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

Supreme Court briefFeb 18, 2025

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No. 24-354

IN THE

Supreme Court of the United States

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

Petitioners,

CONSUMERS’ RESEARCH, ET AL., Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF AMICUS CURIAE THE FOUNDATION

FOR GOVERNMENT ACCOUNTABILITY IN

SUPPORT OF RESPONDENTS

DAVID J. CRAIG

Counsel of Record

SOFIA DEVITO

RYAN YOUNG

THE FOUNDATION FOR

GOVERNMENT ACCOUNTABILITY

15275 Collier Blvd., Ste. 201

Naples, FL 34119

(239) 244-8808

dcraig@theFGA.org

February 18, 2025

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

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

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

INTRODUCTION &

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

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

Reversal of the 5th Circuit Would

Encourage the Continued Unsustainable

Growth of the Unaccountable Administrative

State .................................................................... 4

A. The Court Must Finally Check

Congress’s Fire Sale of Its Authority .......... 4

II.

Congress’s Perpetual Choice to Increase

Entitlement Spending Further Begs the

Court’s Immediate Action to Reinvigorate

the Nondelegation Doctrine ........................ 8

Affirming the 5th Circuit Will Force

Congress to Fix the USF .................................... 9

III. Reinvigorating the Nondelegation Doctrine

Will Help Restore Governance by the

Consent of the Governed .................................. 11

A. The Intelligible Principle Standard Has

Not Checked Congress’s Delegations ........ 11

B. Reinvigorating

the

Nondelegation

Doctrine Complements the Court’s

Recent Separation of Powers Decisions .... 14

IV. State Nondelegation Doctrines Show that

Revitalizing the Nondelegation Doctrine

Will Not Create Disarray ................................. 15

CONCLUSION .......................................................... 17

iii

TABLE OF AUTHORITIES

Cases

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

295 U.S. 495 (1935) ........................................ 3, 4, 5

Azar v. Gresham,

141 S. Ct. 1043 (2021) ............................................ 1

Bd. of Trs. of the Judicial Form Ret. Sys. v. AG,

132 S.W.3d 770 (Ky. 2003) ................................... 16

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ............................................ 1

Cohens v. Virginia,

19 U.S. 264 (1821) .................................................. 6

Consumer Fin. Prot. Bureau v.

Cmty. Fin. Servs. Ass’n of Am., Ltd.,

143 S. Ct. 978 (2023) .............................................. 1

Consumers’ Rsch. v. FCC,

109 F.4th 743 (5th Cir. 2024) .............................. 13

Democratic Party of Okla. v. Estep,

652 P.2d 271 (Okla. 1982) .................................... 15

Gundy v. United States,

588 U.S. 128 (2019) .................................. 11, 12, 13

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) .............................................. 12

Lewis v. Bank of Pasco Cnty.,

346 So. 2d 53 (Fla. 1976)...................................... 15

Loper Bright Enters. v. Raimondo.,

144 S. Ct. 2244 (2024) ...................................... 1, 14

Loving v. United States,

517 U.S. 748 (1996) ................................................ 2

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ................................. 3

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ................................................ 5

McCulloch v. Maryland,

17 U.S. 316 (1819) ................................................ 12

Mistretta v. United States,

488 U.S. 361 (1989) .............................................. 13

Nat’l Cable Television Ass’n v. United States,

415 U.S. 336 (1974) .............................................. 12

New York v. United States,

505 U.S. 144 (1992) .............................................. 12

NFIB v. Sebelius,

567 U.S. 519 (2012) .............................................. 12

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ................................................ 5

