FCC v. Consumers’ Research

v. CONSUMERS' RESEARCH et al.

certiorari to the united states court of appeals for

the fth circuit No. 24–354. Argued March 26, 2025—Decided June 27, 2025* The Communications Act of 1934 established the Federal Communications Commission (FCC or Commission) and instructed it to make available to “all the people of the United States” reliable communications services “at reasonable charges.” 47 U. S. C. § 151. That objective is today known as “universal service.” The universal-service project arose from the concern that pure market mechanisms would leave some population segments—such as the poor and those in rural areas—without access to needed communications services. Under the 1934 Act, the FCC pursued universal service primarily through implicit subsidies, using its rate-regulation authority to lower costs for some consumers at the expense of others. In 1996, Congress amended the Act and created a new framework for achieving universal service. Section 254 of the amended statute requires every carrier providing interstate telecommunications services to “contribute” to a fund, known as the Universal Service Fund. See § 254(d). The FCC must use the money in the Fund to pay for universal-service subsidy programs. See §§ 254(a), (d), (e). The statute designates the beneficiaries of universal-service subsidies—low-income consumers, those in rural areas, schools and libraries, and rural hospitals. §§ 254(b)(3), (h)(1), (j). And it provides detailed guidance regarding the communications services to which those beneficiaries should have access. In deciding what services to subsidize, the FCC “shall consider the extent to which” a service is “essential to education, public health, or public safety” and has “been subscribed to by a substantial majority of residential customers.” §§ 254(c)(1)(A)–(B). So too, the Commission must evaluate whether a service can be made available at an “affordable rate[ ].” § 254(b)(1). Section 254 also sets forth “principles” on which the FCC “shall base” its universal-service policies. § 254(b). Among other things, those principles direct that all consumers, “including low-income consumers” and those in “rural” areas, should

have access to quality services at affordable prices. See ibid. The FCC also may add “other principles” found both “consistent with” the Act and “necessary and appropriate for the protection of the public interest, convenience, and necessity.” § 254(b)(7).

To calculate how much carriers must contribute to the Fund, the FCC has devised a formula, known as the “contribution factor.” 47 CFR § 54.709(a). That factor is a fraction, expressed as a percentage, whose numerator is the Fund's projected quarterly expenses (the subsidy payments it will make plus overhead) and whose denominator is contribut-ing carriers' total projected quarterly revenue. § 54.709(a)(2). A carrier must pay into the Fund an amount equal to its own projected revenue multiplied by the contribution factor. § 54.709(a)(3). The FCC has appointed the Universal Service Administrative Company, a private, not-for-profit corporation, as the Fund's “permanent Administrator.” § 54.701(a). The Administrator manages the Fund's day-to-day operations and also plays a role in producing the financial projections that end up determining the contribution factor. See §§ 54.702, 54.709(a)(2)–(3). Each quarter, the Administrator projects the Fund's expenses, adds up revenue estimates it receives from carriers, and submits those figures to the Commission for approval and eventual use in calculating the contribution factor. See §§ 54.709(a)(2)–(3). In December 2021, the FCC set a 25.2% contribution factor for the first quarter of 2022. Consumers' Research petitioned for review in the Fifth Circuit, contending that the universal-service contribution scheme violates the nondelegation doctrine. The en banc court granted the petition, replacing a panel decision to the contrary. See 109 F. 4th 743; 63 F. 4th 441. In the full Fifth Circuit's view, the combination of Congress's delegation to the FCC and the FCC's “subdelegation” to the Administrator violated the Constitution, even if neither delegation did so independently. 109 F. 4th, at 778. Held: The universal-service contribution scheme does not violate the nondelegation doctrine. Pp. 672–698. (a) Article I of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” § 1. Accompanying that assignment of power to Congress is a bar on its further delegation. At the same time, this Court has recognized that Congress may “seek[ ] assistance” from its coordinate branches and “vest[ ] discretion” in executive agencies to implement the laws it has enacted. J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406. To distinguish between the permissible and the impermissible in this sphere, this Court asks whether Congress has set out an “intelligible principle” to guide what it has given the agency to do. Id., at 409.

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Under that test, Congress must make clear both “the general policy” the agency must pursue and “the boundaries of [its] delegated authority.” American Power & Light Co. v. SEC , 329 U. S. 90, 105. Pp. 672–673.

(b) Although the intelligible-principle standard has long guided this Court's nondelegation doctrine, Consumers' Research insists that a different test applies here. According to Consumers' Research, universal-service contributions are taxes. And tax statutes, Consumers' Research argues, must satisfy a special nondelegation rule. For those statutes, Congress must set a definite or objective limit on how much money an agency can collect—a numeric cap, a fixed tax rate, or the equivalent. Section 254 contains no such limit, so, in Consumers' Research's view, it is unconstitutional. The Court rejects that argument. To begin with, precedent forecloses it: In both J. W. Hampton, 276 U. S., at 409, and Skinner v. Mid- America Pipeline Co., 490 U. S. 212, 220–221, the Court declined requests to create a special nondelegation rule for revenue-raising legislation. The test Consumers' Research proposes also would throw a host of federal statutes into doubt, as Congress has often empowered agencies to raise revenue without specifying a numeric cap or tax rate. See, e. g., 12 U. S. C. §§ 16, 243, 1815(d)(1). Consumers' Research responds that those other statutes can be distinguished as imposing fees, rather than taxes, and thus be exempted from its numeric-limit requirement. But Skinner made clear that whether a charge is a tax or a fee is irrelevant to the nondelegation inquiry. See 490 U. S., at 223. Finally, the Consumers' Research position produces absurd results, divorced from any reasonable understanding of constitutional values. Under its view, a revenue-raising statute containing non-numeric, qualitative standards can never pass muster, no matter how tight the constraints they impose. But a revenue-raising statute with a numeric limit will always pass muster, even if it effectively leaves an agency with boundless power. In precluding the former and approving the latter, the Consumers' Research approach does nothing to vindicate the nondelegation doctrine or the separation of powers. Pp. 673–680. (c) Under the usual intelligible-principle test, the universal-service contribution scheme clears the nondelegation bar. Section 254 directs the FCC to collect contributions that are “sufficient” to support universal-service programs. §§ 254(b)(5), (d), (e). The word “suffi -cient” sets both a floor and a ceiling—the FCC cannot raise less than what is adequate or necessary to finance its universal-service programs, but it also cannot raise more than that amount. And the “sufficiency” ceiling imposes a meaningful limit on the Commission, because Section 254 also provides appropriate guidance about the nature and content of universal service. The statute makes clear whom the program is in-

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tended to serve: those in rural and other high-cost areas (with a special nod to rural hospitals), low-income consumers, and schools and libraries. See §§ 254(b)(3), (6), (h)(1). And it also defines the services those bene-fciaries should receive. In order for the FCC to subsidize a service, the service must be subscribed to by a substantial majority of residential customers, available at affordable rates, and essential to education, public health, or safety. §§ 254(b)(1), (3), (c)(1)(A)–(B). Those conditions, each alone and together, provide the FCC with determinate standards for operating the universal-service program.

Consumers' Research contends that the Act gives the FCC boundless authority, but the provisions it points to show nothing of the kind. It first argues that the Commission need not actually adhere to each of the criteria Section 254 uses to define universal service. Properly understood, however, those criteria are separately mandatory. Next, Consumers' Research highlights Section 254(c)(1)'s description of universal service as an “evolving level of telecommunications services that the Commission shall establish periodically” in light of advances in technology. That provision, it says, enables the FCC to redefine universal service as it sees ft. But the permission Congress gave the FCC to fund different services over time does not strip the statute of standards and constraints. The Commission still may fund only essential, widely used, and affordable services, for the benefit of only designated recipients. Finally, Consumers' Research maintains that the statutory provision enabling the FCC to articulate “[a]dditional principles” to guide its universal-service policies allows the agency to rewrite its own authority. § 254(b)(7). But that is not so, because Section 254(b)(7) requires the added principles to be “consistent with” the rest of the statute. So they cannot change the statute's other principles, much less its conditions on what subsidies can go toward and who can receive them. Pp. 680–691. (d) Consumers' Research separately claims that the FCC has imper-missibly delegated authority to the Administrator to set the contribution factor. In making this argument, Consumers' Research invokes what is commonly called the private nondelegation doctrine. In Carter v. Carter Coal Co., 298 U. S. 238, 311, this Court struck down a statute authorizing certain coal producers to set rules for the rest of the industry, finding the delegation improper because it was made to “private persons whose interests” are often “adverse to the interests of others.” But a counterpart case, Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381, 388, approved a statute permitting private actors to make recommendations to a Government agency for “approv[al], disapprov[al], or modif[cation].” That arrangement was valid, because the private parties “function[ed] subordinately to” the agency and were subject to its “authority and surveillance.” Id., at 399.

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Under those precedents, the Commission's use of the Administrator is permissible. The Administrator is broadly subordinate to the Commission: The Commission appoints the Administrator's Board of Directors, approves its budget, and requires the Administrator to act “consistent with” its rules and directives. 47 CFR §§ 54.703(b)–(c), 54.715(c); Memorandum of Understanding Between the Federal Communications Commission and the Universal Service Administrative Company 2 (Oct. 17, 2024). And the Commission's authority and oversight over the Administrator extend to determining the contribution factor. Working within FCC rules, the Administrator produces the initial projections of carrier revenues and Fund expenses that feed into the contribution factor. §§ 54.709(a)(2)–(3). The Administrator then reports its figures to the Commission, which reviews—and if needed, revises—the projections before approving them and publishing the contribution factor. See § 54.709(a)(3). The Commission then has 14 days to make additional changes before the factor is “deemed approved by the Commission.” Ibid. So although the Administrator makes recommendations, the Commission is, throughout, the final authority. Pp. 692–695. (e) The Court also rejects the basis of the decision below: that the “combination” of Congress's grant of authority to the FCC and the FCC's reliance on the Administrator violates the Constitution, even if neither one does so alone. 109 F. 4th, at 778 (emphasis in original). The Fifth Circuit founded that theory on Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 483–484, where this Court struck down a statute because it gave an executive officer two “layers of protection” from the President's removal authority. Even granting that each layer of protection was alone permissible, the Court thought the combination was too much. According to the Fifth Circuit, similar reasoning applied here: Even if Congress lawfully conferred discretion on the Commission and the Commission lawfully sought assistance from the Administrator, the combination was impermissible. 109 F. 4th, at 778. But the court's logic does not work. In Free Enterprise Fund, the two layers of for-cause protection operated on a single axis, with the one exacerbating the other. That is not the case here: A law violates the traditional nondelegation doctrine when it authorizes an agency to legislate. And a law violates the private nondelegation doctrine when it allows non-governmental entities to govern. Those doctrines do not operate on the same axis. So a measure implicating (but not violating) one does not compound a measure impli-cating (but not violating) the other, in a way that pushes the combination over a constitutional line. Pp. 696–698. 109 F. 4th 743, reversed and remanded.

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Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Sotomayor , Kavanaugh, Barrett, and Jackson, JJ., joined. Ka-vanaugh, J., post, p. 698, and Jackson, J., post, p. 710, filed concurring opinions. Gorsuch, J., filed a dissenting opinion, in which Thomas and Alito , JJ., joined, post, p. 711.

Acting Solicitor General Harris argued the cause for petitioners in No. 24–354. On the briefs were former Solicitor General Prelogar, Principal Deputy Assistant Attorney General Boynton, Deputy Solicitor General Stewart, Vivek Suri, Mark B. Stern, Gerard J. Sinzdak, Jacob M. Lewis, and James M. Carr.

Paul D. Clement argued the cause for petitioners in No. 24–422. With him on the briefs for petitioner Competitive Carriers Association et al. in both cases were C. Harker Rhodes IV, Kevin Wynosky, and Jennifer Tatel. Christopher J. Wright filed briefs for petitioner SHLB Coalition et al. in both cases. With him on the brief were Sean A. Lev, Jason Neal, Mohammad M. Ali, and Andrew Jay Schwartzman.

