It’s been another bad year for nondelegation.1 Although Congress cannot delegate legislative power to other branches of government,2 it can give executive agencies discretion to implement the laws it has enacted, so long as it provides an “intelligible principle.”3 This doctrine has proven to be remarkably lax. The Supreme Court has only twice struck down a statute on nondelegation grounds, both times in 1935.4 Yet hope springs eternal.5 Just six years ago, commentators speculated about a nondelegation revival6 after four Justices signaled support for resurrecting the doctrine in Gundy v. United States.7 Once again, they were disappointed. Last Term, the Court rejected yet another nondelegation challenge in FCC v. Consumers’ Research,8 holding that neither the FCC’s authority to raise contributions for the Universal Service Fund (USF) nor its reliance on a private administrator for the USF violated nondelegation.9 Though the outcome was unsurprising, the debate between the Justices may shape future legal challenges to executive actions in the second Trump Administration. In particular, Justices who otherwise favor a stronger nondelegation doctrine have signaled support for some broad delegations where the President has substantial independent Article II authority. Other Justices with more permissive stances toward delegation hint that they could constrain executive discretion by narrowly reading statutory delegations. These distinct approaches, while not mutually exclusive, could lead to unexpected outcomes in upcoming battles before the Court ranging from tariffs and foreign affairs to immigration and border policy.
The Communications Act of 193410 requires the FCC to “make available . . . to all the people of the United States” reliable communication services “at reasonable charges.”11 This objective, known as “universal service,” arose from the concern that a purely private telecommunications market would fail to serve rural and low-income consumers due to a lack of economic incentives.12 Congress overhauled the universal service system in the Telecommunications Act of 199613 by establishing the USF under the FCC’s administration.14 Section 254 of the Act requires private carriers to contribute to the USF15 according to a “contribution factor” set by the FCC.16 The FCC uses those funds to pay for programs such as reduced telephone bills for low-income consumers.17 The Universal Service Administration Company (USAC), “a private, not-for-profit corporation owned by an association of carriers,”18 assists the FCC by estimating the USF’s expenses and compiling the carriers’ expected total revenues, which the FCC uses to calculate the contribution factor.19
In 2022, the nonprofit Consumers’ Research, along with a carrier and several consumers, challenged the constitutionality of both the USF and USAC in a petition for review in the Fifth Circuit.20 They argued that Congress’s delegation of administration of the USF to the FCC failed to provide an intelligible principle or limit the agency’s discretion in determining the contribution factor and that the FCC had violated the private nondelegation doctrine by delegating its authority to a private entity, the USAC.21
The Fifth Circuit panel rejected the petition.22 Writing for the panel, Judge Stewart23 held that neither Congress’s delegation of control over the USF to the FCC nor the USF’s reliance on the USAC were unconstitutional.24 The Court held that Congress had provided an intelligible principle by requiring the FCC to follow “certain enumerated principles” in § 254 of the Telecommunications Act, even while allowing significant discretion.25 He also concluded there was no private nondelegation issue because the USAC is “wholly subordinate[]” to the FCC.26 Consumers’ Research petitioned for en banc review, which was granted.27
The en banc Fifth Circuit reversed.28 Writing for the court, Judge Oldham29 explained that the “USF’s double-layered delegation” was unconstitutional.30 He suggested that Congress “may have [unconstitutionally] delegated legislative power to FCC” because it conferred the power to “levy” mandatory “contributions,” equivalent to the “quintessentially legislative power” of taxation, “without supplying an intelligible principle to guide FCC’s discretion.”31 He also argued that the FCC’s use of the USAC likely violated the private nondelegation doctrine.32 But Judge Oldham declined to hold that either prong independently violated nondelegation.33 Rather, he stated that “the combination of Congress’s sweeping delegation to FCC and FCC’s unauthorized subdelegation to USAC violate[d]” the Constitution.34 Judges Elrod35 and Ho36 wrote separate concurrences and joined in full.37