United States v. Richardson,

418 U.S. 166 (1974) ................................................ 8

Wayman v. Southard,

23 U.S. 1 (1825) ...................................................... 4

West Virginia v. EPA,

142 S. Ct. 2587 (2022) .......................................... 14

Zivotofsky v. Clinton,

566 U.S. 189 (2012) ................................................ 6

Constitutional Provisions

U.S. CONST. art. I, § 7, cl. 1 ....................................... 10

U.S. CONST. art. I, § 1 ................................................ 11

U.S. CONST. art. I, § 8 ................................................ 11

U.S. CONST. art. III, § 1 ............................................... 3

Statutes, Rules and Regulations

47 C.F.R. § 54.712 ....................................................... 9

47 U.S.C. § 254 .......................................................... 12

Supreme Court Rule 37.6 ............................................ 1

Other Authorities

Jonathan H. Adler & Christopher Walker,

Delegation and Time, 105 Iowa L. Rev. 1931,

1956 (2020) ............................................................. 8

Chambers & Collins, How do Federal

Regulations Affect Consumer Prices? An

Analysis of the Regressive Effects of

Regulation, Mercatus Ctr., George Mason

Univ. (Feb. 2016), https://shorturl.at/i3Vtb .......... 7

Clyde Wayne Crews, Jr., Ten Thousand

Commandments: Sizing Up the Federal

Government’s New Rules and Regulations,

Competitive Enterprise Institute (2024),

https://shorturl.at/T0kU6 .................................. 3, 6

Congressional Budget Office, Federal Personnel,

https://shorturl.at/l2pjS, (last visited Feb. 14,

2025) ....................................................................... 5

Douglas H. Ginsburg, Reviving the

Nondelegation Principle in the U.S.

Constitution: Perspectives on the

Nondelegation Doctrine in The

Administrative State Before The Supreme

Court, 45, (Peter J. Wallison & John Yoo

eds., 2022) ....................................................... 13, 14

FCC, FCC 22-67, Report on the Future of the

Universal Service Fund 10084-85, p. 46,

(Aug. 15, 2022) ....................................................... 9

Federal Register Pages Published Annually,

LLSDC (2020), bit.ly/3peYBew ............................ 16

The Federalist, No. 45, at 292 (James Madison)

(Clinton Rossiter ed., 1961) ................................... 2

Allie Fick, Haley Holik & Jonathan Ingram,

Congress Must Rein in President Biden’s

Regulatory Spending Spree to Tame

Inflation, FGA (Jul. 26, 2022),

bit.ly/3j4AP1U ............................................ 3, 16, 17

The Future of the Universal Service Fund and

Related Broadband Programs, Cong. Rsch.

Serv., (Updated Mar. 1, 2024),

https://crsreports.congress.gov/product/pdf/R/

R47621 ............................................................... 9-10

Michael Greibrok, How Lawmakers Can Roll

Back the Biden Administration’s Blunders

and Improve the Food Stamp Program, FGA,

(Jan. 29, 2025), https://shorturl.at/jeK9j ............... 6

Michael S. Greve, Delegation in Context, Center

for the Study of the Administrative State,

Antonin Scalia Law School, George Mason

University, Working Paper 23-09, June 20,

2023), https://shorturl.at/HyqMP ........................ 13

Dan Goldbeck, HHS Serves the Main Dishes,

Am. Action Forum, (Dec. 2, 2024),

https://shorturl.at/60lBp ........................................ 6

vii

Kevin Kosar, Staffing Congress to Strengthen

Oversight of the Administrative State, The C.

Boyden Gray Ctr., Antonin Scalia Law

School, George Mason Univ., Policy Brief 2401 (Mar. 2024), https://shorturl.at/OVea1 ............ 5

Gary Lawson, Delegation and Original

Meaning, 88 Va. L. Rev. 327, 340 (2002) ............ 12

Senator Ben Ray Lujan, Universal Service Fund

(USF) Working Group Request for Comment,

https://www.lujan.senate.gov/usf/ ....................... 10

The Nation’s Fiscal Health, U.S. GAO (Feb.

