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

Nos. 24-354 and 24-422

In the Supreme Court of the United States

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

V.

CONSUMERS’ RESEARCH, ET AL.,

——————

SCHOOLS, HEALTH & LIBRARIES BROADBAND

COALITION, ET AL.,

V.

CONSUMERS’ RESEARCH, ET AL.,

——————

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF

WEST VIRGINIA AND 14 OTHER STATES

AND THE ARIZONA LEGISLATURE

IN SUPPORT OF RESPONDENTS

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

TABLE OF CONTENTS

Introduction and Interests of Amici Curiae .................... 1

Summary of Argument ........................................................ 3

Argument .............................................................................. 5

I.

The States—And Our Country—Need A

Meaningful Nondelegation Doctrine. ....................... 5

II.

Worries About The Consequences Of A

Meaningful Nondelegation Doctrine Are

Overstated .................................................................. 15

III. Preserving Congress’s Legislative Power

Protects The States’ Interests ................................. 20

IV. This Statute Here Violates Both The Public

And Private Nondelegation Doctrines. ................... 25

V.

This Program’s Benefits Are No Reason To

Reverse ....................................................................... 30

Conclusion ........................................................................... 33

II

TABLE OF AUTHORITIES

Page(s)

Cases

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

States,

295 U.S. 495 (1935) ....................................6, 7, 12, 14, 29

Am. Power & Light Co. v. SEC,

329 U.S. 90 (1946) ........................................................... 8

Ass’n of Am. R.Rs. v. DOT,

821 F.3d 19 (D.C. Cir. 2016) ........................................ 14

Ass’n of Am. R.Rs. v. DOT,

721 F.3d 666 (D.C. Cir. 2013) ................................ 14, 15

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

525 U.S. 366 (1999) ......................................................... 2

Barr v. DOJ,

819 F.2d 25 (2d Cir. 1987) ............................................ 31

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ................................................... 28

Bond v. United States,

564 U.S. 211 (2011) ....................................................... 21

Buckley v. Valeo,

424 U.S. 1 (1976) ........................................................... 32

Carter v. Carter Coal Co.,

298 U.S. 238 (1936) ................................................. 12, 13

In re Certified Questions From U.S. Dist.

Ct., W. Dist. of Mich.,

958 N.W.2d 1 (Mich. 2020) ........................................... 17

City of Arlington v. FCC,

569 U.S. 290 (2013) ................................................... 8, 29

III

City of Lancaster v. Pa. Pub. Util.

Comm’n,

284 A.3d 522 (Pa. Commw. Ct. 2022) .......................... 19

Clinton v. City of New York,

524 U.S. 417 (1998) ......................................................... 1

Cnty. of Santa Clara v. Trump,

250 F. Supp. 3d 497 (N.D. Cal. 2017) .......................... 28

Consumers’ Rsch. v. FCC,

88 F.4th 917 (11th Cir. 2023) ................................. 13, 15

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

575 U.S. 43 (2015) ..................................................... 9, 11

Fletcher v. Peck,

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

Franklin Sav. Corp. v. United States,

180 F.3d 1124 (10th Cir. 1999) ..................................... 31

FTC v. Ruberoid Co.,

343 U.S. 470 (1952) ....................................................... 23

Garcia v. San Antonio Metro. Transit

Auth.,

469 U.S. 528 (1985) ....................................................... 21

Geier v. Am. Honda Motor Co.,

529 U.S. 861 (2000) ....................................................... 22

Gundy v. United States,

139 S. Ct. 2116 (2019) ................................. 6, 8, 9, 12, 16

Hirabayashi v. United States,

320 U.S. 81 (1943) ......................................................... 10

Indus. Union Dep’t, AFL-CIO v. Am.

Petroleum Inst.,

448 U.S. 607 (1980) ....................................................... 12

IV

INS v. Chadha,

462 U.S. 919 (1983) ................................................. 19, 32

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

276 U.S. 394 (1928) ..................................................... 6, 8

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) ................................................... 20

Magruder v. Supplee,

316 U.S. 394 (1942) ....................................................... 27

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ..................................................... 5, 6

MetroPCS Cal., LLC v. Picker,

970 F.3d 1106 (9th Cir. 2020) ....................................... 31

Michigan v. EPA,

576 U.S. 743 (2015) ....................................................... 29

N. Pipeline Const. Co. v. Marathon Pipe

Line Co.,

458 U.S. 50 (1982) ......................................................... 32

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

States,

415 U.S. 336 (1974) ....................................................... 27

Nat’l Fed’n of Indep. Bus. v. OSHA,

142 S. Ct. 661 (2022) ..................................................... 11

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ................................................. 21, 27

Norfolk S. Ry. Co. v. City of Roanoke,

916 F.3d 315 (4th Cir. 2019) ......................................... 27

Oklahoma v. United States,

62 F.4th 221 (6th Cir. 2023) ......................................... 15

OPM v. Richmond,

496 U.S. 414 (1990) ....................................................... 28

V

Opp Cotton Mills v. Adm’r of Wage &

Hour Div. of Dep’t of Lab.,

312 U.S. 126 (1941) ....................................................... 10

Panama Refin. Co. v. Ryan,

293 U.S. 388 (1935) ..................................................... 6, 7

Pittston Co. v. United States,

368 F.3d 385 (4th Cir. 2004) ......................................... 15

Printz v. United States,

521 U.S. 898 (1997) ....................................................... 24

Republican Party of Minn. v. Kelly,

247 F.3d 854 (8th Cir. 2001) ......................................... 31

Ring v. Maxwell,

58 U.S. 147 (1854) ......................................................... 28

State ex rel. S. Bank v. Pilsbury,

105 U.S. 278 (1881) ....................................................... 26

State of Wash. ex rel. Seattle Title Tr. Co.

v. Roberge,

278 U.S. 116 (1928) ....................................................... 13

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

Inc.,

759 F.3d 379 (5th Cir. 2014) ........................................... 2

Skinner v. Mid-Am. Pipeline Co.,

490 U.S. 212 (1989) ....................................................... 27

Stern v. Marshall,

564 U.S. 462 (2011) ....................................................... 32

Sunshine Anthracite Coal Co. v. Adkins,

310 U.S. 381 (1940) ....................................................... 13

Tennessee v. FCC,

832 F.3d 597 (6th Cir. 2016) ......................................... 24

VI

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

265 F.3d 313 (5th Cir. 2001) ........................................... 2

Texas v. Comm’r,

142 S. Ct. 1308 (2022) ............................................. 12, 30

Tiger Lily, LLC v. U.S. Dep’t of Hous. &

Urb. Dev.,

5 F.4th 666 (6th Cir. 2021) ..................................... 16, 17

U.S. Dep’t of Navy v. FLRA,

665 F.3d 1339 (D.C. Cir. 2012) .................................... 28

U.S. Telecom Ass’n v. FCC,

359 F.3d 554 (D.C. Cir. 2004) ...................................... 30

United States v. Bajakajian,

524 U.S. 321 (1998) ....................................................... 27

United States v. Comstock,

560 U.S. 126 (2010) ....................................................... 29

United States v. Frame,

885 F.2d 1119 (3d Cir. 1989) ........................................ 15

Wayman v. Southard,

23 U.S. 1 (1825) ............................................................... 6

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ................................................... 6, 17

Youngstown Sheet & Tube Co. v. Sawyer,

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

Statutes

47 U.S.C. § 254 .............................................................. 26, 29

Pub. L. No. 107-56, 115 Stat. 272 (2001) .......................... 16

VII

Regulation

47 C.F.R. § 54.709 ................................................................. 2

Other Authorities

122 CONG. REC. 31,628 (1976)............................................ 12

Aaron Gordon,

Nondelegation Misinformation: A

Reply to the Skeptics,

75 BAYLOR L. REV. 152 (2023) ....................................... 6

Aaron Nielson,

Erie as Nondelegation,

72 OHIO ST. L.J. 239 (2011) .......................................... 24

Abner S. Greene,

Checks and Balances in an Era of

Presidential Lawmaking,

61 U. CHI. L. REV. 123 (1994) ...................................... 25

Alexander Volokh,

The New Private-Regulation

Skepticism: Due Process, NonDelegation and Antitrust Challenges,

37 HARV. J.L. & PUB. POL’Y 931 (2014) ...................... 19

Amy Coney Barrett,

Suspension and Delegation,

99 CORNELL L. REV. 251 (2014) .................................... 8

Barbara A. Cherry & Donald D. Nystrom,

Universal Service Contributions: An

Unconstitutional Delegation of Taxing

Power,

2000 L. REV. MICH. ST. U. DET. C.L.

107 (2000) ....................................................................... 27

VIII

Benjamin Silver,

Nondelegation in the States,

75 Vand. L. Rev. 1211 (2022) ....................................... 19

Bradford R. Clark,

Putting the Safeguards Back into the

Political Safeguards of Federalism,

80 TEX. L. REV. 327 (2001)........................................... 23

Bradford R. Clark,

Separation of Powers as a Safeguard of

Federalism,

79 TEX L. REV. 1321 (2001)............................................ 3

Calvin R. Massey,

The Non-Delegation Doctrine and

Private Parties,

17 GREEN BAG 2D 157 (2014) ....................................... 18

Calvin R. Massey,

The Tao of Federalism,

20 HARV. J.L. & PUB. POL’Y 887 (1997) ...................... 21

Cass R. Sunstein,

Is the Clean Air Act Unconstitutional?,

98 MICH. L. REV. 303 (1999) ........................................ 17

Chad Squitieri,

Towards Nondelegation Doctrines,

86 MO. L. REV. 1239 (2021) ............................................ 8

Charles Davant IV,

Sorcerer or Sorcerer’s Apprentice?:

Federal Agencies and the Creation of

Individual Rights,

2003 WIS. L. REV. 613 (2003) ....................................... 22

IX

Christopher C. DeMuth, Sr., Michael S.