Judges Stewart and Higginson dissented to defend the panel decision38 and criticize the majority’s “combination” theory,39 respectively. The Fifth Circuit’s decision split with the Sixth and Eleventh Circuits, which had rejected essentially identical challenges.40
The Supreme Court reversed.41 Writing for the Court, Justice Kagan explained that Congress had not unconstitutionally delegated power to the FCC nor had the FCC violated the private nondelegation doctrine.42 She also “reject[ed] the Fifth Circuit’s combination theory.”43 Justice Kagan began by stating that “Congress may ‘vest[] discretion’ in executive agencies to implement and apply the laws it has enacted” so long as it supplies an “intelligible principle,”44 which requires that Congress “ma[k]e clear both ‘the general policy’ that the agency must pursue and ‘the boundaries of [its] delegated authority.’”45 Furthermore, the degree of permissible agency discretion varies depending on “the scope of the power” conferred by Congress.46
Justice Kagan rejected respondents’ argument that statutes that raise revenue must set a specific numeric cap or fixed rate.47 The Court had previously rejected stricter standards for delegations of taxing power,48 and requiring numerical limits for revenue-raising statutes would also call into question many other federal agency delegations.49 Nor did it matter whether the contributions constituted a tax — as the respondents and dissent argued — or a fee, since, to Justice Kagan, this distinction was unworkable in practice, irrelevant to the nondelegation issue at hand, and contrary to precedent.50
Applying the intelligible principle test, Justice Kagan then determined that § 254 both articulated a “‘general policy’ the FCC must pursue” and set binding limits on its discretion.51 First, by specifying that the fee must be “sufficient” to support universal service,52 the statute both set “a floor and a ceiling” on the contribution amount and imposed a “qualitative limit[] on how much” funding the FCC may raise.53 Section 254 also identified both the intended beneficiaries of universal-service programs and the criteria by which to assess which services should be included.54 Justice Kagan found these criteria to be mandatory and therefore to constrain the FCC, while still leaving discretion for the agency to balance between competing goals.55 And neither the “evolving” definition of universal service nor the FCC’s ability to articulate additional principles beyond those listed in § 254 posed constitutional problems because any new definitions or principles must be consistent with existing statutory limitations.56 Hence, the Court concluded that the delegation from Congress to the FCC did not violate the Constitution.57
Next, Justice Kagan held that the USAC did not violate the private nondelegation doctrine.58 While agencies may not confer governmental power to private entities,59 they “may enlist private parties to give [them] recommendations” so long as the agencies “retain[] decision-making power.”60 Here, Justice Kagan held that the FCC retained decisionmaking power because it “appoints the [USAC]’s Board of Directors and approves its budget”;61 the USAC cannot “make policy” and must act “consistent with” the FCC’s rules and orders;62 the FCC reviews complaints against actions taken by the USAC de novo;63 and the FCC “alone has decision-making authority” to set the contribution factor.64 Thus, the FCC is in control “[i]n every way that matters to the constitutional inquiry.”65
Finally, Justice Kagan dismissed the Fifth Circuit’s “combination theory” — that even if the public delegation and private delegation were separately constitutional, their combination was not.66 She noted that the two “doctrines do not operate on the same axis” — while public nondelegation concerns executive agencies exercising legislative power, private nondelegation concerns private entities exercising governmental power.67 Thus, an arrangement that implicates both doctrines, yet violates neither, “does not compound” to “push[] the combination over a constitutional line.”68
Justice Kavanaugh concurred and wrote separately to argue that delegations to independent agencies raise separate Article II problems.69 He began by observing that delegations of “policymaking authority” to the President have been a longstanding “feature of American Government.”70 In his view, the intelligible principle test’s “staying power” is due to either a lack of viable alternatives or a fear of “diminish[ing] the President’s longstanding Article II authority to implement legislation.”71