2025), https://www.gao.gov/assets/gao-25107714.pdf .............................................................. 8

2 Joseph Story, Commentaries on the

Constitution of the United States §519, at 2-3

(Boston, Hilliard, Gray, & Co. 1833) ..................... 2

Press Release, James Comer, Chairman,

Committee on Oversight and Government

Reform, Chairman Comer and Senator Lee

Introduce Bill to Fast-Track President

Trump’s Government Reorganization Plans,

(Feb. 13, 2025), https://bit.ly/4hPp8oI ................... 5

Statement of Commissioner Brendan Carr Re:

Report on the Future of the Universal Service

Fund, Report, WC Docket No. 21-476, FCC,

https://shorturl.at/Fjzf6 ......................................... 9

Steve Vladeck, One First, 110. The Universal

Service Fund and the Non-Delegation

Doctrine (Nov. 25, 2024),

https://www.stevevladeck.com/p/110-theuniversal-service-fund-and .................................... 7

viii

What is the National Debt, U.S. Treasury, Debt

as of Feb. 14, 2025, https://shorturl.at/c7JiG ........ 6

INTEREST OF AMICUS CURIAE*

The Foundation for Government Accountability

(FGA) is a 501(c)(3) non-profit organization that helps

millions achieve the American Dream by improving

welfare, workforce, health care, and election policy at

both the state and federal levels. Launched in 2011,

FGA promotes policy reforms that seek to free individuals from the trap of government dependency, restore

dignity and self-sufficiency, and empower individuals

to take control of their futures. FGA’s policy reforms

are grounded in the principles of government transparency, the free market, individual freedom, and limited constitutional government.

Since its founding, FGA has helped achieve more

than 1,000 reforms impacting policies in 42 states as

well as 38 federal reforms. FGA supports its mission

by conducting innovative research, deploying outreach and education initiatives, equipping policy makers with the information they need to achieve meaningful reforms, and by appearing as amicus curiae before state and federal courts, including this Court in

Azar v. Gresham, 141 S. Ct. 1043 (2021), Biden v. Nebraska, 143 S. Ct. 2355 (2023), Consumer Fin. Prot.

Bureau v. Cmty. Fin. Servs. Ass’n of Am., Ltd., 143 S.

Ct. 978 (2023), and Loper Bright Enters. v. Raimondo.,

144 S. Ct. 2244 (2024).

* Per this Court’s Rule 37.6, this brief was not authored in

whole or in part by any party, and no one other than amicus or

its counsel made a monetary contribution to its preparation or

submission.

INTRODUCTION &

SUMMARY OF ARGUMENT

Justice Joseph Story once stated that “the three

great powers of government … should forever be kept

separate and distinct.” 2 Joseph Story, Commentaries

on the Constitution of the United States §519, at 2-3

(Boston, Hilliard, Gray, & Co. 1833). This Court has

further observed that as far as the legislative power

goes, Congress alone has authority to legislate, in part

because “Article I’s precise rules of representation,

member qualifications, bicameralism, and voting

procedure make Congress the branch most capable of

responsive and deliberative lawmaking.” Loving v.

United States, 517 U.S. 748, 757-58 (1996). The

vesting of legislative power in Congress alone is one of

the constitutional structures designed to ensure that

any powers delegated by the federal government

remain “few and defined.” The Federalist, No. 45, at

292 (James Madison) (Clinton Rossiter ed., 1961).

But despite the Constitution’s exclusive vesting of

legislative power in Congress, Congress has allowed

and actively facilitated a runaway growth of

Executive

Branch

lawmaking

through

the

administrative state. Through this delegation, the

Executive Branch as we know it today has expanded

its powers well beyond what the Founders imagined.

Rather than acting according to “few and defined” law

enforcement powers, the Executive Branch now

creates laws that regulate every aspect of the

American economy. This mission creep now

proliferates with the Code of Federal Regulations,

which codifies all current federal regulations,

spanning more than 105 million words across nearly

190,000 pages, encompassing more than 1.3 million

regulatory mandates and restrictions. Fick et al.,

Congress Must Rein in President Biden’s Regulatory

Spending Spree to Tame Inflation, FGA (Jul. 26,

2022), bit.ly/3j4AP1U. In 2023, federal agencies

issued more than 3,000 administrative rules even

though Congress only enacted 68 laws, a ratio of 44

rules for every law enacted. Clyde Wayne Crews, Jr.,

Ten Thousand Commandments: Sizing Up the Federal

Government’s

New

Rules

and

Regulations,

Competitive

Enterprise

Institute

(2024),

https://shorturl.at/T0kU6. Governance of our nation is

increasingly done by unelected bureaucrats rather

than our elected leaders.