R. Trent McCotter argued the cause for respondents in both cases. With him on the briefs were Jonathan Berry, Michael Buschbacher, Jared M. Kelson, James R. Conde, Robert Henneke, and Chance Weldon.†

Rhode Island, Marty Jackley of South Dakota, Charity R. Clark of Vermont, Josh Kaul of Wisconsin, and Bridget Hill of Wyoming; for AASA— The School Superintendents Association et al. by Ari Holtzblatt; for the American Library Association by Bryan Killian and Kimberly L. Morning; for Bipartisan Former Commissioners of the Federal Communications Commission by Peter Karanjia; for CoBank, ACB, et al. by Andrew D. Lipman and Russell M. Blau; for Former Leadership of the Universal Service Administrative Co. by Gina Spade and Jennifer McKee; for the Local Government Legal Center et al. by Tillman L. Lay, Gregory M. Caffas, and Amanda Karras; for Members of Congress by Kevin F. King; for the National Association of Regulatory Utility Commissioners by James Braford Ramsay; for the National Lifeline Association et al. by Miles E. Coleman, John J. Heitmann, Christian J. Myers, William A. Rivera, Louis Lopez, and David S. Yellin; for the Oglala Sioux Tribe by Mario Gonzalez and Majel Russell; for Public Citizen by Nicolas A. San-sone, Allison M. Zieve, and Scott L. Nelson; for Public Knowledge et al. by John Bergmayer, Greg Guice, and Matthew Holder; for State-Level Associations by Edward A. Yorkgitis, Jr., and Ira T. Kasdan; for WTA— Advocates for Rural Broadband by Michael F. Smith; and for Julian Davis Mortenson et al. by Elizabeth B. Wydra, Brianne J. Gorod, and Brian R. Frazelle. Jeffrey B. Wall, Morgan L. Ratner, and Christopher J. Walker filed a brief in both cases for the Chamber of Commerce of the United States of America urging vacatur. Briefs of amici curiae urging reversal in No. 24–354 were filed for the National Foreign Trade Council by Alan B. Morrison; for NCTA—The Internet & Television Association et al. by Samuel L. Feder, Matthew S. Hellman, Rick C. Chessen, Russell P . Hanser, and Eve L. Hill; and for Gerard N. Magliocca et al. by Gerard N. Magliocca, pro se. Briefs of amici curiae urging affirmance in both cases were filed for the State of West Virginia et al. by John B. McCuskey, Attorney General of West Virginia, Michael R. Williams, Solicitor General, Rusty D. Crandell, and Linley Wilson, and by the Attorneys General for their respective States as follows: Steve Marshall of Alabama, Tim Griffin of Arkansas, James Uthmeier of Florida, Theodore E. Rokita of Indiana, Kris Kobach of Kansas, Liz Murrill of Louisiana, Andrew Bailey of Missouri, Austin Knudsen of Montana, Dave Yost of Ohio, Gentner Drummond of Oklahoma, Alan Wilson of South Carolina, Jonathan Skrmetti of Tennessee, Ken Paxton of Texas, and Jason Miyares of Virginia; for the Alliance

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Defending Freedom by Jacob P . Warner, James A. Campbell, and John J. Bursch; for Americans for Prosperity Foundation by Michael Pepson; for the Cato Institute et al. by Thomas Berry, Brent Skorup, Charles M. Brandt, and Ilya Shapiro; for the Firearms Policy Coalition, Inc., et al. by David H. Thompson and Peter A. Patterson; for the Immigration Reform Law Institute by Christopher J. Hajec; for the National Federation of Independent Business Small Business Legal Center, Inc., et al. by Jay C. Johnson and Craig Gilley; for the National Taxpayers Union Foundation by Tyler Martinez; for the Southeastern Legal Foundation by Braden H. Boucek and Celia Howard O'Leary; and for TechFreedom by Corbin K. Barthold.

Briefs of amici curiae urging affirmance in No. 24–354 were filed for The Buckeye Institute by David C. Tryon and Alex M. Certo; for the Foundation for Government Accountability by David J. Craig; for the Pa-cifc Legal Foundation by Luke A. Wake and Frank D. Garrison; and for Chad Squitieri by Andrew S. Tulumello . Briefs of amici curiae were filed in both cases for the Ad Hoc Health-care Group by James U. Troup and Jeffrey A. Mitchell; for Advancing American Freedom et al. by J. Marc Wheat; for the Aleutian Pribilof Islands Association, Inc., et al. by Geoffrey D. Strommer and Caroline P . Mayhew; for the America First Legal Foundation by Christopher E. Mills and Reed D. Rubinstein; for America's Future et al. by William J. Olson, Jeremiah L. Morgan, and Michael Boos; for the Competitive Enterprise Institute by Devin Watkins; for the Lawyers' Committee for Civil Rights Under Law et al. by Damon Hewitt, Dariely Rodriguez, Gillian Cassell-Stiga, and Marc Epstein; for the Mackinac Center for Public Policy et al. by Alex T. MacDonald; for the New Civil Liberties Alliance by Zhonette M. Brown and Markham S. Chenoweth; for the Reason Foundation by Alexander Volokh; for Reed Smith LLP by Kyle O. Sollie; and for Ilan Wurman, pro se.

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The question in this case is whether the universal-service scheme—more particularly, its contribution mechanism—violates the Constitution's nondelegation doctrine, either because Congress has given away its power to the FCC or because the FCC has given away its power to a private company. We hold that no impermissible transfer of authority has occurred. Under our nondelegation precedents, Congress sufficiently guided and constrained the discretion that it lodged with the FCC to implement the universal-service contribution scheme. And the FCC, in its turn, has retained all decision-making authority within that sphere, relying on the Administrative Company only for non-binding advice. Nothing in those arrangements, either separately or together, violates the Constitution.

A

The Communications Act of 1934, ch. 652, 48 Stat. 1064, established the FCC and empowered it to regulate communications services. In the Act's very first provision, Congress instructed the FCC to pursue the goal now called universal service. The FCC, Congress stated, was “to make available, so far as possible, to all the people of the United States,” reliable communications services “at reasonable charges.” 47 U. S. C. § 151.

The universal-service project arose from the concern that pure market mechanisms would leave some segments of the population without access to needed communications services. That is because providers of those services, also called carriers, can reap greater profits from some classes of cus-Page Proof Pending Publication

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Under the original Act, the FCC addressed that concern— and promoted universal service—through a “patchwork quilt of implicit and explicit subsidies.” FCC, Report to Congress 5 (FCC 98–67, 1998). The earliest and dominant squares of that quilt were implicit subsidies, provided under the FCC's authority to set “just and reasonable” rates. See Universal Service Order, 12 FCC Rcd., at 8784; 47 U. S. C. § 201(b). Carriers then operated as regulated monopolies, with the FCC (and its state counterparts) superintending the rates they could charge different kinds of customers for different services. See Universal Service Order, 12 FCC Rcd., at 8784–8785; Huber, Federal Telecommunications Law § 6.1.1.2, p. 6–7. And regulators used that authority over rates to shift costs: Long-distance rates were set enough above cost “to subsidize local rates, business rates to subsidize [non-business] rates, and urban rates to subsidize rural rates.” Id., p. 6–7. So, for example, a “large New York [City] brokerage firm making heavy use of long-distance Page Proof Pending Publication

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In 1996, Congress overhauled the Act to “promote competition and reduce regulation” in the telecommunications sector. See Telecommunications Act, 110 Stat. 56. As part of those reforms, Congress created a new framework for achieving universal service. The amended Act discarded the implicit subsidies embedded in ratemaking and substituted a plan for explicit transfer payments to ensure that basic communications services extend across the country. See § 254; Universal Service Order, 12 FCC Rcd., at 8783– 8784.

Section 254 of the amended statute requires every carrier providing interstate telecommunications services to “contribute,” in line with the statute and FCC rules, to a fund designed to “preserve and advance universal service.” § 254(d). The FCC must use the money in that fund, now known as the Universal Service Fund, to pay for subsidy programs for designated populations and facilities needing improved access. See §§ 254(a), (e); Wisconsin Bell, Inc. v. United States ex rel. Heath, 604 U. S. 140, 143–144 (2025). The statute, for example, continues the Lifeline program aiding low-income individuals. See § 254(j). It directs the FCC to provide assistance to rural hospitals, as well as to schools and libraries. See § 254(h)(1). And it instructs the FCC to expand communications access for consumers in “rural” and Page Proof Pending Publication

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The statute also provides detailed guidance for identifying the specific communications services to which the statute's beneficiaries should have access. On the one hand, the Act recognizes that those services, given the expected pace of technological change, are unlikely to stay static: Universal service, says the statute, is “an evolving level of telecommunications services that the Commission shall establish periodically” as it accounts for “advances in telecommunications and information technologies and services.” § 254(c)(1). On the other hand, the Act specifies the relevant criteria in every period. In deciding which communications services the “definition” of universal service encompasses, the FCC “shall consider the extent to which” a service (1) is “essential to education, public health, or public safety”; (2) has, through market forces, “been subscribed to by a substantial majority of residential customers”; and (3) is in fact “being deployed in public telecommunications networks by telecommunications carriers.” §§ 254(c)(1)(A)–(C). So too, the Commission must evaluate whether a service can be made available at an “affordable rate[ ].” § 254(b)(1). Congress thus struck a balance in establishing universal service's metes and bounds—affording the FCC latitude to adapt to technological developments, but insisting that the FCC always look to whether services are essential, affordable, and widely used.

Echoing the provisions just described, Congress also listed six “principles” on which the FCC “shall base” all its universal-service policies. § 254(b). First, “[q]uality services should be available at just, reasonable, and affordable rates.” § 254(b)(1). Second, “all regions of the Nation” should have access to those services. § 254(b)(2). Third, all consumers, “including low-income consumers and those in rural, insular, and high cost areas,” should have access to Page Proof Pending Publication

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The Commission now operates, under the terms of the Act, four universal-service programs. Lifeline, which predated the Act, gives low-income consumers a markdown on their monthly phone bills, usually of $9.25 per month. See § 254(j); 47 CFR §§ 54.400–54.424 (2024); supra, at 666. The High Cost program, which similarly built on a pre-1996 explicit subsidy program, furnishes carriers with funds en-abling them to provide basic communications services in “rural, insular, and [other] high cost areas” at costs comparable to those charged in urban areas. § 254(b)(3); §§ 54.302– 54.322; supra, at 666. The E-Rate program subsidizes communications services for schools and libraries across the country, with greater discounts going to facilities in rural or low-income areas. See §§ 254(b)(6), (h)(1)(B); §§ 54.500– 54.523; Wisconsin Bell, 604 U. S., at 144. And finally, the Rural Health program supports rural hospitals and other health care facilities, enabling them to use telemedicine in caring for far-flung patients and ensuring that they receive the needed communications services at roughly the rates urban facilities pay. See §§ 254(b)(6), (h)(1)(A); §§ 54.600–54.633.

To calculate how much carriers must contribute to the Fund for those programs, the FCC has devised a formula, known as the “contribution factor.” 47 CFR § 54.709(a). That factor is a fraction, expressed as a percentage, whose Page Proof Pending Publication

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The FCC in 1998 appointed the Universal Service Administrative Company as the Fund's “permanent Administrator.” § 54.701(a). The Administrator, as we will call it, is a private, not-for-profit corporation owned by an association of carriers. See § 54.5; Wisconsin Bell, 604 U. S., at 144. It manages the day-to-day operations of the Fund, “bill[ing] and collect[ing] contributions from carriers” and “distribut- [ing] the resulting pot of money, as FCC rules provide, to program beneficiaries.” Ibid.; see § 54.702. More relevant here, the Administrator plays a role each quarter in produc-ing the financial projections that end up determining the contribution factor. See §§ 54.709(a)(2)–(3). Specifi -cally, the Administrator estimates the Fund's expenses (again, the costs of the programs plus overhead) and adds up the estimates it receives from individual carriers about their revenues. See ibid. The Administrator then submits those Page Proof Pending Publication

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B

In December 2021, the FCC proposed a contribution factor of 25.2% for the first quarter of 2022. Respondents—the non-profit organization Consumers' Research, a carrier, and several consumers (collectively, Consumers' Research)—filed comments (during the 14-day, post-notice period described above) requesting that the FCC instead set the contribution factor at 0%. In support of that submission, Consumers' Research argued that the universal-service contribution scheme violates the Constitution's nondelegation rule. The Commission took no action in response, so the 25.2% contribution factor went into effect.

Consumers' Research then petitioned for review in the Court of Appeals for the Fifth Circuit. The en banc court granted the petition, replacing a panel decision to the contrary. See 109 F. 4th 743 (2024); 63 F. 4th 441 (2023). In the full Fifth Circuit's view, the universal-service contribution mechanism is unconstitutional because of its so-called “double-layered delegation.” 109 F. 4th, at 782.

The court's analysis proceeded by expressing “skepti-c[ism]” about each of two aspects of the contribution scheme, while declining to rule on either one. Id., at 778. First, the court stated, Congress in Section 254 “may have delegated legislative power” to the FCC by giving it “the power to tax” carriers “without supplying an intelligible principle to guide [its] discretion.” Id., at 756. The court described Section 254's limits on the Commission's authority as “minimal,” “contentless,” and “amorphous.” Id., at 760, 761, 767. Nonetheless, the court decided not to decide whether Congress had impermissibly transferred authority to the Commission. Id., at 767. Second, the court continued, the Commission “may have impermissibly delegated the taxing power to private entities” by involving the Administrator in Page Proof Pending Publication

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The dispositive constitutional problem, the Fifth Circuit ultimately held, is “ the combination of Congress's sweeping delegation to FCC and FCC's unauthorized subdelegation” to the Administrator. Ibid. (emphasis in original). Relying heavily on this Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 (2010), the court opined that “two or more things that are not independently unconstitutional can combine to violate the Constitution's separation of powers.” 109 F. 4th, at 778 (emphasis in original). And that was true here for a pair of reasons. The “double-layered delegation,” the court thought, had “no foothold in history or tradition.” Id., at 782. And, the court went on, that delegation “undermine[s] democratic accountability” by obscuring whether Congress, the FCC, or the Administrator bears responsibility for the amount of contributions. Id., at 783–784.

