Under the Telecommunications Act of 1996, the Federal Communications Commission (FCC) must establish several programs facilitating internet access for entities and populations that might otherwise be unable to afford access, such as schools, libraries, and rural healthcare providers. A conservative legal group filed a lawsuit challenging these programs, claiming that the statute violates the “nondelegation doctrine” by giving the FCC too much discretion to design the programs. In a fractured decision, the U.S. Court of Appeals for the Fifth Circuit held the program’s structure unconstitutional, departing from the conclusions of other circuits. The Supreme Court agreed to review the Fifth Circuit’s decision. 

In January 2025, CAC filed an amicus brief in support of the FCC on behalf of law professors Julian Davis Mortenson and Nicholas Bagley, leading experts on constitutional and administrative law. Our brief explains that the Constitution’s history and original meaning do not support the restrictions the Fifth Circuit imposed on Congress’s ability to delegate authority to agencies. 

As we explain, legislative delegations of authority were uncontroversial in the Founding era. The British Parliament had a long tradition of delegating broad policymaking authority to the king and other agents, and delegations were likewise pervasive in America during the years after independence. 

The Constitution’s ratification did not introduce new restrictions on delegation. Although the Constitution assigns all “legislative powers” to Congress, nothing about that division limits Congress’s power to delegate policymaking authority to agencies, so long as Congress retains ultimate control over the legislative process. Furthermore, the debates surrounding the Constitution’s drafting and ratification show no concern about this type of delegation.  

As we further explain, congressional practice in the early Republic confirms that the Constitution was not originally understood to prohibit delegation. As the Supreme Court has noted, early legislation is “strong evidence of the original meaning of the Constitution,” and the first Congresses routinely delegated to the executive branch virtually unguided policymaking discretion over the most pressing issues facing the nation. In short, delegating broad authority to the executive branch was not rare in the nation’s early history—it was routine. 

Finally, our brief shows that modern proposals for strict delegation limits hinge on principles with no historical grounding. To explain away the powerful evidence of early congressional enactments, critics of delegation have devised artificial limiting principles, such as the notion that Congress may delegate authority to “fill in the details” but not to resolve “important” subjects. These distinctions, however, are modern inventions. No one articulated them in the Founding era or invoked them to justify early delegations. Indeed, the historical record refutes the claim that these distinctions mattered to the Founders when it came to delegation.  

In sum, the Supreme Court should reject the Fifth Circuit’s attempt to expand the nondelegation doctrine, an effort unsupported by the Constitution’s text and history.