The Texas Public Policy Foundation is asking the Supreme Court to grant review of its challenge to the constitutionality of the Federal Communication Commission’s “Universal Service Fund.” Millions of Americans pay a fee every month on their phone bills—amounting to nearly $10 billion annually—and the money is put into this “Fund” and redistributed to the general public.
Originally designed to be a modest tax to help expand phone service, the Fund has ballooned out of control—going from a 5% tax to now 35%—with massive waste and fraud, while achieving little, if any, actual benefit.
A majority of Supreme Court Justices have expressed interest in returning to the Constitution’s requirement that Congress, not unelected agency bureaucrats, make the laws that govern the country, including deciding how much money to raise in taxes. This is referred to as the “nondelegation doctrine,” and it ensures political accountability. If the Supreme Court accepts review and sides with us, it could result in a severe curtailment of the power wielded by federal agencies, which set most of the requirements that affect Americans’ day-to-day lives.
“Two of the judges who heard our case below argued that the Supreme Court’s current nondelegation precedent has strayed far from the proper original understanding of the Constitution, which requires Congress—not unelected agencies—to set the basic rules that govern society. We hope the Supreme Court takes up our case and returns its precedent to that correct understanding of separation of powers,” said Trent McCotter, Counsel of Record for Petitioners in Consumers’ Research v. FCC.
“Congress never authorized the Federal Communications Commission to levy this Universal Service Fund tax that now costs Americans nearly $10 billion annually,” said Robert Henneke, TPPF’s general counsel and co-counsel to the suit. “We urge the Supreme Court to grant review and find that this FCC program is unconstitutional under the private nondelegation doctrine because it transfers its revenue-raising power to a private company run by industry interest groups.”