We granted certiorari, 604 U. S. 1029 (2024), and now reverse the decision below. 1 In this Court, Consumers' Re-

Article I of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” § 1. Accompanying that assignment of power to Congress is a bar on its further delegation: Legislative power, we have held, belongs to the legislative branch, and to no other. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 472 (2001). At the same time, we have recognized that Congress may “seek[ ] assistance” from its coordinate branches to secure the “effect intended by its acts of legislation.” J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406 (1928). And in particular, Congress may “vest[ ] discretion” in executive agencies to implement and apply the laws it has enacted—for example, by de-ciding on “the details of [their] execution.” Ibid.; see Wayman v. Southard, 10 Wheat. 1, 46 (1825) (“[T]he maker of the law may commit something to the discretion of the other departments”); Whitman, 531 U. S., at 474–475 (A “degree of policy judgment” can “be left to those executing or applying the law”).

Research will have to make the same kind of payments again. Ibid. So the case, as the Fifth Circuit concluded, is not moot. See 109 F. 4th 743, 753 (2024). Several other courts of appeals would have arrived at the opposite conclusion, because they require a party to seek preliminary relief in order to avail itself of the capable-of-repetition rule. See, e. g., Newdow v. Roberts, 603 F. 3d 1002, 1008–1009 (CADC 2010), cert. denied, 563 U. S. 1001 (2011). But our decisions have never hinted at such a requirement. See, e. g., Kingdomware Technologies, 579 U. S., at 170; SEC v. Sloan, 436 U. S. 103, 108–110 (1978). And for good reason: The “capable of repetition” rule applies because of the nature of some controversies, not because of the parties' litigating decisions. Page Proof Pending Publication

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Although the intelligible-principle standard has focused our nondelegation doctrine for a century, Consumers' Research and the dissent primarily argue that we must apply a different test here. Section 254, as just described, authorizes the Commission to raise revenue in the form of carrier “contribut[ions]” for universal-service programs. § 254(d); see supra, at 666. Consumers' Research views those required contributions as taxes. See Brief for Respondents 25– 29; see also post, at 722, 738–739 (Gorsuch, J., dissenting). And it argues that tax statutes—and probably all revenue-raising statutes—have to satisfy a special nondelegation rule. Page Proof Pending Publication

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But this Court's precedents foreclose that argument. Twice before, we have rejected a party's request to create a special nondelegation rule for revenue-raising legislation. In J. W. Hampton, a taxpayer contended that when Congress is “exercis[ing] the power to levy taxes and fx customs duties,” it lacks the usual leeway to confer discretion on agencies. 276 U. S., at 409. “The [legal] authorities,” the Court responded, “make no such distinction.” Ibid. And then the Court set out the “intelligible principle” standard as the universal method for assessing delegations. Ibid. More than sixty years later, we reiterated that holding. In Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 220 (1989), another litigant urged that “Congress' taxing power” can be delegated only “with much stricter guidelines” than are normally used. Citing J. W. Hampton, we again—and unanimously— rejected that “two-tiered theory of nondelegation.” 490 U. S., at 220–221. “[N]othing” in the Constitution's text or structure, Skinner explained, “distinguish[es] Congress' power to tax from its other enumerated powers” “in terms

2 Although endorsing the same rule as Consumers' Research, the dissent claims that the rule is merely an application of the intelligible-principle test. See post, at 723–724. That is mistaken: The intelligible-principle test requires an intelligible principle, not a “prescribed . . . tax rate.” Post, at 723. So what we say about the Consumers' Research position generally goes as well for the dissent's.

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The alternative test Consumers' Research and the dissent propose also would throw a host of federal statutes into doubt. Relying on this Court's nondelegation precedents, Congress has often enacted statutes empowering agencies to raise revenue without specifying a numeric cap or tax rate. See Reply Brief for Federal Petitioners 7–9 (listing nine “example[s]”). Indeed, such statutes are endemic in the sphere of financial regulation. The Federal Reserve Board, for instance, funds its operations by levying on Federal Reserve Banks “an assessment sufficient to pay its estimated ex-

Consumers' Research is conflicted about how to approach that problem, but sometimes tries to draw a line between taxes and fees. Our decision in National Cable Television Assn., Inc. v. United States, 415 U. S. 336 (1974) (NCTA), recognized that distinction, as Consumers' Research notes. See Brief for Respondents 28. We there described “fees” as “bestow[ing]” a reciprocal “benefit on the [payor], not shared by other members of society.” NCTA, 415 U. S., at 341. By contrast, “taxes” are expected to “inure[ ] to the benefit” of the wider public. Id., at 343. In its brief, Consumers' Research argues that its numeric-cap standard applies to both taxes and fees: As to either, Congress's delegation to an agency must include an “objective upper limit[ ].” Brief for Respondents 37; see id., at 36–38. At argument, however, Consumers' Research relied on the tax vs. fee distinction to get out from under the long list of statutes its position places in jeopardy. Most of those statutes, it argued, involve not taxes but fees, where the charge reflects simply “the value of the benefit to the” payor. Tr. of Oral Arg. 134; see id., at 148. So, Consumers' Research suggested, if we label carrier contributions “taxes” and then make only taxes subject to the numeric-limit requirement, there would be minimal fall-Page Proof Pending Publication

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But the problems with going down that road are substantial. First and as already shown, precedent forecloses it. Indeed, in rejecting a stricter test for delegations made “under Congress' taxing power,” Skinner specifically noted that its position rendered irrelevant the question (which, we noted, “so exercised the District Court”) whether the charges there were “user fees” or a “form of taxation.” 490 U. S., at 223. Either way, the Court held, the delegation in-

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quiry was just the same, and just the usual one. See ibid. Second, Consumers' Research offers no argument for why categorizing something as a fee rather than a tax should matter for delegation purposes. To the contrary, its brief suggests the difference should make no difference—that instead all revenue-raising measures should be treated the same. Brief for Respondents 36–38; Tr. of Oral Arg. 132–133 (repeating the point). The distinction is proposed only as an artificial method for limiting the effects of a holding in Consumers' Research's favor, should the court be too squeamish to go all the way.

And third, the distinction between taxes and fees, even if occasionally needed, is a morass—or as the Government (which levies both) puts it, “unbelievably murky in practice.”

And yet a greater problem inheres in the shared position of Consumers' Research and the dissent: Whatever it applies to (just taxes or fees as well), its focus on numeric limits produces absurd results, divorced from any reasonable understanding of constitutional values. Under that view, a revenue-raising statute containing non-numeric, qualitative

We therefore return to the usual intelligible-principle test to decide whether the universal-service contribution scheme violates the Constitution's nondelegation rule. The question is, again, whether Section 254 adequately guides the FCC in requiring contributions from carriers—whether it expresses the “general policy” the FCC must pursue in setting contribution amounts, as well as the “boundaries” it cannot cross. American Power & Light, 329 U. S., at 105. Here, that inquiry into the nature of the FCC's discretion involves what turn out to be two closely related questions. First, how much money can the FCC raise through contributions? And Page Proof Pending Publication

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As Consumers' Research notes, Section 254 imposes no quantitative but only qualitative limits on how much money the FCC can raise from carriers for universal service. There is not a number or a rate in sight. Instead, the statute directs the FCC to collect the amount that is “sufficient” to support the universal-service programs Congress has told it to implement. §§ 254(b)(5), (d), (e). That language replicates or resembles the statutory terms Congress has used in other revenue-raising statutes, as described above. See supra, at 675–676; see, e. g., 12 U. S. C. § 243 (instructing the Federal Reserve Board to levy on banks “an assessment sufi-fcient to pay its estimated expenses”).

Consumers' Research argues that, even under our usual nondelegation test, the term “sufficient” does not do enough. That is because, in the Consumers' Research view, it sets only “a floor—not a ceiling—on the FCC's revenue-raising power.” Brief for Respondents 56. Or to put the point differently, Consumers' Research thinks that the statute gives the FCC power, all on its own, to raise our hypothetical $5 trillion. See supra, at 679–680. And not unreasonably, it thinks that would pose a constitutional problem.

But in fact the word “sufficient” sets a floor and a ceiling alike. An amount of money is “sufficient” for a purpose if it is “[a]dequate” or “necessary” to achieve that purpose. Black's Law Dictionary 1447 (7th ed. 1999). That means, of course, that the FCC cannot raise less than is adequate or necessary to finance the universal-service programs Congress wants. But it also means that the FCC cannot raise more than that amount. Were the FCC to raise, say, twice Page Proof Pending Publication

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And the Commission has long viewed the statute in just that way. For many years, the Commission has construed the sufficient-funding directive to call for raising “an affordable and sustainable amount of support that is adequate, but no greater than necessary, to achieve the goals of the universal service program.” In re High-Cost Universal Serv. Support, 25 FCC Rcd. 4072, 4074 (2010); see Tr. of Oral Arg. 4 (Solicitor General explaining that Congress has authorized the FCC to collect “only what's sufficient to achieve universal service, so no more than needed to support specified programs”). The Commission, in other words, sets the contribution factor to raise just enough money—a “sufficient” amount—to implement universal service as Congress directed.

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To say that much, though, takes us only halfway, because it raises the question: Sufficient for what? If Section 254's universal-service program is itself indeterminate—so that the FCC can turn it into anything the FCC wants—then the Page Proof Pending Publication

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On this further, “for what” question, our nondelegation precedents provide context—showing what kinds of statutory schemes have passed, and what kinds have flailed, the demand that Congress give adequate guidance. Those that have flailed are fewer in number—in fact, only two—but offer object lessons about the amount of latitude Congress can confer. In one case, the statute empowered the President to bar the transport of petroleum products while “establish[ing] no criterion” and “declar[ing] no policy” for whether, when, or how he should do so. Panama Refining Co. v. Ryan, 293 U. S. 388, 415 (1935). The statute in the second case was even worse. It authorized the President to approve “codes of fair competition” for “the government of trade and industry throughout the country,” yet imposed “few restrictions” and “set[ ] up no standards” aside from a “statement of the general aims of rehabilitat[ing], correct[ing,] and expand- [ing]” the economy. A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 521–522, 541–542 (1935). The law thus gave the President “virtually unfettered” authority to govern the Nation's trades and industries. Id., at 542.

At the same time, we have found intelligible principles in a host of statutes giving agencies significant discretion. So, for example, we upheld a provision enabling an agency to set air quality standards at levels “requisite to protect the public health.” Whitman, 531 U. S., at 472. We sustained a delegation to an agency to ensure that corporate structures did not “unfairly or inequitably distribute voting power” among security holders. American Power & Light, 329 U. S., at Page Proof Pending Publication

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Section 254, for its part, provides the FCC with determinate standards for operating the universal-service program. The statute makes clear whom the program is intended to serve: those in rural and other high-cost areas (with a special nod to rural hospitals), low-income consumers, and schools and libraries. See §§ 254(b)(3), (6), (h)(1); see supra, at 666– 668. And in provisions defining universal service and stat-ing the program's core “principles,” the statute provides spe-cifc criteria for which services those statutory beneficiaries should receive. §§ 254(b), (c)(1). In deciding whether a service falls within the program's ambit, the FCC must consider whether the service has “been subscribed to by a substantial majority of residential customers.” § 254(c)(1)(B). If that objective criterion is not met, the FCC generally may not subsidize the service. So too, the service must be one that can be made available to all consumers in all regions at “reasonable[ ] and affordable rates”—so more a basic than a budget-busting good. §§ 254(b)(1), (3). 7 And still more, the

That limited conception of universal service is rooted in its history—except that the new statute, as compared with the old, holds the FCC to more specific requirements. As ear-lier explained, the 1934 Act charged the FCC with pursuing universal service—that is, with making available to all Americans telecommunications services “at reasonable charges.” § 151. As then understood, that objective did not reach for the stars: Though quite important, it was also “relatively modest.” Benjamin, Telecommunications Law and Policy § 18.2, at 863. The idea was to “reduc[e] the costs of basic telephone service and, in that way, increas[e] national subscribership.” Ibid. By the time of the 1996 amendments, though, new telecommunications technologies and services had emerged. And so Congress enabled the FCC, in carrying out universal-service programs, to do more. See id., at 863–864; see, e. g., §§ 254(b)(6), (h)(1). But still the statute's policy was a circumscribed one: to provide to all (especially, the rural and poor) the services that most already had, if those services were both necessary and affordable. The key difference between the original statute and the amended one is a matter of means, and on that score, the latter provides far greater congressional guidance. Under the 1934 Act, the FCC gave implicit (and often obscure) subsidies under its general (i. e., “just and reasonable”) rate-making authority. See supra, at 665; see also post, at 713 (explaining that in the pre-1996 regime, “[r]egulators manipulated rates” to fund universal service). Under the

ability to provide other services, to other customers, affordably. The af-fordability principle precludes that result. See §§ 254(b)(1), (3). Page Proof Pending Publication

