Latest news with #LoperBright
Reuters
24-04-2025
- Politics
- Reuters
Will agencies' weaknesses become a source of presidential strength?
April 24, 2025 - In its first three months, the Trump Administration has imposed sweeping change on everything from foreign affairs and birthright citizenship to the scope of Title VII. Any of these issues may become fodder for Supreme Court review. But one focal point of particular interest is how the new Administration is using agencies to accomplish its goals. Between mass firings, shifting policies, and funding freezes, the Executive Branch has taken actions that tee up significant questions about the scope of presidential power over agencies. And the answers will have major ramifications for regulated parties and the pace of change any time a new president takes office. Recent Supreme Court decisions cabin agencies' authority in critical ways, including limiting their policymaking authority over questions of major political and economic significance (West Virginia v. Environmental Protection Agency (EPA)), restricting their use of in-house court proceedings (Securities and Exchange Commission (SEC) v. Jarkesy), overruling Chevron deference (Loper Bright Enterprises v. Raimondo), and opening the door to new regulatory challenges to longstanding rules (Corner Post, Inc. v. Board of Governors of the Federal Reserve System), (See a previous article here) The trend is already continuing this Term. In City and County of San Francisco v. EPA, the Court narrowly construed the EPA's authority under the Clean Water Act to issue discharge permits. And the Court may soon revive the nondelegation doctrine — the idea that because the Constitution commits the power to make laws to Congress, Congress cannot confer that authority on others. A robust nondelegation doctrine would invalidate statutory grants of authority that give agencies too much discretion or leeway (See a previous article here). But when agencies' power is restricted, where does it go? In some contexts, the responsibilities claimed by the agency get shifted to courts. For example, Loper Bright shifted agencies' roles in interpreting statutes to courts. And Jarkesy made clear that only Article III courts — and not the SEC's in-house tribunals — can adjudicate civil penalties for securities fraud. In other instances, including the major questions doctrine and nondelegation, restraints on agencies' power could mean that responsibilities get shifted back to Congress. Few of the Court's recent administrative-law decisions have had similar ramifications for the Executive Branch. But in the coming months, the Court likely will be asked to constrain agencies in a way that would expand executive power and accelerate change whenever a new administration takes office. The Trump Administration has asked the Court for emergency relief in three particularly noteworthy cases involving executive authority over agencies. While the procedural posture of the emergency requests did not afford the Court an opportunity to address the underlying merits, each case presents significant constitutional questions that are likely to make their way before the Justices soon. Two cases in which the Trump Administration has sought emergency relief implicate the President's ability to impound congressionally appropriated funds. In Department of State v. AIDS Vaccine Advocacy Association, the Court declined to lift a district court order requiring the Executive Branch to pay almost $2 billion to recipients of certain federal foreign-assistance funding for work they had already completed. And in Department of Education v. California, the Court agreed to pause a district court order reinstating millions of dollars in federal grants that Congress had created in response to a teacher shortage. The underlying disputes in these cases raise numerous constitutional questions, including whether Congress may categorically circumscribe Presidential impoundment of appropriated funds. These questions are likely to come before the Justices again, whether in a later phase of these cases or in one of the numerous other pending challenges to terminated federal grants and funding. The answers could have significant ramifications for executive power over agency spending, especially vis-à-vis Congress. In another matter implicating the balance of power between Congress and the President, President Trump asked the Justices to vacate a district court's order that temporarily reinstated Hampton Dellinger as head of the Office of Special Counsel after President Trump had removed him. The Court ultimately dismissed the request as moot, and Dellinger no longer seeks reinstatement. But challenges to President Trump's removal of officials from other agencies are percolating in lower courts. On April 7, 2025, the District of Columbia U.S. Circuit Court of Appeals granted rehearing en banc in Harris v. Bessent, a case involving the removal of officers from the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB). As with Dellinger's termination, Harris