Today the U.S. Chamber of Commerce filed an amicus curiae brief in support of neither party in FCC v. Consumers’ Research, articulating a proportional approach to the nondelegation doctrine. Here’s the start of the argument:

The Constitution vests the Legislature with discretion in making policy and vests the Executive with discretion in executing the law. It is an easy enough line to recite, but a more difficult one to police. For almost a century, the intelligible-principle test has not proven up to the task. Further elaboration of the nondelegation doctrine is needed.

The Judiciary should reaffirm its constitutionally prescribed role in holding the other branches to their own spheres. This Court need not demand that Congress decide every minute policymaking detail. But when the Legislature abdicates its lawmaking authority in favor of mere goalmaking, the Judiciary can and should intervene. It should require Congress to provide more instruction as it vests the Executive with the authority to make more and more important judgment calls. And it should follow the guidance from early sources on how Congress can properly grant authority to other branches: by supplying both an object to achieve and a route to get there.

This proportional approach to nondelegation will change little about how the Court treats cases at both extremes. Statutes directing the Executive to fill up details have always survived scrutiny and will continue to do so, while ostensible delegations on extremely important and politically sensitive issues will often fail anyway under the related major-questions doctrine. Where a revitalized nondelegation doctrine will have the most impact is in the middle, for questions that are significant but not so significant that it is implausible that Congress granted the agency the authority to answer them. For those cases, a faithful application of nondelegation principles protects political accountability and individual liberty while still preserving regulatory flexibility. And although the test would be more rigorous—and thus might pose more edge cases—than the current intelligible-principle test, it is still an administrable standard akin to other constitutional tests that courts regularly apply.

We urge this Court to adopt this proportional approach to the public nondelegation doctrine and remand the case. The detailed instructions that Congress provided in establishing the Universal Service Fund’s funding mechanism may very well be sufficient to provide the Executive with both an object to achieve and a route to get there. The court of appeals is well positioned to decide that question in the first instance, after the parties have an opportunity to address the statute under the appropriate framework.

You can download the Chamber’s brief here. All of the briefing is available on the Supreme Court’s docket here. As disclosed on the brief’s cover, I work as of counsel at the U.S. Chamber Litigation Center.