Supreme Court Grants Certiorari in Nondelegation Case. “This case arises out of challenges to the constitutionality of the FCC’s Universal Service Fee, and may produce a major administrative law decision–but the Court also gave itself an out. . . . Note that this case both presents traditional nondelegation questions–whether there are limits on Congress’ power to delegate authority to a federal agency–but also what is referred to as the ‘private nondelegation doctrine.’ This latter doctrine concerns whether there are distinct limits on the ability of Congress to delegate (or authorize the delegation of) power to private entities. Concluding there are limits to the delegation of power to private entities (or limits on the ability of agencies to subdelegate such power) does not require concluding that the nondelegation doctrine itself has much force. In other words, the Court could conclude that the method of determining or imposing the Universal Service Fee is unconstitutional without overturning or tightening the ‘intelligible principle’ standard reaffirmed in Whitman v. American Trucking Associations.”
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