may never be

possible perfectly to distinguish between legislative

11 “When it came to the legislative power, the framers understood

it to mean the power to adopt generally applicable rules of

conduct governing future actions by private persons[.]” Gundy,

588 U.S. at 153 (Gorsuch, J., dissenting). As Hamilton put it,

“[t]he essence of the legislative authority is to enact laws, or, in

other words, to prescribe rules for the regulation of the society[.]”

Federalist No. 75. As an original matter, “formulation of

generally applicable rules of private conduct” “requires the

exercise of legislative power.” Ass’n of Am. R.R., 575 U.S. at 70

(Thomas, J., concurring in the judgment). “By that measure, the

FCC is almost certainly exercising legislative power when it

decides, among other things, how big the universal-service

program should be, what it should entail, and how much carriers

should have to chip in to bring it to fruition.” Consumers’ Rsch.,

88 F.4th at 930 (Newsom, J., concurring).

24

and executive power[.]” Ass’n of Am. R.R., 575 U.S. at

86 (Thomas, J., concurring).

“But the inherent difficulty of line-drawing is no

excuse for not enforcing the Constitution.” Id. at 61

(Alito, J., concurring); see id. at 86 (Thomas, J.,

concurring). Cf. Federalist 78 (Hamilton) (Courts

“duty it must be to declare all acts contrary to the

manifest tenor of the Constitution void.”). And “the

difficulty of the inquiry doesn’t mean it isn’t worth the

effort.” Nichols, 784 F.3d at 671 (Gorsuch, J.,

dissenting from denial of rehearing en banc). No

matter the difficulty of the task, the Judiciary is

dutybound to search for the line and could do so on a

case-by-case basis. And just as the Constitution bars

Congress from punting its legislative responsibilities

to other entities, this Court should not punt on its

“duty” “to say what the law is.”12 Marbury v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803).

D. There

Are

Judicially

Manageable

Standards For Enforcing Nondelegation.

More than sufficient ink has been spilled to allow

this Court to begin to articulate judicially manageable

standards over time. See generally West Virginia, 597

U.S. at 750 n.11 (Gorsuch, J., concurring) (collecting

scholarship).

For

example,

surveying

the

jurisprudence and scholarship, Professor Cass has

identified three “essential elements” shaping the

nondelegation doctrine:

12 Under our Constitution the People have the last word. U.S.

Const. amend. V.

25

[F]irst, that Congress cannot pass to

others the power to make important

judgments on legally binding rules,

second, especially on matters respecting

the regulation of private rights rather

than of public property, and, third, that

grants of authority must fall within the

constitutionally assigned purview of the

delegate (must pertain to the exercise of

that delegate’s own power).

Cass, 17 NYU J.L. & Liberty at 43.13 And

“[d]evelopments in the modern administrative state

suggest the time has come to articulate judicially

manageable standards for identifying delegations of

legislative power.” Naomi Rao, Administrative

Collusion: How Delegation Diminishes the Collective

Congress, 90 N.Y. U. L. Rev. 1463, 1508 (2015).

To be sure, there may well be “multiple

nonexclusive” nondelegation principles. Larkin, 23

Federalist Soc’y Rev. at 263. And as in other areas of

constitutional law, judgment and nuance may be

required over a series of cases. But “[n]ot all rules

require judgments comparable to distinguishing a dog

This rubric draws from both the principle expressed in

Wayman, 23 U.S. 1, that Congress cannot delegate power to

decide important subjects and the principle that there are certain

types of power Congress cannot delegate, such as the power to

make general binding rules impacting private rights. See Cass,

17 NYU J.L. & Liberty at 38–44. “Viewed simply, the focus on

importance of a decision sets limits on what Congress can allow

others to do, while the focus on types of decision sets limits on

which others can do it as well as contributing to determination

of how broad or narrow their authority can be.” Id. at 40.

13

26

from a cat; some require, instead, the ability to

differentiate a boulder from a rock from a pebble—

matters of degree rather than of absolute differences

in nature.” Cass, 17 NYU J.L. & Liberty at 42.

