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

No. 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 A ppeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE

SOUTHEASTERN LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

Braden H. Boucek

Counsel of Record

Celia Howard O’leary

Jordan Rand Miller

Southeastern Legal Foundation

560 West Crossville Road, Suite 104

Roswell, GA 30075

(770) 977-2131

bboucek@southeasternlegal.org

February 18, 2025

120252

Counsel for Amicus Curiae

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

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

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

The nondelegation doctrine promotes this

nation’s founding principles, including

separation of powers . . . . . . . . . . . . . . . . . . . . . . . 5

II. Providing an overview of key historical

changes in congressional delegations . . . . . . . . . 8

III. The pitfalls of the delegation to the FCC

provide an opportunity to reinvigorate

the nondelegation doctrine and Panama

Refining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. Congress’s delegation to the FCC

features the hallmarks of an enfeebled

nondelegation doctrine . . . . . . . . . . . . . . . . 15

B. R ev it a l i z i ng Pan am a Ref inin g

provides a path to restoring separation

of powers principles . . . . . . . . . . . . . . . . . . . 18

ii

Table of Contents

Page

IV. Practical concerns should not prevent

this Cour t from faithfully apply ing

separation of powers and A r ticle I,

§ 1 of the Constitution . . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii

TABLE OF CITED AUTHORITIES

Page

Cases

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

295 U.S. 495 (1935) . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 20

Allstates Refractory Contractors, LLC v. Su,

79 F.4th 755 (6th Cir. 2023) . . . . . . . . . . . . . . . . . . . 5, 7

Chamber of Com. of the United States v. Reich,

74 F.3d 1322 (D.C. Cir. 1996) . . . . . . . . . . . . . . . . . . . 20

Chevron U.S.A, Inc. v. Nat’l Res. Def. Council, Inc.,

467 U.S. 837 (1984), overruled by Loper Bright

Enters., 603 U.S. 369 . . . . . . . . . . . . . . . . . . 2, 4, 17, 23

Cincinnati, Wilmington & Zanesville, R.R. Co. v.

Comm’rs,

1 Ohio St. 779 (1852) . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Commonwealth ex rel. McClain v. Locke,

72 Pa. 491 (Pa. 1873) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

DOT v. Ass’n of Am. Railroads,

575 U.S. 43 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 10

Gundy v. United States,

588 U.S. 128 (2019) . . . . . . . . . . . . . . . . . . 1, 6, 7, 12, 23

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) . . . . . . . . . . . . . . . . . . . 9

iv

Cited Authorities

Page

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

276 U.S. 394 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Kisor v. Wilkie,

588 U.S. 558 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) . . . . . . . . . . . . . . . . . 1, 4, 18, 22, 23

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 9

McGirt v. Oklahoma,

591 U.S. 894 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 22

Mistretta v. United States,

488 U.S. 361 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14

Moers v. City of Reading,

21 Pa. 188 (Pa. 1853) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

NFIB v. Dep’t of Labor, OSHA,

595 U.S. 109 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

583 U.S. 109 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Nat’l Broad. Co., Inc. v. United States,

319 U.S. 190 (1943) . . . . . . . . . . . . . . . . . . . . . . . . 11, 20

v

Cited Authorities

Page

Niz-Chavez v. Garland,

593 U.S. 155 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 22

Opp Cotton Mills, Inc. v.

Adm’r of Wage & Hour Div.,

312 U.S. 126 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

PHH Corp. v. CFPB,

881 F.3d 75 (D.C. Cir. 2018) . . . . . . . . . . . . . . . . . . . 5, 8

Panama Ref. Co. v. Ryan,

293 U.S. 388 (1935) . . . . . . . . . . . 3, 4, 14, 15, 18-21, 24

Pereira v. Sessions,

585 U.S. 198 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 22

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Sunshine Anthracite Coal Co. v. Adkins,

310 U.S. 381 (1940) . . . . . . . . . . . . . . . . . . . . . . . . 11, 14

Texas v. Rettig,

993 F.3d 408 (5th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 6

The Cargo of the Brig Aurora v. United States,

11 U.S. 382 (1813) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Union Bridge Co. v. United States,

204 U.S. 364 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

vi

Cited Authorities

Page

United States v. Grimaud,

220 U.S. 506 (1911) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Lowden,

308 U.S. 225 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Nichols,

784 F.3d 666 (10th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 7

United States v. Yoshida Int’l, Inc.,

63 C.C.P.A. 15 (Ct. of Customs and

Patent App. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Wayman v. Southard,

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

Whitman v. Am. Trucking Ass’ns.,

531 U.S. 457 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Yakus v. United States,

321 U.S. 414 (1944) . . . . . . . . . . . . . . . . . . . . . 11, 12, 20

Constitutional Provisions

U.S. Const. art. I, § 1 . . . . . . . . . . . . . . . . . . 2, 5, 14, 18, 21

U.S. Const. art. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 18

vii

Cited Authorities

Page

Statutes, Rules and Other Authorities

15 U.S.C. § 709(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

15 U.S.C. § 710(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

16 U.S.C. § 1533(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

29 U.S.C. § 652(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

29 U.S.C. § 655 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C. § 7409(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

