Late last month, the Supreme Court decided FCC v. Consumers Research. Although an undercard among the Court’s last-day decisions, the case was closely watched in administrative law circles as a potential vehicle for revitalizing the moribund Nondelegation Doctrine. But as predicted after oral argument, the Court found this was not the right case to do so. The big surprise was Justice Kavanaugh’s concurrence, which likely killed future efforts to reform nondelegation, but also signaled big news ahead for the law governing independent agencies.
Justice Gorsuch has long sought to revitalize the Nondelegation Doctrine. In theory, this doctrine provides that Congress cannot delegate the legislative power to federal agencies. In practice, however, the Court has allowed Congress to grant agencies broad authority to create rules and regulations, as long as it includes an “intelligible principle” to guide the agency’s discretion. This approach allows Congress to leverage agencies’ subject matter expertise—but it has also allowed agencies to supplant Congress as the primary engine of lawmaking. Justice Gorsuch has criticized the intelligible principle test, and a 2018 decision signaled he had four votes for revisiting it. Many hoped that Justice Kavanaugh would provide the elusive fifth vote to rein in agency power.
Consumers Research seemed a good test case. With limited guidance, Congress delegated the Federal Communications Commission (FCC) the power to establish the universal service fund. The Commission determines what the program supports, and funds it off-budget through a Commission-determined surcharge on monthly telephone bills. As the program grew, that surcharge increased from 3 percent in 1998 to 36 percent today, while the program has been a frequent target for waste, fraud, and abuse. Consumers Research challenged the program as an unconstitutional delegation of legislative power, and the Fifth Circuit agreed.
But it seemed clear after oral argument that this was not the right case. This was partly a litigation error: Consumers Research argued that the Fund failed even under the forgiving “intelligible principle” test, rather than squarely asking to revise the existing doctrine. Justice Kagan pressed this at oral argument, noting the parties had not discussed the stare decisis factors the Court typically considers when overturning precedent. The Court thus declined to revisit this lax standard, and unsurprisingly found that the statute provided sufficient guidance—as it has in every case since 1935.
Surprisingly, Justice Kavanaugh’s concurrence provided the most clarity about the future of the project to revitalize the nondelegation doctrine. Based on his writing prior to joining the Supreme Court and his views about other aspects of the administrative state, many thought he might join Justice Gorsuch’s crusade to replace the intelligible principle test with a more robust Nondelegation Doctrine that allowed agencies less power. But his concurrence in this case strongly suggests otherwise: He generally argued that the existing doctrine accords with historical precedent and allows the executive branch the flexibility necessary to discharge the president’s constitutional duty to take care that the laws are faithfully executed. Justice Gorsuch still needs a fifth vote to revisit the intelligible principle test; Justice Kavanaugh’s concurrence indicates that this vote will not come from him.
Perhaps more surprisingly, his concurrence also offers some guidance on another hot-button issue not present in this case: the future of independent agencies. Unlike executive branch agencies which are directly controlled by the president, independent agencies are designed by Congress to have some, well, independence from White House oversight. Typically, these are multi-member agencies with commissioners from both parties. More importantly, unlike executive branch agencies, these commissioners typically do not serve at the will of the President, but instead are appointed for fixed terms and removable only for “good cause.” Although the Court has previously blessed the constitutionality of these arrangements, several current Justices have questioned these precedents.
Justice Kavanaugh’s concurrence suggests the intelligible principle doctrine may be insufficient to control delegations to independent agencies. (This was not at issue in this case, because although the FCC is often described as an independent agency, its commissioners are not insulated by “good cause” protection.) Unlike executive agencies, independent agencies are not directly accountable to an elected official, which risks significant power being exercised by unelected bureaucrats. Kavanaugh proposed two solutions to this problem: Applying a more robust Nondelegation Doctrine to these agencies, or overturning Humphrey’s Executor, the case allowing independent agencies to be insulated from presidential control.
Many expect the Court to take up the latter question soon, perhaps in the litigation involving President Trump’s dismissal of two Democratic members of the Federal Trade Commission. And it’s likely the Court will overturn Humphrey’s Executor. Kavanaugh signaled that he’s on board with this plan—meaning that Consumers Research does signal a forthcoming change in administrative law, just not the one we expected.
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