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The proof is in the pudding: Each of the four programs the FCC now operates under Section 254 reflects Congress's choices about universal service's scope and content. The Lifeline program, which began under the original Act, advances a basic commitment. Now codified, it helps make phone service affordable to all Americans by providing a modest monthly subsidy. See § 254(j); 47 CFR §§ 54.400– 54.424; supra, at 666, 668. The High Cost program similarly implements a longstanding principle—to integrate rural communities into the Nation's communications network. See § 151; §§ 54.302–54.322; supra, at 665–666, 668. And it does so now in accordance with the statutory directive to ensure that rural and other high-cost areas have access to roughly the same needed services, at the same affordable prices, as urban areas do. § 254(b)(3). The Commission's other two programs, E-Rate and Rural Health, are of a piece. Specifically authorized in the amended Act, they underwrite services essential to education and healthcare, with a focus on underserved populations. § 254(h)(1); §§ 54.500–54.523, 54.600–54.633; supra, at 668. Not one of those important but decidedly ordinary programs suggests an agency vested with unbridled discretion. Each provides communications services satisfying the Act's listed criteria to the Act's identified beneficiaries. And maybe surprisingly (given what we are used to when it comes to government programs), they have done so at roughly constant inflation-adjusted dollars. Compare USAC, 2000 Annual Report 5 (charging carriers $7.4 billion in 1999 when so adjusted), with USAC, 2024 Annual Report 18 (charging carriers $8.4 billion in 2024). 8 That is

8 The dissent's more dramatic figures rely on using the wrong baseline year—1998 instead of 1999. According to the dissent: “In 1998, universal-service disbursements totaled about $2.29 billion” whereas in 2024 they

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Consumers' Research and the dissent tell a different story—that the Act gives the FCC boundless authority—but the provisions they point to show nothing of the kind. They first pluck out a few words to argue that the criteria for subsidizing services, described above, are not “real limit[s].” Brief for Respondents 55; supra, at 684–685. On affordabil-ity, both contend that because Section 254(b) states that services “should”—rather than “shall”—be made available at “reasonable[ ] and affordable rates,” there is in fact no such requirement. Brief for Respondents 47–48; see post, at 729– 730. But that reading starts in the middle. The provision, starting from the start, says that the FCC “shall” base all universal-service policies on the principle (among others) that services “should be available” at “reasonable[ ] and affordable rates.” § 254(b)(1). The mandatory “shall” requires the FCC to follow the affordability principle—which

were about $8.59 billion—“nearly double, adjusted for inflation.” Post, at 718, 726. But that is because in 1998, some of the new statute's universal-service programs were just getting off the ground. The Rural Health program, for example, did not even begin accepting applications for funding until May of that year. USAC, 1999 Annual Report 6. The right benchmark instead comes from the next year, when the programs Congress authorized were up and running. Only after that point can the increase in costs provide information about whether Congress adequately guided the FCC's discretion—or instead allowed the FCC to run rampant—going forward.

The dissent therefore flails in its related claim that the FCC can balance different universal-service criteria against each other—so, for example, fund a service because it is “essential to education” even though it has not been adopted “by a substantial majority” of customers. Post, at 716; see post, at 727–728; supra, at 684–685. Again, the Solicitor General has represented in this Court that each of the criteria has to be met. Tr. of Oral Arg. 10, 27–29, 177–178. In any event, and yet more important, we must “exercise [our] independent judgment in deciding” what power Congress has conferred. Loper Bright Enterprises v. Raimondo , 603 U. S. 369, 412 (2024). And for all the reasons given above, we view the statutory criteria—which, contra the dissent, post, at 727, define universal service—as separately mandatory. See § 254(c)(1); supra, at 684–685, 687 and this page. Of course, the Commission may still have to strike balances in addressing those criteria, along with the statute's other provisions. It may, for example, have to decide whether to make a service more affordable (by giving a larger subsidy) or instead extend it to a broader swathe of recipients. But that kind of discretion—balancing or no—does not raise a constitutional prob- Page Proof Pending Publication

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We likewise see no constitutional issue in Section 254(c)(1)'s description of universal service as an “evolving level of telecommunications services that the Commission shall establish periodically” in light of “advances in telecommunications and information” services. According to Consumers' Research and the dissent, that language enables the FCC to “redefine universal service” over time as it and only it “sees ft.” Brief for Respondents 8, 54; see post, at 727. But Congress's statement that universal service should “evolve” is itself a direction—and a near-inevitable one, given the reality of technological change. If universal service did not evolve—if Congress had defined it as, say, a landline in every home (or, as the dissent would have it, “touch-tone [phone] service,” post, at 728)—the program would have long since become obsolete. The Act's embrace of evolution—the permission it gives the FCC to subsidize different services now than 30 years ago—ensures that the universal-service program will be of enduring utility. But that conferral of discretion does not strip the statute of standards and constraints. The Commission still may fund only essential, widely used, and affordable services, for the benefit of only designated recipients. See supra, at 684–685. So Congress has ensured that the Commission will continue to carry out the same objectives according to the same criteria and principles, even as it has allowed adaptation to a changing technological landscape.

Finally, we do not view as Consumers' Research does the provision in Section 254 enabling the FCC to articulate “[a]d-ditional principles,” beyond the six listed, to guide its universal-service programs. § 254(b)(7); see supra, at 668. Recall that the added principles are ones the FCC “determine[s] are necessary and appropriate for the protection of the public interest, convenience, and necessity and are con-Page Proof Pending Publication

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In a sense, each of the arguments Consumers' Research and the dissent make about Section 254 suffers from the same flaw. At every turn, they read Section 254 extravagantly, the better to create a constitutional problem. As earlier seen, “sufficient” means to Consumers' Research as much as the FCC wants, a floor without a ceiling. See supra, at 681. The statute's mandatory conditions on funding services are instead mere suggestions, for the FCC to observe or not as it chooses. See supra, at 687–689. The phrase “evolving level” of service licenses the FCC to create a whole new program, unhindered by the statute's existing Page Proof Pending Publication

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Properly understood, the universal-service contribution scheme clears the nondelegation bar. The policy it expresses is clear and limiting. If, says the statute, a substantial majority of Americans has access to a communications service that is both affordable and essential to modern life, then other Americans should have access to that service too. And to make that happen, the statute continues, carriers should kick in the needed funds. At bottom, that is all the contribution scheme challenged here accomplishes. Through that statutory mechanism, the FCC raises sufficient funds (neither more nor less than needed) to bring to underserved Americans, mainly in rural and low-income communities, a bounded and commonplace set of communications services. The FCC no doubt exercises significant discretion in carrying out that charge. But it is discretion tethered to legislative judgments about the scope and content of the universal-service program. And so the main delegation at issue here, from Congress to the Commission, does not offend

the Constitution. Page Proof Pending Publication

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Carter Coal, though, has a counterpart case, addressing how Government agencies may rely on advice and assistance from private actors. In Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381, 388 (1940), this Court considered a statute, enacted in response to Carter Coal, permitting boards of coal companies to propose minimum coal prices to a Government agency for “approv[al], disapprov[al], or modi-f[cation].” That arrangement, we held, was “unquestionably valid.” 310 U. S., at 399. After all, we explained, the private boards “function[ed] subordinately to” the agency and were subject to its “authority and surveillance.” Ibid. As long as an agency thus retains decision-making power, it may enlist private parties to give it recommendations.

Here, the Administrator is broadly subordinate to the Commission. The FCC appoints the Administrator's Board Page Proof Pending Publication

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And critically, that is as true in determining the contribution factor as in other matters: Although the Administrator plays an advisory role, the Commission alone has decision-making authority. Recall that each quarter's contribution factor is a function of the carriers' projected revenues and the Fund's projected expenses. See supra, at 668–669. The Administrator makes the initial projections. On the revenue side, that means just doing arithmetic: The carriers submit their projections on FCC forms and the Administrator adds them up. See §§ 54.709(a)(2)–(3), 54.711(a). On the expense side, the Administrator's estimates involve considerably greater effort—but still no policy-making. The FCC's rules implementing the Act dictate the programs' scope: For example, they set eligibility criteria for beneficiaries, provide formulas for calculating subsidies, and impose some funding caps. See, e. g., §§ 54.410, 54.507, 54.604–54.606. 10 Working within those rules, the Administrator estimates the programs' cost. It then publicly reports those projections, along with supporting documents, to the Commission—on the revenue side, at least 30 days before a quarter starts, on

In contending otherwise, Consumers' Research misunderstands the regulatory scheme. Its primary argument rests on the words “deemed approved” in the FCC's regulations. Consumers' Research takes that to mean that the Administrator's projections can “take legal effect” just by the “deem- [ing]” mechanism—that is, without receiving “formal FCC approval.” Brief for Respondents 80. But that account ignores everything that happens before the 14-day period following public notice. Prior to that time, the Commission reviews the Administrator's projections, and either revises or approves them. Then, the Commission sets the contribution factor based on the vetted projections and issues it to the public. So the Administrator's projections can have only the legal (or, indeed, practical) effect the Commission decides they should. Not the Administrator, but the Commission endorses final projections, converts them into a contribution factor, and formally promulgates them. At the end of all that action, the “deemed approved” provision just operates to shut off an additional two-week opportunity the Commission has to revise the published contribution factor—because something (including public comments like Consumers' Research submitted) has caused it to change its mind. That provision does nothing to negate the Commission decision-making that has already taken place. Page Proof Pending Publication

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So the Commission's transfer of accounting functions to the Administrator offers no reason for holding the universal-service contribution scheme invalid. In every way that matters to the constitutional inquiry, the Commission, not the Administrator, is in control. Page Proof Pending Publication

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The Fifth Circuit, as noted earlier, founded its combination theory—that a constitutional non-violation plus a constitutional non-violation may equal a constitutional violation—on this Court's decision in Free Enterprise Fund. See supra, at 671. There, we struck down a statute because it gave an executive officer two “layers of protection” from the President's removal authority: The President was “restricted in his ability to remove a principal officer, who [was] in turn restricted in his ability to remove an inferior officer.” 561 U. S., at 483–484. Even granting that each layer of good-cause protection was alone permissible, we thought the combination was too much. The two together, more than either alone, insulated the officer from the President's firing power, thus super-charging the officer's “independence.” Id., at 496. That holding, in the Fifth Circuit's view, gave rise to a “general principle”: “[T]wo constitutional parts do not necessarily add up to a constitutional whole.” 109 F. 4th, at 779. And the court thought that principle applied here. Even if Congress lawfully conferred discretion on the Commission and the Commission lawfully sought assistance from the Administrator, the combination was both “unprecedented” and “incompatible” with “democratic accountability.” Id., at 779, 783–784. So what the Fifth Circuit called “the universal service contribution mechanism's double-layered delegation” had to go. Id., at 784.

But the court's analogy and associated logic do not work. In Free Enterprise Fund, each of the two layers of for-cause Page Proof Pending Publication

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And indeed Sunshine Anthracite as well as said so before. As earlier noted, that case involved a private nondelegation challenge—that a board of coal companies advising an agency played too great a role in setting industry prices. See 310 U. S., at 399; supra, at 692. In addition, the case involved a public nondelegation challenge—that even the agency could not set prices because Congress had flailed to provide it with sufficient guidance. See 310 U. S., at 397– 399. The Court discussed and rejected the one challenge; and then it discussed and rejected the other. See ibid. And then the Court stopped. It did not think some further “combination” analysis was required. That was because (1) Page Proof Pending Publication

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V

When Congress amended the Communications Act in 1996, it provided the Commission with clear guidance on how to promote universal service using carrier contributions. Congress laid out the “general policy” to be achieved, the “principle[s]” and standards the FCC must use in pursuing that policy, and the “boundaries” the FCC may not cross. J. W. Hampton, 276 U. S., at 409; American Power & Light, 329 U. S., at 105. Our precedents do not require more. Nor do they prevent the Commission, in carrying out Congress's policy, from obtaining the Administrator's assistance in projecting revenues and expenses, so that carriers pay the needed amount. For nearly three decades, the work of Congress and the Commission in establishing universal-service programs has led to a more fully connected country. And it has done so while leaving fully intact the separation of powers integral to our Constitution.

We accordingly reverse the judgment of the Court of Appeals for the Fifth Circuit and remand for further proceedings consistent with this opinion.

It is so ordered.

Justice Kavanaugh, concurring.

