GOP Attorneys General Urge Supreme Court Against USF

WASHINGTON, Feb. 20, 2025 – A coalition of Republican attorneys general from 15 states urged the Supreme Court Tuesday to find an $8 billion-per-year broadband subsidy unconstitutional. They argued the court should make it harder for Congress to delegate broad power to regulatory agencies.

“Yes, the Universal Service Fund serves some important purposes. But those purposes cannot trump constitutional precepts,” the attorney generals wrote in an amicus brief filed Tuesday. The group was led by West Virginia Attorney General John McCuskey.

It was one of nineteen such briefs submitted the same day by conservative legal groups and academics, including the Cato Institute, Americans for Prosperity, the Firearms Policy Coalition, America First Legal, and others. All but one urged justices to find the fund unconstitutional.

The Universal Service Fund buoys four broadband subsidies that support building and maintaining rural networks and internet discounts for low-income households, schools and libraries, and healthcare centers. In states that joined the filing, companies received more than $1.6 billion for rural networks alone in 2023.

The program is funded by fees on interstate voice revenue and managed by the Federal Communications Commission, with the accounting work delegated to the Universal Service Administrative Company, a nonprofit the FCC set up for the purpose.

That arrangement has been repeatedly challenged by conservative nonprofit Consumers’ Research, which alleges the law that stood up the fund in 1996 put too few guardrails on the FCC and that the agency improperly delegated authority to USAC. Essentially they argue the fund violated the nondelegation doctrine, the idea that Congress can’t hand its legislative powers to other entities. 

Courts were initially unreceptive, but a full panel of Fifth Circuit judges reversed a previous decision and broke with two other circuits by ruling the USF unconstitutional in July 2024. 

The case is before the Supreme Court after the FCC appealed, along with telecom trade groups and consumer advocates that also want to preserve the fund. Oral arguments are slated for March 26, with a decision expected later in the year.

The attorneys general, like many of the other filers Tuesday, specifically urged justices to expand the nondelegation doctrine. In recent decades, laws have passed legal muster if they set out an “intelligible principle” to guide the entity being delegated authority, a requirement the states and other conservatives argued was too easy to meet. They pushed for a more restrictive reading that would make it harder for Congress to task agencies with setting policies and promulgating regulations.

“The court should return the nondelegation doctrine to the originalist understanding – one that looks to whether legislative functions have been delegated (or, more accurately, improperly vested outside the legislative branch),” the attorneys general wrote. “The nondelegation doctrine protects liberty by keeping policy decisions where the voters can see them – in Congress.”

No fans of the administrative state, conservative justices did contemplate expanding the doctrine in a 2019 case before their 6-3 majority was fully cemented with the confirmation of Justices Brett M. Kavanaugh and Amy Coney Barrett. Georgetown law professor Stave Vladek has noted the high court has defanged agency power in other cases and has declined to take up other nondelegation challenges, but conservative legal groups are evidently making their pitch.

A group of 21 state attorneys general, which were mostly Democrats but included two Republicans, has urged the Supreme Court to uphold the USF on the grounds that its structure is legal. They also argued their constituents would be harmed if funding they relied on for connectivity dried up.

The states that filed Tuesday acknowledged they benefited from the fund and wrote they “agree that universal service is an important objective,” but still came down against it. They suggested justices could tailor a ruling to expand the doctrine without causing disruption.

“Ultimately, the states here don’t need to take a position on whether the law is good as a matter of policy – because that’s rather beside the point. The states here are presently interested in seeing that Congress use its conceded power within prescribed constitutional limits,” the AGs wrote.

President Donald Trump has directed heads of independent agencies – like the FCC – to run new policies and legal arguments by the White House, and some Republicans want to move USF out of the FCC’s hands entirely, but there haven’t yet been indications the government’s position in the case will change. 

The acting solicitor general told justices the DOJ and FCC had “a significant interest in defending the constitutionality of the applicable statute and FCC rules, as well as in the scope of the nondelegation doctrine more generally,” in a Feb. 10 procedural filing. FCC Chairman Brendan Carr hasn’t pushed for fundamentally changing the fund’s contribution scheme, but has supported tapping revenue from big tech companies.