WASHINGTON — The Supreme Court on Wednesday appeared unlikely to strike down a Federal Communications Commission program that subsidizes telecommunications services in rural and low-income areas.
Although the court has a 6-3 conservative majority that has undercut the authority of government agencies in a series of recent decisions, justices expressed reservations about the legal argument made by challengers.
The case concerns whether Congress in a 1996 law exceeded its authority in setting up the Universal Service Fund, which requires telecommunications services to submit payments to subsidize “universal service.”
The fees, which are passed on to customers, raise billions of dollars a year that are spent on providing phone and internet services, including for schools, libraries and hospitals.
A second, connected legal question is whether the FCC could delegate its own authority to a private corporation it set up called the Universal Service Administrative Company to administer the fund.
The case seeks to have the court to breathe new life into the “nondelegation doctrine,” which states that Congress has limited powers to delegate its lawmaking authority to the executive branch.
But during oral arguments, even some conservative justices who have previously expressed interest in the idea had questions about whether the FCC program was unlawful.
Overall, a broad majority seemed to have reservations, not least because a ruling against the agency would cause significant upheaval to the provision of a key service.
Both conservative and liberal justices pushed back on the idea that the program is completely open-ended, with no constraints set by Congress.
“There are some real standards in this program,” said liberal Justice Elena Kagan.
“The FCC can’t do anything by way of this program that is not basically geared towards getting those who live in very rural areas or who are very low income, get access to services that all the rest of us have,” she added.
Conservative Justices Brett Kavanaugh and Amy Coney Barrett, both potentially key votes, questioned Trent McCotter, a lawyer for the challengers, on his view that the legal issue would be fixed if Congress simply set an arbitrary dollar cap on how much the program could spend, even as high as $1 trillion.
If that is all that will be resolved, “the question is exactly what we are accomplishing,” Kavanaugh said.
Barrett said such a result “seems pretty empty” because it would be “just kind of throwing a number out there for the sake of throwing a number.”
Justice Neil Gorsuch, who has strongly backed the nondelegation doctrine, seemed to be most eager to rule against the FCC.
He said the program is sufficiently broad in scope and with no funding cap, meaning that hypothetically, the FCC could seek to provide every American with a connection to the Starlink satellite-based internet service offered by Elon Musk’s Space X company.
“Sounds like it’s a pretty good deal. I’d like one,” Gorsuch joked.
Although the Trump administration has unleashed an aggressive and fiercely contested effort to weaken federal agencies by firing thousands of workers, its lawyers are defending the FCC in the case. The issue reached the Supreme Court before President Donald Trump took office in January, and the Justice Department has not changed its legal position from the Biden administration’s.
The Trump administration has sought to exert the powers of the presidency at the expense of Congress and the judiciary, so its position in the case is consistent with that approach.
In fact, during the argument, there was some discussion of how the nondelegation doctrine could potentially limit the president’s power to impose tariffs, which Trump has been eager to do.
“We have a lot of tariff situations where, historically, from the beginning of the country, Congress didn’t set a limit,” liberal Justice Sonia Sotomayor said.
The current court has not yet embraced the nondelegation doctrine, although in different contexts, a majority of justices have expressed support for it. If the court were to endorse it, agencies would face new limits on their powers to implement existing laws and programs that seek to enforce open-ended laws enacted by Congress.
Critics of the legal status quo say that a revival of the nondelegation doctrine would restore the correct balance between Congress and the executive branch under the Constitution’s separation of powers principle by ensuring that lawmakers are in control of imposing taxes and spending the money they generate.
Even if some of those concerns are valid, “this is simply not the right vehicle for this court to revamp its nondelegation doctrine,” said conservative lawyer Paul Clement, who argued on behalf of various groups defending the program.
Lower courts were divided over the issue, with both the FCC and a coalition led by Consumers’ Research, a conservative group, asking the Supreme Court to weigh in.
Opponents call the Universal Service Fund fee a form of tax and say only elected officials, not bureaucrats, have the power to impose it. The 1996 law is particularly problematic because it does not tell the FCC how much money it can raise via the program, the challengers’ lawyers argue.
In court papers, lawyers for Consumers’ Research described the program as a “bureaucrat’s dream” and a “nightmare scenario.”
The Biden administration appealed to the Supreme Court after the New Orleans-based 5th U.S. Circuit Court of Appeals ruled against the FCC.
The argument laid out in court papers by the Justice Department in both the Biden and the Trump administrations is that while Congress cannot “delegate legislative power to executive agencies,” it can “authorize an agency to exercise discretion in implementing a statute.”
