The Supreme Court has agreed to hear two cases that could significantly impact the role of administrative agencies and the extent of power delegated to them by Congress. At the behest of the Biden administration, the justices accepted to review a recent decision by the U.S. Court of Appeals for the 5th Circuit. This decision had struck down aspects of a Federal Communications Commission (FCC) program intended to enhance internet and phone services in underprivileged areas. According to the appellate court, the program violated constitutional principles by improperly delegating Congressional authority to the FCC and allowing the FCC to delegate its power further to private entities. The nondelegation doctrine, central to this matter, has not been invoked by the Supreme Court in almost a century but has seen renewed interest from conservative legal and business circles.
These cases, Federal Communications Commission v. Consumers’ Research and Schools, Health and Libraries Broadband Coalition v. Consumers’ Research, present a substantive examination of the nondelegation doctrine. The Supreme Court, during a private conference, has also directed involved parties to deliberate on an additional matter: the potential mootness of the case due to Consumers’ Research’s failure to seek temporary relief at the 5th Circuit level.
The proceedings for these consolidated cases are scheduled to occur sometime in March or April of the upcoming year, with a decision anticipated by late June or early July. For more detailed analysis and discussion on the implications of these cases, one can refer to the relevant commentary provided by John Elwood and Kal Golde on SCOTUSblog. This article was originally published on Howe on the Court and contains further insights into the court’s considerations in these potentially precedent-setting cases.