43 U.S.C. § 1701(a)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

43 U.S.C. § 1733(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

43 U.S.C. § 1734 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

47 U.S.C. § 254(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 15, 16

47 U.S.C. § 254(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

47 U.S.C. § 254(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

47 U.S.C. § 254(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

47 U.S.C. § 254(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

viii

Cited Authorities

Page

47 U.S.C. § 254(b)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

47 U.S.C. § 254(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

47 U.S.C. § 254(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

47 U.S.C. § 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

47 U.S.C. § 524(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

47 C.F.R. § 54.712(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Sup. Ct. R. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 Annals of Congress 238 (1791) (James Madison) . . . . . 5

Amy Coney Barrett, Suspension and Delegation,

99 Cornell L. Rev. 251 (2014) . . . . . . . . . . . . . . . . . . . 10

The Federalist No. 51 (James Madison) . . . . . . . . . . . . . 7

The Federalist No. 62 (James Madison)

(Clinton Rossiter ed., 1961) . . . . . . . . . . . . . . . . . . . 2, 6

The Federalist No. 73 (Alexander Hamilton) . . . . . . . . . 7

Gary Lawson, Delegation and Original Meaning,

88 Va. L. Rev. 327 (2002) . . . . . . . . . . . . . . . . . . . . . . 21

ix

Cited Authorities

Page

Ca ss R . Su nst ei n, Is th e Cl ean Air Ac t

Unconstitutional?, 98 Mich. L. Rev. 303

(1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Jeffrey A. Wetkin, Reintroducing Compromise

to the Nondelegation Doctrine, 90 Geo.

L.J. 1055 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Keith E. Whittington & Jason Iuliano, The

My th of th e No n d el ega ti o n Doc tr in e,

165 U. Pa. L. Rev. 379 (2017) . . . . . . . . . . . . . . . . 10, 11

Illan Wurman, Nondelegation at the Founding,

130 Yale L.J. 1490 (2021) . . . . . . . . . . . . . . . . . . . . . . . 5

1

INTEREST OF AMICUS CURIAE1

Founded in 1976, Southeastern Legal Foundation

(“SLF”) is a national, nonprofit legal organization dedicated

to defending liberty and Rebuilding the American

Republic. For nearly fifty years, SLF has advocated, both

in and out of the courtroom, to protect individual liberty

by restoring constitutional balance. This aspect of its

advocacy is reflected in its regular representation and

support of those challenging government overreach and

other actions in violation of the constitutional framework.

See, e.g., Nat’l Ass’n of Mfrs. v. Dep’t of Def., 583 U.S. 109

(2018); Util. Air Regulatory Grp. v. EPA, 573 U.S. 302

(2014). SLF also regularly files amicus curiae briefs with

this Court about issues of agency overreach and deference.

See, e.g., Loper Bright Enters. v. Raimondo, 603 U.S. 369

(2024); Kisor v. Wilkie, 588 U.S. 558 (2019).

SUMMARY OF ARGUMENT

A cornerstone of our nation’s founding is the doctrine

of separation of powers, a principle that not only upholds

but also distinctly defines the three branches of our

government. The Framers “insist[ed]” on such because

“[t]hey believed the new federal government’s most

dangerous power was the power to enact laws restricting

the people’s liberty” and that “[a]n ‘excess of law-making’

was, in their words, one of ‘the diseases to which our

governments are most liable.’” Gundy v. United States,

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

1. Rule 37 statement: No party’s counsel authored any of

this brief; Amicus alone funded its preparation and submission.

See Sup. Ct. R. 37.6.

2

(quoting The Federalist No. 62, at 378 (James Madison)

(Clinton Rossiter ed., 1961)). In the opening section of

the Constitution’s first article, the Framers prescribed

a preventative treatment for this disease by vesting all

legislative authority in Congress alone, deliberately

withholding such powers from executive branch officials.

See U.S. Const. art. I, § 1 (“All legislative Powers herein

granted shall be vested in a Congress of the United

States, which shall consist of a Senate and House of

Representatives.”). Not only does this treatment ensure

separation of powers, but it places the whole of legislative

power in the governmental body most connected and

responsible to the citizenry.

The nondelegation doctrine prohibits Congress from

abdicating its responsibility under the Constitution

and passing legislative power to the executive branch.

Moreover, under the doctrine, where Congress grants

authority to the executive, it must do so with specificity

such that courts can determine whether the executive

branch has acted within the scope of the delegation. A

weak nondelegation doctrine allows unelected career

bureaucrats to set key policies through rulemaking. Those

same officials then enforce their own hand-crafted rules.

In this respect, modern erosions of the nondelegation

doctrine cut away at the role of Congress under Article I

much like Chevron2 deference cut away at the role of the

judiciary under Article III.

Despite these concerns, it has been ninety years since

this Court last invalidated a law on nondelegation grounds.

2. See Chevron U.S.A, Inc. v. Nat’l Res. Def. Council, Inc., 467

U.S. 837 (1984), overruled by Loper Bright Enters., 603 U.S. 369.

3

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

U.S. 495 (1935); Panama Ref. Co. v. Ryan, 293 U.S. 388

(1935). During that time, Congress has delegated powers

to executive agencies thousands of times. Congress would

have a remarkable record if it had actually enacted all

those laws without once crossing the line and delegating

its legislative power to the executive. This is as implausible

as it sounds. Congress has overstepped its authority for

decades and is doing so once again.

At issue here, Congress delegated to the FCC the

responsibility to establish “specific, predictable, and

sufficient mechanisms . . . to preserve and advance universal

service.” 47 U.S.C. § 254(d); see also id. § 254(b)(5), (f).

