Supreme Court takes up major appeal testing power of federal agencies

By John Fritze, CNN

(CNN) — The Supreme Court agreed Friday to wade into a fight over Congress’ ability to delegate power to federal agencies — opening the next chapter in a decadeslong effort by conservatives and business interests to reduce the power of the federal government.

The appeal, filed by the Biden administration, comes months after the high court handed down a blockbuster ruling limiting the power of federal agencies to interpret vague federal laws on workplace conditions, environmental protections and consumer safeguards.

At issue in the latest case is the mechanism used to fund the multibillion-dollar Universal Service Fund, through which the Federal Communications Commission provides reduced-price phone and internet services for rural schools, low-income families and others. But the court’s decision, expected by June, could have a much wider impact, affecting delegations of power by Congress to other agencies.

The Supreme Court granted two appeals Friday dealing with the same issue, one from the Biden administration and another from a coalition of schools and libraries that would be affected by the court’s decisions. The high court also added a question to the case, ordering the parties to discuss whether the case is moot because of how it was handled in the lower courts.

In 1996, Congress created the fund and required telecommunication companies to contribute to it — a cost that is generally passed on to consumers. Critics say that arrangement acts like a tax and that the law violates the Constitution by “delegating” Congress’ taxing authority to the FCC. The appeal also raises questions about the constitutionality of the FCC’s decision to let a private entity manage the fund.

The case is the latest in a series of efforts — most of which have been successful — to shift the balance of power between Congress and the presidency. The court is likely to decide the issue by June, months after President-elect Donald Trump begins his second term.

A nonprofit “consumer awareness group” and others challenged the FCC’s funding arrangement in several federal courts, losing in the Cincinnati-based 6th Circuit and the Atlanta-based 11th Circuit but winning in the New Orleans-based 5th Circuit. The Supreme Court initially declined to decide the question, but the 5th Circuit ruling against the government prompted an appeal from the Biden administration.

The Supreme Court last invoked the “nondelegation doctrine” in the 1930s but has since permitted Congress to delegate authority under certain conditions. Conservative groups in particular have argued the permissiveness has perverted separation-of-powers principles, allowing government agencies to take the lead on difficult choices that critics say should be left to elected lawmakers.

The high court handed down several major cases earlier this year challenging the power of what critics call the “administrative state.” In one, the court overturned a precedent that required lower courts give deference to federal agencies when interpreting vague laws — an outcome that has already inspired a flood of challenges to other federal regulations.

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