Greve,

Agency Finance in the Age of

Executive Government,

24 GEO. MASON L. REV. 555 (2017) ............................. 28

Cody Ray Milner,

Into the Multiverse: Replacing the

Intelligible Principle Standard with a

Modern Multi-Theory of

Nondelegation,

28 GEO. MASON L. REV. 395 (2020) ............................. 10

Convenient, MERRIAM-WEBSTER,

https://bit.ly/42ujiSV

(last visited Feb. 14, 2025) ........................................... 29

D. Bruce La Pierre,

Political Accountability in the

National Political Process—the

Alternative to Judicial Review of

Federalism Issues,

80 NW. U. L. REV. 577, 633 (1985) ............................... 22

D.A. Candeub,

Tyranny and Administrative Law,

59 ARIZ. L. REV. 49 (2017) ........................................... 16

Daniel A. Lyons,

Narrowing the Digital Divide: A Better

Broadband Universal Service

Program,

52 U.C. Davis L. Rev. 803 (2018) ................................ 30

Daniel Backman,

The Antimonopoly Presidency,

133 YALE L.J. 342 (2023) ............................................. 23

X

Daniel E. Walters & Elliot Ash,

If We Build It, Will They Legislate?

Empirically Testing the Potential of

the Nondelegation Doctrine to Curb

Congressional “Abdication”,

108 CORNELL L. REV. 401 (2023) ................................ 18

David A. Herrman,

To Delegate or Not to Delegate—That

Is the Preemption: The Lack of

Political Accountability in

Administrative Preemption Defies

Federalism Constraints on

Government Power,

28 PAC. L.J. 1157 (1997) ............................................... 23

David Schoenbrod,

Consent of the Governed: A

Constitutional Norm That the Court

Should Substantially Enforce,

43 HARV. J.L. & PUB. POL’Y 213 (2020) ........................ 1

Eric Berger,

Constitutional Conceits in Statutory

Interpretation,

75 ADMIN. L. REV. 479 (2023) ...................................... 24

Evan C. Zoldan,

The Major Questions Doctrine in the

States, 101 WASH. U.L. REV. 359 (2023) .................... 18

Evan J. Criddle,

When Delegation Begets Domination:

Due Process of Administrative

Lawmaking,

46 GA. L. REV. 117 (2011) ............................................... 7

XI

Exec. Order No. 13,132,

64 Fed. Reg. 43255 (Aug. 4, 1999) ............................... 23

FCC, IN RE REP. ON THE FUTURE OF THE

UNIVERSAL SERV. FUND,

37 F.C.C. RCD. 10041 (2022) ........................................ 30

Gary Lawson,

Delegation and Original Meaning,

88 VA. L. REV. 327 (2002) ............................................... 8

Ilan Wurman,

Nondelegation at the Founding,

130 YALE L.J. 1490 (2021) ............................................. 6

James R. Hines Jr. & Kyle D. Logue,

Delegating Tax,

114 MICH. L. REV. 235 (2015) ...................................... 27

Jason Iuliano & Keith E. Whittington,

The Nondelegation Doctrine: Alive and

Well,

93 NOTRE DAME L. REV. 619 (2017) ........................... 18

Jason Webb Yackee & Susan Webb

Yackee, Delay in Notice and Comment

Rulemaking: Evidence of Systemic

Regulatory Breakdown?, in

REGULATORY BREAKDOWN: THE CRISIS

OF CONFIDENCE IN U.S. REGULATION

163, 168 (Cary Coglianese ed., 2012) .......................... 16

Jennifer Nou & Edward H. Stiglitz,

Strategic Rulemaking Disclosure,

89 S. CAL. L. REV. 733 (2016) ...................................... 23

John M. Manning,

The Nondelegation Doctrine as a

Canon of Avoidance,

2000 SUP. CT. REV. 223 (2000) ..................................... 11

XII

John P. Dwyer,

The Pathology of Symbolic Legislation,

17 ECOLOGY L.Q. 233 (1990) .......................................... 9

Jonathan H. Adler,

The Ducks Stop Here? The

Environmental Challenge to

Federalism,

9 SUP. CT. ECON. REV. 205 (2001) ............................... 21

Jonathan H. Adler & Christopher J.

Walker,

Delegation & Time,

105 IOWA L. REV. 1931 (2020) ................................ 11, 12

Jonathan S. Marashlian et al.,

The Mis-Administration and

Misadventures of the Universal Service

Fund: A Study in the Importance of the

Administrative Procedure Act to

Government Agency Rulemaking,

19 COMMLAW CONSPECTUS 343 (2011) ...................... 29

Joseph Postell & Randolph J. May,

The Myth of the State Nondelegation

Doctrines,

74 ADMIN. L. REV. 263 (2022) ...................................... 18

Kathryn A. Watts,

Rulemaking as Legislating,

103 GEO. L.J. 1003 (2015) ............................................... 9

Laurence H. Tribe,

Intergovernmental Immunities in

Litigation, Taxation, and Regulation:

Separation of Powers Issues in

Controversies About Federalism,

89 HARV. L. REV. 682 (1976) ........................................ 22

XIII

Martin B. Louis,

Allocating Adjudicative Decision

Making Authority Between the Trial

and Appellate Levels: A Unified View

of the Scope of Review, the Judge/Jury

Question, and Procedural Discretion,

64 N.C. L. REV. 993 (1986) ........................................... 16

MICHAEL ASIMOW & RONALD M. LEVIN,

STATE AND FEDERAL ADMINISTRATIVE

LAW

(4th ed. 2014) ................................................................. 17

Michele E. Gilman,

Presidents, Preemption, and the States,

26 CONST. COMMENT. 339 (2010) ................................ 24

Mila Sohoni,

The Major Questions Quartet,

136 HARV. L. REV. 262 (2022) ...................................... 20

Nichole L. Millard,

Universal Service, Section 254 of the

Telecommunications Act of 1996: A

Hidden Tax?,

50 FED. COMM. L.J. 255 (1997) .................................... 27

Paul R. Verkuil,

Public Law Limitations on

Privatization of Government

Functions,

84 N.C. L. Rev. 397 (2006) ........................................... 15

Philip Hamburger,

Delegating or Divesting?,

115 NW. U.L. REV. ONLINE 88 (2020) .......................... 6

XIV

Philip Hamburger,

Nondelegation Blues,

91 GEO. WASH. L. REV. 1083 (2023) .............................. 9

Richard A. Epstein,

Delegation of Powers: A Historical and

Functional Analysis,

24 CHAP. L. REV. 659 (2021) .................................... 6, 19

Ronald A. Cass,

Delegation Reconsidered: A Delegation

Doctrine for the Modern

Administrative State,

40 HARV. J.L. & PUB. POL’Y 147 (2017) ...................... 11

Ronald J. Krotoszynski, Jr.,

Reconsidering the Nondelegation

Doctrine: Universal Service, the Power

to Tax, and the Ratification Doctrine,

80 IND. L.J. 239 (2005) ................................................. 26

Samuel Dodge,

Whitmer bill signings include

tightened sex offender registration

protocols, boosts in medical staffing,

MLIVE (Dec. 30, 2020, 11:09 a.m.),

https://bit.ly/3WXARXC .............................................. 18

Scott A. Keller,

How Courts Can Protect State

Autonomy from Federal

Administrative Encroachment,

82 S. CAL. L. REV. 45 (2008) ........................................ 20

XV

Sean P. Sullivan,

Powers, But How Much Power? Game

Theory and the Nondelegation

Principle,

104 VA. L. REV. 1229 (2018) ........................................... 7

Sidney J. Hardy & Patrick M. Garry,

Reinvigorating Congress’s Role in the

Administrative State: What the Major

Questions Doctrine Suggests About

Nondelegation,

69 S.D. L. REV. 24 (2024) ............................................. 20

WILLIAM BLACKSTONE,

COMMENTARIES (1765) .................................................. 5

INTRODUCTION

AND INTERESTS OF AMICI CURIAE

Too often, the American legislative process looks like

this:

A bill is proposed to address an important problem.

The bill is rather vague on the details, but its supporters

can at least reassure everyone that they’ve tackled the

issue—and maybe emphasize the funds the bill

appropriates to prove it. The bill wends its way through

Congress.

Eventually, it passes.

Congratulatory

speeches are given, handshakes are exchanged, and the

President signs the bill. Voters are sufficiently placated.

Only then does the real work of legislating begin, when an

agency staffer in a quiet office somewhere in Washington

sits down to start writing the rules or making the decisions

that might give Congress’s work any real meaning.