This case presents an opportunity for the Court to

restore the appropriate balance of powers between the

branches by “say[ing] what the law is.” U.S. CONST.

art. III, §1; Marbury v. Madison, 5 U.S. (1 Cranch)

137, 177 (1803). “‘All legislative powers … shall be

vested in a Congress of the United States,’” and

“Congress is not permitted to abdicate or to transfer

to others the essential legislative functions with which

it is thus vested.” A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495, 529 (1935) (quoting U.S.

Const. Art. I §1) (emphasis added).

The Court’s intelligible principle test has failed to

enforce this constitutional mandate and thus failed

the American people. Instead, the Court should apply

the standard first articulated by Chief Justice

Marshall: “important subjects … must be entirely

regulated by the legislature itself, [while] those of less

interest” may be regulated by “a general provision”

that gives “power … to those who are to act under such

general provisions to fill up the details.” Wayman v.

Southard, 23 U.S. 1, 43 (1825). This would enforce the

separation of powers while giving Congress the right

to exercise “flexibility and practicality” when crafting

legislation. Schechter Poultry, 295 U.S. at 529.

For our constitutional structure to work as

intended, the Court must finally act to enforce the

separation of powers by checking Congress’s penchant

for handing its authority over to Executive Branch

agencies. An affirmation of the 5th Circuit and

reinvigoration of the nondelegation doctrine will not

cause chaos in the judiciary. It will restore balance

between the branches without disorder, just as a

robust nondelegation doctrine has done in several

states.

For these reasons and more, this Court should

affirm and restore the nondelegation doctrine.

ARGUMENT

Reversal of the 5th Circuit Would

Encourage the Continued Unsustainable

Growth of the Unaccountable

Administrative State

A. The Court Must Finally Check

Congress’s Fire Sale of Its Authority

Since the beginning of the 20th century the

administrative state has exploded in size. In the year

1900, there were eight federal departments with

230,000 employees, most of whom worked for the Post

Office Department. Kosar, Staffing Congress to

Strengthen Oversight of the Administrative State, The

C. Boyden Gray Ctr., Antonin Scalia Law School,

George Mason Univ., Policy Brief 24-01, p. 4, (Mar.

2024), https://shorturl.at/OVea1. Today, there are

more than 400 federal agencies with a civilian staff of

approximately 2.25 million employees., Press Release,

James Comer, Chairman, Committee on Oversight

and Government Reform, Chairman Comer and

Senator Lee Introduce Bill to Fast-Track President

Trump’s Government Reorganization Plans, (Feb. 13,

2025), https://bit.ly/4hPp8oI, Congressional Budget

Office, Federal Personnel, https://shorturl.at/l2pjS,

(last visited Feb. 14, 2025). But this explosion in the

size of the administrative state did not happen solely

because of administrative overreach. It also occurred

because Congress has failed to zealously protect its

vested power to legislate, and the Judicial Branch has

failed to check the legislature from handing its

authority over to the executive.

This Court has repeatedly held that “[t]hat Congress cannot delegate legislative power to the President,” and that this is “a principle universally recognized as vital to the integrity and maintenance of the

system of government ordained by the Constitution.”

Marshall Field & Co. v. Clark, 143 U.S. 649, 692

(1892). But this Court has done little to enforce this

principle since 1935. See Schechter Poultry, 295 U.S.

495; Panama Refining Co. v. Ryan, 293 U.S. 388

(1935). The nondelegation doctrine is not always easy

to apply, but the Court’s duty to stop one branch of

government from violating the Constitution does not

stop with difficult cases. “[T]he judiciary has a responsibility to decide cases properly before it, even those it

‘would gladly avoid.’” Zivotofsky v. Clinton, 566 U.S.

