The Constitution and Your Cellphone Bill

How much power may Congress hand off to the Washington bureaucracy? That’s a live question, so grab the popcorn to read a decision by the Fifth Circuit Court of Appeals. In a 9-7 en banc ruling, it invalidated a “universal service” surcharge added to cellphone bills. Because other circuit courts have gone the other way, the Supreme Court might answer this call next. “In the Telecommunications Act of 1996,” Judge Andrew Oldham writes in Consumers’ Research v. FCC, “Congress delegated its taxing power to the Federal Communications Commission. FCC then subdelegated the taxing power to a private corporation. That private corporation, in turn, relied on for-profit telecommunications companies to determine how much American citizens would be forced to pay.” The majority says this subcontracting of Congressional power violates the Constitution. The Supreme Court has said Congress may delegate power as long as it gives agencies an “intelligible principle” to follow. The law in this case says Universal Service Fund funding should be “sufficient” to “preserve and advance universal service.” What does this mean? Well, service that’s “essential to education, public health, or public safety,” and so forth. Judge Oldham says the “amorphous” conception “amounts to a suggestion that FCC exact as much tax revenue for universal service projects as FCC thinks is good.” Its decisions toward that goal aren’t subject to Congressional appropriations, and commissioners on the FCC are “removable by the President only for-cause,” meaning democratic accountability “is extremely attenuated.” And that’s before getting to the FCC’s subdelegation to a private group, where Judge Oldham is withering: “Congress could not say: ‘The defense budget is whatever Lockheed Martin wants it to be, unless Congress intervenes.’” The whole opinion is worth a read. This one could be a landmark.