This story should unsettle anyone who reveres our

traditional constitutional structure. “[N]o provision in the

Constitution … authorizes the President to enact, to

amend, or to repeal statutes.” Clinton v. City of New

York, 524 U.S. 417, 438 (1998), yet executive agencies have

been doing that in everything but name for a great long

while. And today, it’s the agency’s rules that too often

impose real obligations, create real duties, and otherwise

produce real law. Meanwhile, legislators are happy to play

along because they can then shift responsibility to the

agencies for any missteps in the process. See David

Schoenbrod, Consent of the Governed: A Constitutional

Norm That the Court Should Substantially Enforce, 43

HARV. J.L. & PUB. POL’Y 213, 274-75 & n.315 (2020).

The program at issue here—the Universal Service

Fund—repeats this same unfortunate story. Congress

passed a law to collect money to address an important

2

issue: providing universal telecommunications services.

But the law was deeply flawed—a “model of ambiguity or

indeed even self-contradiction.” AT&T Corp. v. Iowa

Utils. Bd., 525 U.S. 366, 397 (1999). So after providing

only “vague, general language” articulating “aspirational”

principles, Tex. Off. of Pub. Util. Couns. v. FCC, 265 F.3d

313, 321-22 (5th Cir. 2001), Congress left the actual work

of ensuring universal service to the Federal

Communications Commission. Congress then walked

away from the problem.

But the story here has an extra troubling twist. The

FCC, as it turns out, was also not very interested in

setting the rates that would be used to collect funds from

interstate telecommunications providers (and ultimately,

consumers). So it in turn created the Universal Service

Administrative Company, “a private corporation owned

by an industry trade group.” United States ex rel. Shupe

v. Cisco Sys., Inc., 759 F.3d 379, 387 (5th Cir. 2014). The

Commission then gave the Company the power to make

key program-related decisions, including setting the rate

for the de facto tax used to fund the program and

identifying the places where the money can be spent. See

47 C.F.R. § 54.709. Although the FCC ostensibly retains

nominal oversight power, the Company is the one calling

the shots. So now, when Americans see an opaque but

sizeable charge pop up on their cell phone bill each month,

they don’t call their congressman. And billions of dollars

are collected with little real accountability.

Our Constitution demands more. Congress must

exercise the legislative power, especially when it comes to

bread-and-butter issues like imposing a multi-billion tax

and then spending the spoils. An agency can’t make laws;

a private corporation can’t, either. The Fifth Circuit

recognized no more than these foundational principles,

3

which most people label the nondelegation doctrine. The

court below applied a genuine understanding of the

nondelegation doctrine, the precise constitutional limit

that’s supposed to stop the kind of buck-passing seen here.

It called on Congress to do the actual legislative work of

addressing universal service.

The Court should affirm. Our country—and the States

themselves—need a meaningful nondelegation doctrine to

ensure Congress fulfills its constitutional mission.

Anything less will allow agencies to take more and more

of the core legislative power that our Constitution has said

belongs to Congress alone. And “federal action that

violates the Constitution’s separation of powers may also

invade rights which are reserved by the Constitution to

the several states.” Bradford R. Clark, Separation of

Powers as a Safeguard of Federalism, 79 TEX L. REV.

1321, 1324 (2001) (cleaned up). These stories simply can’t

be allowed to repeat anymore.

SUMMARY OF ARGUMENT

I. For many years now, the nondelegation doctrine has

gone essentially dormant. The current test—the

intelligible-principle standard—serves largely as a

greenlight for sprawling delegations of traditional

legislative power.

In contrast, the originalist

understanding of nondelegation examines the nature of

the power to be exercised (rather than a few words that

might be dug up from the statute) and turns Congress

back when it tries to vest legislative power elsewhere.

Beyond that, this more fulsome form of the nondelegation

doctrine raises some special concern when an agency

takes it a step further and sends legislative power to a

private entity. The Court should return courts to this

originalist understanding.

4

II. Those who would warn the Court away from giving

real respect to nondelegation principles are wrong. The

benefits of the present state of play are largely overstated.

Meanwhile, the supposed harms that would flow from

holding Congress accountable are no real harms at all. We

don’t even have to guess at these consequences because

the

States—having

already

reinvigorated

the

nondelegation doctrine in many places—bring

experiences that confirm what we can expect.

III. The States need a real nondelegation doctrine to

ensure that lawmaking happens before Congress. States

can participate in lawmaking before that body much more

effectively than they can before agencies, especially

independent agencies. Federalism matters, and a weak

nondelegation doctrine weakens federalism in turn. And

the little nod toward federalism that the particular law

here includes doesn’t solve the fundamental problem,

either.

IV. The statute at issue contains some of the feeblest

constraints on the agency’s discretion to be found in the

code books. It directs core congressional functions—

taxing and spending—to an independent agency. And it

piles on by giving broad authority in this process to a

private entity, rendering the whole process doubly wrong.

The Fifth Circuit was right to declare it unconstitutional.

V. Lastly, those who complain that the Universal

Service Fund is just too important to afford a meaningful

remedy for the constitutional wrong are mistaken. Yes,

the Universal Service Fund serves some important

purposes. But those purposes cannot trump constitutional

precepts. And the Court can ultimately shape an

appropriate remedy to mitigate the harm if it is worried

that a decision striking the program immediately down

will cause too much upheaval.

5

ARGUMENT

I.

The States—And Our Country—Need A

Meaningful Nondelegation Doctrine.

A. The Founders thought the greatest threat to

liberty is governmental power—and the “accumulation of

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

same hands” is a tyranny. THE FEDERALIST NO. 47

(James Madison). Responding to that threat, they defined

the power the federal government could hold and then

divvied it up among three co-equal branches. Divided

power, the Founders said, would force one branch’s

ambition “to counteract” another’s. THE FEDERALIST NO.

51 (James Madison). And as part of that division, keeping

legislative power out of the hands of the executive has

been “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). “[T]he making of laws is entirely work of ... the

legislative branch, of the sovereign power,” Blackstone

explained. 1 WILLIAM BLACKSTONE, COMMENTARIES

*260-61 (1765). Only “tyrannical governments” tended to

“vest[]” “the right both of making and of enforcing laws”

in “the same body of men.” Id. at 142. Thus, Blackstone—

and the Founders in turn—expected that the legislative

branch would “take care not to entrust the [executive]

with so large a power, as may tend to the subversion of its

own independence.” Id.; see also, e.g., CHARLES DE

SECONDAT, BARON DE MONTESQUIEU, THE SPIRIT OF THE

LAWS 185 (1751) (“When the legislative and executive

powers are united in the same person … there can be no

liberty.”).

The Court initially intended to put these separation-ofpowers principles into action through the nondelegation

6

doctrine. That doctrine contemplates that Congress

“can[not] delegate to the Courts, or to any other

tribunals,” or to anyone else, really, “powers which are

strictly and exclusively legislative.”

Wayman v.

Southard, 23 U.S. 1, 42 (1825); accord Gundy v. United

States, 139 S. Ct. 2116, 2123 (2019) (plurality op.). For

nearly 200 years, the Court’s nondelegation cases have at

least recognized that truly legislative power resides with

Congress. See, e.g., Whitman v. Am. Trucking Ass’ns,

531 U.S. 457, 472 (2001); A.L.A. Schechter Poultry Corp.

v. United States, 295 U.S. 495, 537 (1935); Panama Refin.

Co. v. Ryan, 293 U.S. 388, 421 (1935); J. W. Hampton, Jr.

& Co. v. United States, 276 U.S. 394, 406 (1928); Marshall

Field, 143 U.S. at 693-94. And early cases endorsed a

particularly fulsome understanding of the doctrine,

recognizing a difference between “discretion as to what

[law] shall be” (non-delegable legislative power) and

“discretion as to its execution” (an executive function).

Marshall Field, 143 U.S. at 693-94. True to the

Constitution, these cases recognized that “the

Constitution vests all legislative powers in Congress, [so]

Congress cannot vest any such powers elsewhere … [and]

cannot divest itself of the powers that the Constitution

vests in it.” Philip Hamburger, Delegating or Divesting?,

115 NW. U.L. REV. ONLINE 88, 110 (2020).

The originalist understanding contemplated a rigorous

division between legislative and executive functions—one

fully consistent with a full-throated nondelegation

doctrine.

See generally, e.g., Aaron Gordon,

Nondelegation Misinformation: A Reply to the Skeptics,

75 BAYLOR L. REV. 152 (2023); Richard A. Epstein,

Delegation of Powers: A Historical and Functional

Analysis, 24 CHAP. L. REV. 659, 663 (2021); Ilan Wurman,

Nondelegation at the Founding, 130 YALE L.J. 1490

(2021). Particularly in the years just after the Founding,

7

“members of the Founding generation involved in public

life and government repeatedly argued that Congress

could not delegate its legislative power to the Executive.”

Wurman, supra, at 1503. In early debates over post roads,

immigration authority, and more, lawmakers and others

recognized that the Constitution did not empower them

issue “general conveyance[s] of authority” to the executive

branch. Aaron Gordon, Nondelegation, 12 NYU J.L. &

LIBERTY 718, 737-79 (2019) (comprehensively surveying

pre-ratification evidence, post-ratification legislative

evidence, early case law, and state decisions in finding an

originalist conception of nondelegation).

