Every American’s monthly phone bill includes a line item for the “Universal Service Fund” (USF), a fund set up by Congress and managed by the Federal Communications Commission (FCC) to subsidize telephone service and now broadband service. But neither Congress nor the FCC set the USF fee level. Instead, that task has been delegated to a private entity, the Universal Service Administrative Company (USAC). USAC sets the fee, and, so long as the FCC does not object within 14 days, it is “deemed approved by the Commission.”
In a brief filed on February 18 with the U.S. Supreme Court, we at NTUF’s Taxpayer Defense Center argue that this double delegation is unconstitutional. This scheme is abhorrent to a country founded on the principle of “No Taxation Without Representation.” Indeed, keeping tax policy accountable to the people was a key legal argument made by the Founders in supporting the Revolution. The Stamp Act, Sugar Act, and other repressive tax policies animated the debate about why the original colonies needed independence from Great Britain.
We cited previous Supreme Court cases, such as one from 1936 that called granting government’s coercive power to private parties “legislative delegation in its most obnoxious form,” and a 2015 opinion from Justice Alito that noted that “[w]hen citizens cannot readily identify the source of legislation or regulation that affects their lives, Government officials can wield power without owning up to the consequences.” Having the USAC set a monthly fee on most Americans may be good politics for Congress and the FCC, but it’s not good governance and not good constitutional practice.
Our amicus brief asks the Court to strengthen the nondelegation doctrine, saying Congress cannot delegate core legislative tax decisions to a federal agency or a private corporation. Our brief also addresses a technical question the Court asked on whether the challengers needed first to seek emergency stays of the USF. We argue that no case should be sidelined by requiring the challenger first seek stays. Requiring emergency stays would compel quick briefing schedules and time-pressured decisions by the courts. That’s not necessary in most cases, including this one.
The cases are Federal Communications Commission v. Consumers’ Research (US No. 24-354) and SHLB Coalition v. Consumers’ Research (US No. 24-422). The cases are set for oral argument on Wednesday, March 26, 2025.