189, 194 (2012) (citing Cohens v. Virginia, 19 U.S. 264,

257 (1821)). With Congress’s continued unconstitutional delegations and this Court’s inaction to remedy

those delegations, the intelligible principle standard

has created an inertia of perpetual governmental

growth, with the national debt standing at over $36.2

trillion and a debt to gross domestic product (GDP) ratio of 123%. What is the National Debt, U.S. Treasury,

Debt as of Feb. 14, 2025, https://shorturl.at/c7JiG.

While quantifying the cost of all unconstitutional

delegations is impossible, measuring the explosive

growth of the administrative state is not. Take for example the four years of the Biden administration.

During that period, more than 1,000 administrative

rules were finalized with aggregated new costs of $1.7

trillion and over 346 million paperwork hours. Dan

Goldbeck, HHS Serves the Main Dishes, Am. Action

Forum, (Dec. 2, 2024), https://shorturl.at/60lBp. Those

new rules added more than 350,000 pages to the Federal Register. Michael Greibrok, How Lawmakers Can

Roll Back the Biden Administration’s Blunders and

Improve the Food Stamp Program, FGA, (Jan. 29,

2025), https://shorturl.at/jeK9j. And this stunning

growth is nothing new. In the decade preceding the

Biden administration, the nation saw agencies issue

23 rules for every law enacted. Crews Jr., supra, at 6.

This deluge of administrative rulemaking not only

comes with extraordinary compliance and paperwork

costs, but it also drives inflation. It’s been estimated

that for every 10 percent increase in federal regulations, there is a 0.687 percent increase in the cost of

consumer goods and services. Chambers & Collins,

How do Federal Regulations Affect Consumer Prices?

An Analysis of the Regressive Effects of Regulation,

Mercatus Ctr., George Mason Univ. (Feb. 2016),

https://shorturl.at/i3Vtb.

The federal administrative state is out of control

and the Court must act to ensure the Congress is not

allowed to exacerbate the problem by continuing its

unchecked delegation of vested legislative authority.

This case presents the Court with an opportunity

to rein in a statute devoid of limitations on taxing authority and at the same time to lay out a judicial

standard that effectively guides Congress in crafting

laws that give the Executive Branch decision-making

power. The intelligible principle standard does not

provide that guidance and therefore cannot rein in the

administrative state. As one observer rightly noted

“[i]t’s no exaggeration to say that this more forgiving

understanding of the non-delegation doctrine was central to the rise and growth of the administrative state

throughout the twentieth century.” Steve Vladeck,

One First, 110. The Universal Service Fund and the

Non-Delegation

Doctrine

(Nov.

25,

2024),

https://www.stevevladeck.com/p/110-the-universalservice-fund-and.

B. Congress’s Perpetual Choice to Increase

Entitlement Spending Further Begs the

Court’s Immediate Action to

Reinvigorate the Nondelegation

Doctrine

Without action by the Court, Congress’s addiction

to giving away its authority will only become worse

and the consequences further reaching. This is illustrated by the budget constraints the institution has

put itself under by allowing more mandatory spending

programs and total mandatory spending to swallow

more and more of the federal budget. The Nation’s Fiscal

Health,

U.S.

GAO

(Feb.

2025),

https://www.gao.gov/assets/gao-25-107714.pdf. There

is also a danger that Congress will enact more statutes like §254 that evade the appropriations process,

which is an important check on executive mission

creep. “While Congress does not regularly revisit past

statutes authorizing agency action, Congress still approves the annual appropriations necessary to keep

agencies operating. In the process, Congress often enacts measures limiting or directing how agencies may

spend appropriated funds.” Jonathan H. Adler &

Christopher Walker, Delegation and Time, 105 Iowa

L. Rev. 1931, 1956 (2020). This increase in mandatory

spending and movement away from the appropriations process diminishes Congress’s authority over its

“power of the purse,” which is Congress’s “ultimate

weapon of enforcement.” United States v. Richardson,

418 U.S. 166, 178 n.11 (1974).

With this case, the Court has an opportunity to

send a clear signal to Congress that it cannot rely on

agency policymaking and that it must clearly define

the parameters in which the agency must act, particularly in policy areas funded by mandatory funding

and outside of Congress’s annual control of appropriations.