This case presents a narrow but important nondelegation question: May Congress authorize the Federal Communications Commission to determine the monetary amount “suff-cient” to fund certain telecommunications services, which in turn is the amount that telecommunications carriers must contribute to the Universal Service Fund? Applying the longstanding “intelligible principle” test set forth by this Court's precedents, the Court today upholds that congressional delegation to the FCC. See Skinner v. Mid-America Page Proof Pending Publication

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I join the Court's opinion and write separately to make two points. First, I will briefly outline what I understand to be the background and rationale behind the intelligible principle test that the Court has long used to assess congressional delegations of authority to the Executive Branch. Second, I will explain why congressional delegations to independent agencies—as distinct from delegations to the President and executive agencies—raise substantial questions under Article II of the Constitution.

From the start in 1789, Congress has delegated to the President the power to exercise discretion and policymaking authority when implementing legislation. 1 Those delegations have been a regular feature of American Government ever since.2

with the Indian tribes . . . to any proper person,” and stipulating that the officials and licensees “shall be governed in all things touching the said trade and intercourse, by such rules and regulations as the President shall prescribe”); Act of Feb. 20, 1792, § 3, 1 Stat. 234 (granting the Postmaster General discretion to choose among post roads and means of carrying mail); Act of June 4, 1794, ch. 41, § 1, 1 Stat. 372 (granting the President authority to lay embargoes “whenever, in his opinion, the public safety shall so require,” and “under such regulations as the circumstances of the case may require”); Act of May 27, 1796, ch. 31, 1 Stat. 474 (authorizing the President to direct officers “to aid in the execution of quarantine . . . in such manner as may to him appear necessary”); Act of July 9, 1798, § 22, 1 Stat. 589 (empowering federal tax commissioners to change property tax assessments “as shall appear to be just and equitable”). Page Proof Pending Publication

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The history of congressional delegations and the Court's understanding of Article II's text correspond to what the Court has described as the practicalities of legislative and executive action. Congress delegates at least in part because it must adapt legislation to “complex conditions involv-ing a host of details with which the national legislature cannot deal directly.” A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 530 (1935); Panama Refining Co. v. Ryan, 293 U. S. 388, 421 (1935). And the Constitution “has never been regarded as denying to Congress the necessary resources of flexibility and practicality.” Schechter Poultry, 295 U. S., at 530; Panama Refining , 293 U. S., at 421. That flexibility enables Congress “to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.” Schechter Poultry , 295 U. S., at 530; Panama Re-fining, 293 U. S., at 421. Even when the legislature might want to legislate more specifically in certain circumstances, a “certain degree of discretion, and thus of lawmaking, inheres in most executive . . . action.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 475 (2001) (quotation marks omitted).

But the question of where to draw that line can be difficult: At what point does a broad statutory delegation transform from (i) a permissible grant of discretion or policymaking authority for the President to exercise when implementing legislation into (ii) an impermissible delegation of legislative power? Justice Scalia phrased the issue this way: “Once it is conceded, as it must be, that no statute can be entirely precise, and that some judgments, even some judgments in-volving policy considerations, must be left to the officers exe-cuting the law . . . , the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree.” Mistretta, 488 U. S., at 415 (dissenting opinion).

To address that question of degree and ensure that the President is exercising executive power when implementing legislation, the Court in 1928 adopted the “intelligible principle” test. In its unanimous opinion in J. W. Hampton, Jr., & Co. v. United States, the Court speaking through Chief Justice (and former President) Taft stated: “If Congress shall Page Proof Pending Publication

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The intelligible principle test recognizes that “[a]t some point the responsibilities assigned can become so extensive and so unconstrained that Congress has in effect delegated its legislative power.” Loving , 517 U. S., at 777 (Scalia, J., concurring in part and concurring in judgment). But “until that point of excess is reached there exists . . . no delegation” of legislative power “at all.” Ibid.

For 97 years, the intelligible principle test set forth in J. W. Hampton has formed the foundation of the Court's nondelegation doctrine. Under the test, as then-Justice Rehnquist succinctly framed it, Congress may “lay down the general policy and standards that animate the law, leaving the agency to refine those standards, `fill in the blanks,' or apply the standards to particular cases.” Industrial Union Dept., AFL–CIO v. American Petroleum Institute , 448 U. S. 607, 675 (1980) (opinion concurring in judgment).

To be clear, the intelligible principle test is not toothless. But it does operate in a way that respects the President's Article II authority to execute the laws—that is, to exercise discretion and policymaking authority within the limits set by Congress and without undue judicial interference. See, e. g., Whitman, 531 U. S., at 472–476; Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579, 635 (1952) (Jackson, J., concurring) (“When the President acts pursuant to an ex-Page Proof Pending Publication

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In any event, there of course can be difficult questions about how to apply the intelligible principle test to particular statutes. See Industrial Union, 448 U. S., at 646 (plurality opinion of Stevens, J.); id., at 685–686 (Rehnquist, J., concurring in judgment). But I agree with how the Court has applied the test in this case.

I see no need in this case to try to spell out a definitive guide for applying the intelligible principle test, and it would probably not be possible to do so anyway. It is important, however, to emphasize three points.

First, as both the Court and Justice Gorsuch agree, under the intelligible principle test, “the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” Whitman, 531 U. S., at 475; see ante, at 673; post, at 721 (dissenting opinion). Congressional delegations of authority to the President “must be judged `according to common sense and the inherent necessities of the governmental co-ordination.' ” Industrial Union, 448 U. S., at 675 (Rehnquist, J., concurring in judgment) (quoting J. W. Hampton, 276 U. S., at 406).

Second, many of the broader structural concerns about expansive delegations have been substantially mitigated by this Court's recent case law in related areas—in particular (i) the Court's rejection of so-called Chevron deference and (ii) the Court's application of the major questions canon of statutory interpretation. Cf. Paul v. United States, 589 U. S. 1087 (2019) (statement of Kavanaugh, J., respecting denial of certiorari).

To elaborate: Although the nondelegation doctrine's intelligible principle test has historically not packed much punch in constricting Congress's authority to delegate, the President generally must act within the confines set by Congress when he implements legislation. So the President's actions when implementing legislation are constrained— namely, by the scope of Congress's authorization and by any restrictions set forth in that statutory text. See Loper Bright Enterprises v. Raimondo , 603 U. S. 369, 394–396, 404 (2024).

On top of that, when interpreting a statute and determin-ing the limits of the statutory text, courts presume that Congress, in the domestic sphere, has not delegated authority to Page Proof Pending Publication

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Third, in the national security and foreign policy realms, the nondelegation doctrine (whatever its scope with respect to domestic legislation) appropriately has played an even more limited role in light of the President's constitutional responsibilities and independent Article II authority. See Loving , 517 U. S., at 772–773; Youngstown, 343 U. S., at 636, n. 2 (Jackson, J., concurring); Zemel v. Rusk, 381 U. S. 1, 17– 18 (1965); United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 319–322 (1936); Marshall Field & Co. v. Clark, 143 U. S. 649, 691 (1892). In “the area of foreign affairs, Congress `must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.' ” Industrial Union, 448 U. S., at 684 (Rehnquist, J., concurring in judgment) (quoting Curtiss-Wright, 299 U. S., at 320).

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Congressional delegations to independent agencies, as distinct from delegations to the President and executive agencies, raise substantial Article II issues.

Critiques of broad congressional delegations sometimes focus on officials described as “unaccountable bureaucrats.” But that label does not squarely ft delegations to executive agencies. In those circumstances, the President and his subordinate executive officials maintain control over the executive actions undertaken pursuant to a delegation. And the President is elected by and accountable to all the American people. See Myers v. United States, 272 U. S. 52, 123 (1926).

This case involves a congressional delegation of authority to the FCC. The FCC has commonly been viewed as an independent agency headed by five Commissioners. But at oral argument in this case, the Government correctly pointed out that the FCC formally is not an independent agency because “the FCC does not have statutory for-cause removal protections”—in other words, no statutory text restricts the President's authority to remove FCC Commissioners at will. Tr. of Oral Arg. 54. And as the Government indicated, this Court's usual practice, given the text and structure of Article II, is not to infer for-cause removal protections from statutory silence. See Kennedy v. Braidwood Management, Inc., 606 U. S. 748, 770–772 (2025); Shurtleff v. United States, 189 U. S. 311, 314–315 (1903). For those reasons, I tend to agree with the Government that the FCC, in light of the statutory text, should not be considered an independent

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There are at least two possible solutions to the problem caused by congressional delegations of authority to independent agencies. One is to overrule (or significantly narrow) Humphrey's Executor so that the heads of all or most independent agencies are removable at will by the President, and thus supervised and directed by the President. A second option would be to apply a more stringent version of the nondelegation doctrine to delegations to independent agencies. For example, to take one possibility, independent agencies might need to first submit proposed rules to Congress for approval in the legislative process before the rules can take effect.

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* * *

As the Court explains, Congress has delegated authority to the FCC with respect to the Universal Service Fund in accordance with the longstanding intelligible principle test. If the FCC were an independent agency, however, the question would be more difficult. Because that issue is not presented in this case, I join the Court's opinion in full.

Justice Jackson, concurring.

Respondents in this case have challenged the Federal Communications Commission's universal-service program under both the traditional nondelegation doctrine and the private nondelegation doctrine. The Court properly rejects both challenges today, and I join the Court's opinion in full. 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).

In today's case, none of the parties addressed these concerns, and the Court had no reason to consider them sua sponte because respondents' private nondelegation claim flailed on its own terms. But we should tread carefully before entertaining challenges under this theory in the future. “When the Constitution's text does not provide a limit to a coordinate branch's power, we should not lightly assume that Article III implicitly directs the Judiciary to find one.” Consumer Financial Protection Bureau v. Community Fi-Page Proof Pending Publication

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Justice Gorsuch, with whom Justice Thomas and Justice Alito join, dissenting.

Within the federal government, Congress “alone has access to the pockets of the people.” The Federalist No. 48, p. 334 (J. Cooke ed. 1961) (J. Madison). The Constitution affords only our elected representatives the power to decide which taxes the government can collect and at what rates. See Art. I, § 8, cl. 1. Throughout the Nation's history, Congress has almost invariably respected this assignment. As this Court observed some decades ago, it would represent “a sharp break with our traditions” for Congress to abdicate its responsibilities and “besto[w] on a federal agency the taxing power.” National Cable Television Assn., Inc. v. United States, 415 U. S. 336, 341 (1974).

Today, the Court departs from these time-honored rules. When it comes to “universal service” taxes, the Court concludes, an executive agency may decide for itself what rates to apply and how much to collect. In upholding that arrangement, the Court defies the Constitution's command that Congress “may not transfer to another branch `powers which are strictly and exclusively legislative.' ” Gundy v. United States, 588 U. S. 128, 135 (2019) (plurality opinion) (quoting Wayman v. Southard, 10 Wheat. 1, 42–43 (1825)).

Still, things could be worse. Because today's misadventure “sits unmoored from surrounding law,” I have reason to hope its approach will not stand the test of time. Loper Bright Enterprises v. Raimondo , 603 U. S. 369, 425 (2024) (Gorsuch, J., concurring) (internal quotation marks omitted). And even as the Court swallows a delegation beyond anything yet seen in the U. S. Reports, it also signals, unmistakably, that there are some abdications of congressional authority, including in the very statute before us, that the present majority isn't prepared to stomach. Page Proof Pending Publication

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I

f you look closely at your phone bill, you will likely notice a charge for “universal service.” Perhaps you have wondered what that is and why you are paying for it. As it turns out, in 47 U. S. C. § 254, Congress has authorized the Federal Communications Commission (FCC) to subsidize a number of disparate programs under the umbrella of “universal service.” The FCC selects which programs to pursue and how much they should cost. To fund them, the agency taxes telecommunications companies at a rate it controls. By regulation, those companies are then free to pass the charges along to consumers like you. This case involves a challenge to that scheme. To appreciate the questions it poses for us, some background helps.

The phrase “universal service” has carried different meanings at different times. Originally, it referred to “a telephone network that covers all of a country.” M. Mueller, Universal Service: Competition, Interconnection, and Monopoly in the Making of the American Telephone System 1 (1997). And it meant one network in particular: the Bell System owned by the American Telephone and Telegraph Company (AT&T). AT&T's president coined the slogan in 1907—“One System, One Policy, Universal Service”—to boost Bell's nascent monopoly. Id., at 4, 96. “Universal,” as AT&T used it, focused less on telephone service for all than on making sure AT&T provided all the service. And the slogan proved apt: By the 1920s, the Bell System, fight-ing “under the banner of universal service,” had conquered the U. S. telephone market. Id., at 146.

Over time, “the term `universal service' took on a new meaning.” P. Huber, M. Kellogg, & J. Thorne, Federal Telecommunications Law § 6.1.1.2 (3d ed. Supp. 2022) (Huber). For much of the 20th century, it referred to a policy aimed at making landline local phone service “available to all con-Page Proof Pending Publication

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That system of implicit subsidies worked as long as the same family of companies served all telephone customers. See Verizon Communications, 535 U. S., at 480–481. But the scheme began to falter in the 1970s and 1980s, as new long-distance carriers entered the picture, and an antitrust consent decree spun off AT&T's long-distance business into a separate company, with newly independent “Baby Bells” now providing local service. See NYNEX Corp. v. Discon, Inc., 525 U. S. 128, 130–131 (1998); Bell Atlantic Corp. v. Twombly , 550 U. S. 544, 549 (2007). At that point, regulators could no longer depend on the Bell System to subsidize local rates by infating long-distance rates. See Huber § 6.2.1.2.