To facilitate the advancement of universal service,

the law requires telecommunications carriers to pay

contribution fees toward this endeavor while allowing

the FCC to “exempt a carrier or class of carriers from

this requirement.” Id. § 254(d). The law does not define

universal service or set any concrete goals for attaining

universal service; instead, it provides the FCC with

seven principles to follow, including maintaining “just,

reasonable, and affordable rates”; ensuring access in

“rural and high cost areas” at rates “comparable” to those

charged in existing areas; and “other principles” the FCC

believes protects the “public interest.” Id. § 254(b).

This delegation features three hallmarks of an eroded

nondelegation doctrine: (1) Congress failed to define

terms central to the delegation, leaving that duty to the

FCC; (2) the guiding principles provided by Congress are

contradictory and open-ended given that the FCC may

impart its own considerations into the principles; and

(3) Congress has delegated authority in an area where

4

it was capable of legislating but decided it was more

convenient to leave it to the FCC to formulate key policy

details. Just one of these erosions harms separation of

powers by transferring policymaking authority, and the

ability to pick winners and losers, to the executive. A

delegation featuring all three effectively amounts to the

delegation of “powers which are strictly and exclusively

legislative.” Wayman v. Southard, 23 U.S. 1, 42 (1825).

To ensure a limited government, this Court must restore

pertinence to the nondelegation doctrine and clearly state

that Panama Refining and A.L.A. Schechter Poultry

remain controlling law.

The Court should not refrain from reinvigorating

the nondelegation doctrine because doing so could effect

agency purview. Generally, this Court has been quick

to reject the notion that practical implications should

trump faithful interpretation of the law. See, e.g., NizChavez v. Garland, 593 U.S. 155, 169 (2021) (“[P]leas of

administrative inconvenience and self-serving regulations

never ‘justify departing from the statute’s clear text.’”

(quoting Pereira v. Sessions, 585 U.S. 198, 217 (2018)));

McGirt v. Oklahoma, 591 U.S. 894, 936 (2020) (“[D]ire

warnings are . . . not a license for us to disregard the law.”).

And upholding the constitutional cornerstone of separation

of powers should never fall victim to practical implications.

But if practical implications are to play any role, the Court

could always take the approach it invoked just last term

in Loper Bright Enterprises wherein it upheld separation

of powers principles over agency overreach while being

sure to “not call into question prior cases that relied on

the Chevron framework.” 603 U.S. at 412.

5

ARGUMENT

I.

The nondelegation doctrine promotes this nation’s

founding principles, including separation of powers.

“The Constitution as a whole embodies the bedrock

principle that dividing power among multiple entities

and persons helps protect individual liberty.” PHH Corp.

v. CFPB, 881 F.3d 75, 187 (D.C. Cir. 2018) (Kavanaugh,

J. dissenting). “The nondelegation doctrine is rooted in

the principle of separation of powers that underlies our

tripartite system of Government.” Mistretta v. United

States, 488 U.S. 361, 371 (1989). Article I, Section 1, the

very first provision of our Constitution, provides the

textual hook for legislative delegations by Congress

violating separation of powers principles.

It reads: “All legislative Powers herein granted shall

be vested in a Congress of the United States, which

shall consist of a Senate and House of Representatives.”

U.S. Const. art. I, § 1. “As James Madison and the

public originally understood, any attempt at ‘alienating

the powers of the House . . . would be a violation of the

Constitution.’” Allstates Refractory Contractors, LLC

v. Su, 79 F.4th 755, 769 (6th Cir. 2023) (Nalbandian, J.,

dissenting) (quoting Illan Wurman, Nondelegation at

the Founding, 130 Yale L.J. 1490, 1506 (2021) (quoting

3 Annals of Congress 238–39 (1791) (James Madison))).

Accordingly, “[t]hat Congress cannot delegate legislative

power to the President is a principle universally recognized

as vital to the integrity and maintenance of the system

of government ordained by the Constitution.” Marshall

Field & Co. v. Clark, 143 U.S. 649, 692 (1892).

6

There is a reason the Framers vested all legislative

powers in a single branch of government, leaving no room

for executive officers or judges to serve as legislators. The

Framers “believed the new federal government’s most

dangerous power was the power to enact laws restricting

the people’s liberty.” Gundy, 588 U.S. at 154 (Gorsuch,

J., dissenting). In their view, “[a]n ‘excess of law-making’

was . . . one of ‘the diseases to which our governments are

most liable.’” Id. (quoting The Federalist No. 62, at 378

(James Madison)).

To prevent the spread, the Framers took two steps

when formulating the legislative power. First, they placed

lawmaking authority with the branch of government most

responsive and responsible to the people by “ensur[ing]

that any new laws governing the lives of Americans are

subject to the robust democratic process the Constitution

demands.” NFIB v. Dep’t of Labor, OSHA, 595 U.S.

109, 124 (2022) (Gorsuch, J. concurring). “If Congress

could hand off all its legislative powers to unelected

agency officials, it ‘would dash the whole scheme’ of our

Constitution and enable intrusions into the private lives

and freedoms of Americans by bare edict rather than

only with the consent of their elected representatives.”