II. Affirming the 5th Circuit Will Force

Congress to Fix the USF

The tax implicated here, the Universal Service

Fund

(USF),

“contribution”

telecommunications carriers that “may be recovered

through

interstate

telecommunications-related

charges to end users.” 47 C.F.R. §54.712. The FCC

reports that “[a]pproximately 82% of USF

contributors pass through the costs to their endusers.” FCC, FCC 22-67, Report on the Future of the

Universal Service Fund 10084-85, p. 46, (Aug. 15,

2022). Meaning, the vast majority of the USF tax is

paid directly by consumers.

Aside from being an unconstitutional tax, the USF

is yet another unsustainable government program.

The program is in such dire financial condition that

the former FCC Commissioner and new FCC

Chairman, Brendan Carr, noted that “the FCC’s

funding mechanism for this vital program is stuck in

a death spiral.” Statement of Commissioner Brendan

Carr Re: Report on the Future of the Universal Service

Fund, Report, WC Docket No. 21-476, FCC,

https://shorturl.at/Fjzf6. The good news for the USF,

however, is that several bipartisan pieces of

legislation have recently been introduced in Congress

to help stabilize the program. See The Future of the

Universal Service Fund and Related Broadband

Programs, Cong. Rsch. Serv., (Updated Mar. 1, 2024),

https://crsreports.congress.gov/product/pdf/R/R47621.

In fact, a bipartisan USF “working group” has been

created in the U.S. Senate to address issues

surrounding USF deficiencies. Senator Ben Ray

Lujan, Universal Service Fund (USF) Working Group

Request

for

Comment,

https://www.lujan.senate.gov/usf/.

But were the Court to reverse the 5th Circuit, it

could short-circuit Congress’s ability to clean up the

mess it made when enacting Section 254. Until now,

Congress has been able to duck this tough political

question without accountability to the electorate on

the issue. This includes not only the substance of the

USF funding mechanism and nondelegation issues,

but also the USF’s violation of the Origination Clause,

commanding that “[a]ll Bills for raising Revenue shall

originate in the House of Representatives.” U.S.

Const. art. I, §7, cl. 1.

The legislation introduced in Congress shows that

the political process is sufficient to preserve the USF.

But reaching consensus is difficult and Congress, like

any other political body, is averse to bad press. If the

goal for an individual serving in Congress is to be seen

as doing something—or anything—then it is far better

to pass a statute that leaves out the details that

cannot be agreed upon, than it is to try to resolve

disagreement and come away with nothing. By

passing statutes with gaps for agencies to fill,

members of Congress can receive credit from their

constituencies for taking action while allowing

agencies to shoulder the blame for divisive policy

choices.

But affirming the 5th Circuit would put the onus

back on Congress—where it belongs—to debate and

decide this difficult political question, since “Article I’s

detailed processes for new law were also designed to

promote deliberation.” Gundy v. United States, 588

U.S. 128, 154 (2019) (Gorsuch, J., dissenting). Here

Congress can fix the financial and constitutional

deficiencies with the USF by any number of policy

remedies. For instance, Congress could require the

FCC to investigate what the USF tax should be and

make a recommendation for Congress’s approval.

Alternatively, Congress could create a commission

that makes such recommendations for Congress to

consider. Potential remedies abound, but so long as

the Court allows Congress to delegate its vested

authority, Congress will have no urgency to act, and it

will continue to deflect and delegate to the Executive

Branch.

III. Reinvigorating the Nondelegation Doctrine

Will Help Restore Governance by the

Consent of the Governed

A. The Intelligible Principle Standard Has

Not Checked Congress’s Delegations

The first enumerated power that the people

granted to Congress was the power to lay taxes. U.S.

