Can Congress hand over its power to tax Americans to unelected federal regulators and then blindly let those regulators further delegate the power to tax Americans to a company? That’s the fundamental question at the heart of FCC v. Consumers’ Research, a case before the U.S. Supreme Court that challenges the constitutionality of the Universal Service Fund (USF). Mountain States Legal Foundation (MSLF) has joined an amicus brief written by Advancing American Freedom, supporting Consumers’ Research in its fight against the Federal Communications Commission (FCC) and its unchecked authority over telecommunications fees.
The Universal Service Fund, created by Congress in 1996, is a federal program designed to expand access to broadband and telecommunications services, especially in rural areas. To fund this initiative, the FCC requires telecommunications companies to pay into the program—a cost they typically pass on to consumers as a hidden fee on their phone bills. This sounds like a tax, but Congress disclaimed its own responsibility to tax Americans in a way that is accountable to them, instead granting the FCC broad discretion over the program’s operation, including how much money to collect and where to spend it.
The plaintiffs, Consumers’ Research and other affected entities, argue that Congress overstepped its constitutional authority by delegating this taxation power to the FCC. MSLF, with its friends at Advancing American Freedom, agrees with the parties challenging the USF, who say that this violates the nondelegation doctrine, which prohibits Congress from transferring its lawmaking responsibilities to another branch of government.
MSLF stands for constitutional governance and limited federal power. By joining this amicus brief, we are advocating for a return to the original understanding of the Commerce Clause and the proper limits on congressional power. Our argument is simple: Congress has no power to create an open-ended scheme like the Universal Service Fund, because that program exceeds Congress’s enumerated powers under Article I of the Constitution. Further, assuming the Fund was within Congress’s power to enact, it still cannot delegate what amounts to an open-ended taxing power to the executive branch. Such a delegation violates the separation of powers.
The case is now before the Supreme Court, and a decision in favor of Consumers’ Research could have a sweeping positive effect for how Congress designs federal programs in the future. If successful, this case will reaffirm that only Congress—not an unelected agency—can impose taxes on Americans.
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What’s at Stake?
For Consumers’ Research and other businesses affected by the USF, this case is about holding the government accountable. The FCC has been running the USF like a shadow tax system, forcing Americans to pay fees with little transparency or congressional oversight. The Court ought to reject such a formulation. On the other hand, if the Supreme Court upholds the USF’s structure, it sets a dangerous precedent that allows Congress to bypass constitutional limits on its power by outsourcing lawmaking to federal agencies.
More broadly, this case affects every American. If Congress can delegate taxation power to an agency, then it can effectively sidestep the checks and balances designed to protect citizens from government overreach. The Framers of the Constitution designed our system to ensure accountability—lawmakers should not be able to wash their hands of an unpopular tax by delegating away their responsibility for enacting it to unelected bureaucrats.
This case is about defending the constitutional principle that lawmakers accountable to Americans—not bureaucrats—should be the ones making tax policy. If we allow Congress to sidestep its duties by giving agencies free rein to create and enforce financial obligations, we risk losing the very checks and balances that keep government accountable to the people.
Supreme Court Update
On May 26, 2025, in a 6–3 decision, the Supreme Court rejected a nondelegation challenge to the FCC’s “Universal Service Fund.” While the Court upheld the program, it emphasized that agencies must retain final authority, cannot delegate core sovereign powers, and may only use private entities under close supervision. Though a setback, the decision preserves key limits on agency use of private actors and leaves room for future challenges.