Id. at 125 (quoting DOT v. Ass’n of Am. Railroads, 575

U.S. 43, 61 (2015) (Alito, J. concurring)). “That’s why our

Founders deliberately designed the legislative power to

be exercised ‘only by elected representative in a public

process’—so that ‘the lines of accountability would be

clear’ and ‘[t]he sovereign people would know, without

ambiguity, whom to hold accountable.’” Texas v. Rettig,

993 F.3d 408, 409–10 (5th Cir. 2021) (Ho, J., dissenting

from denial of rehearing en banc) (quoting Gundy, 588

U.S. at 155 (Gorsuch, J., dissenting)). Accordingly, “[t]he

7

nondelegation doctrine ensures democratic accountability

by preventing Congress from intentionally delegating its

legislative powers to unelected officials.” NFIB, 595 U.S.

at 124 (Gorsuch, J., concurring).

Second, “the framers went to great lengths to make

lawmaking difficult.” Gundy, 588 U.S. at 154 (Gorsuch,

J. dissenting). By placing all legislative power in a single

branch, the Framers relied on a natural restraint to

limit lawmaking: time. A legislature has limited time to

address a wide range of issues and must then prioritize

the most pressing issues, effectively limiting the number

of issues on which it can legislate. Allstates Refractory

Contractors, LLC, 79 F.4th at 770 (Nalbandian, J.,

dissenting) (discussing how Framers devised Article I

to “slow[] down the ability to legislate” and that “these

drawn-out processes not only limited the government’s

ability to restrict fundamental freedoms, but also promoted

deliberation and safeguarded unpopular minorities from

the tyranny of the majority” (citing The Federalist No.

73 (Alexander Hamilton), No. 51 (James Madison))). The

diverse and deliberative nature of a legislature and the

need for it to reach difficult compromises enhances the

constraint of time and helps preserve liberty. See United

States v. Nichols, 784 F.3d 666, 670 (10th Cir. 2015)

(Lucero, J., dissenting from denial of rehearing en banc)

(“[B]y restricting lawmaking to one branch and forcing

any legislation to endure bicameralism and presentment,

the framers sought to make the task of lawmaking more

arduous still. These structural impediments to lawmaking

were no bugs in the system but the point of the design:

a deliberate and jealous effort to preserve room for

individual liberty.”).

8

These constraints are unique to a legislature. Unlike

Congress and its 535 diverse members, an executive agency

is staffed with thousands—often tens of thousands—of

bureaucrats serving at the pleasure and direction of the

agency head and the President. See PHH Corp., 881 F.3d at

187 (Kavanaugh, J., dissenting) (noting that the executive

branch is “the one exception to the Constitution’s division

of power among multiple parties within the branches” and

that “multi-member bodies—the House, the Senate, the

Supreme Court—do better than single-member bodies in

avoiding arbitrary decisionmaking and abuses of power,

and thereby protecting individual liberty”). Forsaking the

separation of powers by permitting broad delegations to

the executive unleashes a pandemic of excess law-making.

It seems the Court has concerns that it “deliberately

departed from the separation, bowing to the exigencies

of modern Government that were so often cited in

cases upholding challenged delegations of rulemaking

authority.” Ass’n of Am. Railroads, 575 U.S. at 84 (Alito,

J., concurring). A historical review of the evolution, or as

it may be the devolution, of the nondelegation doctrine

proves this point.

II. Providing an overview of key historical changes in

congressional delegations.

Early delegations of authority were, in actuality,

commandments to the executive to act when a future event

occurs or on the finding of a very specific fact. See Marshall

Field & Co., 143 U.S. at 680–81 (delegating authority to

President to suspend free trade upon determination that

foreign country was not acting in a reciprocal manner);

The Cargo of the Brig Aurora v. United States, 11 U.S. 382,

9

383–85 (1813) (delegating authority to President to suspend

or place embargo on trade with France or Great Britain

upon other nation changing its trade stance). In other

words, Congress commanded that if X event happened

or the President found X fact, the executive branch must

take Y action. See Marshall Field & Co., 143 U.S. at 694

(“The legislature cannot delegate its power to make a law;

but it can make a law to delegate a power to determine

some fact or state of things upon which the law makes, or

intends to make, its own action depend.” (quoting Locke’s

Appeal, 72 Pa. 491, 498 (Penn. 1873))). These delegations

have always been uncontroversial, as they merely involve

the execution of the law, contingent upon the occurrence

of a clearly defined event, triggering mandatory action

by the executive. See Gutierrez-Brizuela v. Lynch, 834

F.3d 1142, 1154 (10th Cir. 2016) (Gorsuch, J., concurring)

(“Congress may condition the application of a new rule of

general applicability on factual findings to be made by the

executive (so, for example, forfeiture of assets might be

required if the executive finds a foreign country behaved

in a specified manner).”).

In sum, in this early era, it was well recognized

that “the delegation of power to make the law, which

necessarily involves a discretion as to what it shall be . . .

cannot be done.” Union Bridge Co. v. United States, 204

U.S. 364, 382 (1907) (quoting Cincinnati, Wilmington

& Zanesville, R.R. Co. v. Comm’rs, 1 Ohio St. 77, 88–89

(Ohio 1852)). Rather, a permissible delegation was

one “‘conferring authority or discretion as to [a law’s]

execution’” to “‘some person or persons to whom is

confided the duty of determining whether the proper

occasion exists for executing [the law].’” Id. at 382–83 (first

quoting Cincinnati, Wilmington & Zaneville, R.R. Co.,

10

1 Ohio St. at 88, then quoting Moers v. City of Reading,

21 Pa. 188, 202 (Pa. 1853)).

“[U]pheaval in [the Court’s] delegation jurisprudence

occurred during the Progressive Era, a time marked by

an increased faith in the technical expertise of agencies

and a commensurate cynicism about principles of

popular sovereignty.” Ass’n of Am. Railroads, 575 U.S.

at 84, n.8 (Alito, J., concurring) (citing Perez v. Mortg.

