CN
26 Mar 2025

WASHINGTON (CN) - The Supreme Court joined the chorus of officials questioning restraints on federal agencies Wednesday, revealing deep ideological divides between the justices on funding for phone and internet services in rural areas.  

Congress mandates that telecom carriers contribute to the Universal Services Fund to provide affordable and reliable communications services for all Americans. The program operates under the Federal Communications Commission but is administered by a private nonprofit corporation that operates under the agency's oversight.

If the FCC can give a private company authority to manage the fund, the conservative justices worried about what else federal agencies could do without direct congressional oversight.

Justice Neil Gorsuch, a Donald Trump appointee, claimed the same authority could be used to "give everyone in America a Starlink account," referring to billionaire and presidential adviser Elon Musk's satellite internet service.

The FCC's delegation of authority to the Universal Service Administration Company was comparable to the Internal Revenue Service self-administering a scheme to address the national debt or pay for universal health care, according to Gorsuch.  

At the heart of Wednesday's nearly three-hour oral argument session was whether the FCC violated the nondelegation doctrine - a policy preventing one branch of government from giving its authority to another branch.

Consumers' Research, a conservative advocacy group, challenged the Universal Service Administration's 2022 contribution calculation for telecom companies. The group argued that the FCC and Congress unlawfully abrogated authority to fund administrators.  

"This case is about taxation without representation," said Trent McCotter, an attorney with Boyden Gray representing the group. "Every year Americans pay billions for the Universal Service Fund. The rate has increased ten-fold."

In the same vein as other pushes to limit federal agency authority from the Supreme Court and now the White House, the nondelegation doctrine weighs how closely agency actions mirror congressional statutes. 

Consumers' Research's arguments relied on the justices seeing the FCC's authority as limitless. The statute's lack of constraints, the group claimed, proved that Congress gave the FCC unconstitutional authority over the fund.

Justice Samuel Alito, a George W. Bush appointee, said the Universal Service Fund's lack of congressional oversight had led to damning fraud reports.  

"If you look at the record here, isn't it really hard to say anything other than the fact that they just have rubber-stamped whatever the USAC has told them," Alito said.  

However, the government fought those assumptions, stating that the justices were taking the words of the Communications Act - which governs the fund - out of context. Alito and Gorsuch's reading, the government said, was divorced from the limitations Congress created for the Universal Services Fund.  

"The proof is how the FCC has interpreted," Sarah Harris, acting solicitor general for the Justice Department, said. "This is more of a belts and suspenders provision than a do whatever you feel like provision."  

Like in prior cases, the justices were deeply divided over the nondelegation doctrine's role in government administration.  

American taxpayers are typically critical of how the government spends money, Justice Sonia Sotomayor noted, but the Barack Obama appointee said anyone with a phone bill can see a line item delineating funds for universal services.

"What you're saying ... is in a time when the federal budget is being slashed dramatically, we should ask Congress to appropriate something that taxpayers know they're already paying and have agreed to," Sotomayor said.  

Justice Elena Kagan appeared outraged by how Consumers' Research characterized universal services. The Obama appointee forcefully rejected any suggestion that the fund was somehow gratuitous, stressing the essential services provided by the program.

"What this program covers is things that a substantial majority of residential customers already have," Kagan said. "It's not like newfangled, go all get ourselves some Starlink accounts - it's [things] a substantial majority of residential customers already have that are essential to living in our world, that are essential to education, public health and public safety."  

Any interest from the conservatives in restricting government agencies through nondelegation waned, however, as the potential consequences of squashing the fund surfaced. The government said ruling in favor of Consumers' Research would be devastating for universal service and upend numerous other statutes.

Some of the justices appeared dissuaded by Consumers' Research's broad arguments. Justice Brett Kavanaugh, a Trump appointee, tried to pin down how what limits the group wanted to see.  

Consumers' Research dodged answering the question directly, suggesting that the limit could be a numerical budget cap or something else.

Justice Amy Coney Barrett, also a Trump appointee, said assigning a numerical cap on the agency wouldn't be particularly productive.

"That seems pretty empty ... if they say $3 trillion or $5 trillion, it's just throwing a number out there for the sake of throwing a number," Barrett said. "Why would they set the policy in a way that's actually meaningfully different than in the statute?"  

An attorney representing a coalition of schools and libraries served by the program said this case was not the appropriate vehicle to create new rules for nondelegation. But a different program might provide such an opportunity.

"I think that there probably are," Paul Clement, an attorney with Clement & Murphy, said when asked by Barrett if there are any programs in the U.S. Code that unlawfully delegate discretion.  

"And I might," Clement continued, "if I get the right client, spend some time looking for them."  

Source: Courthouse News Service