Southeastern Legal Foundation (SLF) filed a Supreme Court amicus brief in FCC v. Consumers’ Research, urging the Court to rein in the other branches of government and restore constitutional balance. Congress has slowly but surely been assigning more and more of its legislative power to the executive branch without the constitutional authority to do so. Once again it is unconstitutionally giving power to the FCC to determine how to advance “universal service” so that more Americans have access to telecommunication services—a power that lies with Congress.
SLF explains in its brief that “the law does not define universal service or set any concrete goals for attaining [it].” Instead, Congress leaves it to the FCC to take “necessary and appropriate” measures to make rates “just, reasonable, and affordable” without defining what any of those terms actually mean. Congress’s use of “vague and undefined language” and failure to define terms will allow for “unelected career bureaucrats” at the FCC to “hand-craft” and enforce their own policies without accountability.
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This poses a major problem for separation of powers, and it is why the nondelegation doctrine exists. Under that doctrine, courts hold the other branches accountable by striking down executive actions that are really legislative in nature and should be carried out by Congress, not unelected bureaucrats.
Over the years, the nondelegation doctrine has weakened as the administrative state has grown. SLF is calling on the Supreme Court to revisit the doctrine and strengthen it, particularly by looking at the original intent of the Framers, who intentionally made the legislative process slow and difficult to prevent tyranny of the majority. Handing this authority over to the executive branch—made up of thousands of unelected and unaccountable bureaucrats—instead of carrying out their constitutional duties is dangerous to a thriving democratic republic.