Bankers Ass’n, 575 U.S. 92, 129–30 n.6 (2015) (Thomas,

J., concurring)). In the early 1900s, the Court permitted

Congress to state a policy but delegate to the executive

the responsibility of “fill[ing] up the details.” United States

v. Grimaud, 220 U.S. 506, 517 (1911) (quotation marks

omitted). This was a prelude to a new way of governing.

This test became known as the “intelligible principle”

test. J.W. Hampton, Jr. & Co. v. United States, 276 U.S.

394, 409 (1928). Under this test, if Congress laid “down

by legislative act an intelligible principle to which the

person or body authorized . . . is directed to conform, such

legislative action is not forbidden delegation of legislative

power.” Id. Application of this test can only be described

as “notoriously lax.” Amy Coney Barrett, Suspension

and Delegation, 99 Cornell L. Rev. 251, 318 (2014). Thus,

intended or not, the intelligible principle test opened the

floodgates for expansive congressional delegations to the

bureaucratic state.

Whatever teeth remained on the nondelegation

doctrine following the Progressive Era were sawed down

to nubbins by the Post-New Deal Era Court. In the late

1930s and 1940s, the Court revolutionized the “intelligible

principle” test much in the way it revolutionized and

expanded Commerce Clause jurisprudence. See Keith

11

E. Whittington & Jason Iuliano, The Myth of the

Nondelegation Doctrine, 165 U. Pa. L. Rev. 379, 380,

385–86 (2017). Three key erosions to the nondelegation

doctrine are responsible for this revolution.

First, Congress lowered the degree of specificity it

used when stating its policy goal and the principle(s) to

guide executive implementation thereof. Vague terms

such as “public interest,” “convenience,” and “necessity”

flooded delegations. See Nat’l Broad. Co., Inc. v. United

States, 319 U.S. 190, 215 (1943) (quoting 47 U.S.C.

§ 303); see also Yakus v. United States, 321 U.S. 414,

428 (1944) (delegating language granted authority to

act “in the interest of the national defense and security

and necessary to the effective prosecution of the present

war” and authorized an executive officer to impose price

caps when “in his judgment [doing so] will be generally

fair and equitable”); Sunshine Anthracite Coal Co. v.

Adkins, 310 U.S. 381, 397 (1940) (delegating language

allowed executive to set bituminous coal rates based in

part on what was “in the public interest” and “necessary

. . . to protect the consumer against unreasonably high

prices”); United States v. Lowden, 308 U.S. 225, 230

(1939) (delegation identified advancing “public interest”

as policy goal). 3

3. It is unsurprising that Congress’s use of vague terms is a

key problem in its delegations as the nondelegation doctrine and

the void-for-vagueness doctrine are related, with both protecting

against the executive arbitrarily acting in a manner that infringes

the liberty of the people. See Cass R. Sunstein, Is the Clean Air

Act Unconstitutional?, 98 Mich. L. Rev. 303, 337 & n.171 (1999)

(describing the nondelegation doctrine and the void-for-vagueness

doctrine as “backdoor[s]” for each other and describing the

nondelegation doctrine as “serving the same fundamental goals”

12

Congress continues to use overly generalized language

to state its policy goals and directives when delegating

authority. See, e.g., 29 U.S.C. §§ 652(8), 655 (authorizing

Secretary of Labor to establish occupational safety and

health standards that are “reasonably necessary or

appropriate to provide safe or healthful employment and

places of employment”); 42 U.S.C. § 7409(b)(1) (authorizing

EPA to set ambient air quality standards that “protect

the public health” with “an adequate margin of safety”);

43 U.S.C. § 1733(a) (authorizing Secretary of Interior to

“issue regulations necessary to implement the provisions

of this Act with respect to the management, use, and

protection of public land . . . ” (emphasis added)). Each time

Congress employs overly generalized language it shifts

the policymaking role to the executive. And because the

generalized language is open to multiple interpretations,

it is far too easy for a faceless executive officer to claim

that, in his or her judgment, a regulation advanced the

“public interest” or a rate was “reasonable.” Moreover, as

such officers are not held accountable through the electoral

process, they do not face consequences for adopting a

regulation that proves not to be in the public’s interest.

Second, the concept of limiting principles on a

delegation has fallen by the wayside. Whereas Congress

once identified a single specific triggering event or factual

by “by cabining the discretionary authority of enforcement

officials, who might otherwise act abusively or capriciously”); see

also Gundy, 588 U.S. at 167–68 (Gorsuch, J., dissenting) (“A statute

that does not contain ‘sufficiently definite and precise’ standards

‘to enable Congress, the courts, and the public to ascertain’

whether Congress’s guidance has been followed at once presents

a delegation problem and provides impermissibly vague guidance

to affected citizens.” (quoting Yakus, 321 U.S. at 426)).

