On Friday the Supreme Court granted cert in Federal Communications Commission v. Consumers’ Research (SCOTUSblog summary here). The questions presented by the petitioner are:
(1) Whether Congress violated the nondelegation doctrine by authorizing the Federal Communications Commission to determine, within the limits set forth in 47 U.S.C. § 254, the amount that providers must contribute to the Universal Service Fund;
(2) whether the FCC violated the nondelegation doctrine by using the financial projections of the private company appointed as the fund's administrator in computing universal service contribution rates; and
(3) whether the combination of Congress’s conferral of authority on the FCC and the FCC’s delegation of administrative responsibilities to the administrator violates the nondelegation doctrine.
Jonathan Adler comments here, and notes that the Court added an additional question:
In addition to the questions presented by the petitions, the parties are directed to brief and argue the following question: Whether this case is moot in light of the challengers' failure to seek preliminary relief before the Fifth Circuit.
So maybe there will not be a nondelegation decision by the Court after all.
Meanwhile, at Legal Theory Blog, Larry Solum has an important short post: Will the Original Public Meaning of Articles I and II Be Briefed by the Parties in FCC v. Consumer's Research? He notes that the parties' briefs generally do not examine the Constitution's original meaning regrading nondelegation, and comments:
The lack of party engagement with the original meaning of Articles I and II may become important because of the Party Presentation Principle. The precise contours of the principle are murky and the practice of the Supreme Court in applying the principle is inconsistent, to say the least. But the failure of the parties to raise the original public meaning of the constitutional text might result in a majority opinion that fails to address the actual meaning of the constitutional text–a troubling possibility.
Optimistically, there's plenty of time for originalist briefing at the merits stage. Perhaps some originalist scholars (on both sides) will want to help out.
Posted at 6:05 AM