Still, parts of the old universal-service regime hung on. Because the Baby Bells continued to enjoy regional monopolies over local phone service, regulators could still rely on them to provide some implicit subsidies, charging higher rates to some customers while offering below-cost service to others. See id., § 6.2.1. The FCC pitched in, too, by requir-ing long-distance carriers to subsidize local providers, and by establishing a “Lifeline” program to help low-income households afford local phone service. See Rural Telephone Coalition v. FCC , 838 F. 2d 1307, 1311–1312 (CADC 1988); Huber § 6.2.2.3; ante, at 666.

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So Congress had to reimagine “universal service” again. In § 254 of the Telecommunications Act, Congress used the term “universal service” for the first time and invested it with a new meaning. See Huber § 6.3. Gone was Bell's old idea that universal service meant a single network of wires covering the country. Gone, too, was the idea that the Bell monopoly should subsidize basic telephone service by infat-ing other customers' rates. Repurposing the slogan of universal service once more, Congress told the FCC to decide

1

To understand how the scheme works, start with the programs the FCC may fund. Section 254 describes “universal service” as “an evolving level of telecommunications services” that the agency must both “preserve” and “advance.” §§ 254(b)(5), (c)(1). To determine which specific services to fund and at what level, § 254(c)(1) directs the FCC to “consider” four factors. Those factors look to “the extent to which” a service (A) is “essential to education, public health, or public safety,” (B) has “been subscribed to by a substantial majority of residential customers,” (C) is “being deployed . . . by telecommunications carriers,” and (D) is “consistent with the public interest, convenience, and necessity.” §§ 254(c) (1)(A)–(D).

On top of those four factors, the statute supplies six further “principles” in § 254(b). So, for instance, the agency must “base” its funding decisions on the principles that “[q]uality services should be available at just, reasonable, and affordable rates,” § 254(b)(1), and that “[a]ccess to advanced telecommunications and information services should be provided in all regions of the Nation,” § 254(b)(2). In addition, the FCC may adopt other new “principles” that it “determine[s]” to be “necessary and appropriate.” § 254(b)(7). To date, the FCC has exercised that authority twice. One new principle requires “competitive neutrality” among providers and technologies,2 and the other encourages

From this mash of four factors and six (now eight) principles, the FCC must discern which programs it wishes to fund and to what degree. And it falls to the FCC to “ `balance' ” these “factors” and “ `principles' ” “ `against one another when they conflict.' ” Reply Brief for Federal Petitioners 11–12 (quoting Qwest Corp. v. FCC , 258 F. 3d 1191, 1200 (CA10 2001)). So, for instance, if the FCC finds that a particular service is “essential to education,” § 254(c)(1)(A), but not “subscribed to by a substantial majority of residential customers,” § 254(c)(1)(B), the agency must pick which part of the statute prevails. As the FCC has long put it: “[A]ll four criteria enumerated in section 254(c)(1) must be considered, but not each necessarily met.” In re Federal-State Joint Bd. on Universal Serv., 12 FCC Rcd. 8776, 8809 (1997).

Still, that is not quite the end of it. At least when it comes to schools, libraries, and healthcare providers, two additional provisions—§ 254(c)(3) and § 254(h)(2)—permit the agency to pay for “advanced” and “additional” services that go “above the baseline of what's been considered universal service.” Tr. of Oral Arg. 42, 47. Consistent with these provisions, the FCC has funded programs without regard to whether they satisfy the four factors outlined in § 254(c)(1). See 12 FCC Rcd., at 9008–9011.

Over time, the services the agency has funded have evolved considerably. So, for example, in 1996 the FCC debated whether to subsidize “touch-tone service,” not just old

other, and neither unfairly favor nor disfavor one technology over another.” In re Federal-State Joint Bd. on Universal Serv., 12 FCC Rcd. 8776, 8801 (1997).

2

Once the FCC decides which programs to support, it must figure out how to pay for them. On that score, § 254(d) offers this instruction: “Every telecommunications carrier that provides interstate telecommunications services shall contribute, on an equitable and nondiscriminatory basis, to the specific, predictable, and sufficient mechanisms established by the Commission to preserve and advance universal service.” § 254(d); see § 254(b)(4). In addition to those “mandatory” contributions from common carriers, the statute also grants the FCC “permissive” authority to compel contributions from “[a]ny other provider of interstate telecommunications,” including noncommon carriers, “if the public interest so requires.” § 254(d); 12 FCC Rcd., at 9178. Essentially, the agency must figure out whom to tax and how much.

Taking up the question whom to tax, the agency has said that every telecommunications carrier must “contribute” a share of its revenue from interstate and international telecommunications services (think long-distance calls). 47 CFR § 54.706 (2024). But over time, the FCC has also expanded the roster of companies who must contribute, so that it now includes providers of prepaid calling cards and internet-based calling. See 71 Fed. Reg. 38781, 43667 (2006). Currently, the FCC does not tax carriers' broad-band revenues (think internet). But some have suggested Page Proof Pending Publication

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After deciding whom to tax, the agency must determine how much to collect from each carrier. For that, the FCC relies on the Universal Service Administrative Company, a Delaware not-for-profit corporation. Congress has not expressly authorized the FCC to outsource its responsibilities under § 254. But in 1997, the FCC directed an association of carriers to create the Administrative Company, and the agency has assumed the task of defining that company's structure and role. See Brief for Federal Petitioners 4; 47 CFR §§ 54.703, 54.705; ante, at 669–670. Among other things, FCC regulations ensure that a supermajority of the Administrative Company's board consists of directors who represent industry insiders (like carriers) and groups that benefit financially from universal-service programs (like libraries and schools). § 54.703(b)(1).

How does the Administrative Company help calculate the tax each carrier must pay? Each quarter, the company estimates the upcoming expenses of the FCC's universal-service programs. § 54.709(a)(3). Once the FCC approves that figure, the company next estimates carriers' total revenues from interstate telecommunications, based on their self-reported figures. This is known as the “contribution base.” Ibid. Finally, the FCC calculates the ratio of projected expenses to the contribution base, which yields the “contribution factor,” or the percentage of its revenue each carrier must pay. § 54.709(a)(2); ante, at 668–669.

As the scope of the FCC's programs has expanded, so have the taxes the agency collects to fund them. In 1998, universal-service disbursements totaled about $2.29 billion. Universal Service Administrative Co., 1999 Annual Report 2. In 2024, that figure swelled to about $8.59 billion—nearly double, adjusted for inflation. Universal Service Administrative Co., 2024 Annual Report 4. To pay for that increase, Page Proof Pending Publication

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One might wonder why the Administrative Company, dominated as it is by industry insiders, has allowed universal-service contributions to grow so dramatically. FCC regulations supply at least a partial explanation: “Federal universal service contribution costs may be recovered . . . through a line item on a customer's bill.” 47 CFR § 54.712(a). So, in the end, it is consumers who pay for the agency's universal-service programs.

In 2022, a carrier, a non-profit group, and several consumers (collectively, respondents) challenged the present universal-service scheme. Under the Constitution, they observed, Congress must set the federal government's tax poli-

As the dispute comes to us, it presents three questions. First, did Congress violate the Constitution by delegating to the FCC the power to tax? Second, did the FCC violate the Constitution by subdelegating some of its authority to the private Administrative Company? And third, even if neither of those features independently offends the Constitution, does their combination? As I see it, this case begins and ends with the first question. Section 254 impermissibly delegates Congress's taxing power to the FCC, and knowing that is enough to know the Fifth Circuit's judgment should be affirmed.5

Even when it comes to that first question, there is much we need not address. Elsewhere, I have urged the Court to reconsider its approach to assessing legislative delegations in light of the Constitution's original meaning and historic practice. See Gundy , 588 U. S., at 149 (dissenting opinion). But respondents tell us we need not do so here. Instead, they argue, § 254's delegation of authority to the FCC cannot survive even the most forgiving standard this Court has devised for analyzing delegations: The modern version of the “intelligible principle” test. See Brief for Respondents 65– 66. So I will focus on that test, how it applies here, and why § 254 flails it.6

On top of all that, the Court and I agree that the intelligible principle test is not one size fits all. Ante , at 673. Instead, “contex[t]” matters. Ante , at 684. Among other things, that means that the “ `degree of agency discretion that is acceptable' ” depends on “ `the scope of the power congressionally conferred.' ” Ante , at 673 (quoting Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 475 (2001)). So, for instance, Congress might permissibly give an agency wide leeway in designing a tax stamp. See In re Kollock, 165 U. S. 526, 537 (1897). But Congress must give far more

press a statutory argument that the FCC lacks authority under § 254 to pass some of its responsibilities on to a private corporation. See 109 F. 4th 743, 774–777, and n. 21 (CA5 2024) (en banc). Second, the Administrative Company's directors overwhelmingly represent entities with a f-nancial 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 off-cers 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. Page Proof Pending Publication

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From that common ground, however, my path and the Court's begin to diverge. I would start by examining the nature of the power Congress assigned to the FCC. Under § 254, the FCC may compel carriers to “contribute” money to support what everyone agrees is a government program. See Wisconsin Bell, Inc. v. United States ex rel. Heath, 604 U. S. 140, 144 (2025). That is a quintessential tax—a “compulsory contribution to the support of government.” 17 Oxford English Dictionary 677 (2d ed. 1989) (defining “tax”). Several FCC commissioners, including at least two FCC chairmen, have seen it the same way, referring to universal-service “contributions” as “taxes.” 7 So have academics and other informed commentators. 8 Before us, as well, the FCC has said that it is “willing” to have this Court treat universal-service contributions “as a tax.” Tr. of Oral Arg. 53. Really, if this compulsory contribution is not a tax, “[w]hat else would you call it?” Bondi v. VanDerStok, 604 U. S. 458, 479 (2025).

That context matters. To survive the intelligible principle test, a delegation involving such a significant power must supply more significant limits on an agency's discretion than when Congress confers some lesser authority. That is not to say some “different and stricter” test applies when Congress delegates the power to tax. See Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 222–223 (1989). It is instead to recognize that what qualifies as an intelligible principle depends on “context” and “the nature of the particular constitutional powers” at issue. Lichter v. United States, 334 U. S. 742, 778 (1948).

What exactly does the intelligible principle test require in this context? Surely, history must count for something. And it supplies at least one clear standard. As far as I can tell, and as far as petitioners have informed us, this Court has never approved legislation allowing an executive agency to tax domestically unless Congress itself has prescribed the tax rate. See, e. g., Michigan Central R. Co. v. Powers, 201 U. S. 245, 297 (1906) (suggesting that “a direct legislative determination of the rate” avoids “abdication of the legislative Page Proof Pending Publication

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Applying that insight here poses petitioners with a serious problem. “[A]ll agree” that Congress has not set the rate at which the FCC may exact contributions. Ante , at 674. Instead, § 254 delegates to the FCC the power to determine which services to fund and thus the amount of money to collect. See Part I–B–1, supra. To secure those funds, the agency uses the Administrative Company to set a “contribution factor”—i. e., the percentage of its revenues a carrier must pay. See Part I–B–2, supra. That's a tax rate. And, remember, that rate has grown from less than 4% of carriers' applicable revenues in 1998 to nearly 37% today—all based on the agency's say-so and without any change to the statute. Ibid. Nothing in the U. S. Reports suggests that an executive agency may exercise that kind of power over taxation.

To be sure, petitioners identify an exception to the historic rule that only Congress may set tax rates. Sometimes, they point out, Congress has declined to supply a rate and instead opted to cap the total sum the Executive may collect. See

Having flailed to identify a single example where this Court has approved a tax delegation like this one, petitioners and the Court propose a workaround. Yes, they concede, § 254 “imposes no quantitative . . . limits on how much money

10 Congress must apportion direct taxes among the States according to population. Art. I, § 2, cl. 3; § 9, cl. 4. That requirement makes it difficult to set uniform tax rates across the Nation, since a State's share of the national population rarely corresponds to its share of wealth. See Moore v. United States, 602 U. S. 572, 582 (2024). But that challenge does not extend to “indirect” taxes, such as the tax before us, which need not be apportioned. See id., at 582–583. And because the Uniformity Clause, Art. I, § 8, cl. 1, requires indirect taxes to apply “at the same rate” across the country, United States v. Ptasynski, 462 U. S. 74, 84 (1983), it is not clear that Congress could simply cap receipts from an indirect tax, without also providing guidance to ensure it applies equally everywhere. That uniformity requirement might explain why petitioners have identified no historical example, outside the direct tax arena, where Congress declined to set a tax rate. Note, too, that even when Congress has employed a lump-sum approach, it has usually supplied significant guidance in addition to the cap. See N. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power, 130 Yale L. J. 1288, 1324, 1449– 1455 (2021).

