A new Supreme Court case seeks to revive one of the most dangerous ideas from the Great Depression

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Politics / Supreme Court
A new Supreme Court case seeks to revive one of the most dangerous ideas from the Great Depression
FCC v. Consumers’ Research could turn SCOTUS into DOGE on steroids.

by Ian Millhiser
Mar 19, 2025, 6:00 AM EDT

Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Federal law seeks to make communications technology like telephones and the internet, in the words of one older statute, “available, so far as possible, to all the people of the United States.” A longstanding federal program that seeks to implement this goal is now before the Supreme Court, in a case known as FCC v. Consumers’ Research, and the stakes could be enormous.

If the Supreme Court accepts an argument raised by a federal appeals court, which struck down the federal program, it would bring about one of the biggest judicial power grabs in American history, and hobble the government’s ability to do, well, pretty much anything. ... The Court will hear arguments in Consumers’ Research on March 26.

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Nevertheless, the Consumers’ Research case is worth watching for two reasons. One is that the Fifth Circuit’s decision was authored by Judge Andy Oldham, a Trump appointee who is widely considered a strong candidate for promotion to the Supreme Court in this administration. Oldham’s opinions are often sloppy, and his opinion in Consumers’ Research is no exception. ... The second is that Oldham relied on a legal doctrine known as “nondelegation” in his opinion targeting the Universal Service Fund. The nondelegation doctrine claims there are strict constitutional limits on Congress’s power to empower federal agencies to do all kinds of things, from limiting pollution from power plants, to setting minimum standards for health insurance, to, at least if Oldham gets his way, providing broadband to rural communities.

The Supreme Court has only invoked this doctrine twice, both times in 1935, to strike down a federal law, and its decisions since then hold that the doctrine is more or less dead. Still, five of the Republican justices have, at various times, advocated for reviving the nondelegation doctrine. So there is a real risk that the Court could use the Consumers’ Research case as a vehicle to do so. ... If that happens, it would shift a simply enormous amount of power from the elected branches of government to the judiciary. And it could potentially strip the federal government of a whole lot more than its power to equalize telephone and internet rates.

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