13

finding, it now often gives the executive a list of factors

to consider in devising policy and regulations. See, e.g.,

43 U.S.C. § 1701(a)(8) (directing Secretary of Interior to

enact land-use regulations that will protect “scientific,

scenic, historical, ecological, environmental, air and

atmospheric, water resources, [] archeological values,”

the “natural condition” of the land, “food and habitat for

fish and wildlife and domestic animals,” and “will provide

for outdoor recreation and human occupancy and use”).

These factors frequently invoke diverse and competing

interests, with Congress giving no guidance on how to

weigh the factors or which factors to prioritize. Moreover,

Congress has sometimes included a catchall factor in its

delegations, allowing the executive to consider matters

an executive agency official thinks are important to

the law’s policy objectives, but that Congress did not

specifically identify. See 16 U.S.C. § 1533(a)(1) (listing four

specific factors for Secretary to consider when classifying

species as endangered or threatened and then permitting

Secretary to list species as endangered based on “other

natural or manmade factors affecting its continued

existence”). These catchall factors obliterate any limiting

principle found within the specifically delineated factors.

Where a delegation features competing factors or a

catchall factor, any half-competent bureaucrat can pigeonhole just about any regulation into the delegation. Even

worse, some delegations give the executive discretion

on whether to act at all, making any action, or total

inaction, permissive. See, e.g., 43 U.S.C. § 1734 (permitting

Secretary to “establish,” “change,” or “abolish” fees). As

such, one must question whether delegations authorizing

executive action based on competing or catchall factors

14

have any limiting principle. Cf. Panama Ref. Co., 293 U.S.

at 415 (concluding delegation is unconstitutional if it “gives

to the President an unlimited authority to determine the

policy and to lay down the prohibition, or not to lay it down,

as he may see fit”).

Third, the Court has shown a readiness to allow

broader delegations, grounded in practical considerations,

indeed practical conveniences. It has done so under the

notion that if Congress would find it difficult and time

consuming, albeit feasible, to fully legislate in an area,

Congress should be permitted to delegate de facto

policymaking authority so it may turn its attention to

other matters. See Opp Cotton Mills, Inc. v. Adm’r

of Wage & Hour Div., 312 U.S. 126, 145 (1941) (“In an

increasingly complex society Congress obviously could

not perform its functions if it were obliged to find all the

facts subsidiary to the basic conclusions which support

the defined legislative policy in fixing.”). The Court has

gone so far as to emphasize “a practical understanding

that in our increasingly complex society, replete with ever

changing and more technical problems, Congress simply

cannot do its job absent an ability to delegate power under

broad general directives.” Mistretta, 488 U.S. at 372.

But that merely raises the question of whether Congress

is fulfilling its constitutional obligation under Article I,

Section 1 by giving a “broad general directive[].”

One common argument for affirming this view is

that executive agencies, staffed with experts, are better

equipped than Congress to draft laws and regulations.

See Sunshine Anthracite Coal Co., 310 U.S. at 398

(“[B]urdens of minutiae would be apt to clog the

administration of the law and deprive the agency of that

15

flexibility and dispatch which are its salient virtues.”).

Regardless of whether this is correct, it does not reflect

the structure of government devised by the Framers.

Rather, it flouts two of the Framers’ primary concerns

about government: excess law-making and accountability

to the people. The Framers intentionally addressed these

problems by granting only Congress legislative powers.

The delegation to the FCC at issue here demonstrates

why these cases present the Court with an opportunity to

restore meaning to the doctrine.

III. The pitfalls of the delegation to the FCC provide

an opportunity to reinvigorate the nondelegation

doctrine and Panama Refining.

A.

Congress’s delegation to the FCC features

the hallmarks of an enfeebled nondelegation

doctrine.

Even a cursory review of Congress’s stated principle

behind this delegation—found at 47 U.S.C. § 254(b)—

reveals the three hallmarks of a toothless nondelegation

doctrine. While § 254(b) may state intelligible principles

in the common parlance of that phrase, it does not state

an intelligible principle for constitutional purposes.

Section 254(b) directs the Federal-State Joint Board

on universal service (“Joint Board”) and the FCC to “base

policies for the preservation and advancement of universal

service on [seven] principles.” These principles call for

both maintaining “just, reasonable, and affordable rates”

and providing access to “rural” and “high cost areas” “at

rates that are reasonably comparable to rates charged

16

for similar services in urban areas.” Compare § 254(b)

(1), with § 254(b)(3). A conflict between these principles

clearly exists. As coverage expands into rural and high

cost areas, contribution fees are assessed; the carriers

then pass the fees onto existing customers, increasing

those customers’ rates despite providing the same quality

service. Cf. 47 C.F.R. § 54.712(a) (“Federal universal

service contribution costs may be recovered through

interstate telecommunications-related charges to end

users.” (emphasis added)). Doing so, however, does not

further the policy goal of maintaining “just,” “reasonable,”

and “affordable rates,” especially where many urban areas

are also lower-income areas. Yet Congress made no effort

to guide the balancing of these competing interests.4

The competing nature of the specific principles is

compounded by Congress’s inclusion of a catchall principle.

