A new Supreme Court case seeks to revive one of the most dangerous ideas from the Great Depression

Federal law seeks to make communications technology like telephones and the internet, in the words of one older statute, “available, so far as possible, to all the people of the United States.” A longstanding federal program that seeks to implement this goal is now before the Supreme Court, in a case known as FCC v. Consumers’ Research, and the stakes could be enormous. If the Supreme Court accepts an argument raised by a federal appeals court, which struck down the federal program, it would bring about one of the biggest judicial power grabs in American history, and hobble the government’s ability to do, well, pretty much anything. The Court will hear arguments in Consumers’ Research on March 26.  While Congress has long called for universal service for telecommunications and similar technology, there are practical obstacles to this goal, especially in rural areas that are far more expensive to wire because residents are more spread out. In these areas, if telephone and internet providers charged a fair market rate, their services could be prohibitively expensive. Which is why Congress created the Universal Service Fund. It effectively taxes telephone and internet service providers, and uses that money to pay for service to underserved communities. As a practical matter, service providers pass the cost of these taxes on to their customers in urban and other cheap-to-serve areas, so Americans living in cities wind up subsidizing telephone and internet in more sparsely populated regions of the country. Because the amount of money the Fund must raise to achieve universal service will vary from year to year, Congress also tasked the Federal Communications Commission (FCC) with determining how much money the Fund should collect from service providers each year. The statute also provides the FCC with detailed instructions on how to determine the amount it should collect, and how that money should be spent. Consumers’ Research case is worth watching for two reasons. One is that the Fifth Circuit’s decision was authored by Judge Andy Oldham, a Trump appointee who is widely considered a strong candidate for promotion to the Supreme Court in this administration. Oldham’s opinions are often sloppy, and his opinion in Consumers’ Research is no exception. The second is that Judge Oldham relied on a legal doctrine known as “nondelegation” in his opinion targeting the Universal Service Fund. The nondelegation doctrine claims there are strict constitutional limits on Congress’s power to empower federal agencies to do all kinds of things, from limiting pollution from power plants, to setting minimum standards for health insurance, to, at least if Oldham gets his way, providing broadband to rural communities.