Comment: Federal agencies notch a win from Supreme Court

By Noah Feldman / Bloomberg Opinion

The conservative Supreme Court’s war on the administrative state isn’t over by any means. But on at least one front, it has slowed down considerably.

In an important case decided on the last day of the term, the court reaffirmed Congress’ authority to delegate broad power to executive branch agencies, provided it guides the delegation with what the court’s doctrine calls an “intelligible principle.” Justice Elena Kagan wrote the opinion in FCC v. Consumers’ Research, and the six-justice majority included not only liberals but also three conservatives: Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett.

In dissent, Justice Neil Gorsuch, the general leading the offensive against the administrative state, tried to put a good face on defeat by expressing “room for optimism” about future progress. Yet he also condemned the majority for deploying “a modern, enfeebled form of the intelligible principle test,” signaling that he recognizes the most basic element of the modern administrative state — broad delegation to agencies — is here to stay. Despite his considerable powers of rhetoric, Gorsuch hasn’t been able to expand his extreme anti-agency views beyond Justices Clarence Thomas and Samuel Alito, who joined his dissent.

The case before the court involved the framework for funding “universal service” created by Congress in the 1996 Telecommunications Act. To simplify, Congress required all telecommunications carriers to contribute to a fund used for the benefit of “universal-service subsidies,” which help provide service to low-income consumers, individuals and hospitals in rural areas, as well as to schools and libraries. The carriers, in turn, pass those costs on to their customers. (That’s the “universal service” line you will see on your phone bill if you look at it closely.)

Congress empowered the Federal Communications Commission to determine how much to charge carriers. In turn, the FCC devised a formula to determine that. It also created a nonprofit private Universal Service Administrative Company to administer the fund. An administrator manages the company’s operations and supervises the accounting and other elements that determine how much carriers pay under the formula.

If that sounds complicated, it’s actually pretty straightforward compared to much of what happens within administrative agencies. Congress provides the general direction, agencies implement Congress’ directives, and various sub-entities handle much of the day-to-day work under the authority of the agencies.

In 2022, some clever carriers, looking for a way to pay less, challenged the system in court, claiming that it violated what is known as the nondelegation doctrine. According to the doctrine, Congress can’t turn over its fundamental powers to the executive branch without providing some guidance; guidance known as the “intelligible principle.” The carriers specifically brought the case in the U.S. Court of Appeals for the 5th Circuit, the country’s most conservative. The 5th Circuit bit, striking down the whole setup as a violation of the nondelegation doctrine.

The Supreme Court reversed the 5th Circuit’s ruling. Writing for the majority, Justice Elena Kagan first reaffirmed the nondelegation doctrine. She wrote that it applies even when the power delegated to the agency is the power to raise revenue; a form of taxation. That holding rejected the carriers’ claim that there is something uniquely non-delegable about taxation, a core congressional power. As she pointed out, it’s not uncommon for agencies to engage in revenue-raising activities. Kagan then walked through the entire scheme, demonstrating that the FCC is acting pursuant to congressional guidance and that the private entity it uses to help determine the carriers’ contribution level operates safely within administrative norms.

All this would be of modest importance were it not for the fact that Kagan and her two liberal colleagues were joined by the court’s conservatives, who are now in the middle — Roberts, Kavanaugh and Barrett — against the arch-conservatives Gorsuch, Alito and Thomas. Although Gorsuch accused Kagan of rewriting the statute to save it and claimed, tendentiously, that she declined to discuss some minor provisions of the system because they could not be defended as lawful delegations, this didn’t move the central three justices.

The upshot is that Roberts, Kavanaugh and Barrett do not appear to be planning to follow Gorsuch’s lead in dismantling the work of administrative agencies by holding that Congress lacks the authority to delegate powers to them.

Kavanaugh also added an intriguing concurrence in which he addressed another hot zone in the war on the administrative state, namely the constitutionality of so-called independent agencies whose heads cannot be fired by the president except for cause. Earlier this spring, the court signaled, in a brief, unsigned order in its emergency docket, that it may well hold such independent agencies to be an unconstitutional infringement on the executive’s power to fire at will anyone he appoints. Kavanaugh wrote that delegations to such independent agencies might violate the nondelegation doctrine; but that the problem would disappear if the heads of the agencies could be removed at will by the president.

One possible reading of the concurrence is that Kavanaugh may actually be prepared to save these agencies even while imposing stricter nondelegation requirements on them than on other executive agencies. That would be a better outcome than eliminating independent agencies altogether.

If that reading is correct, Kavanaugh’s concurrence may be an invitation to Barrett and Roberts to choose that course rather than joining a future opinion striking down independent agencies. Technical though the issue sounds, it goes to a central issue of the modern administrative state: How can we get good government based on nonpartisan expertise within the framework of a Constitution that predates the modern state itself?

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.” ©2025 Bloomberg L.P., bloomberg.com/opinion.