Six years after the Supreme Court took on the question in Gundy v. United States, 588 U.S. 128 (2019), of when, if ever, Congress has unconstitutionally delegated legislative power to the executive branch, the Court will try again to articulate a standard that a majority of the Court can accept. The case is FCC v. Consumers’ Research, in which the Fifth Circuit, diverging from two other courts of appeals that sustained the law against identical challenges, held that the law excessively delegated legislative power to the FCC. The statute at issue implements the Universal Service Program that funds telecommunications services to rural and other underserved communities through assessments on the carriers that provide those services. What makes the case of particular interest is that various amici whose briefs have been filed alongside that of the FCC have quite different views on what the Court should say about the nondelegation issue.

Most delegation cases involve statutes, like that in the FCC case, in which Congress has directed a federal agency to carry out a program that Congress has established, and the basic issue is whether Congress has made the important policy decisions and reasonably confined what the agency may do. The Court has upheld every delegation since 1935 on the theory Congress has provided the agency an “intelligible principle” to guide its actions. Some members of the Court had questioned whether that principle was the right way to look at the question, and the Court granted review in Gundy, even though the courts of appeals had unanimously upheld the law challenged there.

The part of the statute at issue in Gundy was very different from those typically involved in delegation cases. It was part of a federal law that expanded the requirements that individuals who have committed sex crimes register with state officials where they reside. But Congress could not agree on the very controversial question of whether to make the law retroactive so that it would apply to convictions that predate the law, and so it punted that one-time choice to the Attorney General, who decided in favor retroactivity.

The Gundy plurality construed the statute to require retroactivity as long as it was “feasible,” and therefore there was no delegation problem. Three dissenters, in a lengthy opinion written by Justice Gorsuch and joined by Chief Justice Roberts and Justice Thomas, found that reading to be improbable and concluded that, because Congress had failed to provide any guidance on the choice to be made, the delegation was invalid. Justice Alito concurred only in the judgment sustaining the law, but indicated his willingness to review the non-delegation jurisprudence in an appropriate case. Justice Kavanaugh did not participate because he was not yet confirmed when the case argued, but in a subsequent case involving the same statute, Paul v. United States, 140 S. Ct. 342 (2019), he indicted his interest in examining the delegation issue further.

In a brief filed on January 8, 2025, the Solicitor General defended the FCC law in a traditional way, arguing that the statute contained an intelligible principle and was at least as definite as many other laws that the Court had upheld. Most of the 30 amicus briefs filed to date touch lightly if at all on the delegation issue, but mainly explain the devastating effects on underserved communities if the decision below were affirmed. Two briefs supporting the FCC devoted most of their attention to other aspects of the intelligible principles doctrine. The National Foreign Trade Council brief agreed that the FCC law was constitutional, but suggested that a refinement of the intelligible principle approach was needed. Its main concern was in the area of trade, where both the Trump and Biden administrations had imposed massive tariffs under section 232 of the Trade Expansion Act of 1962. Their brief argues that section 232 has no limits on the amount or duration of tariff increases, and it permits the President to favor some countries over others and allows for cases by case exemptions—none of which is subject to judicial review of any kind. It proposes that, where a law contains no guardrails of any kind on what the executive branch may do, the law contains an excessive delegation in violation of Article I of the Constitution. The brief contends that this refinement will be workable and will not alter the rulings in the Court’s most significant delegation cases.

The brief submitted on behalf of University of Michigan law professors Julian Mortenson and Nicholas Bagley examines the history of Article I and the early statutes enacted by Congress and concludes that there is no originalist basis for the delegation doctrine. Reading only the argument portion of this brief would lead to the conclusion that there is no basis for the non-delegation doctrine at all, which would be an easy road to reverse the Fifth Circuit. However, the summary of argument contains suggestions that the amici may not be quite so absolutist where it objects to “strict” nondelegation (& others). Moreover, the brief never explicitly asks the Court to abolish the doctrine entirely.

A third amicus brief filed by the Chamber of Commerce supports neither side. [Editor’s Note: Earlier this month, the blog published a post by Chris Walker on this brief, entitled A Proportionality Principle for the Nondelegation Doctrine.] The Chamber’s brief contends that the intelligible principle test is too permissive. As an alternative, the brief argues that the Court should create a new test that focuses on the “importance” of the statute, with more significant laws requiring greater specificity. The brief does not explain from whose perspective importance should be determined or how to determine the point on the spectrum of importance that the heightened delegation requirement kicks in. Moreover, the brief identifies no case in which it suggests that the Court should have struck down the law, including the one in this case, making it very difficult to assess the impact of its proposed new standard.

And the Court has yet to hear from respondents and in all likelihood some amici who may take other intermediate positions that might still sustain the ruling below.

Of course, the path of least resistance would be for the Court to follow the Solicitor General by agreeing that there is nothing wrong with the intelligible principle test and sustain the FCC’s law in this case. Except for Gundy, that would seem the likely outcome. However, given the votes in Gundy and Paul, that would be a surprise outcome if—and it is a big if—five Justices can agree on the replacement or refinement of the intelligible principle test.

Alan B. Morrison is an associate dean at The George Washington University Law School where he teaches constitutional law and civil procedure. He is counsel for the amicus National Foreign Trade Council, whose brief is discussed in this post.