CONST. art. I, §8. This power is part of Congress’s

vested legislative power that includes “[a]ll legislative

Powers.” U.S. CONST. art. I, §1. This Court has further

clarified that “[t]axation is a legislative function, and

Congress … is the sole organ for levying taxes.” Nat’l

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

340 (1974). Indeed, “the breadth of Congress’s power

to tax is greater than its power to regulate commerce.”

NFIB v. Sebelius, 567 U.S. 519, 573 (2012). So

powerful is Congress’s taxing authority, that Chief

Justice John Marshall observed that “the power to tax

involves the power to destroy.” McCulloch v.

Maryland, 17 U.S. 316, 431 (1819).

This Court has also made clear that “[t]he

Constitution’s division of power among the three

branches is violated where one branch invades the

territory of another, whether or not the encroachedupon branch approves the encroachment.” New York

v. United States, 505 U.S. 144, 182 (1992). Further,

federal executive agencies possess only those powers

conferred upon them by Congress through statute. La.

Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986).

But here the FCC defends a statute that allows it

to raise a tax with no limit, delegate that authority to

a private entity, and to spend that money as it sees fit

without any substantive limit. See 47 U.S.C. §254. The

statute strays far beyond what the Constitution

allows because “[i]f Congress could pass off its

legislative power to the executive branch, the

‘[v]esting [c]lauses, and indeed the entire structure of

the Constitution,’ would ‘make no sense.’” Gundy, 588

U.S. at 155 (Gorsuch, J., dissenting, (quoting Lawson,

Delegation and Original Meaning, 88 Va. L. Rev. 327,

340 (2002)). A statute that strays so far from the

bounds of the Constitution requires this Court to act

since “the Constitution does not permit judges to look

the other way; [they] must call foul when the

constitutional lines are crossed.” Id. at 157.

The Court should call foul based on a principle

other than the “mutated version of the ‘intelligible

principle’ remark [that] has no basis in the original

meaning of the Constitution … or even in the decision

from which it was plucked.” Id. at 164. Under this

“mutated” intelligible principle standard, “delegation

is fine so long as Congress has stated an ‘intelligible

principle,’” but this “is not standard at all: it simply

means that Congress gets to do as it wishes.” Michael

S. Greve, Delegation in Context, Center for the Study

of the Administrative State, Antonin Scalia Law

School, George Mason University, Working Paper 2309, (June 20, 2023), https://shorturl.at/HyqMP. Thus,

applying the intelligible principle standard is little

different than refusing to review the statute at all.

The Court should instead articulate a new and

more workable test, and at a minimum, it should

affirm the 5th Circuit’s decision, which carefully

applies this Court’s precedents to “‘ascertain whether

the will of Congress has been obeyed.’” Consumers’

Rsch. v. FCC, 109 F.4th 743, 764 (5th Cir. 2024)

(quoting Mistretta v. United States, 488 U.S. 361, 379

(1989)). Doing so would “put the Congress on notice of

what it is expected to do in future legislation, [and]

the agencies on notice to refrain from making policy

decisions in future regulations…” Douglas H.

Ginsburg, Reviving the Nondelegation Principle in the

U.S. Constitution: Perspectives on the Nondelegation

Doctrine in The Administrative State Before The

Supreme Court, 45, (Peter J. Wallison & John Yoo

eds., 2022). An enforceable nondelegation doctrine

would also make agencies and Congress better at their

jobs as “[a]gencies will predictably be more

circumspect, more wary of judicial reversal” and

“Congress will likewise be more hesitant to enact

delegations of doubtful constitutionality.” Id. at 43.

B. Reinvigorating the Nondelegation

Doctrine Complements the Court’s

Recent Separation of Powers Decisions

Adopting a stricter standard than the intelligible

principle standard will continue to move the law

toward a more balanced separation of powers. In West

Virginia v. EPA, 142 S. Ct. 2587 (2022), this Court

clarified that significant assertions of regulatory

authority required a clear statement by Congress. Id.

at 2608-09. Then, in Loper Bright Enters. v.

