Supreme Court Could Use USF Case to Cut Agency Power: Consumers' Research Lawyer

WASHINGTON, Oct. 9, 2024 –  The legal fight over an $8 billion broadband subsidy could serve as a vehicle for the Supreme Court to make it harder for Congress to delegate responsibilities to federal agencies, one of the lawyers in the case said Wednesday.

Trent McCotter, counsel for Consumers’ Research, the litigious conservative nonprofit challenging the fund, pointed to a 2019 dissent from Supreme Court Justice Neil Gorsuch that argued for “reinvigorat[ing]” the nondelegation doctrine, which holds that Congress cannot hand legislative duties over to agencies. Chief Justice John Roberts and Justice Clarence Thomas joined Gorsuch.

“In that case, obviously, they failed. Now, in the meantime, there have been some more additions to the court,” McCotter said at a Federalist Society webinar. “I think everyone’s been kind of assuming at some point the Supreme Court will take up a nondelegation case.”