The line for policing unconstitutional delegations

may be context specific. See Lawson, 88 Va. L. Rev. at

376; Pet. App. 33a. For example, as here, “the

Constitution’s original meaning would seem to compel

a more restrictive test for delegations of the taxing

power.” Pet. App. 42a n.13. But see Skinner v. MidAmerica Pipeline Co., 490 U.S. 212, 222–23 (1989).

This makes sense. After all, “the power to tax involves

the power to destroy,” McCulloch v. Maryland, 17 U.S.

(4 Wheat.) 316, 431 (1819), and “[a]mong Congress’s

most important authorities is its control of the purse,”

Nebraska, 600 U.S. at 505. And “if a citizen who is

taxed has the measure of the tax or the decision to

spend determined by the Executive alone, without

adequate control by the citizen’s Representatives in

Congress, liberty is threatened.” Clinton v. City of

N.Y., 524 U.S. 417, 451 (1998) (Kennedy, J.,

concurring). That may also hold true for other core

legislative functions, such as government spending.

“It’s [also] easy enough to see why a stricter

[nondelegation] rule would apply in the criminal

arena.” Nichols, 784 F.3d at 672 (Gorsuch, J.,

dissenting from denial of rehearing en banc)

(collecting cases). “Without a doubt, the framers’

concerns about the delegation of legislative power had

a great deal to do with the criminal law.” Id. at 670.

For that matter, Panama Refining, see 293 U.S. at

415, and Schechter, see 295 U.S. at 527–28, both

involved criminal delegations. Cf. United States v. L.

Cohen Grocery Co., 255 U.S. 81, 92–93 (1921) (striking

27

down vague criminal law in part because it

transferred legislative power to judges and juries).

In some contexts, the Commerce Clause’s original

public meaning may be another relevant background

principle providing additional guideposts.14 See, e.g.,

Schechter, 295 U.S. at 554 (Cardozo, J., concurring)

(noting Commerce Clause “objection, far-reaching and

incurable, aside from any defect of unlawful

delegation”). Cf. BST Holdings, L.L.C. v. OSHA, 17

F.4th 604, 619 (5th Cir. 2021) (Duncan, J.,

concurring). Federalism principles may also properly

inform the analysis. For example, where a statute

grants “authority to regulate an area—public health

and safety—traditionally regulated by the States,”

“lack of guidance” bounding an agency’s discretion

should be greeted skeptically.15 Allstates, 79 F.4th at

788 n.16 (Nalbandian, J., dissenting) (cleaned up). As

here, see Pet. App. 66a–67a, novelty may also indicate

a serious subdelegation problem. Cf. Seila Law, 591

U.S. at 220. These examples of additional markers

that might inform the constitutional inquiry are

illustrative, not exhaustive.

In sum, this Court is well equipped to begin to

articulate judicially manageable standards for

14 “Holding goals statutes that would regulate commerce or tax

to be improper delegations would serve the purpose of the

delegation doctrine.” David Schoenbrod, The Delegation

Doctrine: Could the Court Give It Substance, 83 Mich. L. Rev.

1223, 1254 (1985).

15 This Court has also struck down unconstitutional transfers of

exclusively federal legislative power to the States. See, e.g.,

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 164 (1920).

28

enforcing Article I’s Vesting Clause on a case-by-case

basis. The time has come to start to do so. And

whatever the line, the USF is well over it. Cf. NFIB v.

Sebelius, 567 U.S. 519, 585 (2012) (“It is enough for

today that wherever that line may be, this statute is

surely beyond it.”). Section 254 is an unprecedented

delegation to unelected bureaucrats of sweeping

power to make important policy decisions impacting

private rights and fund those legislative choices by

imposing taxes at any rate they want.16 That is an

unconstitutional delegation under any test.

E. Enforcing Article I’s Vesting Clause Will

Have Salutary Effects.

The sky will not fall if this Court enforces the

Constitution’s demands. Common strawman critiques

advanced by proponents of the administrative state—

“Congress is incapable of acting quickly in response to

emergencies” and “modern society is too complex to be

run by legislators”—are constitutionally irrelevant

and, in any event, lack merit on their own terms. See

Tiger Lily, 5 F.4th at 674–75 (Thapar, J., concurring);

see also Gordon, 12 NYU J.L. & Liberty at 811–15.