But the Court’s tests appear to have slipped from an

originalist understanding based on these constitutional

first principles. Again, early cases of the 1900s, at least,

were promising. When the Court confronted overly broad

legislative delegations in the 1930s, for example, it

rebuffed them. Schechter Poultry, 295 U.S. at 551;

Panama Refin., 293 U.S. at 432-33. The Court at that time

stood against “delegation running riot.”

Schechter

Poultry, 295 U.S. at 553 (Cardozo, J., concurring). Yet

things soon began to unravel. “To the confusion of lower

courts and the frustration of legal scholars, sweeping

grants of what appear[ed] to be embarrassingly legislative

powers [were] consistently upheld against nondelegation

challenges.” Sean P. Sullivan, Powers, But How Much

Power? Game Theory and the Nondelegation Principle,

104 VA. L. REV. 1229, 1231-32 (2018). For about ninety

years, “the Court has averted its eyes while Congress has

enacted a host of expansive delegations with only minimal

policy guidance.” Evan J. Criddle, When Delegation

Begets Domination: Due Process of Administrative

Lawmaking, 46 GA. L. REV. 117, 143-44 (2011).

8

The Court’s more hands-off approach led to the

intelligible-principle standard. See, e.g., Gary Lawson,

Delegation and Original Meaning, 88 VA. L. REV. 327,

371 (2002). In its earlier version, the theory said that a

congressional act does not violate the separation of powers

if Congress articulates “an intelligible principle” to guide

an agency’s discretion. J.W. Hampton, 276 U.S. at 409.

This standard has since “mutated” into one with no footing

“in the original meaning of the Constitution, in history, or

even in” J.W. Hampton itself. Gundy, 139 S. Ct. at 213941 (Gorsuch, J., dissenting). This test generally does not

evaluate the nature and scope of the power that is

delegated. Contrast with Chad Squitieri, Towards

Nondelegation Doctrines, 86 MO. L. REV. 1239, 1258

(2021) (proposing that courts “should determine the

original public meaning of each of Congress’ powers,

including what that meaning says about Congress' ability

to delegate each power,” to evaluate the constitutionality

of delegations). Instead, it becomes a hunt for sufficient

words that might arguably provide some direction—even

in the most minimal form—to entity to whom the

delegation is made. And now, it sometimes seems like

effectively any standard will do. See Pet.App.37a (“[T]he

Supreme Court has upheld seemingly broad congressional

delegations of core legislative functions.”). Even broad

statements of congressional purpose might get a judicial

sign-off. See, e.g., Am. Power & Light Co. v. SEC, 329 U.S.

90, 104 (1946) (looking to “the purpose of the Act, its

factual background and the statutory context” to find an

intelligible principle).

Under this “notoriously lax” test, Amy Coney Barrett,

Suspension and Delegation, 99 CORNELL L. REV. 251, 318

(2014), the administrative state has flourished, “with

hundreds of federal agencies poking into every nook and

cranny of daily life,” City of Arlington v. FCC, 569 U.S.

9

290, 315 (2013) (Roberts, C.J., dissenting); see also Dep’t

of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 76-86 (2015)

(Thomas, J., concurring in the judgment) (tracing the

doctrine’s long decline). The standard has become so

weak that it is unclear to some today whether the

nondelegation doctrine retains power. Scholars have

attacked the present test’s “untruth,” “laxity,” and

“fictional” nature, raising questions about why we even go

through the farce of applying it. Philip Hamburger,

Nondelegation Blues, 91 GEO. WASH. L. REV. 1083, 109192 (2023). Even those who oppose the doctrine have said

its “continual appearance in the case law has confused

administrative law as a whole.” Kathryn A. Watts,

Rulemaking as Legislating, 103 GEO. L.J. 1003, 1007

(2015). Given Congress’s “propensity to send messages to

constituents rather than instructions to agencies,” John P.

Dwyer, The Pathology of Symbolic Legislation, 17

ECOLOGY L.Q. 233, 236 (1990), statutes have often become

just speed bumps on the way to vast administrative efforts

undertaken

independent

from

Congress

and

accountability.

B. The Court should return the nondelegation

doctrine to the originalist understanding—one that looks

to whether legislative functions have been delegated (or,

more accurately, improperly vested outside the legislative

branch). “[C]lassifying governmental power” is no doubt

an “elusive venture,” “[b]ut it is no less important for its

difficulty.” Dep’t of Transp., 575 U.S. at 76 (Thomas, J.,

concurring in the judgment). Madison even called it “the

great problem to be solved.” THE FEDERALIST NO. 48 (J.

Madison). But the Court still should embrace the

challenge, as the Constitution requires “call[ing] foul”

when necessary. Gundy, 139 S. Ct. at 2135 (Gorsuch, J.,

dissenting). The “inconvenience” of creating a meaningful

standard “does not mean that the … Court may shy away

10

from tackling the difficult questions and enforcing the

Constitution’s checks on delegation.” Cody Ray Milner,

Into the Multiverse: Replacing the Intelligible Principle

Standard with a Modern Multi-Theory of Nondelegation,

28 GEO. MASON L. REV. 395, 448 (2020).

And really, the Court can easily spot at least some of

the acts that fall within the heartland of legislative power.

“The adoption of the declared policy by Congress and its

definition of the circumstances in which its command is to

be effective,” for instance, “constitute the performance, in

the constitutional sense, of the legislation function.” Opp

Cotton Mills v. Adm’r of Wage & Hour Div. of Dep’t of

Lab., 312 U.S. 126, 144 (1941); see also Hirabayashi v.

United States, 320 U.S. 81, 104 (1943) (“The essentials of

[the legislative] function are the determination by

Congress of the legislative policy and its approval of a rule

of conduct to carry that policy into execution.”); contra Br.

for Fed. Pets. at 21 (arguing that the executive branch

may exercise “substantial policymaking discretion”); id. at

37-38 (attacking the Fifth Circuit’s “rigid dichotomy

between policy judgments and technical judgments”).

Other times, the Court has looked to the target of the

relevant act to define its character. “It is the peculiar

province of the legislature to prescribe general rules for

the government of society,” the Court has said, while “the

application of those rules to individuals in society would

seem to be the duty of other departments.” Fletcher v.

Peck, 10 U.S. 87, 136 (1810). Thus, the Court has some

guideposts already laid if it is to return to an original

understanding of legislative power. See Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588 (1952)

(finding the President had improperly exercised

legislative power where he determined “certain policies

should be adopted, proclaim[ed] these policies as rules of

conduct to be followed, and again, like a statute,

11

authorize[d] a government official to promulgate

additional rules and regulations consistent with the policy

proclaimed and needed to carry that policy into

execution”).

Remember that the nondelegation doctrine protects

liberty by keeping policy decisions where the voters can

see them—in Congress. It is human nature to work more

carefully when others are watching. The nondelegation

doctrine does its part “to protect liberty,” Dep’t of

Transp., 575 U.S. at 61 (Alito, J., concurring), by keeping

lawmaking power “with the people’s elected

representatives” and away from unaccountable officials

hidden inside bureaucracies, Nat’l Fed’n of Indep. Bus. v.

OSHA, 142 S. Ct. 661, 668 (2022) (Gorsuch, J., concurring)

(emphasis added). At the same time, half-loaf approaches

to nondelegation—such as enforcing it through a canon of

constitutional avoidance—can undermine accountability

by upsetting “the fruits of legislative compromise.” John

M. Manning, The Nondelegation Doctrine as a Canon of

Avoidance, 2000 SUP. CT. REV. 223, 228 (2000).

Keeping lawmaking power in Congress is also

important because lawmakers—like everyone else—can

sometimes shirk tough decisions. See Ronald A. Cass,

Delegation Reconsidered: A Delegation Doctrine for the

Modern Administrative State, 40 HARV. J.L. & PUB.

POL’Y 147, 154 (2017). There’s already some evidence that

Congress is doing that; a decline in legislative activity in

Congress has led two scholars to decry “the fall of

lawmaking by legislation.” Jonathan H. Adler &

Christopher J. Walker, Delegation & Time, 105 IOWA L.

REV. 1931, 1937 (2020).

Worse, lawmakers might try “to take credit for

addressing a pressing social problem by” offloading it to

the executive and then “blaming the executive for the

12

problems that attend whatever measures he chooses to

pursue.” Gundy, 139 S. Ct. at 2135 (Gorsuch, J.,

dissenting). Justice Rehnquist thought that happened

when Congress “pass[ed] this difficult choice” of how to

address benzene exposure on to OSHA. Indus. Union

Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 685

(1980) (Rehnquist, J., concurring in the judgment). It was

not his imagination; legislators have admitted it happens.

Congressman Elliott Levitas confessed that “[w]hen hard

decisions have to be made, we pass the buck to the

agencies with vaguely worded statutes.” 122 CONG. REC.

31,628 (1976). Another of his colleagues confirmed the

consequences: “[T]hen we stand back and say when our

constituents are aggrieved or oppressed by various rules

and regulations, ‘Hey, it’s not me. We didn’t mean that.

