Trump tempers anti-regulation push to back communication panel at US top court
The latest effort to get the US Supreme Court to restrain government regulation has an unlikely opponent: President Donald Trump.
The latest effort to get the US Supreme Court to restrain government regulation has an unlikely opponent: President Donald Trump.
Even as Trump works to decimate disfavored federal agencies with a barrage of job and funding cuts, the Justice Department on Wednesday will be at the high court defending an $8 billion telecom subsidy program.
The case pits the administration against some of the president’s usual allies, who are trying to build on recent Supreme Court decisions slashing the power of federal agencies.
For the administration, the case is about more than its nominal subject, the Federal Communications Commission’s Universal Service Fund. A broad ruling against the FCC could be invoked to argue against Trump’s authority to restrict immigration and impose tariffs.
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At issue is a program that uses a charge imposed on monthly telephone bills to subsidize the cost of phone and broadband service for poor people and rural residents, as well as schools, libraries, and rural hospitals.
The key legal question is whether Congress gave the FCC an unconstitutional level of leeway to decide how high those fees will be. The program’s funding mechanism is being challenged by the conservative advocacy organization Consumers’ Research, which won a federal appeals court decision declaring the fee unconstitutional.
The case reached the Supreme Court through an appeal by the Biden administration, which urged the court to uphold the USF program. The Biden team told the court that Congress gave the FCC “detailed guidance” through the 1996 law that created the program.
After Trump was sworn in, his administration could have switched positions — as it did in other Supreme Court cases — but instead adopted Biden’s stance.
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The Trump defense of the program makes sense from an institutional standpoint, said Trent McCotter, who will represent Consumers’ Research in Wednesday’s hearing. The clash comes as Trump tries to assert untrammeled power to fire the heads of independent agencies like the FCC.
“The executive branch loves broad delegations of legislative power,” McCotter said in an interview. “Because why wouldn’t they want more power?”
New deal rulings
Big-government foes see the case as a chance to revive the so-called nondelegation doctrine, a legal theory the Supreme Court last invoked in 1935 in two rulings that blunted President Franklin D. Roosevelt’s New Deal. The core of the argument is that the Constitution assigned the legislative and taxing power to Congress – and lawmakers can’t simply hand off that authority.
“The executive agencies should not be legislating,” said Zhonette Brown, a lawyer with the New Civil Liberties Alliance, which last year won a blockbuster regulatory case when the court said judges should stop deferring to agencies on the meaning of ambiguous statutes.
The Supreme Court has watered down the nondelegation doctrine in recent decades, saying Congress can delegate its powers as long as it lays out an “intelligible principle” for agencies to follow.
The Justice Department under Trump says nondelegation challenges are especially inappropriate when they involve foreign affairs — an area that potentially would include tariffs and immigration.
“This court has consistently rejected nondelegation challenges to statutes empowering the president to exercise sweeping discretion in managing foreign affairs,” acting US Solicitor General Sarah Harris, the administration’s top Supreme Court lawyer, said in court papers.
During Trump’s first term, the Supreme Court twice turned away attacks on tariffs he imposed on steel imports in the name of national security. Opponents said the provision Trump invoked, known as Section 232, gave him so much leeway that it violated the nondelegation doctrine.
Harris will be arguing Wednesday alongside a collection of the program’s supporters, including telecom industry associations and a coalition of schools, libraries and health-care providers.
The industry groups told the justices that “eliminating the universal-service fund would cause severe disruptions for consumers, rural communities, anchor institutions, and enterprises.”
‘Huge’ potential
The administration also has the backing of civil-rights and consumer-protection groups that say a decision striking down the program could have sweeping implications beyond the USF. The case could potentially affect scores of statutes that use broad language like “reasonable rates” or “public interest” to tell regulators what to do.
“This has the potential to be quite huge,” said Nicholas Sansone, a lawyer with the consumer-advocacy group Public Citizen. A nondelegation ruling against the FCC “would take a very traditional tool of legislation off the table entirely.”
The case also offers the Supreme Court a narrower way to rule. As part of its challenge, Consumers’ Research says the FCC handed off too much of its authority to the Universal Service Administrative Co., the private nonprofit entity that runs the program subject to the commission’s oversight.
USAC, as it is known, provides the financial projections that determine the size of the contributions. It also sends out bills, collects money and disburses funds to beneficiaries.
The fund itself is relatively uncontroversial, though congressional and FCC leaders from both parties say its structure needs to be updated for the modern world. The fund currently collects a percentage of telecom companies’ revenue from voice services to pay for the universal access programs, but those revenues are shrinking as landline and mobile voice traffic diminishes in favor of internet-based communications.
FCC Chairman Brendan Carr and companies including AT&T have advocated for making big tech companies, whose business models rely on the underlying internet infrastructure, pay into the fund that promotes internet access.
Even the challengers say they’re not looking to destroy the USF, just to make it more accountable by having Congress take responsibility for the revenue-raising.
“Congress could easily fix this by saying, ‘Look, we are appropriating $9 billion a year for USF, and the FCC can now decide basically how it’s best spent,’” McCotter said. “And that would be fine with us.”