raises important questions about the President's authority to fire certain agency officials at will. Regardless of how the en banc D.C. Circuit rules, the Justices will almost certainly be asked to weigh in and revisit longstanding precedent allowing Congress to limit the President's ability to remove members of independent agencies. In Humphrey's Executor v. United States (1935), the Court held that Congress can create multi-member, expert agencies with officials removable by the President only for cause, as long as the agencies don't exercise executive authority. The case arose when President Franklin D. Roosevelt fired a member of the Federal Trade Commission for political reasons, even though a statute protected FTC Commissioners from removal except for "inefficiency, neglect of duty, or malfeasance in office." Although the President generally has authority to remove executive officers without cause, the Court upheld the statute's removal restrictions because the FTC wasn't "an arm or an eye of the executive," but instead "act[ed] in part quasi legislatively and in part quasi judicially." In recent years, the Supreme Court has pulled back from Humphrey's Executor and reaffirmed the President's authority to remove without cause single heads of agencies exercising significant executive power. In Seila Law v. Consumer Financial Protection Bureau(CFPB) (2020), the Court struck down removal restrictions on the director of the CFPB, explaining that the President's obligation under Article II of the U.S. Constitution to "take care that the laws be faithfully executed" requires him to possess "the authority to remove those who assist him in carrying out his duties." The Court limited but did not overrule Humphrey's Executor, noting that the CFPB — in contrast to the FTC as it existed in 1935 — "wields significant executive power and is run by a single individual." Justice Clarence Thomas and Justice Neil Gorsuch would have jettisoned Humphrey's Executor altogether. The Court subsequently applied Seila Law to hold that the structure of the Federal Housing Finance Agency (FHFA), which also was run by a single director who could be removed only for cause, was unconstitutional (Collins v. Yellen). The Trump Administration has said that it will urge the Supreme Court to overrule Humphrey's Executor and that it will no longer defend the constitutionality of removal restrictions on members of multi-member commissions. A decision overruling Humphrey's Executor would have far-reaching effects, putting power over independent agencies more securely in the President's hands and enabling new administrations to more quickly change agencies' priorities and policies upon taking office. Whether or not Humphrey's Executor survives, the Trump Administration has indicated that it will rely on recent Supreme Court decisions constraining agency power to justify sweeping changes to agencies' structure, function, policies, and priorities. A Feb. 19, 2025, Executive Order instructs agencies to identify regulations that they believe exceed their statutory authority — a directive that channels Loper Bright and West Virginia. And if the Court revives the nondelegation doctrine later this Term, its ruling could help justify agencies' decisions to rescind regulations that the Administration believes are unlawful delegations of legislative power. Other holdings, like Jarkesy, may support new or rescinded regulations governing agencies' practices and procedures. Challenges to new or rescinded regulations are likely to make their way before the Justices and will test the bounds of executive power. In some contexts, recent Supreme Court decisions like Ohiov. EPA — which reaffirmed that agencies have to strictly follow procedural requirements — may hamper change by requiring the agencies to follow proper rulemaking procedures before rescinding or revising rules, including thorough justifications for any changes in position. And because Loper Bright strips agencies of deference, there's no guarantee that courts will agree that an agency's new reading of a statute is best. At the same time, Loper Bright and Corner Post open the door to courts embracing new understandings of previously established law. And decisions constraining agency authority, like West Virginia, could accelerate change by empowering agencies to justify new positions on the grounds that the prior position lacked statutory authority. The bottom line for businesses is to vigilantly monitor Executive Orders and agency actions. We're likely to see a lot of flux as the new Administration enforces its policies, and this may lead to a period of uncertainty and instability for regulated entities. It also creates opportunities, as agency recissions or modifications of rules are open to challenge, and regulated parties should be prepared to intervene to defend or oppose modification of rules that affect them. And when they do, it will be interesting to see whether the Supreme Court's decisions cabining agency power end up hastening or hindering the pace of change.