We passed this well-meaning legislation.’” Id. at 31,622

(statement of Rep. Flowers). A meaningful nondelegation

doctrine ensures Congress can’t shirk—decisionmakers

reap the benefits and bear the blame.

The Court should therefore redeploy the

nondelegation doctrine to return responsibility to where it

belongs—Congress.

C. Beyond these “public” nondelegation principles,

the Court should also reaffirm a meaningful “private”

nondelegation doctrine.

When Congress (or an agency) delegates functions

outside the government entirely, this public-to-private

shift is “delegation in its most obnoxious form.” Carter v.

Carter Coal Co., 298 U.S. 238, 311 (1936). It is “utterly

inconsistent with the constitutional prerogatives and

duties of Congress.” Schechter Poultry, 295 U.S. at 537;

see also, e.g., Texas v. Comm’r, 142 S. Ct. 1308, 1309 (2022)

(Alito, J., respecting the denial of certiorari) (“To ensure

the Government remains accountable to the public, it

13

cannot delegate regulatory authority to a private entity.”

(cleaned up)). “[I]f people outside government could wield

the government’s power—then the government’s

promised accountability to the people would be an

illusion.” Consumers’ Rsch. v. FCC, 88 F.4th 917, 925

(11th Cir. 2023) (cleaned up). What’s more, private actors

are “not bound by any official duty, but are free to [act] for

selfish reasons or arbitrarily and may subject [others] to

their will or caprice.” State of Wash. ex rel. Seattle Title

Tr. Co. v. Roberge, 278 U.S. 116, 122 (1928). So

unsurprisingly, courts have resisted broad delegations of

governmental power to private enterprises.

Take this Court’s decision in Carter v. Carter Coal Co.

There, the Court confronted a law in which Congress

delegated substantial power to private coal mine

operators; certain majorities of the operators and miners

within a district court could set minimum wages and

maximum hours for all the operators within the district.

298 U.S. at 310-11. This “power conferred upon the

majority … to regulate the affairs of an unwilling

minority” was “not even delegation to an official or an

official body, presumptively disinterested, but to private

persons whose interests may be and often are adverse to

the interests of others in the same business.” Id. at 311.

The Court was unimpressed: the “delegation [wa]s so

clearly arbitrary, and so clearly a denial of rights

safeguarded by the due process clause of the Fifth

Amendment, that it [wa]s unnecessary to do more than”

cite a few decisions and move on. Id. Congress later

revised the law to empower a federal agency to approve or

reject the proposed rates and rules; with that real

oversight, the law finally passed constitutional muster.

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 388

(1940). But the line was drawn, and it’s now plain enough

that a delegation of authority to write the rules for an

14

industry to the industry itself is “utterly inconsistent with

the constitutional prerogatives and duties of Congress.”

Schechter Poultry, 295 U.S. at 537.

Lower courts have taken issue with broad delegations

of power to private entities, too. In Association of

American Railroads v. DOT, 721 F.3d 666, 668 (D.C. Cir.

2013) (“Amtrak I”), for example, the D.C. Circuit

addressed a scheme in which Amtrak (which the Court

perceived to be a private entity) “wield[ed] joint

regulatory authority with a government agency. It

started from the premise that “difficulties … are even

more prevalent in the context of agency delegations to

private individuals.” Id. at 670. “Even an intelligible

principle cannot rescue a statute empowering private

parties to wield regulatory authority.” Id. at 671. Private

parties can “help,” but no more. Id. In short: “Federal

lawmakers cannot delegate regulatory authority to a

private entity.” Id. at 670. Given all that, Amtrak’s role in

setting certain metrics and standards was an improper

delegation because it did not “function subordinately” to

any federal (public) authority. Id. at 674. Its role was akin

to “giv[ing] to General Motors the power to coauthor,

alongside the Department of Transportation, regulations

that will govern all automobile manufacturers.” Id. at 668.

Although this Court later vacated and remanded Amtrak

I on other grounds, the D.C. Circuit later “st[oo]d by [its]

analysis” that “detailed extensively why private entities

cannot wield the coercive power of government.” Ass’n of

Am. R.Rs. v. DOT, 821 F.3d 19, 37 (D.C. Cir. 2016)

(“Amtrak III”).

Like the D.C. Circuit, other courts have stressed that

private entities must play only a peripheral part in

governing. They’ve used different language—some courts

say that private entities can act as “aides and advisors,”

15

Oklahoma v. United States, 62 F.4th 221, 229 (6th Cir.

2023), while others speak of “advisory,” “ministerial,” or

“administrative” functions, Pittston Co. v. United States,

368 F.3d 385, 395 (4th Cir. 2004); United States v. Frame,

885 F.2d 1119, 1128-29 (3d Cir. 1989). But at bottom, all

these descriptions reduce to the same basic principle: at

an absolute minimum, “the [private] entity [must]

function[] subordinately to the agency, and … the

[federal] agency [must] retain[] authority and surveillance

over the activities of the private entity.” Consumers’

Rsch., 88 F.4th at 926 (cleaned up); accord Amtrak I, 721

F.3d at 673 (“[P]rivate parties must be limited to an

advisory or subordinate role in the regulatory process.”).

And above this minimum, it may well be that agencies

cannot delegate certain “inherently governmental

activities” in any circumstances, such as activities

“[s]ignificantly affecting the life, liberty, or property of

private persons.”

Paul R. Verkuil, Public Law

Limitations on Privatization of Government Functions,

84 N.C. L. Rev. 397, 438 (2006) (quoting OFF. OF MGMT. &

BUDGET, EXEC. OFF. OF THE PRESIDENT, OMB

CIRCULAR NO. A-76, REVISED PERFORMANCE OF

COMMERCIAL ACTIVITIES (2003), at A-2). Applying these

principles once again ensures that decisions are made in

the right place—Congress.

II.

Worries About The Consequences Of A

Meaningful Nondelegation Doctrine Are

Overstated.

In the face of these salutary benefits, some insist that

the risks of reembracing the nondelegation doctrine are

just too great. But the evidence doesn’t bear that out.

A. For instance, some think agencies act faster than

Congress—but Congress can legislate quickly when it

16

wants to. President Bush signed the PATRIOT Act just

three days after it was introduced. See Pub. L. No. 10756, 115 Stat. 272 (2001); see also Tiger Lily, LLC v. U.S.

Dep’t of Hous. & Urb. Dev., 5 F.4th 666, 674 (6th Cir. 2021)

(Thapar, J., concurring) (giving more examples).

Legislating by notice-and-comment rulemaking is not

faster than legislating by bill in non-emergency situations,

either. On average, it takes about 18 months. See Jason

Webb Yackee & Susan Webb Yackee, Delay in Notice and

Comment Rulemaking: Evidence of Systemic Regulatory

Breakdown?, in REGULATORY BREAKDOWN: THE CRISIS

OF CONFIDENCE IN U.S. REGULATION 163, 168 (Cary

Coglianese ed., 2012). This deliberative lawmaking is a

feature—not a bug. The Founders deliberately “went to

great lengths to make lawmaking difficult.” Gundy, 139

S. Ct. at 2134 (Gorsuch, J., dissenting).

Some also regard agencies as better experts, and they

worry the nation will lose the benefit of agencies’ expertise

if nondelegation becomes real again. There’s strong

reason to question “the myth of expertise as an inviolable

shield for agency action.” Martin B. Louis, Allocating

Adjudicative Decision Making Authority Between the

Trial and Appellate Levels: A Unified View of the Scope

of Review, the Judge/Jury Question, and Procedural

Discretion, 64 N.C. L. REV. 993, 1011 (1986). Even if one

were to assume that agency personnel are the most

qualified to decide, “this faith in [agency] deliberation and

administrative expertise stands at odds with” originalist

understandings of “democracy itself.” D.A. Candeub,

Tyranny and Administrative Law, 59 ARIZ. L. REV. 49,

88 (2017). But in any event, Congress can ensure that laws

are technically sound by using its own experts, eliciting

testimony from others, or commissioning reports from

executive-branch experts, agencies like the FCC included.

The Congressional Budget Office has top-notch experts on

17

financial, economic, and budget matters, for example.

Tiger Lily, LLC, 5 F.4th at 675 (Thapar, J., concurring).

And fact-gathering and investigation is the reason

committees and (especially) subcommittees exist.

Congress can access the same information that executive

branch agencies have.

A more robust nondelegation doctrine also need not

disrupt efficient governing. Most obviously, Congress can

adopt existing regulations as statutes—it already does.

See Whitman, 531 U.S. at 472 (noting “a subsequent

Congress had incorporated the regulations into a revised

version of the statute”). And applying a more rigorous

nondelegation doctrine wouldn’t require Congress to draft

every fine detail into the statute. It would only require

Congress to do the meaningful work of legislating—the

kind of work it has shown itself more than equipped to do.

See Cass R. Sunstein, Is the Clean Air Act

Unconstitutional?, 98 MICH. L. REV. 303, 356 (1999)

(predicting that “[t]here should not be many” “extreme

cases” requiring the Court to strike down “open-ended

grants of authority,” even under a more rigorous

conception of the doctrine).

