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Kavanaugh and Barrett appear likely to break with the Supreme Court’s MAGA wing

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Justices attend President Donald Trump’s address to a joint session of Congress at the Capitol on March 4, 2025. | Win McNamee/Getty Images

The Supreme Court spent Wednesday morning giving very serious consideration to a case that no one should take seriously.

FCC v. Consumers’ Research asks the justices to revive a long-dead legal doctrine known as “nondelegation,” which places strict limits on Congress’s authority to delegate power to federal agencies, and essentially move that power over to the judiciary. The problem with this legal doctrine, besides the difficulty it would create for agencies trying to carry out their mandates, is that it appears nowhere in the Constitution, and so it is impossible to come up with principled rules to guide when judges should strike down a law empowering an agency.

The Consumers’ Research case is also a strange vehicle to revive the Nondelegation Doctrine because the particular statute at issue in this case clearly should be upheld under the Court’s current nondelegation precedents. In fact, even if the Court were to abandon those precedents in favor of an alternative, more restrictive nondelegation framework that was proposed by Justice Neil Gorsuch in a 2019 dissent, the federal program at issue in Consumers’ Research should still be upheld.

While all six of the Court’s Republicans showed sympathy with the broader project of expanding the Court’s power to overrule federal agencies, only three of them appeared likely to strike down the law that is actually at issue in Consumers’ Research. The Court’s opinion in this case could still have considerable long-term implications if it embraces Gorsuch’s proposed framework or otherwise expands the judiciary’s authority. But the statutory scheme that is before the justices right now seems likely to survive.

So what is at issue in this case?

Consumers’ Research involves a program known as the Universal Service Fund, which provides telephone and internet service to rural areas and other regions that are difficult to wire. In the absence of this program, these services would be........

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