Yahoo
10-04-2025
- Politics
- Yahoo
Trump directs agencies to quietly repeal regulations — without public notice
President Donald Trump has instructed federal agencies and their assigned DOGE teams to repeal any existing regulations that are inconsistent with his priorities without providing advance notice or going through the traditional public input process. The move accelerates the White House's sprawling efforts to dismantle the federal regulatory machine, although Trump's directive to skip the notice-and-comment process will likely face legal challenges. It also may squeeze out contrarian voices — such as civil rights advocates, labor unions and environmentalist groups — from weighing in on the administration's deregulatory campaign. Trump's Wednesday presidential memo instructs agency leaders to move forward with a government-wide 'review-and-repeal effort,' citing 10 recent Supreme Court rulings to assert that they can proceed much more quietly because many existing regulations have now been rendered illegal. The normal 'notice-and-comment proceedings are 'unnecessary' where repeal is required as a matter of law to ensure consistency with a ruling of the United States Supreme Court,' Trump wrote. The White House directive appears to claim that the high court's 2024 ruling known as Loper Bright applies retroactively, although the court's conservative justices held explicitly that the decision is forward-looking. The Loper Bright ruling overturned the Reagan-era Chevron precedent, which gave agencies primary discretion to interpret certain ambiguous federal laws and regulations rather than the courts. We 'do not call into question prior cases that relied on the Chevron framework,' Chief Justice John Roberts wrote in the majority opinion. 'The holdings of those cases that specific agency actions are lawful — including the Clean Air Act holding of Chevron itself — are still subject to statutory stare decisis despite our change in interpretive methodology.' Trump wrote nonetheless that 'recent' rulings require the repeal of 'unlawful regulations — often promulgated in reliance on now-superseded Supreme Court decisions.' The legal advocacy group Democracy Forward said in a statement that Trump's actions are unlawful and harmful to the public. 'The policies and programs that the nation has put in place, and that have served communities for decades, cannot be undone with the arbitrary stroke of a pen,' Democracy Forward President Skye Perryman said. Perryman pledged that her organization will 'see this administration in court to protect people and democracy.' The Supreme Court cases cited in the memo stretch back to 2015 and were mostly decided by the court's conservative majority. Most involved litigation against the EPA, which could signal a more aggressive push to roll back that agency's pollution rules and other regulations. The White House also cited a ruling that established the 'major questions doctrine,' which instructs judges to presume that Congress doesn't give agencies power over matters with major, national economic and political impact. Its inclusion could give agency heads almost unbounded discretion to repeal rules and regulations, including long-standing agency policies. To bypass the traditional public review process, Trump pointed to an exception laid out in the Administrative Procedure Act. The law requires agencies to issue public notice that explains their reasoning and identifies their legal authority to change rules and regulations. It also allows stakeholders and members of the public to submit comments and propose modifications before those rules are finalized. In effect, rescinding or repealing a rule requires an agency to issue a new formulation to replace the old rule. There is also a 'good cause' exception in the law that allows agencies to skip the notice-and-comment process when it would be 'impracticable, unnecessary, or contrary to the public interest.' 'Retaining and enforcing facially unlawful regulations is clearly contrary to the public interest,' Trump wrote in the memo.