B. Many States have also refused to abandon true

versions of the nondelegation doctrine, and their

experience provides reassurance, too. See MICHAEL

ASIMOW & RONALD M. LEVIN, STATE AND FEDERAL

ADMINISTRATIVE LAW 450 (4th ed. 2014) (“The

nondelegation doctrine has much greater practical

significance at the state level than at the federal level.”).

Michigan’s legislature, for instance, stepped up when the

Michigan Supreme Court reinvigorated its state-lawbased nondelegation doctrine and invalidated certain

executive orders. See In re Certified Questions From

U.S. Dist. Ct., W. Dist. of Mich., 958 N.W.2d 1, 16 (Mich.

18

2020); see also Samuel Dodge, Whitmer bill signings

include tightened sex offender registration protocols,

boosts in medical staffing, MLIVE (Dec. 30, 2020, 11:09

a.m.), https://bit.ly/3WXARXC.

Life moved on in

Michigan even though the state court “reached a result far

out of step with federal law.” Evan C. Zoldan, The Major

Questions Doctrine in the States, 101 WASH. U.L. REV.

359, 394 (2023).

Dozens of other state-court decisions have invalidated

statutes on a strong conception of nondelegation grounds

without catastrophic effect. See Jason Iuliano & Keith E.

Whittington, The Nondelegation Doctrine: Alive and

Well, 93 NOTRE DAME L. REV. 619, 636 (2017) (cataloguing

151 successful nondelegation challenges in state courts).

And a recent study found “some evidence … that

enforcement of the nondelegation doctrine in the states

changed state legislative behavior and curbed delegation.”

Daniel E. Walters & Elliot Ash, If We Build It, Will They

Legislate? Empirically Testing the Potential of the

Nondelegation Doctrine to Curb Congressional

“Abdication”, 108 CORNELL L. REV. 401, 415 (2023).

“[E]ven the vast majority of [so-called] weak

nondelegation state courts invalidate statutes from time

to time on nondelegation grounds,” and yet no one has

sounded the alarm in those States, either. Zoldan, supra,

at 393.

So real-world experience confirms that a

meaningful nondelegation doctrine “would not lead to

apocalyptic results.” Joseph Postell & Randolph J. May,

The Myth of the State Nondelegation Doctrines, 74

ADMIN. L. REV. 263, 305 (2022).

And the States’ experiences with the private

nondelegation doctrine are equally encouraging. “The

states are not virgins with respect to this issue.” Calvin

R. Massey, The Non-Delegation Doctrine and Private

19

Parties, 17 GREEN BAG 2D 157, 165 (2014) (collecting

authorities). States like Texas and Rhode Island have

“exercise[d] more scrutiny over delegations to private

parties on the basis that … more oversight [is needed] for

nongovernmental officials exercising government power.”

Benjamin Silver, Nondelegation in the States, 75 Vand. L.

Rev. 1211, 1245 (2022); see also, e.g., City of Lancaster v.

Pa. Pub. Util. Comm’n, 284 A.3d 522, 533 (Pa. Commw.

Ct. 2022) (applying Pennsylvania’s more muscular

iteration of the private nondelegation doctrine);

Alexander Volokh, The New Private-Regulation

Skepticism: Due Process, Non-Delegation and Antitrust

Challenges, 37 HARV. J.L. & PUB. POL’Y 931, 965 (2014)

(collecting many other examples of state private

nondelegation doctrines). Yet those States have yet to see

any discernible ill effects from showing fidelity to the

separation of powers and due process.

C. Many still insist that the Court should wait before

returning to first-principle notions of nondelegation—yet

the time is right to act. In truth, these issues have been

simmering for years.

“[T]he expansion of federal

commerce and taxing powers, as well as the contraction of

constitutional protections for economic liberties and

property rights[,] have led to the rise of a modern

administrative state” that requires some purposeful

brakes. See Richard A. Epstein, Delegation of Powers: A

Historical and Functional Analysis, 24 CHAP. L. REV.

659, 663 (2021). Other potential tools of congressional

control, like the legislative veto, have fallen away. See

INS v. Chadha, 462 U.S. 919, 966 (1983). So it’s even more

important that Congress get it right on the front end:

exercising the legislative power in a genuine way and

leaving the executive branch only with the interstitial

work of execution.

20

Recent developments have only confirmed the need for

a reinvigoration of nondelegation. For instance, “major

questions” cases make it even more important to

understand the doctrine—for “without knowing what

[the] underlying [nondelegation] theory is, it becomes

much harder to accurately apply a rule that ostensibly

exists ‘in service of’ that underlying doctrine’” (at least to

some). See Mila Sohoni, The Major Questions Quartet,

136 HARV. L. REV. 262, 300 (2022) (quoting Gundy, 139 S.

Ct. at 2142 (Gorsuch, J., dissenting)). At the same time,

the major-questions doctrine does not obviate the need to

address nondelegation. The former doctrine asks whether

Congress has delegated a broad power, while the latter

doctrine consider whether Congress can delegate a broad

power—thus acting as a backstop of sorts. And now that

Chevron deference has also come off the board, see

generally Loper Bright Enters. v. Raimondo, 144 S. Ct.

2244 (2024), it has become even more important that

Congress be the one to actually exercise legislative power

through clear statutes—otherwise, courts could be

inappropriately forced to go it alone in deciding issues of

agency authority drawing from ambiguous laws. See

Sidney J. Hardy & Patrick M. Garry, Reinvigorating

Congress’s Role in the Administrative State: What the

Major

Questions

Doctrine

Suggests

About

Nondelegation, 69 S.D. L. REV. 24, 47 (2024).

III.

Preserving Congress’s Legislative

Protects The States’ Interests.

Power

States have a particular interest in seeing the

nondelegation doctrine meaningfully applied, as it ensures

that they retain their voice in our system of government.

For too long, an illusory nondelegation has given rise to

real federalism-related problems. See Scott A. Keller,

How Courts Can Protect State Autonomy from Federal

21

Administrative Encroachment, 82 S. CAL. L. REV. 45, 53

(2008) (arguing that the Court’s treatment of

nondelegation doctrine explains why “hard questions”

about federalism are now arising in administrative-law

cases).

Separating the powers of our federal government

preserves the “integrity, dignity, and residual sovereignty

of the States.” Bond v. United States, 564 U.S. 211, 221

(2011). Balancing powers among the branches helps

“ensure that States function as political entities in their

own right.” Id. On the other hand, “[p]ermitting the

federal government to avoid these constraints would allow

it to exercise more power than the Constitution

contemplates, at the expense of state authority.” Clark,

supra, at 1324. Indeed, the Framers chose the “structure

of the Federal Government” as the “principal means” “to

ensure the role of the States.” Garcia v. San Antonio

Metro. Transit Auth., 469 U.S. 528, 550 (1985) (emphasis

added); see also Nat’l Fed’n of Indep. Bus. v. Sebelius, 567

U.S. 519, 707 (2012) (Scalia, Kennedy, Thomas, & Alito,

JJ., dissenting) (calling “federalism and separation of

powers” two of the “most important” “structural

protections” in our Constitution).

Ensuring Congress retains the legislative-drafting pen

is better for the States because Congress can be better

“relied upon to respect th[ose] States.” Calvin R. Massey,

The Tao of Federalism, 20 HARV. J.L. & PUB. POL’Y 887,

891 (1997). At least in part because they come to

Washington from specific communities, “[m]embers of

Congress are more responsive to the concerns of local

regional con[stituencies] than centralized regulatory

agencies.” Jonathan H. Adler, The Ducks Stop Here? The

Environmental Challenge to Federalism, 9 SUP. CT.

ECON. REV. 205, 221 (2001). In other words, the legislative

22

branch faces “localized accountability.” MARTIN H.

REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE

138 (1995).

But Congress does not afford more respect to the

States just because its members travel from everywhere.

Rather, “political checks and Congress’ political

accountability”—like State-centered involvement in

congressional elections, State-focused lobbying efforts,

state political party pressure, and more—are the political

safeguards of federalism. D. Bruce La Pierre, Political

Accountability in the National Political Process—the

Alternative to Judicial Review of Federalism Issues, 80

NW. U. L. REV. 577, 633 (1985). So over time, Congress

has also come to show its “peculiar institutional

competence … in adjusting federal power relationships,”

including relationships between the States and the federal

government. Laurence H. Tribe, Intergovernmental

Immunities in Litigation, Taxation, and Regulation:

Separation of Powers Issues in Controversies About

Federalism, 89 HARV. L. REV. 682, 696 (1976).

In contrast, federal agencies are a particular threat to

States’ interests. “[U]nlike Congress, administrative

agencies are clearly not designed to represent the

interests of States.” Geier v. Am. Honda Motor Co., 529

U.S. 861, 908 (2000) (Stevens, J., dissenting). Rather, the

“‘political safeguards’ that give [S]tates a voice in

Congress’s lawmaking” do not extend to a “voice in the

executive branch’s activities.”

Charles Davant IV,

Sorcerer or Sorcerer’s Apprentice?: Federal Agencies and

the Creation of Individual Rights, 2003 WIS. L. REV. 613,

640 (2003). Even purportedly public rulemakings may

lack the transparency that ordinary lawmaking offers, as

“many substantive policy decisions happen before the

agency publishes the notice of proposed rulemaking.”

