Benjamin Franklin wrote, “They who would give up an essential liberty for temporary security, deserve neither liberty or security.” What does it say about the American people who seem willing to give up their right to control their government in exchange for internet access?
The case in question is Federal Communications Commission et al. v. Consumers’ Research et al. and it questions whether Congress unconstitutionally delegated its power to a third party.
Background
To understand the situation, we need to go back to the creation of the FCC.
The Communications Act of 1934 established the Federal Communications Commission and instructed it to make reliable communications services available to “all the people of the United States . . . at reasonable charges.”
Federal Communications Commission et al. v. Consumers’ Research et al.
Look all you want, but you will not find the power to ensure people have reliable communication services, at any price, within the Constitution. No, the “General Welfare Clause” doesn’t cover it.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;
— U.S. Constitution, Article I, Section 8, Clause 1
So the General Welfare Clause only allows Congress to collect taxes, not provide services. And Congress can only collect taxes for three purposes: paying the debts, the common defense, and general welfare of the United States. This FCC law was not for the “general welfare” of the United States, though, but for certain people, mostly rural and the poor.
The problems with this legislation goes on.
The universal-service project arose from the concern that pure market mechanisms would leave some population segments—such as the poor and those in rural areas—without access to needed communications services. Under the 1934 Act, the FCC pursued universal service primarily through implicit subsidies, using its rate-regulation authority to lower costs for some consumers at the expense of others.
— Federal Communications Commission et al. v. Consumers’ Research et al.
Congress was concerned that the market would leave some population segments without communications services, except it’s not Congress’ business to make sure everyone gets the services congressmen think they should. That means the Communications Act of 1934 is an unconstitutional act, and therefore void.
Furthermore, Congress claimed to give the FCC the power to regulate telecommunications rates, and to use them to subsidize communications for their special interest groups. Then, in 1996, Congress upped the criminality of their act, amending it to require every carrier providing interstate telecommunications services to “contribute” to a Universal Service Fund.
Congress may call their tax a contribution, but that’s the same term the mafia uses for their protection rackets. So, Congress tells the FCC to extort money from telecommunications providers. Guess who actually pays for this alleged “contribution?” We the People, in our phone and internet bills.
The FCC must use the money in the Fund to pay for universal-service subsidy programs. . . . The statute designates the beneficiaries of universal-service subsidies—low-income consumers, those in rural areas, schools and libraries, and rural hospitals.
— Federal Communications Commission et al. v. Consumers’ Research et al.
Congress tells the FCC to collect this illegal tax, then to spend it for something Congress is not authorized to spend money on. Things keep getting worse. Among other things, the act mandates that all consumers should have access to “quality services at affordable prices.” Again, providing communications services is not a power vested in the government of the United States. And if that weren’t bad enough, the terms “quality services” and “affordable prices” are not defined; it’s up to the FCC bureaucracy to decide.
The FCC has appointed the Universal Service Administrative Company, a private organization, to administer this extorted funding, which brings us to the case itself.
Decision
Consumers’ Research petitioned for review in the Fifth Circuit, contending that the universal-service contribution scheme violates the nondelegation doctrine.
Once again we have a case based not in a violation of the law, but of court precedent. Consumers’ Research did not claim that this scam violated the law, but the court’s “nondelegation doctrine.”
The nondelegation doctrine is the theory that the Congress of the United States, being vested with “all legislative powers” by Article One, Section 1 of the United States Constitution, cannot delegate that power to anyone else. However, the Supreme Court ruled in J. W. Hampton, Jr. & Co. v. United States (1928) that congressional delegation of legislative authority is an implied power of Congress that is constitutional so long as Congress provides an “intelligible principle” to guide the executive branch.
— Nondelegation Doctrine – The Free Legal Dictionary
The Constitution doesn’t deal with “implied powers,” but with vested powers. The Constitution vests Congress with the power to lay and collect taxes; a delegation of that power seems to violate the Necessary and Proper Clause.
In the full Fifth Circuit’s view, the combination of Congress’s delegation to the FCC and the FCC’s “subdelegation” to the Administrator violated the Constitution
— Federal Communications Commission et al. v. Consumers’ Research et al.