Politico
10-04-2025
- Politics
- Politico
Trump directs agencies to quietly repeal regulations — without public notice
President Donald Trump has instructed federal agencies and their assigned DOGE teams to repeal any existing regulations that are inconsistent with his priorities without providing advance notice or going through the traditional public input process. The move accelerates the White House's sprawling efforts to dismantle the federal regulatory machine, although Trump's directive to skip the notice-and-comment process will likely face legal challenges. It also may squeeze out contrarian voices — such as civil rights advocates, labor unions and environmentalist groups — from weighing in on the administration's deregulatory campaign. Trump's Wednesday presidential memo instructs agency leaders to move forward with a government-wide 'review-and-repeal effort,' citing 10 recent Supreme Court rulings to assert that they can proceed much more quietly because many existing regulations have now been rendered illegal. The normal 'notice-and-comment proceedings are 'unnecessary' where repeal is required as a matter of law to ensure consistency with a ruling of the United States Supreme Court,' Trump wrote. The White House directive appears to claim that the high court's 2024 ruling known as Loper Bright applies retroactively, although the court's conservative justices held explicitly that the decision is forward-looking. The Loper Bright ruling overturned the Reagan-era Chevron precedent , which gave agencies primary discretion to interpret certain ambiguous federal laws and regulations rather than the courts. We 'do not call into question prior cases that relied on the Chevron framework,' Chief Justice John Roberts wrote in the majority opinion . 'The holdings of those cases that specific agency actions are lawful — including the Clean Air Act holding of Chevron itself — are still subject to statutory stare decisis despite our change in interpretive methodology.' Trump wrote nonetheless that 'recent' rulings require the repeal of 'unlawful regulations — often promulgated in reliance on now-superseded Supreme Court decisions.' The legal advocacy group Democracy Forward said in a statement that Trump's actions are unlawful and harmful to the public. 'The policies and programs that the nation has put in place, and that have served communities for decades, cannot be undone with the arbitrary stroke of a pen,' Democracy Forward President Skye Perryman said. Perryman pledged that her organization will 'see this administration in court to protect people and democracy.' The Supreme Court cases cited in the memo stretch back to 2015 and were mostly decided by the court's conservative majority. Most involved litigation against the EPA, which could signal a more aggressive push to roll back that agency's pollution rules and other regulations. The White House also cited a ruling that established the 'major questions doctrine,' which instructs judges to presume that Congress doesn't give agencies power over matters with major, national economic and political impact. Its inclusion could give agency heads almost unbounded discretion to repeal rules and regulations, including long-standing agency policies. To bypass the traditional public review process, Trump pointed to an exception laid out in the Administrative Procedure Act. The law requires agencies to issue public notice that explains their reasoning and identifies their legal authority to change rules and regulations. It also allows stakeholders and members of the public to submit comments and propose modifications before those rules are finalized. In effect, rescinding or repealing a rule requires an agency to issue a new formulation to replace the old rule. There is also a 'good cause' exception in the law that allows agencies to skip the notice-and-comment process when it would be 'impracticable, unnecessary, or contrary to the public interest.' 'Retaining and enforcing facially unlawful regulations is clearly contrary to the public interest,' Trump wrote in the memo.
Yahoo
28-02-2025
- Politics
- Yahoo
South Dakota's lone death row inmate argues for new appeals in federal court
The federal courthouse in Sioux Falls. (John Hult/South Dakota Searchlight) SIOUX FALLS — The only man on death row in South Dakota wants a federal judge to give him another set of appeals because of a U.S. Supreme Court ruling that upended its prior guidance on the authority of federal bureaucrats. In 2000, Briley Piper, Elijah Page and Darrell Hoadley tortured and killed Chester Allan Poage near Spearfish. Piper and Page received death sentences; Hoadley was sentenced to life in prison. Page was put to death by lethal injection on July 11, 2007. His was the first death sentence carried out in South Dakota in 60 years. The state has since executed four other convicted murderers. Ruling that dilutes regulatory power could ripple through farm and ranch country for years Piper, who was not in the courtroom on Friday, has exhausted his appeals in state court, including with the state Supreme Court. On Friday at the federal courthouse in Sioux Falls, Piper's public defender team told U.S. District Judge Roberto Lange he ought to review some of the state Supreme Court's conclusions and