WASHINGTON – The Supreme Court could further weaken the power federal agencies Friday by agreeing to hear a dispute over a Federal Communications Commission program that requires companies to subsidize telecommunications services in underserved areas.
The case marks the last opportunity for business interests to silence regulators in court, with a 6-3 conservative majority sympathetic to their arguments.
The court left open the possibility of avoiding a ruling on the case by asking lawyers to argue whether the legal dispute was moot.
The broader legal principle at issue in the case is whether Congress gave the FCC too much power to determine how much companies must pay in subsidies, which are now in the billions of dollars. A court may adopt what is known as the “doctrine of submission.”
The theory, which conservative justices have expressed support for without fully adopting, would limit Congress’ ability to pass open-ended laws that give agencies significant leeway. If the court rules against the FCC, it could open up other longstanding practices to judicial review of a range of issues that the federal government currently regulates, from banking to the environment.
The FCC case raises two related issues, one of which concerns the broader question of whether Congress has exceeded its authority. Another is whether the FCC should delegate the authority to set fee amounts to a private company.
As a result of conflicting lower court rulings, both the FCC itself and a coalition led by Consumer Research, a conservative group that opposes the current system, asked the Supreme Court to reconsider.
The 1996 law in question required the FCC to create a Universal Service Fund, which would require telecommunications carriers to submit fees to subsidize so-called “universal service” in low-income and rural areas. The following year, the FCC created a private corporation called the Universal Service Administrative Company to administer the fund.
The FCC appealed to the Supreme Court after the 5th US Circuit Court of Appeals in New Orleans ruled against the agency.
Conservative Justice Andrew Oldham wrote for the majority that the program was a “misguided tax” that violated “fundamental constitutional principles.”
Earlier this year, the Supreme Court issued a series of rulings against federal agencies, including one that overturned 40 years of precedent that allowed agencies to interpret vaguely written laws. All three decisions were decided 6-3 along ideological lines, with conservative justices and liberal justices in the majority opposition.
The decisions are the result of a long war against the administrative state, which is supported by business interests and conservative politicians. The first administration of President-elect Donald Trump selected judicial candidates in part because of their hostility to the federal bureaucracy. Three of them work in the Supreme Court. Oldham, on appeal, is different.
However, a decision to limit the powers of the executive branch could potentially create obstacles for Trump, who has said he will be aggressive in using executive power in his second term, including with his own plan. apply wide tariffs.