Raimondo, 144 S. Ct. 2244 (2024), the Court rightly

restored the Judicial Branch’s power to review and

reject agency interpretations of ambiguous statutes.

But it’s important to note that these cases dealt only

with whether Congress has delegated clearly and do

not address the underlying issue of whether Congress

can delegate legislative power in the first place. While

West Virginia and Loper Bright have helped restore

important aspects of rulemaking and statutory

interpretation to constitutional compliance, the

“consent of the governed” will not be restored without

addressing the root cause of executive power

imbalance—delegation. This case, West Virginia, and

Loper Bright can work together to make Congress do

its work by communicating its intentions and

requiring it to precisely “fill up the details” in a way

that keeps policy-making in the legislative branch.

IV. State Nondelegation Doctrines Show that

Revitalizing the Nondelegation Doctrine

Will Not Create Disarray

The Court need not look further than the experience of the states in seeing that a reinvigorated nondelegation doctrine will not leave federal administrative law in a state of disarray. The application of the

non-delegation doctrine in state courts demonstrates

that a robust federal non-delegation doctrine is an administrable pursuit.

For instance, in Oklahoma, the state supreme

court has held for four decades that “[w]hile the constitutional doctrine of nondelegation has been somewhat relaxed in several jurisdictions, its force in this

state remains undiminished. The doctrine teaches

that the legislature must establish its policies and set

out definite standards for the exercise of an agency’s

rulemaking power.” Democratic Party of Okla. v.

Estep, 652 P.2d 271, 277-78 (Okla. 1982).

So also in Florida, the courts have held for half a

century that for a statute to be upheld on nondelegation grounds, it “must clearly announce adequate

standards to guide … in the execution of the powers

delegated. The statute must so clearly define the

power delegated that the administrative agency is

precluded from acting through whim, showing favoritism, or exercising unbridled discretion.” Lewis v.

Bank of Pasco Cnty., 346 So. 2d 53, 55-56 (Fla. 1976).

The Kentucky Supreme Court has likewise held

for many years that “‘the legislature must lay down

policies and establish standards,’” and Kentucky’s

doctrine “has not been as toothless as the ‘intelligibleprinciple rule.’” Bd. of Trs. of the Judicial Form Ret.

Sys. v. AG, 132 S.W.3d 770, 782 (Ky. 2003).

Despite the more robust enforcement of the nondelegation doctrine in these states, their courts have

not sown chaos in state administrative law jurisprudence. Each state’s government and executive branch

continues to function well, but with the added benefit

of a judicial check on violations of the separation of

powers.

By contrast, the federal government’s constitutional structure continues to buckle under the weight

of the expanding administrative state. In 2021 alone,

agencies published in the Federal Register more than

75,000 pages of new proposed and final regulations,

orders, and notices governing the conduct of American

companies and citizens. Allie Fick et al., Congress

Must Rein in President Biden’s Regulatory Spending

Spree to Tame Inflation, FGA (Jul. 26, 2022),

bit.ly/3j4AP1U. That’s roughly 24,000 more pages of

rules and regulations than were published in 1984.

Federal Register Pages Published Annually, LLSDC

(2020), bit.ly/3peYBew.

Creating so much regulation comes at great economic cost. In 2021, Federal taxpayers spent nearly

$80 billion to develop, administer, and enforce federal

regulations, an amount that has more than tripled

since 2000. Fick, supra, at 4. Americans spend more

than 10 billion hours every year on regulatory compliance paperwork at an annual cost of more than $140

billion. Id. When accounting for compliance costs, economic losses, and other costs, the price tag for federal

regulations comes out to a staggering $2 trillion every

year. Id. This experience shows that, far from promoting good government, the abandonment of the nondelegation doctrine at the federal level has imposed

great and unnecessary costs.

CONCLUSION