overturn them. They took two tacks: one aimed to show that judges, prior legal teams and prosecutors made mistakes in areas like jury selection or the presentation of certain witnesses in ways that made a death sentence more likely. Claims of that nature are quite common in death penalty appeals. The other argument came from a more novel angle, based on a U.S. Supreme Court decision last summer in Loper Bright v. Raimondo that had nothing whatsoever to do with anyone on death row — or even with criminal law. The Loper Bright decision overturned a four-decade precedent under which judges were generally expected to defer to the expertise of administrative rulemakers when the rules they've written are challenged in court. Critics of that 'Chevron doctrine' precedent, including Republican U.S. Sen. Mike Rounds of South Dakota, had long argued that agencies like the Environmental Protection Agency hyperextend their authority under the color of laws like the Clean Air or Clean Water acts to make life difficult for citizens and businesses. The Loper Bright ruling says judges have supremacy to interpret laws under the Constitution, including rules written in service of those laws. If Congress wants the EPA to enforce rules on wetlands or allowable levels of lead in old pipes, the justices reasoned, Congress should write those rules into law. South Dakota Attorney General Marty Jackley was among the state attorneys general to sign on to briefs supporting the prevailing arguments in Loper Bright. Piper's legal team wants Judge Lange to use the reasoning of Loper Bright to reset the appeals process in hopes of sparing their client from execution. Federal judges, they argue, ought not defer to state courts any more than they should to bureaucratic rulemakers. They're challenging the constitutionality of a law passed by Congress in 1996, called the Antiterrorism and Effective Death Penalty Act. It expects federal judges to respect state court rulings in certain death penalty case appeals unless those state courts 'unreasonably' ignore federal law or federal court precedent on constitutional questions. Farmer's fight against wetland designation gets boost from U.S. Supreme Court's Chevron ruling The issues raised through Piper's numerous appeals, including those on witnesses and jurors argued on Friday, relate to his constitutional right to a fair trial. The South Dakota Supreme Court rejected those arguments. But his lawyers said Friday that federal courts have the final say on federally guaranteed rights. Judge Lange asked skeptical questions from the bench. He pointed out that the federal death penalty law offers federal judges numerous avenues through which to rule that a state court made a mistake. He also noted the factual differences between criminal law and civil challenges to administrative rules. 'Loper Bright isn't really talking about this situation, is it?' Lange said. Attorney Stuart Lev acknowledged that, but said 'the fundamental constitutional questions are the same.' Lev pointed to other federal cases making similar arguments in death penalty appeals. He expects at least one to wind up in the U.S. Supreme Court. 'This is a claim that clearly is in the developmental stage,' Lev said. Were Piper's arguments on the Loper Bright issue to ultimately succeed, he could ask Judge Lange to take a closer look at the arguments he presented to the justices of the South Dakota Supreme Court. Attorney General Jackley was on hand to argue against that interpretation of Loper Bright. 'This isn't an instance where a federal agency is making a decision, it's an instance where a state court is making a decision,' Jackley said. He pointed out that Congress has frequently drawn lines around which courts, state or federal, have jurisdiction in different kinds of cases. In this situation, he said, Congress wanted state courts to have a greater say in death penalty appeals. Jackley nodded to the ongoing cases in which defense lawyers are making arguments similar to Piper's, but said none have yet succeeded. He asked Lange to resist being 'the first to overrule' the federal death penalty law. On the steps of the U.S. courthouse after the hearing, Jackey told reporters that Piper has exhausted his state court appeals, and that Lange has already ruled against Piper on nearly every appealable issue he's presented in state court. Jackley spoke of Dottie Poage, Chester's mother, who was on hand for the hearing. He suggested that rulings against Piper could turn Friday into one of the last times she'd need to sit through a hearing before an execution could proceed. 'She's been listening to the arguments today for 25 years,' Jackley said. 'This case is about Chester and her, and I hope that the arguments today reflect that.' Lange said he would make a ruling on the Loper Bright argument, and on Piper's remaining claims on ineffective assistance of counsel, witness and juror issues by the end of March. Piper could try other avenues to appeal his case, would still be able to ask for clemency from Gov. Larry Rhoden, and could ask for a review by the U.S. Supreme Court. SUBSCRIBE: GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX
Reuters
16-02-2025
- Politics
- Reuters
What will the Supreme Court decide next for the administrative state?