The seventh principle governing the preservation and

advancement of universal service directs the Joint Board

and the FCC to consider “[s]uch other principles as the

Joint Board and the Commission determine are necessary

and appropriate for the protection of the public interest,

convenience, and necessity and are consistent with

4. This, notably, is not a situation where Congress was

incapable of guiding the balance of these principles. For instance,

Congress could have utilized the first six principles in § 254(b)

but limited discretion under those principles by instructing that

(1) only X amount of contribution fees may be collected each year;

(2) the expansion of access may result in a carrier redistributing

costs resulting in the recovery of contribution costs from existing

customers of not more than X% of the customer’s bill; or (3) the

Joint Board and FCC shall ensure that coverage is expanded to

at least X square miles of land or Y number of rural and high cost

customers a year. Congress’s failure to take this step is a symptom

of a weak nondelegation doctrine.

17

this Act.” 47 U.S.C. § 254(b)(7). This catchall principle

explicitly permits the Board and FCC to impart their

own considerations and preferences into the process.

Accordingly, whatever limiting principle remained

(despite the six competing principles) was wiped away by

the catchall principle.

If the competing nature of the guiding principles

combined with the inclusion of a catchall principle did

not render the delegation limitless, the words Congress

chose to describe the principles certainly do. In setting

rates, the Joint Board and FCC must assure that rates

are “just, reasonable, and affordable” and that rates in

rural and high cost areas “are reasonably comparable”

to rates in urban areas. Id. § 254(b)(1), (3). To help

ensure this, all telecommunication providers “should

make an equitable and nondiscriminatory contribution”

toward the achievement of universal service. Id. § 254(b)

(4) (emphasis added). And to top things off, the catchall

provision lets the Joint Board and Commission consider

principles it determines are “necessary and appropriate

for the protection of the public interest, convenience, and

necessity. . . .” Id. § 254(b)(7) (emphasis added). Nowhere

does Congress define “just,” “reasonable,” “affordable,”

“equitable,” “necessary,” “appropriate,” “public interest,”

“convenience,” or “necessity.” See id. at §§ 251–62. Rather,

these vague terms are left to the judgment of the Joint

Board and FCC.

Where these terms are crucial and essential to the

statute’s implementation, Congress’s use of vague and

undefined language raises a separation of powers and

nondelegation doctrine issue, closely resembling the

Chevron problem. Through Chevron, the judicial branch

18

gave away its Article III role of interpreting statutes,

deferring instead to executive agency interpretation.

Through delegations supported by competing principles

and the use of amorphous language, Congress gives

away its Article I, Section 1 policymaking role, deferring

instead to the judgment of executive agencies. Similar to

this Court’s recent decision in Loper Bright Enterprises,

this Court should restore the separation of powers

between Congress and the Executive. A revitalization of

this Court’s decision in Panama Refining provides just

such a path.

B. Revitalizing Panama Refining provides a path

to restoring separation of powers principles.

In Panama Refining the Court held that a delegation

by Congress violates the Constitution where it “gives to

the President an unlimited authority to determine the

policy and to lay down the prohibition, or not to lay it down,

as he may see fit.” 293 U.S. at 415. The actual delegation

in Panama Refining that failed to satisfy this standard

is worthy of a close examination.

There, a law authorized the President “to prohibit

the transportation in interstate and foreign commerce

of petroleum and the products thereof produced or

withdrawn from storage in excess of the amount permitted

to be produced or withdrawn from storage by any state

law or valid regulation or order. . . .” Id. at 406 (quoting

15 U.S.C. § 709(c) (1933)). The law further authorized

the President “to prescribe such rules and regulations

as may be necessary to carry out the purpose” of the

19

aforementioned quoted provision. 5 Id. at 407 (emphasis

added) (quoting 15 U.S.C. § 710(a)).

This delegation looks quite similar in detail to many

of the delegations that have passed constitutional muster

under the intelligible principle test. But in the Court’s

view, the law included only a general statement of policy

insufficient to support a delegation of authority because

it “left the matter to the President without standard or

rule, to be dealt with as he pleased.” Id. at 418. Moreover,

the Court remarked that policy statements directing

the executive “to remove obstructions to the free flow

of interstate and foreign commerce” or to advance the

“conservation of natural resources” are insufficient for a

delegation to survive constitutional scrutiny. Id. at 417–18

(quotation marks omitted). And, speaking about practical

considerations and conveniences, the Court stated, “the

constant recognition of the necessity and validity of

such provisions, and the wide range of administrative

authority which has been developed by means of them,

cannot be allowed to obscure the limitations of the

authority to delegate, if our constitutional system is to

be maintained.” Id. at 421 (emphasis added).

Since the Court’s warning in Panama Refining, all

three erosions have proliferated, and they are all present

in the delegation to the FCC. Comparing the FCC

delegation to Panama Refining, the generalized language

describing the principles guiding the Joint Board’s and

5. Under this delegation, the executive announced limits on

production and, to ascertain and ensure compliance, required

producers, purchasers, and shippers to keep detailed and

inspectable books of petroleum production and shipments. Id. at

408.

20

FCC’s authority and actions—“just,” “reasonable,”

“affordable,” “equitable,” “necessary,” “appropriate,”

“public interest,” “convenience,” or “necessity,” see 47

U.S.C. § 524(b)—are no more concrete than a directive to

“to remove obstructions to the free flow of interstate and

foreign commerce” identified as insufficient in Panama

Refining, 293 U.S. at 417–18 (quotation marks omitted).

Thus, Panama Refining provides the precedent needed

to reject the delegation to the Joint Board and FCC.

Panama Refining remains good law. See Whitman v.

