A Flawed, but Encouraging Nondelegation Decision
In today’s Supreme Court ruling in FCC v. Consumers’ Research, a 6-3 majority upheld the Federal Communications Commission’s authority to impose levies on telecommunications carriers to support a “Universal Service Fund” intended to subsidize telecommunications services for low-income consumers, people in rural areas, and some others who might not otherwise get them. The Court rejected the argument that the 1996 law authorizing this levy violates the nondelegation doctrine, which constrains delegation of legislative power to the executive. But, in the process, the majority also emphasizes important constitutional limits on delegation.
Importantly, Justice Elena Kagan’s majority opinion emphasizes that a delegation of “boundless power” to impose fees would be unconstitutional. The majority upholds the universal service fee only because they conclude that the 1996 statute authorizing it imposes a variety of mandatory constraints on the FCC’s discretion, including imposing both a “floor” and a “ceiling” on how much money can be raised, and what purposes it can be used for:
Consumers’ Research argues that, even under our usual nondelegation test, the term “sufficient” does not do enough. That is because, in the Consumers’ Research view,
it sets only “a floor—not a ceiling—on the FCC’s revenue-raising power….” Or to put the point differently, Consumers’ Research thinks that the statute gives the FCC power, all on its own, to raise our hypothetical $5 trillion. And not unreasonably, it thinks that would pose a constitutional problem.But in fact the word “sufficient” sets a floor and a ceiling alike. An amount of money is “sufficient” for a purpose if it is “[a]dequate” or “necessary” to achieve that purpose.
Black’s Law Dictionary 1447 (7th ed. 1999). That means, of course, that the FCC cannot raise less than is adequate or necessary to finance the universal-service programs Congress wants. But it also means that the FCC cannot raise more than that amount. Were the FCC to raise, say, twice as much as needed
Article from Reason.com
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