The working relationship between Congress and federal agencies may rest on the outcome of a case that will soon be decided by the Supreme Court.
During arguments Wednesday, the justices appeared divided on whether to give new life to the long-dormant nondelegation doctrine as they considered a fight over the Federal Communications Commission’s power to levy fees to pay for universal telecommunications services nationwide. The doctrine, which the court has only used twice in cases decided nearly a century ago, bars lawmakers from giving too much power to federal regulators, and it has the potential to limit Congress’ ability to enact requirements for agencies like EPA to tackle issues like climate change.
Members of the Supreme Court’s supermajority appeared to want more guardrails on how Congress hands authority to agencies, but they also seemed uncomfortable with the real-world implications of unraveling a program that provides access to phone and internet services in rural and low-income areas.
Still, Justice Neil Gorsuch — who has expressed interest in reviving the nondelegation doctrine — pressed acting Solicitor General Sarah Harris to explain the conditions under which Congress can lawfully delegate power to an agency.