February 06, 2025 - The Supreme Court's 2023 Term was an administrative law blockbuster. The Court's decisions undermined federal agencies' authority in several significant ways. The Court ended judicial deference to agency interpretations of statutes (Loper Bright Enterprises v. Raimondo). It invalidated a regulation restricting ownership of bump stocks, suggesting that courts shouldn't defer to agencies on mixed questions of law and fact, either (Garland v. Cargill). It exposed decades-old regulations to challenge, changing the long-held understanding of a key statute of limitations by ruling that the time limit runs from an injury rather than from when the agency first issues its regulation (Corner Post, Inc. v. Board of Governors of the Federal Reserve System). Finally, the Court reaffirmed that procedural requirements for agencies have teeth (Ohio v. EPA). The question now is how much farther the Court will go to rein in the administrative state. Two consolidated cases could provide some answers, this time on the nondelegation doctrine: Federal Communications Commission v. Consumers' Research and Schools, Health & Libraries Broadband Coalition v. Consumers' Research. A little context is helpful. Loper Bright's overruling of the longstanding Chevron doctrine is a good starting point. To recap, the Chevron doctrine was a boon to agencies: it required courts to defer to reasonable interpretations of statutes the agency administered. After Loper Bright, however, what statutes mean is a question for courts using tools of statutory construction, and courts won't defer to agencies. But Loper Bright tees up further questions. While courts must interpret statutes, the Court noted, Congress may, within constitutional limits, expressly delegate discretionary decisionmaking authority to an agency. The Court suggested that Congress might use terms like "reasonable" or "appropriate" to indicate that it is empowering the agency to fill in gaps. What are those constitutional limits, and what does it mean for an agency to have discretionary authority, especially where that authority looks like the agency is making legal rules? For some Justices, the nondelegation doctrine is the answer. The basic idea is simple: The Constitution commits to Congress alone the power to make laws, so Congress cannot give others that authority. But the doctrine has been dormant since 1935, when the Court last struck down legislation as impermissible delegations of Congress' legislative authority. First, in A.L.A. Schechter Poultry Corp. v. United States, the Court held unconstitutional part of the National Industrial Recovery Act empowering the President to approve "codes of fair competition," which could be proposed by trade associations. Then, in Panama Refining Co. v. Ryan, the Court struck down another part of the same Act, which had authorized the President to prohibit certain interstate shipments of petroleum products, because Congress had not established "policy as to the transportation" or offered any "criterion to govern the President's course." But the trend didn't last. After his landslide 1936 victory, Franklin Delano Roosevelt proposed packing the Court with Justices he could trust to uphold legislation. So threatened, some say, the Justices began upholding New Deal legislation. From then on, legislation would survive a nondelegation challenge so long as Congress had set out "an intelligible principle" for exercising the delegated authority. Since 1935, no law has failed that test in the Supreme Court. That hasn't stopped litigants from asking the Court to revive the doctrine. In 2019, in Gundy v. United States, the Court rejected a nondelegation challenge, but in a split opinion signaling future interest in the issue. With Justice Brett Kavanaugh recused, five Justices upheld a broad delegation to the Attorney General. Justice Neil Gorsuch dissented, joined by Chief Justice John Roberts and Justice Clarence Thomas. The dissent advocated three guiding principles for the nondelegation doctrine. First, "as long as Congress makes the policy decisions ... , it may authorize another branch to 'fill up the details.'" But Congress must offer "standards 'sufficiently definite and precise'" to enable others to determine "whether Congress's guidance has been followed." "Second, once Congress prescribes the rule," it may make the rule's application "depend on executive fact-finding." "Third, Congress may assign the executive and judicial branches certain non-legislative responsibilities." The dissent thought the Gundy delegation failed this test because Congress didn't provide sufficient guidance. Those three votes for a more robust nondelegation doctrine could soon become five. Justice Samuel Alito played a pivotal role in upholding the statute in Gundy, but only because he thought the Court wasn't ready — as he was — to reexamine the doctrine. And Justice Kavanaugh later observed in a statement in Paul v. United States that Justice Gorsuch's analysis "may warrant further consideration in future cases." As Justice Thomas recently put