Professor Ron Krotoszynski’s article, Reconsidering the Nondelegation Doctrine: Universal Service, the Power to Tax, and the Ratification Doctrine (80 Ind. L. J. 239, 282 (2005)) was cited in Justice Neil Gorsuch’s dissent in FCC v. Consumers’ Research.
The case stems from questions about the universal service fund established in the 1996 Telecommunications Act. Congress instructed the Federal Communications Commission (FCC) to establish and maintain a universal service fund by requiring telecommunications carriers to contribute quarterly based on their revenues. The FCC partners with the Universal Service Administrative Company (USAC) to manage this process.
The Fifth Circuit Court of Appeals reviewed the case and found the contribution scheme unconstitutional due to a “double-layered delegation” of authority. The court expressed skepticism about Congress’ delegation of power to the FCC and the FCC’s delegation to USAC, suggesting that the combination of these delegations violated the Constitution’s nondelegation doctrine.
The case was appealed to the Supreme Court, which reversed the Fifth Circuit’s ruling in a 6-3 decision authored by Justice Elena Kagen and held that the universal service contribution scheme does not violate the nondelegation doctrine. Justice Gorsuch was joined by Justices Clarence Thomas and Samuel Alito in his dissent and argued that §254 of the 1996 Telecommunications Act does, in fact, violate the nondelegation doctrine, delegating Congress’ taxing power by failing to set a tax rate or meaningful cap on collections.