FCC v. Consumers' Research

Justice Kavanaugh agreed that the FCC’s authority passes the longstanding intelligible-principle test. In his view, Congress has historically been permitted to give the President and executive agencies substantial discretion and policymaking authority when they implement statutes. When Congress provides an intelligible principle, the resulting implementation is an exercise of executive power under Article II, not an unconstitutional transfer of legislative power.

He stressed that the test is not unlimited: Congress may not hand the Executive a blank check or assign it the legislative role wholesale. But the permissible degree of discretion varies with context, the power conferred, and the practical need for Congress to legislate through general policies while executive officials resolve details and apply law to facts.

Justice Kavanaugh also argued that recent decisions reduce some structural concerns traditionally associated with broad delegations. Loper Bright requires courts to exercise independent judgment on statutory meaning rather than defer under Chevron, and the major questions doctrine presumes that Congress does not silently authorize agency action of great political or economic significance. He added that both nondelegation doctrine and the major questions canon have a more limited role in foreign affairs and national security, where presidential constitutional authority is stronger.

Finally, he distinguished delegations to executive agencies from delegations to truly independent agencies. A delegation to an executive agency remains subject to presidential supervision and democratic accountability. In his view, delegations to officials protected from at-will removal raise serious Article II concerns. He concluded that the FCC does not appear to be such an independent agency because its commissioners lack statutory for-cause removal protection, but he invited reconsideration of the constitutional status of independent agencies in a future case.

Justice Jackson joined the Court’s opinion but questioned whether a freestanding federal private nondelegation doctrine is viable at all. She observed that the Constitution’s text does not appear to contain a per se prohibition on governmental delegations to private actors, and that recent scholarship casts doubt on the doctrine’s historical and precedential foundation.

The parties did not ask the Court to reconsider the doctrine’s existence, and the claim failed even under its conventional terms because USAC lacked final authority. Still, Justice Jackson cautioned that the Court should not casually infer an unwritten constitutional restriction on a coordinate branch when the constitutional text supplies none.

Justice Gorsuch, joined by Justices Thomas and Alito, viewed universal-service contributions as taxes: compulsory payments supporting government programs. Because the Constitution assigns the power to raise revenue to Congress, especially the House of Representatives, he concluded that a delegation of taxing authority requires especially meaningful limits. In his view, historical practice establishes that Congress must itself prescribe a tax rate or, at minimum, a real cap on total receipts.

Section 254 fails that standard, Justice Gorsuch reasoned, because it allows the FCC to choose the services to fund, the scale of the programs, the affected contributors, and ultimately the contribution factor. The contribution rate rose from less than 4% in 1998 to nearly 37% in 2025, while total disbursements grew substantially. That history, he argued, demonstrates that the statute supplies a blank check rather than a meaningful ceiling.

He rejected the majority’s conclusion that the requirement of “sufficient” funding acts as a qualitative cap. “Sufficient” depends on what universal service means, and Congress deliberately made universal service an evolving concept that the FCC must define. The statute supplies competing factors and principles, permits the FCC to add further principles, and leaves the agency to balance them. That guidance cannot function like a fixed limit on revenue collection.

Justice Gorsuch also objected to the majority’s statutory construction. Section 254(c)(1) says the FCC must consider specified factors; it does not require that every factor be satisfied before the FCC may fund a service. Likewise, Section 254(b)’s principles often say services “should” be provided, not that they must be. The FCC had consistently treated these provisions as flexible considerations, not cumulative prerequisites. In his view, the Court rewrote the statute to avoid finding an unconstitutional delegation.

He emphasized that Sections 254(c)(3) and 254(h)(2) separately permit support for additional and advanced services for schools, libraries, and health-care providers without the limitations the majority found in Section 254(c)(1). Justice Gorsuch read the majority’s refusal to address those provisions as an acknowledgment that they are particularly difficult to defend under even the modern intelligible-principle test.

The dissent distinguished fees from taxes. Fees ordinarily compensate the government for a benefit conferred on, or a cost imposed by, the payer; those features inherently limit the amount that may be charged. Universal-service contributions do neither. They redistribute money from carriers and consumers to program beneficiaries, making them a classic tax-and-spend arrangement. Thus, statutes allowing agencies to set cost-based fees, such as FDIC insurance assessments or agency regulatory charges, offered no precedent for this delegation.

Justice Gorsuch concluded that the Court’s approach weakens democratic accountability. A numerical rate or real cap would force Congress to confront and answer for the fiscal consequences of a program. By allowing the FCC to determine those consequences itself, the Court permits Congress to transfer a core legislative responsibility to unelected officials. He urged a return to historical limits on delegations, particularly when Congress delegates its taxing power.