The Supreme Court spent Wednesday morning looking very seriously into a case where no one could take it seriously.
FCC v. Consumer research The judiciary asks to revive long-standing legal doctrine known as “secretism.” This places strict restrictions on Congressional power to delegate power to federal agencies and essentially move that power to justice. The question of this legal doctrine is that, in addition to the difficulties it creates for the institution seeking to implement the mandate, it is impossible to come up with principled rules to guide judges to break the laws that empower the institution, as it is not visible anywhere in the Constitution.
Consumer research Also, the case is a strange means of reviving the doctrine of secularism, as certain laws in question in this case should be clearly supported under the court's current secular precedent. In fact, even if the court abandoned these precedents in favor of an alternative, more restrictive, secular framework proposed by Judge Neil Gorsuch in the 2019 dissent, the federal program in question would be Consumer research It should still be supported.
All Republicans in the court expressed sympathy for the broader project, which expanded the court's power to dismiss federal agencies, but only three people were thought to be more likely to break the law in question. Consumer research. The court's opinion in this case could still have considerable long-term implications when accepting Gorsuch's proposed framework or expanding judicial powers. However, the statutory scheme that precedes justice today seems likely to survive.
In this case, what is the problem?
Consumer research Includes a program known as the Universal Service Fund. It provides telephone and internet services to rural areas and other areas where wiring is difficult. Without this program, these services would be prohibitively expensive in many poorer or sparse parts of the country.
The Universal Services Fund effectively taxes telephone and internet service providers and uses that money to pay services in these expensive areas. As a practical issue, it means that service providers will pass the cost of this tax to urban and suburban customers. This means that urban people will subsidize communication for people in rural communities.
One of the challenges congressional faced when creating this program is the amount that funds have to raise as funds differ year by year to achieve universal services. Therefore, rather than setting an accurate annual tax rate for service providers, Congress has entrusted the Federal Communications Commission (FCC) to determine the amount the fund should collect.
Federal law in question Consumer research It provides very detailed instructions on how to make this decision. We only allow FCC to subsidize services used by “a significant majority of residential customers.” The FCC instructs rural customers to raise enough money to pay other customers a “reasonably comparable” rate, and lays out many other principles that the FCC must follow.
Therefore, the FCC should consider the communication services that the vast majority of Americans already have, and raise enough funds to ensure that rural customers pay similar fees to urban customers.
In the current court precedent, Congress only provides an “explainable principle” that must be followed when exercised authority, and there is no serious argument that this law failed this test.
The opposite of Gorsuch Gandy vs. USA (2019) also proposed new, rather vague rules, with concern. Congress must place “clearly and accurately” to ensure that the Congress, the courts and the public “are following or not.”
Only three people believed the Universal Services Fund was illegal
Perhaps for this reason, Judge Clarence Thomas proposed a completely novel way to invalidate the fund. Thomas suggested that secular doctrine should be applied with more force in tax litigation, limiting Congress' powers to decide how much federal agencies should raise.
However, one of the problems with Thomas' approach is that the courts Skinnerv. Mid-America Pipeline Co. (1989) the Constitution does not require the application of another, more strict secular doctrine, in cases where Congress delegates discretion to the executive authority based on taxation rights.” Therefore, if you reach Thomas's favorable outcome, the court must dismiss it. Skinner.
Meanwhile, Judge Samuel Alito followed his typical practice of Republican orthodox plaguing the rebuttals with a series of unrelated questions.
During the course of the discussion, Alito and Gorsuch complained that they created companies to advise on how the FCC sets fees and that they could use taxing power to destroy the companies, asking for input from the same companies that the FCC is taxing. At one point, Gorsuch came on a strange tangent about how the government's decision to dissolve “Ma Bell” in 1982 would disband other telephone monopolies.
None of these arguments relates to whether the Universal Services Fund is constitutional, at least under existing law.
Meanwhile, other Republicans in the court have asked skeptical questions about two lawyers who defended the fund, but ultimately seem to conclude that this particular secular assignment cannot be implemented.
Judge Brett Kavanaugh, for example, asked his deputy Governor General Sarah Harris how to distinguish between taxes and “fees.” This is a question that suggests that Kavanaugh has sympathy for Thomas's position, but ultimately he seemed satisfied with Harris' reaction that this distinction was “murmbling with practical disbelief.”
Similarly, Judge Amy Coney Barrett asked Harris to distinguish the law from other virtual laws. This will force the IRS to raise more serious non-reinterpretation questions, such as the law “raising enough funds to provide food for the poor,” but she was also skeptical that this particular law was unconstitutional.
In particular, Barrett threw cold water at Thomas' suggestion that there should be special rules for taxes. Congress said it could solve the problem by imposing a $3 trillion cap on the fund's funding capabilities, but that would be an empty requirement that nothing more than throwing out “to throw away the numbers.”
In other words, the general desire for Republican justice is that five of them have publicly expressed at one point, and the general desire to expand the desire to be expressed openly. Consumer research This is because this is a very poor vehicle for expanding non-delegation. As Justice Ketanji Brown Jackson said, Congress' direction to the FCC was as detailed as possible, unless the Supreme Court wanted to strip Congress.
The court can still use this case to seize power
Even the Trump administration agrees that the Universal Services Fund is legal, but it is worth noting that the federal government switched positions in the case after Trump took office. The initial government summary, filed in the last two weeks of the Biden administration, argues that courts should apply existing laws and support the fund. In contrast, its reply brief (a simple response to the argument on the other side) deals with Gorsuch Gundy They challenge it as if it were a law. A reply brief was submitted after Trump took office.
Even if the courts support the Universal Services Fund, Republican justice could use the case to abandon the long-standing “Understandable Principles” framework. Because it is the later framework is so vague, the decision to accept Gorsuch's approach would give judges much more discretion to hit federal programs they don't like.
So in this case, even if the court refuses to attack a very weak law in question, this case can be used to achieve a critical force grab. The Gorsuch framework shifts enormous power from federal agencies controlled by elected presidents and towards justice ruled by lifelong Republicans. That means that the American people have far less control over how they are governed.