Justice Kavanaugh emphasized three points about the nondelegation doctrine: First, he agreed with both the majority and dissent that “the degree of [acceptable] agency discretion” is proportional to the authority conferred by Congress.72 Second, he argued that many of the “concerns about expansive delegations” have been addressed by other recent developments in administrative law, such as the major questions doctrine and the overruling of Chevron73 deference.74 Third, he stressed that nondelegation was even more limited in the arenas of national security and foreign affairs, where the President’s policy discretion is at its zenith.75
Finally, Justice Kavanaugh explained why delegations to independent agencies are constitutionally problematic. Because independent agency heads enjoy for-cause removal protections, they are insulated from presidential control and hence unaccountable to any democratically elected branch of government despite wielding substantial authority.76 Justice Kavanaugh suggested two solutions: First, the Court could substantially narrow or overrule Humphrey’s Executor v. United States77 and subject nearly all agency heads to at-will removal by the President.78 Second, the Court could apply a stricter intelligible principle test to independent agencies, which could include requiring independent agencies to submit proposed rules to Congress for approval.79 Justice Kavanaugh ended by noting that this issue was not before the Court because the government had conceded that the FCC was not an independent agency.80
Justice Jackson wrote separately in a brief concurrence to question the viability of the private nondelegation doctrine.81
Justice Gorsuch dissented.82 He first characterized the universal service contribution as a tax.83 He then argued that the Court had historically never permitted “an executive agency to tax domestically unless Congress itself ha[d] prescribed the tax rate” because taxation was uniquely important among Congress’s powers.84 Since § 254 specified neither a fixed rate nor a numeric cap on contributions, Justice Gorsuch determined it violated this “historic rule.”85
Justice Gorsuch next disputed whether § 254’s qualitative standards sufficiently constrained the FCC, finding both the concept of “universal service” and the principles codified in the statute too vague and subject to shifting interpretation to function like a numeric cap.86 He accused the majority of “rewriting the statute” to require that the FCC fulfill all four of the § 254 criteria, contrary to how even the FCC had previously understood that section.87 He also criticized the majority for ignoring two other provisions of the statute that were not subject to the limitations in § 254(c)(1).88 He then distinguished the majority’s precedents as cases concerning not taxes but instead “fees,” which “carry a built-in intelligible principle:” They are compensation for a specific service or cost (rather than a general benefit to the public) and therefore cannot exceed the value of the “real-world cost or benefit.”89 And he rejected the majority’s analogy to broad statutory terms like “public interest,” arguing that because the intelligible principle test was context dependent, the term “universal service” did not similarly invoke a longstanding and well-understood meaning in this particular context.90 Finally, Justice Gorsuch lamented that while the Court had “vigorously” enforced the separation of powers in other contexts,91 its efforts in the nondelegation arena had been comparatively “feeble,” effectively allowing unelected bureaucrats to make federal law.92
While Consumers’ Research did not inaugurate a nondelegation revolution, its implications are significant for future nondelegation challenges to executive actions taken by the Trump Administration, particularly those cloaked in foreign affairs and national security justifications.93 Dicta in Justice Kavanaugh’s concurrence and Justice Gorsuch’s dissent suggest they and like-minded Justices could uphold broad delegations in foreign affairs under the President’s Article II authority.94 By contrast, Justice Kagan’s preferred method — on display in Consumers’ Research — of narrowly interpreting statutes to avoid nondelegation problems suggests a different (though not necessarily incompatible) approach for determining the scope of executive discretion.95 Following Consumers’ Research, nondelegation challenges to actions such as President Trump’s “Liberation Day” tariffs96 must overcome both a deferential intelligible principle test and an expansive theory of Article II authority, but such suits could potentially find an easier path to five votes if instead presented as questions of statutory interpretation.
