My private nondelegation article and Reason Foundation amicus brief cited in FCC v. Consumers' Research

Thanks to Eugene for blogging about Justice Jackson’s shout-out, in FCC v. Consumers’ Research, to my Notre Dame Law Review article, The Myth of the Federal Private Nondelegation Doctrine. (I’m in Paris today and just saw Notre Dame from the top of the Eiffel Tower a few hours ago, so this makes sense.) He quoted her already, but I’ll do it again:

I write separately to express my skepticism that the private nondelegation doctrine—which purports to bar the Government from delegating authority to private actors—is a viable and independent doctrine in the first place. Nothing in the text of the Constitution appears to support a per se rule barring private delegations. And recent scholarship highlights a similar lack of support for the doctrine in our history and precedents. See, e.g., A. Volokh, The Myth of the Federal Private Nondelegation Doctrine, 99 Notre Dame L. Rev. 203 (2023).

But I also wanted to note that the amicus brief that I wrote for the Reason Foundation (which publishes Reason Magazine and hosts this blog, and where I worked for four years before grad school, from 1994 to 1998) also got quoted twice, in Justice Gorsuch’s dissent. Here’s what Justice Gorsuch has to say on the matter, in his footnote 6:

Before proceeding further, note some of the questions this case does not present. . . . Second, the Administrative Company’s directors overwhelmingly represent entities with a financial stake in expanding universal service: those who benefit from universal-service programs (like schools and hospitals) and those who get paid to supply the benefits (the carriers). See Part I–B–2, supra. Some amici suggest that seemingly conflicted arrangement may offend the Fifth Amendment’s Due Process Clause. See, e.g., Brief for Reason Foundation as Amicus Curiae 18–23. But neither the court of appeals nor respondents took up that argument. See 109 F. 4th, at 768, n. 14. Third, one might ask whether the Administrative Company’s leaders qualify as officers of the United States and, if so, whether their role complies with the Appointments Clause, U. S. Const., Art. II, §2, cl. 2. See Brief for Reason Foundation as Amicus Curiae 13–18. But, again, neither the court of appeals nor the parties addressed those questions.

At first glance, this may seem unimpressive, because Justice Gorsuch is just listing issues we flagged which weren’t part of the case because the appellate court didn’t rule on them. But that was precisely the challenge: our view was that (1) the private nondelegation doctrine doesn’t exist so they shouldn’t strike down this arrangement on that ground, but (2) the arrangement really is problematic on various other grounds (like Due Process or the Appointments Clause) that unfortunately aren’t part of the case. We suggested various ways that the Court could get around this problem, and one of them was to “reject both the public and private nondelegation challenges, note that there are plausible Due Process and Appointments Clause arguments that remain open, and leave those arguments for another day.” That’s more or less what the Court did (except that noting the problems was left to Justice Gorsuch’s dissent), so I declare victory!

One final note: the Supreme Court has been sitting on a cert petition in the horseracing case, presumably pending its decision in Consumers’ Research. I also wrote an amicus brief in that case for Reason Foundation and Goldwater Institute, raising many of the same issues as in Consumers’ Research. Now we’ll have to see what they do with the horseracing case (GVR, maybe?). The horseracing cases (along with a number of other cases where I have an interest) were rescheduled to yesterday’s conference, but the orders in those cases haven’t come out yet.

Again, the link to the Supreme Court opinion is here, the link to my Notre Dame Law Review article is here, the link to my Reason Foundation amicus brief in Consumers’ Research is here, and the link to my Reason/Goldwater horseracing case amicus brief is here.

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