Concurrence
Can Congress authorize the FCC to lay taxes? To me that’s an obvious no. Can the FCC then delegate the administration of those funds to a third party? That would be a hard no.
Justice Kavanaugh wanted to dig into the “intelligible principle test that the Court has long used” regarding delegation of authority to the Executive Branch. That’s fine. He also makes a point about the delegation to private entities.
“The problems with delegations to ‘unaccountable’ officials primarily arise from delegations to independent agencies. Independent agencies are headed by officers who are not removable at will by the President and who thus operate largely independent of Presidential supervision and direction. Those independent agency heads are not elected by the people and are not accountable to the people for their policy decisions. Unlike executive agencies supervised and directed by the President, independent agencies sit uncomfortably at the outer periphery of the Executive Branch. Although this Court has thus far allowed such agencies in certain circumstances, they belong to what has been aptly labeled a ‘headless Fourth Branch,’” Justice Kavanaugh wrote in his concurrence, which Justice Jackson joined.
Kavanaugh’s problem with these “independent agencies” is the fact that they don’t directly report to the president. That fact alone has constitutional issues. Congress is not authorized to create agencies outside of federal oversight. If they do not operate under the Executive Branch, where does their oversight come from?
Dissent
Justice Gorsuch filed a dissenting opinion, joined by Justices Thomas and Alito.
Within the federal government, Congress “alone has access to the pockets of the people.” The Federalist No. 48, p. 334 (J. Cooke ed. 1961) (J. Madison). The Constitution affords only our elected representatives the power to decide which taxes the government can collect and at what rates. See Art. I, §8, cl. 1. Throughout the Nation’s history, Congress has almost invariably respected this assignment. As this Court observed some decades ago, it would represent “a sharp break with our traditions” for Congress to abdicate its responsibilities and “besto[w] on a federal agency the taxing power.”
— Federal Communications Commission et al. v. Consumers’ Research et al.
OK, Justice Gorsuch seems to be making the point that Congress, and only Congress, has the power to determine what taxes to collect. Even the Supreme Court recognized that giving a federal agency taxing power would be a break, although Gorsuch claimed it would be a break from “tradition,” not the law.
Today, the Court departs from these time-honored rules. When it comes to “universal service” taxes, the Court concludes, an executive agency may decide for itself what rates to apply and how much to collect. In upholding that arrangement, the Court defies the Constitution’s command that Congress “may not transfer to another branch ‘powers which are strictly and exclusively legislative’ (Gundy v. United States).”
— Federal Communications Commission et al. v. Consumers’ Research et al.
So the court departed from these “time-honored rules,” but what about the law?
Conclusion
Once again, we not only see the court placing its previous opinions above the supreme law of the land, we see them re-writing their own “doctrines” to support their preferred outcome.
Held: The universal-service contribution scheme does not violate the nondelegation doctrine.
— Federal Communications Commission et al. v. Consumers’ Research et al.
Remember, according to Article I, Section 1 of the Constitution, only Congress can legislate (make laws). When Congress created the universal service funding scheme, they violated Article I, Section 8, Clause 1 of the Constitution:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.
While Congress must have the Executive Branch put into execution their laws, that does not include delegating to the FCC the power to determine tax rates, which is done via legislation.
Furthermore, when the FCC allowed a private entity to determine the rate to be collected, it also violated the nondelegation doctrine, allowing “non-governmental entities to govern.”
Decisions of the Supreme Court are not law, much less the supreme law of the land. They are not law because only Congress can make law. Furthermore, the court is not an elected branch of government. Also, they are not the supreme law because that would mean the United States is not a republic, but an oligarchy ruled by nine justices in black robes. And this case shows just how corrupt the federal government has become, ignoring their oaths to support the Constitution, and making up rules. How can we call ourselves the land of the free if we keep following these oligarchs?
This “universal service” program is simply another bribe from Washington, D.C. Sadly, it seems to be a rather popular one.
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Photo, top, courtesy of AS Photography / Pexels
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