The Silver Thread FCC v. Consumers’ Research Added to Nondelegation

Asking for a silver lining in the Supreme Court’s FCC v. Consumers’ Research nondelegation opinion may be too much. Perhaps, however, an optimist can find threads of reasons to hope for a better outcome in the future.

Last November the Supreme Court granted certiorari in FCC v. Consumers’ Research. Many court-watchers were hopeful the Supreme Court would take a fresh look at the nondelegation doctrine and its use of the intelligible principle test. The nondelegation doctrine is meant to enforce the Constitution’s dictate that all legislative powers are vested in Congress. The goal of the doctrine is to ensure that before Congress grants authority to the Executive Branch, it provides sufficient direction and limitations to leave the Executive with the task of carrying out, rather than making, legislative decisions. In the late 1920’s the Court summarized this by stating: “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.”

Today, however, the nondelegation doctrine has become so insubstantial that federal courts have repeatedly stated that Congress can delegate legislative power so long as certain conditions are met. Much of what is wrong with today’s nondelegation doctrine can be traced to the Supreme Court’s American Power & Light decision of 1946, which made the already forgiving “intelligible principle” test impotent. In that casethe Court found the statue at issue, particularly when considered with the statute’s purpose, factual background, and statutory context, provided adequate limits on the agency. The Court went on then, to say that so long as Congress “delineates the general policy,” the agency to implement it, and “the boundaries of this delegated authority,” that was “constitutionally sufficient.” The Court further stated that it had previously approved “public interest” and similar legislative standards.

At least two problems followed. First, courts came to accept any limitation, even on subject matter or an agency’s jurisdiction, as a “boundary” of delegated authority. This freed Congress to effectively provide the Executive with open-ended directional guidance rather than constraining standards. Second, even though the Court oversimplified its “public interest” statement to the point of error, Congress, and the Executive took it at face value and subsequent courts reasoned that anything more definitive than “in the public interest” was enough legislative guidance. Thus, the Supreme Court has not found the nondelegation doctrine to bar any transfer of power from Congress to the Executive since 1935.

Such was the state of affairs when the Supreme Court issued its FCC v. Consumers’ Research opinion this past June. And, contrary to the hopes of many, not much has changed. The Supreme Court again found that its intelligible principle test adequately serves its constitutional purpose and that the statute before it satisfied that test.

Yet, one can find glimmers of hope in the Court’s opinion. First, the Court construed the statute in FCC v. Consumers’ Research more strictly than the agency and lower courts had in previous decades. Prior interpretations, often relying on Chevron, found that the FCC was free to balance the various principles that Congress provided in the statute. During such balancing, the FCC could essentially ignore one principle when it conflicted with another the Commission was emphasizing. The Supreme Court, however, determined that the Commission is bound by each principle and other mandates in the statute such that Congress had provided limits rather than suggestions on the programs to be funded, the beneficiaries of the programs, and thereby the funds it could collect.

Second, the Court repeatedly rejected the idea that it had accepted “public interest,” standing alone, as an adequate intelligible principle. The Court reiterated what it had said in 1943, that it is “a mistaken assumption that the phrase ‘public interest’ is a mere general reference to public welfare” without any further standard. Hopefully this is the beginning of the end of the public interest fallacy.

Finally, there is hope that the Court will return to its prior requirements that Congress constrain agencies with actual standards rather than directional aspirations. Harkening back to a decision pre-dating Atlantic Power & Light, the Court noted in addition to requiring Congress to provide a general policy and boundaries of authority, the Court has “asked if Congress has provided sufficient standards to enable both ‘the courts and the public [to] ascertain whether the agency’ has followed the law.” The Court also declared that the statute at issue established the “metes and bounds” of the agency’s authority. Sufficient standards or a metes and bounds limitation does not leave a single boundary undefined. This, meager as it is, provides a thread of hope that the Court may someday strengthen the nondelegation doctrine so it actually serves its important constitutional purpose.

August 7, 2025