23

Jennifer Nou & Edward H. Stiglitz, Strategic

Rulemaking Disclosure, 89 S. CAL. L. REV. 733, 743

(2016).

Indeed, the “success of American federalism” might be

undermined “[i]f the federal government were free to

evade federal lawmaking procedures by shifting

substantial lawmaking authority to unelected officials

(such as independent agencies or federal courts).”

Bradford R. Clark, Putting the Safeguards Back into the

Political Safeguards of Federalism, 80 TEX. L. REV. 327,

337 (2001). That shift would undermine the state-focused

party system that some say deserves credit for

federalism’s success. Id.; see also La Pierre, supra, at 633.

After all, if all the real decisions are made by the “fourth

branch of the Government” ensconced safely in

Washington, FTC v. Ruberoid Co., 343 U.S. 470, 487 (1952)

(Jackson, J., dissenting), why would anyone feel beholden

to the people back home?

And more than ordinary agencies, independent

agencies like the FCC present huge delegation headaches.

They are “virtually insulated from political forces.” David

A. Herrman, To Delegate or Not to Delegate—That Is the

Preemption: The Lack of Political Accountability in

Administrative

Preemption

Defies

Federalism

Constraints on Government Power, 28 PAC. L.J. 1157,

1181-82 (1997). These agencies even escape soft directives

from the President—coming in the form of various

executive orders—to respect federalism. See, e.g., Exec.

Order No. 13,132, 64 Fed. Reg. 43255, 43255 (Aug. 4,

1999); see also Daniel Backman, The Antimonopoly

Presidency, 133 YALE L.J. 342, 402 (2023) (noting

delegations to independent agencies might “lack sufficient

accountability to the President and should therefore be

more heavily scrutinized under a nondelegation test, not

24

less”). So the agencies have more room to ignore the

States’ concerns. And indeed they have, as when the FCC

tried to “re-allocate decision-making power between the

states and their municipalities” in a broadband rule.

Tennessee v. FCC, 832 F.3d 597, 600 (6th Cir. 2016).

So “from a state’s perspective,” the legislative process

provides several concrete on-ramps for state

involvement—“more opportunities and more access

points to provide input to Congress than [there would be]

to the President” and his or her agencies. Michele E.

Gilman, Presidents, Preemption, and the States, 26

CONST. COMMENT. 339, 365 (2010). The nondelegation

doctrine ensures that those on-ramps remain open for all

legislative activities. In this way, “the nondelegation

doctrine can be conceptualized as a protector of

federalism.” Aaron Nielson, Erie as Nondelegation, 72

OHIO ST. L.J. 239, 265 (2011). And that federalism in turn

ups the accountability that the nondelegation doctrine is

designed to encourage, as “a State’s government will

represent and remain accountable to its own citizens.”

Printz v. United States, 521 U.S. 898, 920 (1997). It’s a

positive feedback cycle. Cf. Eric Berger, Constitutional

Conceits in Statutory Interpretation, 75 ADMIN. L. REV.

479, 505-08 (2023) (explaining how both nondelegation and

federalism conceits underlie several of the Court’s recent

administrative-law decisions).

One group of States tries to reassure the Court that

federalism is well protected because (1) the law at issue

here allows States to participate on an advisory board, and

(2) States wanted universal-service support. See Amicus

Br. of Colorado, et al., at 31-32. That’s no real answer for

a few reasons. For one, that this statute might provide

some atypical avenue for state involvement doesn’t say

much about whether the watered-down version of the

25

nondelegation doctrine applied to all statutes does enough

to protect the States. For another, that the States might

be allowed to participate in a few meetings and make

“recommendations” is a pale substitute for the ability to

directly influence the development of the law through

Congress.

Congress has “a superior democratic

pedigree,” Scott A. Keller, supra, at 81, especially when

compared to a typical milquetoast advisory committee or

board. And lastly, although it may well be that States

support the notion of universal service, that’s not suggest

that all States are willing to dispense with important

constitutional limits to achieve it. See Section V.

* * * *

It might be tempting to dismiss the States’ concerns

about federalism as the predictable complaints of parties

set to lose something—like the bleating of the sheep at the

sound of the shears.

But “an underenforced

nondelegation doctrine” undermines a “complex system of

checks”—federalism included—that the Framers

expected would prevent “hegemony.” Abner S. Greene,

Checks and Balances in an Era of Presidential

Lawmaking, 61 U. CHI. L. REV. 123, 177 (1994). So more

is at stake in this Petition than just the States’ personal

interests. The Court should thus reinvigorate the

nondelegation doctrine, restore the States’ rightful role in

the lawmaking process, and reinstate the checks the

Framers wanted.

IV.

This Statute Here Violates Both The Public And

Private Nondelegation Doctrines.

If any statute violates the nondelegation doctrine, then

this is it. Congress charged the Commission with

determining a “contribution” that telecommunications

services carriers will make to “preserve and advance

26

universal service.” 47 U.S.C. § 254(d); see also id.

§ 254(b)(4).

The Commission gets to decide what

constitutes universal service, considering such unhelpful

factors as what services are “consistent with the public

interest, convenience, and necessity.” Id. § 254(c)(1)(D).

It can change that definition “periodically.” Id. § 254(c)(1).

After that, the Commission can require any carrier to

“contribute … if the public interest so requires.” Id.

§ 254(d). The contributions are supposed to be “equitable”

and “nondiscriminatory,” though neither of those terms is

defined. Id. The statute also lists various aspirational

principles for universal service—but here, too, the

Commission gets to add any principles that it

“determine[s] are necessary and appropriate for the

protection of the public interest, convenience, and

necessity and are consistent with [the Federal

Communications Act].” Id. § 254(b)(7). Congress didn’t

cap the size of the “contribution.” And it didn’t say how

the Commission should exact the “contributions” from the

service-providers (let alone how service providers will

take the funds back from consumers).

Quite simply, “Congress painted in very broad strokes

and took virtually no responsibility for any of the major

details of implementing or funding the universal service

program.” Ronald J. Krotoszynski, Jr., Reconsidering the

Nondelegation Doctrine: Universal Service, the Power to

Tax, and the Ratification Doctrine, 80 IND. L.J. 239, 308

(2005).

Read together, these provisions give the

Commission two core legislative functions—taxing and

spending—with no real constraints on how to exercise

them.

Start with taxes. The Court said it well a century-anda-half ago: “the power of taxation belongs exclusively to

the legislative department of the government.” State ex

27

rel. S. Bank v. Pilsbury, 105 U.S. 278, 299 (1881). Given

that longstanding clarity, the nondelegation doctrine

should apply most rigorously when a tax is involved. See

James R. Hines Jr. & Kyle D. Logue, Delegating Tax, 114

MICH. L. REV. 235, 270–71 (2015); see also Krotoszynski,

supra, at 243 (“Whatever the merits of delegation in other

contexts, however, one should view with skepticism

delegations of authority over the ability to raise and

expend revenue.”). Although there’s indication that the

present, weakened conception of the nondelegation gives

no special scrutiny to a delegated tax power, Skinner v.

Mid-Am. Pipeline Co., 490 U.S. 212, 223 (1989), that

should change.

And make no mistake, this “contribution” is a tax.

When monies collected “inure[] to the benefit of the

public,” they constitute taxes, not fees. Nat’l Cable

Television Ass’n, Inc. v. United States, 415 U.S. 336, 343

(1974). Further, “the essential feature of any tax” is that

“[i]t produces at least some revenue for the Government.”

Sebelius, 567 U.S. at 564; see also Magruder v. Supplee,

316 U.S. 394, 399 (1942). Fees, on the other hand,

discourage conduct or defray regulatory expenses.

Norfolk S. Ry. Co. v. City of Roanoke, 916 F.3d 315, 319

(4th Cir. 2019). And fines serve as punishment for an

offense. United States v. Bajakajian, 524 U.S. 321, 328,

(1998). The “contribution” here checks all the tax boxes—

it’s distributed to the public at large, it produces billions

in revenue, and it serves none of the usual purposes of a

fee or a fine. So the Commission has seized the power to

levy. See Barbara A. Cherry & Donald D. Nystrom,

Universal Service Contributions: An Unconstitutional

Delegation of Taxing Power, 2000 L. REV. MICH. ST. U.

DET. C.L. 107, 133-37 (2000); Nichole L. Millard,

Universal

Service,

Section

254

of

the

28

Telecommunications Act of 1996: A Hidden Tax?, 50

FED. COMM. L.J. 255, 267-72 (1997).

The Commission has also seized another legislative

power in deciding how to spend its spoils. “Among

Congress’s most important authorities is its control of the

purse.” Biden v. Nebraska, 143 S. Ct. 2355, 2375 (2023).

And the Appropriations Clause issues a “straightforward

and explicit command” that “no money can be paid out of

the Treasury unless it has been appropriated by an act of

Congress.” OPM v. Richmond, 496 U.S. 414, 424 (1990).

Its restraint is “absolute.” U.S. Dep’t of Navy v. FLRA,

665 F.3d 1339, 1348 (D.C. Cir. 2012) (Kavanaugh, J.). It

covers “any sum of money collected for the government.”