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Even taken on its own terms, I find that response unpersuasive. For argument's sake, assume that, instead of fixing the rate at which the FCC can tax, Congress may permissibly impose a numerical limit on receipts. Assume, too, that “qualitative” instructions may sometimes provide guidance functionally equivalent to a numerical limit. Even then, § 254's “qualitative” instructions hardly measure up. Really, the numbers speak for themselves. Recall that in 1998, the FCC disbursed about $2.29 billion. Part I–B–2, supra. A quarter century later, that figure hit about $8.59 billion. Ibid. Even adjusting those figures for inflation, the FCC has nearly doubled the amount of tax it collects. Ibid. Far from supplying “qualitative” directions akin to a numerical cap, § 254 supplies little more than a blank check.

Truth be told, the Court does not find its own response entirely persuasive, either. It upholds the ability of the FCC to tax and spend for universal-service programs under § 254(c)(1). See ante, at 682–687. But, recall, §§ 254(c)(3) and (h)(2) also allow the FCC to support “advanced” and “additional” services without regard to § 254(c)(1)'s factors. See Part I–B–1, supra. And in a remarkable footnote, the Court scruples to say those two provisions sufficiently constrain the agency's taxing power. See ante, at 687, n. 9. All the Court Page Proof Pending Publication

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Start with the parts of § 254 the Court does defend—the programs the FCC supports pursuant to § 254(c)(1). Together with § 254(d), that provision merely tells the FCC to tax carriers in an amount “sufficient” to “preserve and advance universal service.” To my eyes, it's hard to see how that direction might be fairly analogized to a numerical cap. The statute, remember, does not say what “universal service” is, and the phrase bears no established meaning. To be sure, I have a good sense of what “universal service” meant when the Bell System used it to protect its monopoly. See Part I–A, supra. I have an idea, too, of what the phrase came to mean later, as a shorthand for the practice of regu-lating rates so most Americans could afford basic phone service. See ibid. But, as we have seen, the 1996 Act “ripped apart” the old notion of universal service. Huber § 2.10. Going forward, Congress declared, the meaning of universal service would “evolv[e].” § 254(c)(1). In what directions? Congress left that for the FCC to work out.

Of course, the statute proceeds to offer some direction to the agency about what qualifies as “universal service,” and thus how much it can tax and spend. But, even viewed charitably, that guidance can hardly be described as the functional equivalent of a numerical cap. Just recall what the statute actually says. It instructs the FCC to discern the “evolving” meaning of “universal service” from the primordial soup of four factors found in § 254(c)(1), as supplemented by six principles discussed in §§ 254(b)(1)–(6), as well as whatever further principles (two and counting) the agency chooses to devise under § 254(b)(7). See Part I–B–1, supra. Many of these factors and principles address competing goods, and any effort to weigh them all can yield no more Page Proof Pending Publication

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Experience proves the point. In 1996, recall, the hot debate was whether to subsidize “touch-tone service.” 61 Fed. Reg. 10503. But in 2011, the FCC steered the Universal Service Fund away from simply making basic telephone service available and toward expanding access to “broad-band, both fixed and mobile.” 26 FCC Rcd., at 17670. By 2019, the FCC's Connect America Fund was spending nearly $5 billion annually on high-speed internet services for rural or remote “areas that are costly to serve.” GAO, A. Von Ah, Telecommunications, FCC Should Enhance Performance Goals and Measures for Its Program To Support Broadband Service in High-Cost Areas 1 (GAO–21–24, Oct. 2020). And why stop there? Nothing, it seems, would prevent the FCC from choosing to tax and spend to provide a mobile satellite internet device (like Starlink) to everyone who owns a business, home, or hunting cabin in rural America. Cf. In re Application for Review of Starlink Servs., LLC , 38 FCC Rcd. 12201, 12205–12206 (2023) (revoking a previous $885 million award to Starlink).

Searching for some way (any way) to support the notion that § 254(c)(1) contains a “qualitative” cap on how much the FCC can tax and spend, the Court eventually resorts to rewriting the statute. Now, it says, the FCC can fund a service only if it meets all of subsection (c)(1)'s four factors. Ante , at 684– 685, 688–689. So, the Court stresses, subsection (c)(1)(B) asks whether a particular service “has `been subscribed to Page Proof Pending Publication

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It's a nice theory. But it bears no resemblance to the law Congress adopted. By its terms, § 254(c)(1) requires the FCC only to “consider the extent to which” each factor applies. The statute nowhere says each (or any) of those criteria “has to be met” before the agency can fund a particular service. Ante , at 688. In fact, the FCC has long and consistently understood the statute to mean the opposite: “[A]ll four criteria enumerated in section 254(c)(1) must be considered, but not each necessarily met.” 12 FCC Rcd., at 8809 (emphasis added).11

The same goes for subsection (b). It says that the FCC “shall base” funding decisions on various “principles.” But each of those principles is framed as a “should,” not a “must.” So, for example, subsection (b)(1) provides that the FCC “should” make “[q]uality services . . . available at . . . affordable rates.” And subsection (b)(2) says that the FCC “should” ensure “[a]ccess to advanced . . . services” is “provided in all regions of the Nation.” In this context, “[t]he term `should' indicates a recommended course of action, but does not itself imply the obligation associated with `shall.' ” Qwest Corp., 258 F. 3d, at 1200. Reflecting that understand-

11 That statement reflects the FCC's consistent reading of the statute over nearly two decades. See, e. g., FCC, Public Notice, Rural Digital Opportunity Fund Phase I Auction, 35 FCC Rcd. 6077, 6121, and n. 278 (2020); In re Uniendo a Puerto Rico Fund and Connect USVI Fund, 34 FCC Rcd. 9109, 9184–9185, and n. 523 (2019); In re Connect America Fund, 32 FCC Rcd. 1624, 1631 (2017); In re Requests for Waiver of Decisions, 31 FCC Rcd. 7731, 7734, n. 22 (2016); In re Federal-State Joint Bd. on Universal Serv., 18 FCC Rcd. 15090, 15091 (2003).

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In its zeal to save subsection (c)(1) programs (why else ignore what the statute actually says?), the Court throws all that aside and seizes the drafting pen. So the meaning of “universal service” evolves once more. Only now, it is the

Not only does the Court's new statute fail to deliver on its only assignment, it promises to backfire, too. Rather than preserve the status quo, as the Court so clearly desires, its revisions threaten to render existing programs illegal—all while leaving the FCC (and program beneficiaries) guessing about the implications for future initiatives. Take an example. Back in 2017, the FCC launched a multibillion-dollar effort to promote “broadband service in unserved high-cost areas.” In re Connect America Fund, 32 FCC Rcd. 1624 (2017). Among other things, the program subsidizes certain high-speed services that, the FCC has acknowledged, are not yet embraced by “a substantial majority of residential customers.” Id., at 1631 (internal quotation marks omitted). If we had simply confessed the obvious—that this statute is unconstitutional—Congress could have responded easily with the simple addition of a rate or, perhaps, a cap. But now? Now, the FCC can fund a program only if it satisfies all subsection (b) principles and all subsection (c) factors—a novel requirement that calls existing programs into question and promises profound implications for future ones as well. Far from avoiding any short-term disruption, the Court's new statute promises plenty of chaos of its own. 13

So much for the Court's renovation of § 254(c)(1). Now consider the two provisions the Court cannot bring itself to defend. Sections 254(c)(3) and (h)(2), recall, permit the FCC to fund “additional” and “advanced” services for “schools, libraries, and health care providers.” See Part I–B–1, supra. Even the Court is unwilling to say that these provisions impose a “qualitative” cap—and understandably so. When it comes to deciding what programs to fund under § 254(c)(3) and § 254(h)(2), the FCC is unconstrained by any of the subsection (c)(1) factors the Court rewrites and leans on so heavily today. See In re Federal-State Joint Bd. on Universal Serv., 12 FCC Rcd., at 9008–9011; Tr. of Oral Arg. 42, 47. Subsection (c)(3) makes that explicit: The FCC may designate services for support under that provision “[i]n addition to the services included in the definition of universal service under paragraph (1).”

Here, too, experience illustrates just how uncapped the FCC's § 254(c)(3) and § 254(h)(2) programs really are. For some years, the FCC has relied on those provisions to fund internet access at schools and libraries. 89 Fed. Reg. 67304– 67305 (2024). But, in 2024, the FCC announced that it would also begin funding “Wi-Fi hotspots and services to be used off-premises by students, school staff, and library patrons.” Id., at 67304, 67318. As far as the FCC sees it, subsections (c)(3) and (h)(2) might allow it to collect enough taxes to sup-

need not give any specific weight” to it. Central Vermont R., Inc. v. ICC , 711 F. 2d 331, 336 (CADC 1983) (internal quotation marks and alteration omitted); see Covad Communications Co. v. FCC , 450 F. 3d 528, 539 (CADC 2006) (“[W]hen the [FCC] is obligated to consider certain factors, that means only that the FCC must reach an express and considered conclusion about the bearing of a factor, but is not required to give any spe-cifc weight to it” (internal quotation marks and alteration omitted)). Does all that case law now get thrown out the window? Has the Court transformed every instruction to “consider” some criterion into a mandate the agency must satisfy? What a gift to regulated industries, or at least to their lawyers. Page Proof Pending Publication

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Rather than address the constitutionality of the FCC's power to tax and spend for § 254(c)(3) and § 254(h)(2) programs, the Court dodges the question. Buried in a footnote midway through its opinion, it offers this: “We have no occasion to address any nondelegation issues raised by Sections 254(c)(3) and (h)(2),” the Court says, because while respondents challenged “the contribution scheme generally,” they did not name those provisions “in particular.” Ante , at 687, n. 9.

It is a perplexing maneuver, and I suspect the parties will find it quite the surprise. Not one of them suggested cleaving off portions of the statute in this way. Still, the Court's late-breaking move is, in one sense, to its credit. Though it is unwilling to say aloud that any part of § 254 flails the intelligible principle test, neither can the Court bring itself to bless such a lavish delegation of taxing authority. As a result, respondents remain free on remand, or in a future proceeding, to renew their attack on the constitutionality of whatever contributions the FCC demands for its subsection (c)(3) and (h)(2) programs. And that in itself is a notable development: Today marks the first time in a long time that the Court has confronted a statutory delegation and found no way to save it.

Return, now, to the portion of § 254 the Court is willing to defend—the programs the FCC supports pursuant to subsection (c)(1). No one disputes that part of the statute lacks a tax rate or a numerical cap. And rewritten or not, that provision lacks anything approaching a “qualitative” cap as well. Page Proof Pending Publication

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But the Court's comparisons disregard its own insight that context matters in applying the intelligible principle test. Ante , at 673, 684. Nor, in my view, is it any answer to say that legislation supplying a rate or real cap might still leave the FCC with some measure of discretion. Though the Constitution does not require Congress to make every decision, there are some choices that belong to Congress alone— including setting a tax's rate or, at least, capping receipts.

Start with the Court's assertion that “Congress has often enacted statutes empowering agencies to raise revenue without specifying a numeric cap or tax rate.” Ante , at 675. To sustain that point, the Court relies on a list of nine examples offered by the government. Ibid. (citing Reply Brief for Federal Petitioners 7–9). The private petitioners highlight the same provisions, which, it seems, provide “the best precedents” for § 254. Tr. of Oral Arg. 82–84; see id., at 8, 31, 37–38.

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Consider one of the government's examples, the Federal Deposit Insurance Corporation (FDIC). See ante, at 678. The FDIC finances its Deposit Insurance Fund through “[i]n-surance fees” paid by FDIC-insured banks. 12 U. S. C. § 1815(d). By statute, the fee each bank pays must be “keyed to the risk of the bank's insolvency.” M. Ricks, Money as Infrastructure, 2018 Colum. Bus. L. Rev. 757, 803 (citing § 1817(b)). In other words, the fees offset a cost the banks impose on the FDIC—namely, their risk of failure, which the FDIC's insurance must underwrite. That need to compensate for a particular cost provides an intelligible principle cabining the FDIC's discretion and limiting the fees it can charge to what the agency needs to cover insurance payouts. See id., at 803–804.

A similar principle explains the fee-setting authority of federal courts. See Reply Brief for Federal Petitioners 8. By statute, courts of appeals may charge “fees” in amounts “prescribed from time to time by the Judicial Conference of the United States.” 28 U. S. C. § 1913. As the Judicial Conference has recognized, that provision authorizes courts to “charg[e] for services provided,” such as docketing an appeal or admitting an attorney to practice. Report of the Proceedings of the Judicial Conference of the United States 12, 14 (Sept. 16, 2008). So here, too, fee levels refect a cost imposed or a benefit received by the payor.