it in his dissent from denying review in Allstates Refractory Contractors, LLC v. Su, "[a]t least five Justices have already expressed an interest in reconsidering this Court's approach to Congress's delegations of legislative power." The 5th U.S. Circuit Court of Appeals may have given them that opportunity. In Consumers' Research v. Federal Communications Commission, the en banc court split 9-7 to strike down the Universal Service Fund — USF — as violating the nondelegation doctrine, and the Justices granted two petitions to hear the case, with argument expected in March or April. The USF is a program administered by the Federal Communications Commission (FCC) to provide "universal service" — telecommunications and broadband internet — by subsidy where it might otherwise not be economical or affordable: to rural areas, low-income individuals, schools and libraries, and certain health care providers. In 47 U.S.C. § 254, Congress authorized the FCC to establish universal service based on six "principles," and also allows the FCC to come up with its own principles. The FCC, in turn, funds the USF by levying contributions from telecommunications carriers based on their interstate and international telecommunications revenues. The carriers, in turn, often pass those contributions on as fees to consumers (just check your cell phone bill). The program brings in $9 billion a year. To keep up with the administrative load, the FCC has delegated certain powers to a private corporation, the Universal Service Administrative Company (USAC), whose board members include representatives from groups that receive USF money. The challengers in Consumers' Research — a nonprofit organization, a telecommunications services reseller, and individual consumers, who all pay contribution fees — took issue with the USF contribution amount that the FCC set in Q1 2022 and argued that the USF violated the nondelegation doctrine. A 5th Circuit panel, applying the intelligible principle rule, disagreed. But on rehearing en banc, a 9-7 majority held the scheme unconstitutional. The majority reasoned that the combination of two issues violated the Constitution and that it didn't need to decide whether each was independently problematic: Congress gave the FCC taxing power but no intelligible principle, and the FCC impermissibly delegated that taxing power to a private agency (USAC). In November 2024, the Court took up both issues and the "combination" theory. It also added a question: whether the case is moot given that the challengers had already paid the challenged assessment, the government may have sovereign immunity against having to pay it back, and the challengers didn't seek preliminary relief from the 5th Circuit. Consumers' Research gives the Court several options. The Court could reinvigorate the nondelegation doctrine and hold that Congress failed to give the FCC an intelligible principle for deciding how much money to charge telecommunications companies to subsidize what level of service. Alternatively, it could conclude that the FCC can't pass those important decisions to a private corporation, especially one whose board membership includes representatives from USF grant recipients. The Court could do both, or, like the 5th Circuit, hold that the combination of both aspects is constitutionally problematic. Or the Court could balk and find the dispute moot, though to do so, the Court likely would have to impose new limitations on the mootness exception for questions capable of repetition, yet evading review. Of course, the Court could simply disagree with the 5th Circuit and reverse — as it did over 70% of the time last Term. In the government's view, the FCC's delegation to USAC is limited and subject to FCC guidance and review. And the statute directs the FCC to run the USF so that rural consumers may access services comparable to those available in urban areas, at similar prices. Arguably, that is an intelligible principle requiring the FCC (with USAC's help) only to make determinations about what is available and how much it costs, well within the Gundy dissent's notion that Congress may task other actors with filling in details and finding facts. Articulating why that isn't the case, or how the nondelegation test should be refined, may prove challenging. To be sure, the statute also authorizes the FCC to add principles for administering the USF, but the Justices could sever that broad delegation. Doing so would give the Justices an out to suggest what is unconstitutional even as they find the enumerated principles in the USF statute sufficient. Consumers' Research is a key case to watch. It may deal another major blow to the administrative state or it may signal that the Court recognizes that more blows could cripple government functioning. Only time will tell. Nicole Welindt, an associate in Skadden, Arps, Slate, Meagher & Flom LLP's Supreme Court and appellate practice, contributed to this article. The writers are regular, joint contributing columnists on the U.S. Supreme Court for Reuters Legal News and Westlaw Today.
