The Supreme Court can stop unelected bureaucrats and private corporations from imposing taxes

Nov 30, 2023 by Michael Pepson

Americans for Prosperity Foundation recently filed a friend-of-the-court brief in the U.S. Supreme Court in Consumers’ Research v. Federal Communications Commission, urging the Court to grant Consumers Research’s cert petition and enforce the Constitution’s system of checks and balances.

At issue is the constitutionality of the Universal Service Fund, a social welfare program that subsidizes certain consumers’ telecommunications services at the expense of other consumers, who typically pay a fee (in reality, a tax) on their monthly bill to pay for the program.

The 1996 Telecommunications Act, the federal statute that created this government program, basically transferred power to make policy decisions for this government program—and fund those decisions by levying taxes on carriers who, in turn, pass those costs on to their customers—to unelected administrators at the FCC who, in turn, re-delegated that authority to a private corporation run by industry insiders.

But this case is not about what constitutes sound telecommunications policy or the wisdom of universal services. Instead, this case is about who has the power to make law in this country and access the American people’s pocketbooks: unelected bureaucrats; self-interested private corporations; or our elected representatives in Congress?

Our system of government relies on the consent of the governed, memorialized in the Constitution. Our Constitution exclusively tasks the people’s elected representatives with making policy choices, subject to constitutional limits on federal power.

Under the Constitution, the political branches may only do so through duly enacted legislation that survives bicameralism and presentment, a deliberately difficult process designed to ensure such laws reflect broad political consensus.

This was by design. The Constitution’s separation of powers ensures that the American people know exactly who to hold accountable at the ballot box for failed or unpopular policy choices. More importantly, this system of checks and balances protects individual liberty.

As James Madison famously warned in Federalist 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”

Over time, however, Congress has shirked its legislative responsibilities, choosing instead to punt many important (and often controversial) policy decisions to federal officials housed within a warren of administrative bodies, passing vaguely worded statutes announcing aspirational goals and leaving it to the bureaucrats to make the real decisions.

At times, Congress has even transferred governmental policymaking power to self-interested private entities. In this way, Congress has shielded itself from accountability for its actions, to the detriment of the American People and our constitutional Republic’s system of representative self-government.

The 1996 Telecommunications Act, at issue in this case, is a particularly egregious example of this unconstitutional practice. But the problem is pervasive and runs much deeper, cutting across industries and affecting wide swaths of American life.

Today, most federal law is not made by Congress but instead by unelected bureaucrats in an alphabet soup of administrative agencies, who frequently claim power to make policy choices of vast political importance that affect the entire national economy or threaten to transform entire industries.

And numerous federal statutes give federal agencies carte blanche to issue regulations affecting the lives and livelihoods of ordinary Americans. These regulations frequently impose burdensome prohibitions or time-consuming and expensive compliance costs. Violations often carry draconian civil and even criminal penalties.

For decades, the Supreme Court has largely turned a blind eye to this state of affairs, further emboldening Congress to transfer its legislative power (and responsibility) to unelected bureaucrats. As AFPF’s brief argues, this has had awful effects not only for liberty but for our system of representative self-government.

Consumers’ Research provides the Supreme Court with an ideal opportunity to restore the system of checks and balances the Framers wisely enshrined in our Constitution by placing federal lawmaking power back where the Framers put it: in Congress’s hands.

AFPF’s brief urges the Court to take this chance to improve the health of our constitutional republic. All Americans, and democracy itself, would benefit.

Read Americans for Prosperity Foundation’s full brief.