Will the Supreme Court Make Congress Do Its Job?

Congress is supposed to write the laws, but these days it often prefers to delegate to the executive branch, and then cheer or boo the results. Twice amid the New Deal, but not since, the Supreme Court struck down statutes as abdications of Congress’s lawmaking power. Yet the Court has another chance in the case that the Justices will consider Wednesday, FCC v. Consumers’ Research. The Telecommunications Act of 1996 tells the Federal Communications Commission to levy money from phone carriers to subsidize “universal service.” Congress gave the FCC vague “principles” to pursue, including “affordable rates” and “equitable” telecom contributions. The rest is up to the bureaucracy, including the amount of the tax. In recent years it has neared $10 billion, which gets passed on to consumers. What’s more, the FCC handed implementation to a nonprofit, the Universal Service Administrative Company, or USAC. No problem, the government’s brief argues: A delegation is constitutionally fine as long as Congress “supplies an intelligible principle to guide the agency.” In the FCC’s case, the law “specifies who must pay universal service contributions, the terms on which they must do so, the purposes for which the funds must be used, the types of services that the Commission must subsidize, and the types of entities that may receive funding.” The law’s challengers reply that this is “delegation running riot.” The FCC’s power to raise revenue from telecom providers is “unbounded by any statutory caps or rates.” The fuzzy principles that Congress set forth aren’t much practical guidance, and the FCC “can even add new principles and—taking the cake—redefine ‘universal service’ itself, based on an ‘evolving’ standard the FCC determines.”