Appeals to putative agency expertise to justify the

USF fall particularly flat because “determining the

ideal size of a welfare program involves policy

16 The combination theory the decision below relied on to find an

Article I violation, see Pet. App. 19a, 64a, also tracks this Court’s

delegation precedent. In Schechter the statute “delegated to

trade or industrial groups the authority to develop codes defining

‘unfair method[s] of competition,’” Pet. App. 44a (citing 295 U.S.

at 521), subject to presidential approval.

29

judgments, not technical ones.”17 Pet. App. 35a. Nor

would enforcing Article I have disruptive

consequences. After all, Congress is always free to

codify existing regulations through legislation. See,

e.g., Whitman, 531 U.S. at 472. “And as to the USF

particularly,

Congress

could

obviate

the

constitutional problem by simply ratifying USAC’s

decisions about how much American citizens should

contribute to the goal of universal service.” Pet. App.

80a. In any event, “[t]he assertion that delegations of

legislative power are necessary for effective and

efficient governance in the modern world does not

authorize Congress to violate Article I, Section I’s

vesting clause.”18 Pet. App. 83a (Elrod, J., concurring).

And “[i]f [the federal government] can’t do everything

it wants to do—such that it has to outsource

responsibilities to private parties—that may indicate

it’s trying to do too much.” Consumers’ Rsch., 88 F.4th

at 938 (Newsom, J., concurring).

Sketching out the contours of the Constitution’s

bar against subdelegation of legislative power would

For that matter, “the FCC relies on the determinations of

private industry leaders to determine the USF tax.” Pet. App.

83a (Elrod, J., concurring).

17

To the extent there are concerns with the practical

implications of returning to the Constitution’s original public

meaning, “[c]onsideration of stare decisis and reliance interests

may” counsel against abruptly “wip[ing] the slate clean.” United

States v. Lopez, 514 U.S. 549, 601 n.8 (1995) (Thomas, J.,

concurring). Cf. Loper Bright, 603 U.S. at 412 (granting statutory

stare decisis to specific agency actions upheld under Chevron).

But this is not that case. And this Court should begin to return

to the original understanding, even if only incrementally over a

series of cases.

18

30

also provide much-needed clarity as to the major

questions doctrine’s metes and bounds and conceptual

underpinnings. Cf. Paul v. United States, 140 S. Ct.

342, 342 (2019) (Kavanaugh, J., statement respecting

denial of certiorari); Gundy, 588 U.S. at 157–58

(Gorsuch, J., dissenting). See generally Randolph J.

May and Andrew K. Magloughlin, NFIB v. OSHA: A

Unified Separation of Powers Doctrine and Chevron’s

No Show, 74 S.C. L. Rev. 265 (2022). This would

answer a concern expressed by some that “the Court’s

failure to say anything about nondelegation creates

genuine conceptual uncertainty about what exactly it

was doing in these cases, a conceptual uncertainty

that will matter for future cases.” Mila Sohoni, The

Major Questions Quartet, 136 Harv. L. Rev. 262, 297

(2022). It would also provide Congress with muchneeded guidance on the universe of today’s important

subjects that cannot constitutionally be assigned

(clearly or otherwise) to administrative bodies. See

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

“The educational effect on Congress” of

invalidating the USF as an unconstitutional

subdelegation of legislative power “might well be

substantial.” Scalia, A Note on the Benzene Case,

supra, 28. This, too, would be a welcome development

for our constitutional Republic. For “[w]hen the

political institutions are not forced to exercise

constitutionally allocated powers and responsibilities,

those powers, like muscles not used, tend to atrophy.”

Plyler v. Doe, 457 U.S. 202, 253 (1982) (Burger, J.,

dissenting).

31

CONCLUSION

This Court should enforce Article I’s Vesting

Clause and affirm the decision below.

Respectfully submitted,

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

February 18, 2025