2024 Term of Court
In a series of similar provisions, the federal Constitution requires the separation of the powers of the federal government among three distinct branches. Article I, Section 1 opens with the following:
All legislative Powers herein granted shall be vested in a Congress of the United States . . . .
Article I, Section 8 then provides, among other things, the following:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises. . . .
Article II, Section 1 then provides the following:
The executive Power shall be vested in a President of the United States of America.
Article III, Section 1 then provides the following:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
In Federal Communications Commission v. Consumers’ Research (US Sup. Ct. Slip Op. of June 27, 2025), the Court ruled that notwithstanding these provisions, Congress may delegate the power to set the amount of taxes telecommunications companies must pay to the Federal Communications Commission (“the FCC”) to the FCC itself. According to the Court, the delegation of this limited taxing power to the FCC does not violate the Constitution’s “Separation of Powers” principle because Congress has set “intelligible” limitations on that power, and has required its exercise pursuant to specific standards set by Congress. With those limitations and standards in mind, the Court held that Congress had retained its legislative authority over the FCC, by allowing that agency to exercise an authority that was more “executive” than “legislative” in nature. Because “intelligible” boundaries and standards governing the FCC had been set by Congress, as the Court held, the FCC’s implementation and management of a federal funding program did not violate the “Separation of Powers” rule of the United States Constitution.
The vote on the Court was six-to-three (6-3), with Justices Gorsuch, Thomas, and Alito arguing in dissent that the delegation of power to set tax rates to an “executive agency violated the Constitution’s mandate to keep “legislative” and “executive” powers separated.
Comment: The purpose of the Constitution’s “Separation of Powers” clauses was to preserve the “consent of the governed” principle of the Declaration of Independence. The Court’s resort to a hidden administrative process where unelected bureaucrats apply technical limitations and standards to set the amount of a tax violated that Constitutional principle.
Dan D. Rhea
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