Am. Trucking Ass’ns., 531 U.S. 457, 474 (2001) (positively

citing Panama Refining). Some lower courts, however,

have begun to doubt its purview. See, e.g., Chamber of

Com. of the United States v. Reich, 74 F.3d 1322, 1326 (D.C.

Cir. 1996) (“[W]e very much doubt that the alternative

holding of Panama Refining has a great deal of separate

vitality today; even the basic doctrine of unconstitutional

delegation, while by no means repudiated, remains only

a shadowy limitation on congressional power.” (citation

omitted)); United States v. Yoshida Int’l, Inc., 63 C.C.P.A.

15 (Ct. of Customs and Patent App. 1975) (pondering

whether Panama Refining and A.L.A. Schechter Poultry

“rest on a rusted concept” and are “still viable”). To be

fair, this criticism is reasonable, as it is difficult to advance

an intellectually honest argument distinguishing the

generalized and limitless delegations in Panama Refining

and A.L.A. Schecter Poultry from the generalized and

limitless delegations in later cases like Yakus and National

Broadcasting Co. See Jeffrey A. Wetkin, Reintroducing

Compromise to the Nondelegation Doctrine, 90 Geo.

L.J. 1055, 1067 (2002) (“The Court weakly attempted to

distinguish Yakus from Schechter, but the real difference

21

between the cases was not factual but rather a decision

to devalue nondelegation principles.”); cf. Gary Lawson,

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

370 n.167 (2002) (describing the delegated authority in

Panama Refining as “relatively specific and limited”

compared to other delegating statutes).

This Court should now apply Panama Refining

and reinvigorate the nondelegation doctrine, for the

deficiencies and ambiguities that doomed the delegation

in Panama Refining’s delegation are equally present and

fatal to the delegation to the FCC.

IV. Practical concerns should not prevent this Court

from faithfully applying separation of powers and

Article I, § 1 of the Constitution.

The Court should prioritize faithful interpretation and

application of the law over catering to a parade of horribles

that may never materialize. No doubt, restoring strength

to the nondelegation doctrine will affect the balance of

power between Congress and executive agencies. And

many laws and regulations may fail once the Court

realigns the nondelegation doctrine with separation of

powers principles. Such concerns have not and should not

impede the Court’s duty to interpret the Constitution and

honor the well-crafted precedent of Panama Refining.

The Court in Panama Refining recognized that,

against a faithful application of the nondelegation doctrine,

“[i]t is no answer to insist that deleterious consequences

follow” from the action prohibited by the executive under

an unconstitutional delegation. 293 U.S. at 418. In more

22

recent years, this Court has refused to bow to weighty

practical concerns when interpreting other areas of

law. In Pereria and Niz-Chavez, for instance, the Court

interpreted an immigration statute that upended the

process used by the Department of Homeland Security

for notices to appear and invalidated the stop-time date

for almost every immigrant awaiting a removal hearing,

allowing those immigrants to argue for cancellation of

removal. Against these very real and extensive practical

concerns, this Court merely retorted that “pleas of

administrative inconvenience and self-serving regulations

never ‘justify departing from the statute’s clear text.’”

Niz-Chavez, 593 U.S. at 169 (quoting Pereira, 585 U.S. at

217). Likewise, in the context of Indian law, although the

practical implications of properly interpreting a treaty

resulted in the inapplicability of state and local criminal

law jurisdiction over thousands of square miles, this Court

still gave the treaty the interpretation it thought best. And

although the Court’s interpretation drew into question a

vast number of convictions and predictably flooded courts

with new cases, this Court merely remarked that “dire

warnings are . . . not a license for us to disregard the law.”

McGirt, 591 U.S. at 936. The Court should apply the same

logic to practical concerns raised regarding reviving the

nondelegation doctrine.

But to the extent practical concerns and principles of

stare decisis give the Court pause, the Court can take the

same approach it adopted in Loper Bright Enterprises.

There, in reviving separation of powers principles in

the related agency deference context, the Court issued

a protectively prospective judgment that specifically

did “not call into question prior cases that relied on the

23

Chevron framework.” Loper Bright Enters., 603 U.S. at

412.

Here, the Court could take one of two approaches.

First, it could revitalize the nondelegation doctrine

while not calling into question those delegations it, or

even circuit courts, have already reviewed. Second, if

this approach still causes too much heartburn over the

practical ramifications of a revitalized nondelegation

doctrine, the Court could issue a ruling applicable to

this case and to future acts of Congress. Under either

approach, the Court can account for various practical

concerns without fearing that it was taking a “freakish”

approach that “single[d] out the provision at issue . . . for

special treatment.” See Gundy, 588 U.S. at 149 (Alito, J.,

concurring). Rather, even a prospective restoration of the

nondelegation doctrine will restore balance between the

branches and force Congress to satisfy its constitutional

responsibilities when legislating.

24

CONCLUSION

The Court should affirm the judgment of the en

banc panel of the Fifth Circuit and, in so doing, revive

separation of powers principles and the nondelegation

doctrine, as exemplified by Panama Refining.

Respectfully submitted,

Braden H. Boucek

Counsel of Record

Celia Howard O’leary

Jordan Rand Miller

Southeastern Legal Foundation

560 West Crossville Road, Suite 104

Roswell, GA 30075

(770) 977-2131

bboucek@southeasternlegal.org

February 18, 2025

Counsel for Amicus Curiae