Ring v. Maxwell, 58 U.S. 147, 148 (1854). So “[w]hile

Congress can delegate some discretion to the President

[and his or her agencies] to decide how to spend

appropriated funds, any delegation and discretion is

cabined by these constitutional boundaries.” Cnty. of

Santa Clara v. Trump, 250 F. Supp. 3d 497, 531 (N.D. Cal.

2017).

The statute here ignores those constraints. No

appropriation appears anywhere in the text. Instead, the

Commission can spend as it wishes, so long as it can say

the spending falls under the umbrella of “universal

service.” This fund, existing independent of the ordinary

congressional oversight process, dwarfs the budgets of

several federal agencies. And this setup has become

common “[t]o an unprecedented extent.” Christopher C.

DeMuth, Sr., Michael S. Greve, Agency Finance in the

Age of Executive Government, 24 GEO. MASON L. REV.

555, 556-57 (2017).

Were these problems not enough, the statute even

lacks an intelligible principle that would satisfy the

current standard. “Instead of prescribing rules of

29

conduct, it authorizes the making of codes to prescribe

them.” Schechter Poultry, 295 U.S. at 541. It delegates to

the Commission wide-open discretion to do whatever it

feels is “necessary,” “appropriate,” “convenien[t],” or in

the “public interest.” See 47 U.S.C. § 254(b)(7). Under

any ordinary understanding, words like these do not

provide “intelligible” limits when piled on in separate

disjunctives. In fact, all these words are problematic in

their own way. “[T]he citizen confronting thousands of

pages of regulations—promulgated by an agency directed

by Congress to regulate, say, ‘in the public interest’—can

perhaps be excused for thinking that it is the agency really

doing the legislating.” City of Arlington, 569 U.S. at 315

(Roberts, C.J., dissenting). “Appropriate,” too, is “allencompassing term that naturally and traditionally

includes consideration of all the relevant factors.”

Michigan v. EPA, 576 U.S. 743, 752 (2015). “‘[N]ecessary”

does not mean ‘absolutely necessary,’” but just things that

are convenient or useful. United States v. Comstock, 560

U.S. 126, 134 (2010). And convenient just means “suited

to personal comfort or to easy performance.” Convenient,

MERRIAM-WEBSTER, https://bit.ly/42ujiSV (last visited

Feb. 14, 2025). Words like these provide no real

constraints.

A last concern lurks on top of all that’s already been

said: this whole process is really pushed forward by a

private entity. “The FCC essentially has abdicated its

oversight responsibilities.” Jonathan S. Marashlian et al.,

The Mis-Administration and Misadventures of the

Universal Service Fund: A Study in the Importance of the

Administrative Procedure Act to Government Agency

Rulemaking, 19 COMMLAW CONSPECTUS 343, 381 (2011).

And because of that abdication, a private entity effectively

decides the contribution rate—that is, the amount of the

“tax”—that will be imposed. “[L]etting the President set

30

tax rates,” let alone a private entity like this, “sounds like

an easy kill for an originalist nondelegation doctrine.”

Lawson, supra, at 369 (emphasis added). And this isn’t

even the first time the Commission has had this problem.

See, e.g., U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565

(D.C. Cir. 2004) (holding that the FCC improperly

subdelegated certain functions outside the agency). Thus,

this rule-by-private-interest is a last sprinkle of salt in the

wound when it comes to the delegation problems here.

Compare with Texas, 142 S. Ct. at 1309 (Alito, J.,

respecting the denial of certiorari) (raising questions

about delegation to a private authority of question

implicating “hundreds of millions of dollars”).

This “contribution” comes by way of an unlawful

delegation. Should the Court affirm, this case will serve

as an excellent signal to agencies and Congress about

what it means to go too far.

V.

This Program’s Benefits Are No Reason To

Reverse.

Many of those pushing the Court to overturn the

decision below emphasize the Universal Service Fund’s

benefits. See Amicus Br. of NCTA at 6-27 (praising the

program). To be clear, not everyone agrees that these

benefits justify continuing the present program even as a

policy matter. See, e.g., Daniel A. Lyons, Narrowing the

Digital Divide: A Better Broadband Universal Service

Program, 52 U.C. Davis L. Rev. 803, 805 (2018)

(“Unfortunately, the Universal Service Fund has also

been one of the most criticized programs administered by

the Federal Communications Commission.”); FCC, IN RE

REP. ON THE FUTURE OF THE UNIVERSAL SERV. FUND, 37

F.C.C. RCD. 10041, 10101 (2022) (statement of

Commissioner Brendan Carr) (“[T]he FCC’s funding

31

mechanism for this vital program is stuck in a death

spiral.”).

But the States are not here to quibble with the

Universal Service Fund’s merits. They agree that

universal service is an important objective. Indeed, many

programs within the Amici States have benefited from

monies that the Universal Service Fund distributes. And

the States agree, too, that Congress has the power to

support

universal

service

in

interstate

telecommunications if it so chooses. Although “States

[have] traditionally exercised broad power to regulate

telecommunications markets within their borders in ways

that were designed to promote universal service,” there’s

still room for Congress to act under the Commerce

Clause. MetroPCS Cal., LLC v. Picker, 970 F.3d 1106,

1119 (9th Cir. 2020) (cleaned up).

Ultimately, the States here don’t need to take a

position on whether this law is good as a matter of policy—

because that’s rather beside the point. The States here

are presently interested in seeing that Congress use its

conceded power within prescribed constitutional limits.

Good policy or not, an unconstitutional law cannot stand.

It’s a “fundamental principle that, no matter how laudable

its purposes, the actions of our government are always

subject to the limitations of the Constitution.” Barr v.

DOJ, 819 F.2d 25, 25 (2d Cir. 1987). “The Constitution

makes strict demands. Often times, important and

justifiable public policy goals must bow before its

restraints.” Republican Party of Minn. v. Kelly, 247 F.3d

854, 891–92 (8th Cir. 2001) (Beam, J., dissenting); see also

Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1138

n.18 (10th Cir. 1999) (noting how “constitutional

rights … trump more mundane policy concerns”). So time

and again, the Court has reminded parties that “the fact

32

that a given law or procedure is efficient, convenient, and

useful in facilitating functions of government, standing

alone, will not save it if it is contrary to the Constitution.”

Chadha, 462 U.S. at 944; see also, e.g., Stern v. Marshall,

564 U.S. 462, 501 (2011) (rejecting arguments premised on

the purposed “practical consequences” recognizing limits

on authority). So too here. The law’s many supporters

should direct their attention to Congress, not the courts.

If, however, the Court were still concerned about any

practical disruption that might be caused by affirming, it

would still have options far short of reversal. For instance,

the Court could stay the judgment to allow Congress time

to amend the statute to appropriately exercise its

legislative power, as it has done in similar situations

involving separation-of-powers concerns. See, e.g., N.

Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S.

50, 88 (1982) (entering a “limited stay [to] afford Congress

an opportunity to reconstitute the bankruptcy courts or to

adopt other valid means of adjudication, without impairing

the interim administration of the bankruptcy laws”);

Buckley v. Valeo, 424 U.S. 1, 143 (1976). The Court could

also provide specific direction as to what would be

constitutionally sufficient here, which might expedite the

congressional revision process. And the Court could limit

the effect of its decision on the Commission’s past funding

decisions; retroactivity need not be assumed. See, e.g.,

John Doe Co. v. CFPB, 849 F.3d 1129, 1133 (D.C. Cir.

2017) (noting that “vacatur of past actions is not routine”

when separation-of-powers violations are found).

But at the end of the day, the Constitution stands

supreme. As the Fifth Circuit said, the salutary purposes

of this program must be served in another way. A

constitutional way.

33

CONCLUSION

The Court should affirm the decision below.

Respectfully submitted.

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

Counsel for Amicus Curiae State of West Virginia

34

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

DAVE YOST

Attorney General

State of Ohio

TIM GRIFFIN

Attorney General

State of Arkansas

GENTNER DRUMMOND

Attorney General

State of Oklahoma

JAMES UTHMEIER

Attorney General

State of Florida

ALAN WILSON

Attorney General

State of South Carolina

THEODORE E. ROKITA

Attorney General

State of Indiana

JONATHAN SKRMETTI

Attorney General and

Reporter

State of Tennessee

KRIS KOBACH

Attorney General

State of Kansas

LIZ MURRILL

Attorney General

State of Louisiana

ANDREW BAILEY

Attorney General

State of Missouri

AUSTIN KNUDSEN

Attorney General

State of Montana

KEN PAXTON

Attorney General

State of Texas

JASON MIYARES

Attorney General

Commonwealth of Virginia

WARREN PETERSEN

President of the Senate

State of Arizona

By counsel:

Rusty D. Crandell

Majority General Counsel

35

Arizona State Senate

1700 W. Washington St.

Phoenix, Arizona 85007

rcrandell@azleg.gov

(602) 926-3137

BEN TOMA

Speaker of the House of

Representatives

State of Arizona

By counsel:

Linley Wilson

Majority General Counsel

Arizona House of

Representatives

1700 W. Washington St.

Phoenix, Arizona 85007

LWilson@azleg.gov

(602) 926-5418