Justices Gorsuch and Kavanaugh noted an exception to the nondelegation doctrine in areas where the President enjoys existing independent Article II authority. Justice Kavanaugh made the point explicitly.97 His retreat from his earlier receptiveness to nondelegation98 is especially striking, but could be explained by his emphasis on “respect[ing] the President’s Article II authority to execute the laws” and avoiding “undue judicial interference.”99 This deferential stance toward the President is also evident in his proposed solutions for delegations to independent agencies: Either presidential oversight or congressional approval is sufficient to resolve democratic accountability concerns under the current intelligible principle test.100 While Justice Gorsuch is more concerned about which institution exercises lawmaking authority — namely, the legislature as opposed to the executive101 — he similarly recognized that “delegations posed fewer problems in the field of foreign affairs, where many ‘powers are constitutionally vested in the president under Article II.’”102 Despite the permissive posture, adopting a nondelegation exception for foreign affairs would be consistent with Justice Gorsuch’s position in Gundy and some originalist scholarship,103 though he notably does not adopt Justice Kavanaugh’s generally deferential attitude toward the executive branch.
Following such an exception would allow strong nondelegation proponents to nevertheless uphold broad delegations in the foreign affairs arena. President Trump’s “Liberation Day” tariffs are a salient example. The President claimed authority to set tariffs under the International Emergency Economic Powers Act104 (IEEPA), a statute that allows him to regulate international trade pursuant to a national emergency but does not explicitly authorize tariffs and has never previously been used for tariffs.105 While plaintiffs have characterized the government’s interpretation of IEEPA as a “limitless delegation” of Congress’s taxing power,106 the tariff policy could fall within a broad reading of the President’s independent Article II foreign affairs and national security powers under the views of Justices Gorsuch or Kavanaugh. This theory remains debatable on originalist terms given the ambiguity of the historical evidence.107 It also clashes with the view that a strong nondelegation doctrine is a necessary counterbalance to a unitary executive.108 Nor is it obvious that setting tariffs pursuant to an economic emergency sufficiently implicates the President’s independent foreign affairs powers, given Congress’s explicit foreign commerce and taxation powers under Article I.109 Still, prior to the most recent challenges under the Trump Administration, “lower courts ha[d] consistently rejected nondelegation challenges to IEEPA” and upheld it under the intelligible principle test.110 Foreign affairs deference raises yet more obstacles for litigants to overcome on top of an already lax intelligible principle test.
A more promising path may instead be indirect enforcement of nondelegation via narrowing statutory interpretation, as Justice Kagan arguably did in both Consumers’ Research111 and Gundy.112 Such a strategy is hardly new to the Court,113 but could see increased usage by Justices skeptical of broad assertions of Article II authority under the second Trump Administration.114 This approach would act as a species of constitutional avoidance, where the Court would construe otherwise broad statutory language to narrow the scope of the delegated authority.115 It could also be conceived as a kind of major questions doctrine enforcement of an underlying nondelegation concern,116 though Justice Kavanaugh indicated that the major questions doctrine itself may be subject to a foreign affairs exception.117 Even so, lower court rulings on the “Liberation Day” tariffs have already taken this approach and held that IEEPA does not permit the President to set tariffs because it does not expressly grant that power as a matter of text.118
Whether the Justices ultimately credit such arguments remains to be seen. A narrow statutory interpretation of IEEPA is vulnerable to criticism on ordinary statutory interpretation grounds.119 Moreover, the nondelegation avoidance approach may very well be compatible with a foreign affairs exception or even a strong nondelegation position. After all, a Justice may seek to avoid nondelegation concerns through statutory interpretation while still recognizing a foreign affairs exception (an issue that was not squarely presented in Consumers’ Research). And even a nondelegation revivalist like Justice Gorsuch may approve of indirect enforcement through narrowing interpretation where the statutory text is sufficiently ambiguous.120 Given these competing tensions, Consumers’ Research may very well presage an unusual arrangement of Justices that defies surface-level expectations about nondelegation in future cases that push the boundaries of executive power.