Published March 31, 2025
Washington is in a tizzy over Donald Trump‘s sweeping assertions of executive power, often at the behest of Elon Musk, an influential private citizen who decidedly lacks public office. At Musk’s suggestion, Trump is purporting to shutter whole agencies, cut appropriated funding, and decimate the civil service.
One might ask, “How could Congress allow a private citizen to exercise such legislative authority?” The truth is that Congress has a history of delegating its legislative power to private entities, usually with enthusiastic support from progressives. With those chickens coming home to roost at Musk’s Department of Government Efficiency, there should be bipartisan support for the Supreme Court taking a stand to end private delegation of legislative power. That’s the issue at stake in a case the Court heard on Wednesday: FCC v. Consumers’ Research.
The Consumers’ Research case involves the Universal Service Fund (USF). Established in 1996, the USF seeks to expand telephone access at reasonable prices. To do this, Congress gave the Federal Communications Commission (FCC) carte blanche to raise revenue for the USF. That is, not only did Congress delegate its taxing power to an executive agency, the FCC—it didn’t even tell the FCC how much to raise, giving it unprecedented taxing authority to achieve the goals of the USF, bound by “principles” instead of law.
Click here to continue reading.
Michael A. Fragoso is a fellow at the Ethics and Public Policy Center in the Constitution, the Courts, and the Culture Program, where he writes and speaks on issues relating to the law, the federal judiciary, and Congress. His writing has appeared in The Wall Street Journal, National Review, The Harvard Journal of Law & Public Policy: Per Curiam, and elsewhere.