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Petitioners and the Court would set all that to the side. In their telling, this Court's decision in Skinner “rendered irrelevant” the question whether a particular exaction involves a tax or a fee. Ante , at 677 (citing 490 U. S., at 223). Not so. Skinner, to be sure, indicated that the intelligible principle test applies to tax delegations. Id., at 223. And under that test, Skinner presented an easy case. The statute at issue there told the government (numerically) how much money it could raise. Id., at 219–220 (“the ceiling on aggregate fees . . . is set at 105 percent of the aggregate appropriations made by Congress for that fiscal year”). In light of that and other instructions, the Court held, the statute provided an intelligible principle regardless of whether it imposed a tax or a fee. Id., at 220–223. That is all the

Perhaps sensing as much, the Court ultimately retreats from precedent into pragmatism. Trying to distinguish taxes from fees, it contends, would risk plunging the Court into “a morass.” Ante , at 677. But the job is hardly some feat ft for Hercules alone. Courts must, and do, routinely distinguish between taxes and fees in many contexts. See, e. g., United States v. United States Shoe Corp., 523 U. S. 360, 366–370 (1998) (distinguishing between fees and taxes for purposes of the Export Clause, U. S. Const., Art. I, § 9, cl. 5).

Besides, any morass here is of the Court's own making. In its view, the tax/fee distinction depends on whether the

15 The Court charges me with downplaying

J. W. Hampton. Ante , at

675, n. 3. But I do not see how casting a spotlight on that decision improves the picture for the Court. To start, J. W. Hampton involved a tariff, which arguably raises distinct nondelegation questions from domestic taxes. See J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 400 (1928); n. 19, infra. Even setting that complication aside, the statute in question imposed a tariff on barium dioxide at four cents per pound— and thus employed a straightforward tax rate. 42 Stat. 860. After setting the rate, Congress then authorized the President to adjust it by up to 50%, as needed to “ `equalize . . . differences in costs of production' ” between the United States and “ `competing foreign countries.' ” J. W. Hampton, 276 U. S., at 401 (quoting 42 Stat. 941). In other words, the statutory rate could move only within numerically defined bounds and only if the President found specific facts. That is what sufficed to provide an “intelligible principle” when the Court first used the phrase. And nobody could compare that arrangement to § 254's open-ended tax-and-spend scheme. See Gundy v. United States, 588 U. S. 128, 158–159 (2019) (Gor-such, J., dissenting) (observing the traditional rule that Congress may make the effect of statutes conditional on facts found by the Executive). If lining this case up against J. W. Hampton proves anything, it is only that the phrase “intelligible principle” has taken on an entirely different meaning than it once held. See Gundy, 588 U. S., at 163–166 (Gorsuch, J., dissenting).

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Once we understand fees correctly, the category plainly includes all the government's examples and excludes § 254 contributions. When carriers pay into the Universal Service Fund, they do not gain any special benefit, such as permission “to practice law or medicine or construct a house or run a broadcast station.” National Cable Television Assn., 415 U. S., at 340. (A different provision, 47 U. S. C. § 158, authorizes “application fees.”) Nor do § 254 contributions offset some regulatory cost that carriers impose on the FCC or on society. (That falls to “regulatory fees” the FCC collects under § 159.) Instead, § 254 takes money from some (carriers) and gives it to others (libraries, schools, and the like). See In re Incomnet, Inc., 463 F. 3d 1064, 1066–1067 (CA9 2006). In short: Section 254 creates a classic tax-and-spend

Beyond fees, petitioners and the Court offer a second reason to ignore the fact that § 254(c)(1) programs can be funded through taxes without a rate or fixed cap. After all, they observe, this Court has rejected nondelegation attacks on “authorizations to regulate in the `public interest' and to set `just and reasonable' rates.” Ante , at 684 (quoting National Broadcasting Co. v. United States, 319 U. S. 190, 225–226 (1943), and FPC v. Hope Natural Gas Co., 320 U. S. 591, 600 (1944)). And, set next to those vague standards, petitioners and the Court suggest, § 254 offers “clear and limiting” guidance. Ante , at 691.

This argument neglects the Court's own admonition that the intelligible principle test is context dependent. See ante, at 673, 684. It begins by asking “what instructions” the statute in question provides to constrain an agency's discretion. Gundy , 588 U. S., at 136 (plurality opinion). Answering that question is a matter of statutory interpretation. Ibid. And “[i]t is a fundamental canon of statutory construction that the words of a statute must be read in their context,” West Virginia v. EPA, 597 U. S. 697, 721 (2022)

This Court has recognized this point many times, including when it comes to phrases like “public interest.” So, for example, the Court has held that phrase may contain enough “concrete” meaning to survive the intelligible principle test in the “context” of broadcast licensing, where the government has to allocate a limited spectrum of publicly owned airwaves. National Broadcasting Co., 319 U. S., at 216, 226 (internal quotation marks omitted); see M. McConnell, The President Who Would Not Be King 334 (2020) (McConnell). But, the Court has also found, the same “public interest” criterion offers inadequate guidance to the FCC when it comes to raising revenue. National Cable Television Assn., 415 U. S., at 341.

The same goes for the phrase “ `just and reasonable.' ” Ante , at 684. This Court has sometimes found that phrase satisfies the intelligible principle test when it comes to setting rates for regulated monopolies like public utilities—a context where it incorporates “concepts with a long history at common law.” H. Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards, 75 Harv. L. Rev. 863, 873, n. 53 (1962); see, e. g., ICC v. Cincinnati, N. O. & T. P . R. Co., 167 U. S. 479, 501 (1897).18 Accord-

Here's the point: Just because a phrase carries a well-understood historic meaning in one context does not mean the same phrase “ `in the abstract' ” will suffice in every other setting to satisfy the intelligible principle test. Reply Brief for Federal Petitioners 3. So the fact that petitioners and the Court can point to past decisions approving the use of a broad phrase in a different domain proves nothing. Instead, it falls to petitioners and the Court to show that the statutory terms presently before us, properly understood in their particular context, do in fact provide significant constraints on the FCC as it exercises a significant power.

That is a burden petitioners and the Court have not carried and cannot carry. When § 254(c)(1) speaks of “universal service,” it does not invoke “ `concepts with a long history at common law.' ” Supra, at 740. To the contrary, everyone agrees that § 254 “ripped apart” the old understanding of “universal service” and cleared the ground for a new one. Huber § 2.10; see Part I–A, supra; Brief for Federal Petitioners 3; Brief for Petitioner SHLB Coalition et al. 3. Worse, even if one term or another in § 254(c)(1) or §§ 254(b)(1)–(7) might claim some meaning-giving ancestry, the statute's mix of four factors and six (or more) principles lacks any such pedigree. Whether those factors and principles need only be considered, as the statute says, or whether they must always be met, as the Court now suggests, the FCC truly must blaze its own trail.

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Running out of precedents to work with, the Court suggests, finally, that it would be “absurd” to ask Congress to provide more guidance than it has. Ante , at 679. The argument runs this way. Respondents suggest, and I agree, that Congress could readily cure § 254's nondelegation problem. All it needs to do is set a tax rate or (perhaps) specify a numerical cap or its equivalent. The Court does not dispute that a legislatively defined tax rate would amount to meaningful guidance. But, the Court contends, some hypothetical caps could be pointless. What if Congress capped receipts at $5 trillion? Ante, at 680. To suggest that such a law would provide an “intelligible principle,” while insisting that §§ 254(b) and (c)(1) do not, strikes the Court as mindless formalism. Ibid.

Up to a point, I agree. It may well be that a rate is usually required to give a domestic tax law an intelligible principle outside the context of direct taxes. See Part II–A, supra. Imagine, for instance, that Congress told the IRS to collect $50 trillion of income tax from the American people and left it at that. Few, I suspect, would suggest that instruction supplies sufficient guidance. But even assuming that a cap alone might be permissible when it comes to § 254, the Court too readily dismisses its constitutional value.

Forcing Congress to supply some cap, any cap, would advance the nondelegation doctrine's purpose of ensuring “that the lines of accountability [remain] clear.” Gundy , 588 U. S., at 155 (Gorsuch, J., dissenting). If Congress adopted the Court's ludicrously hypothetical $5 trillion universal-service tax, the American people would at least know whom to thank when the corresponding charges showed up on their phone bills. Even if the FCC chose to collect only a fraction of that amount, every Member of Congress would have to explain to his constituents where he stood on a potential $5 trillion tax. Far more realistically, of course, Congress would never con-Page Proof Pending Publication

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And that's exactly the point. The framers divided power among legislative, executive, and judicial branches not out of a desire for formal tidiness, but to ensure ours would indeed be a Nation ruled by “We the People.” See id., at 152. By vesting executive power in a single President, the framers hoped to ensure vigorous enforcement of the laws. See United States v. Arthrex, Inc., 594 U. S. 1, 28 (2021) (Gor-such, J., concurring in part and dissenting in part). And by vesting judicial power in life-tenured judges, they hoped to ensure laws would be applied fairly by those insulated from political pressure. See SEC v. Jarkesy, 603 U. S. 109, 147– 148 (2024) (Gorsuch, J., concurring). But, as the framers saw it, the power to make the laws that govern our society belongs to elected representatives more accountable to the people in whose name they act. See Gundy , 588 U. S., at 154–157 (Gorsuch, J., dissenting). And nowhere did the framers see that principle as applying with greater force than in the field of taxation. See Part II–A, supra.

In so many other arenas, this Court vigorously polices the Constitution's allocation of power. We have refused to tolerate congressional intrusions on powers reserved to the President. See Gundy , 588 U. S., at 168 (Gorsuch, J., dissenting). We have prohibited the Executive from encroaching on power vested in Congress. Ibid. We have found unconstitutional, too, legislation seeking to confer judicial power on the other branches. Ibid.

Yet there is one exception. When Congress has willingly surrendered its power to the Executive Branch, this Court's responses can only be described as feeble. Always, to be sure, the Court dutifully recites the creed that “[l]egislative power . . . belongs to the legislative branch, and to no other.” Ante , at 672. Too often, though, these professions amount (at most) to faith without works, and the results are not hard to Page Proof Pending Publication

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To its credit, the Court has sometimes mitigated its failure to police legislative delegations by deploying other tools, like the major questions doctrine and de novo review of statutory terms, to ensure the Executive “act[s] within the confines set by Congress.” Ante , at 705 (Kavanaugh, J., concurring); see Gundy , 588 U. S., at 166–168 (Gorsuch, J., dissenting). But every doctrine has its limits. What happens when Congress, weary of the hard business of legislating and facing strong incentives to pass the buck, cedes its lawmaking power, clearly and unmistakably, to an executive that craves it? See id., at 156. No canon of construction can bar the way. Then, our anemic approach to legislative delegations leaves the Court with a choice. It can permit the delegation to stand and move us all one step further from being citizens in a self-governing republic and one step closer to being subjects of quadrennial kings and long-tenured bureaucrats. Or the Court can, as it does today, usurp legislative power, rewrite the statute, and dictate its own terms for Congress's surrender. Either way, we wind up in much the same place, only now with judges, rather than Presidents or bureaucrats, making our laws. Page Proof Pending Publication

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20 Justice Kavanaugh submits that delegations to the President “have been a regular feature of American Government” since the founding. Ante , at 699 (concurring opinion). But in drawing conclusions from those precedents, precision matters. Like the modern intelligible principle test, traditional nondelegation doctrine paid close attention to the kind of power at stake. For instance, delegations posed fewer problems in the field of foreign affairs, where many “powers are constitutionally vested in the president under Article II.” Gundy , 588 U. S., at 159 (Gorsuch, J., dissenting); see ante, at 706 (Kavanaugh, J., concurring). More generally, while Congress could not delegate “powers which are strictly and exclusively legislative,” Wayman v. Southard, 10 Wheat. 1, 42–43 (1825), it could assign other branches “certain non-legislative responsibilities,” particularly powers historically within the Executive's prerogative. Gundy , 588 U. S., at 159 (Gorsuch, J., dissenting); see McConnell 328–335. So, for instance, Congress could give the President broad “authority to lay embargoes” during a congressional recess. Ante , at 700, n. 2 (Kava-naugh, J., concurring) (citing Act of June 4, 1794, 1 Stat. 372); see McConnell 99. Likewise, Congress could grant the President broad discretion over “military pensions,” “patents,” and “post roads”—for none of those things implicated traditionally legislative functions. Ante , at 699–700, n. 2 (Kava-naugh, J., concurring); see McConnell 154, 331–333. And even within the heartland of legislative power, Congress could authorize the executive to find facts and “ `fill up the details' ” of whatever policies Congress had Page Proof Pending Publication

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Respectfully, I dissent.

set. See Gundy , 588 U. S., at 157–159 (Gorsuch, J., dissenting); cf. G. Lawson, A Private-Law Framework for Subdelegation, in The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine 123 (P. Wallison & J. Yoo eds. 2022). So, historically, Congress could empower the executive and judicial branches to do quite a lot— except make the laws that govern us. Page Proof Pending Publication

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The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the official United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or filed briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made: None

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