‘Recage the Executive Lion’: The Supreme Court Could Prod Congress To Rein in a Rampant Presidency

A Madisonian moment has arrived. Power vested in the judiciary by the Constitution’s Article III might yet prod Congress into exercising its atrophied Article I powers to restrain today’s rampant presidency, whose Article II powers can only be checked by the courts, and by a Congress reinvigorated by the courts.

This process might advance Wednesday when the Supreme Court will hear arguments about the constitutionality of a rarely noticed item in your phone bill. The Federal Communications Commission hopes the court will overturn an excellent appellate-court ruling that ratifies some FCC mischief.

Until antitrust policy in the 1980s ended AT&T’s monopoly of telephone services, Congress encouraged “universal” telecommunications service by allowing AT&T to charge extra-high rates to urban customers in exchange for also serving high-cost rural customers. 

After AT&T’s breakup, Congress mandated vague “mechanisms” to advance universal service but did not stipulate how the FCC should finance these mechanisms.

The FCC chose to levy “contributions” (beware suspiciously delicate language) from telecommunications carriers for a Universal Service Fund to be distributed to schools, libraries, health-care facilities and low-income individuals. 

The FCC delegated the administration of all this to a private company: the Universal Service Administrative Company, managed by representatives of “interest groups affected by and interested in universal service programs.”

The USAC is composed of representatives of private, for-profit carriers eager for Universal Service Fund subsidies to expand universal service programs. The USAC decides the “contribution” amounts, which contribute to your phone bills.

Validating George Orwell’s dictum that “the great enemy of clear language is insincerity,” the FCC says “fees” make up what it mincingly calls the “contribution factor.” The Fifth Circuit of the United States Court of Appeals, with Judge Andrew S. Oldham writing for the majority, briskly says: “We call it what it is” — a tax.

The power to tax is, Judge Oldham writes, “a quintessentially legislative power” that cannot be delegated. Here it is doubly delegated: To the FCC, its discretion not inhibited by intelligible principles articulated by Congress, and then to a nongovernmental entity, the USAC, which has a financial incentive to see that universal service subsidies grow. Unsurprisingly, the Universal Service Fund tax rate has increased ninefold since 1998, and the almost $10 billion raised by the tax in 2021 was nearly 20 times the FCC’s annual budget.

So, a multibillion-dollar social program is operated outside the congressional appropriations process. And without any semblance of supervision by an executive branch agency: “Contributions” assessed by the USAC take legal effect, without formal FCC approval, unless the FCC objects within 14 days, which had never happened before this litigation.

Imagine, writes Judge Oldham, Congress saying: “The defense budget is whatever Lockheed Martin wants it to be, unless Congress intervenes to revise it.”

Judge Oldham, who is 46 and merits promotion to a higher court, notes that Congress’s amorphous language hardly guides the FCC: It is to raise “sufficient” funds to advance “universal service,” which Congress left undefined. This, says Judge Oldham, amounts to the “suggestion” that the FCC exact as much tax revenue as the FCC thinks is good.

Cellphone use is inelastic because it is “essential to participation in the modern world.” And users are, Judge Oldham wrote, “subject to a multibillion-dollar tax nobody voted for. The size of that tax is de facto determined by a trade group staffed by industry insiders.”

Today, Congress is evidently unembarrassed about being mostly a spectator in the bleachers at the game of government. And it probably regrets the court’s major questions doctrine, which is: If Congress intends to authorize executive agencies to make decisions with large economic and political consequences, it must clearly say so. The court can further discomfit Congress, constructively, by curbing its power to delegate its core powers.

The vexing problem, inescapable when power is vested in a single executive, is how to circumscribe his or her discretion. Hence, the title of Harvard political philosopher Harvey Mansfield Jr.’s 1989 study of executive power: “Taming the Prince.” Today’s challenge is to “recage the executive lion,” says a University of Virginia law professor, Saikrishna Prakash, in “The Living Presidency,” published in 2020.

The taming and recaging will advance if Wednesday’s oral arguments persuade the court to limit Congress’s delegation of its legislative powers to executive agencies and, especially, to disapprove double delegation to private entities. The court has rightly called this “delegation in its most obnoxious form.” The presidency will cease casting a dark shadow across the nation only if Congress ceases to be a shadow of its former self.

Washington Post Syndicate