The Supreme Court on Wednesday seemed poised to uphold the federal program that provides schools, libraries, and underserved areas with access to affordable telephone and high-speed internet services. A conservative consumer advocacy group challenged the program, arguing it violated the Constitution by outsourcing Congress’s power to the Federal Communications Commission and a private nonprofit corporation that helps to administer the program. But after nearly three hours of oral arguments, justices across the bench were skeptical of the group’s claims.

Congress created the Universal Service Fund as part of the Telecommunications Act of 1996 to ensure that all U.S. residents and businesses – including schools, libraries, and rural health care providers – have access to the same kinds of telephone and internet services at roughly the same rate. The Universal Service Administrative Company, a nonprofit created by the FCC, helps to administer the fund. Contributions by telecommunications carriers to the fund are calculated each quarter, and the carriers pass those costs on to their customers.

Consumers’ Research, which targets “woke” corporations and promotes other conservative ideals, filed four separate challenges in four courts of appeals to contributions calculated for different quarters. It argued that Congress’s delegation of power to the FCC and the FCC’s grant of power to USAC to set the contribution fees violated the nondelegation doctrine, a theory on which the Supreme Court has relied on twice, nearly a century ago.

The U.S. Court of Appeals for the 5th Circuit ruled for Consumers’ Research. It concluded that both grants of power – from Congress to the FCC and the FCC to USAC – likely violated the nondelegation doctrine. But in any event, the court of appeals ruled, the combination of those two delegations of power violated the Constitution.

Defending the federal program, Acting U.S. Solicitor General Sarah Harris told the justices that the federal program is not “delegation running riot.” In the law establishing the program, she explained, Congress told the FCC “what policy to follow” – to give all Americans “universal service;” how it should do so, “by charging carriers a fee, then reimbursing carriers that serve universal service programs; how much the FCC should charge – only an amount “sufficient” to provide universal service; how to allocate the fees (making them equitable and nondiscriminatory); and “what underserved areas FCC must target” (such as schools, libraries, and rural areas). The law “leaves key policy choices to Congress and is definite and precise enough for courts to tell if FCC followed Congress’s limits when filling in details,” Harris insisted.

Trent McCotter, who represented Consumers’ Research, countered that “this case is about taxation without representation.” (On this he seemed to have Justice Neil Gorsuch’s support, who repeatedly referred to the contributions as a tax.) “The amount of public revenue to raise is a quintessential legislative determination, not some minor detail to be filled in later,” McCotter argued. If the FCC is correct, he contended, “then Congress could use similarly vague language to let the Executive decide any domestic legislative issue, even, for example, setting the size of lower federal courts.”

Justice Clarence Thomas repeatedly expressed concerns about the lack of any limits or constraints on the program’s ability to raise revenue.

Harris – who clerked for Thomas – assured him that the principles governing universal service placed a “real limit” on the revenue that can be raised. It is a unitary scheme, she explained, that prohibits the FCC from raising more than it needs to support the programs outlined in the law.

Paul Clement, representing a trade association for the telecommunications industry, echoed Harris’s assurances. “The real constraints” on revenue raising “are in the parameters of the universal service program itself,” which does not give the FCC a blank check, he argued.

McCotter insisted that the principles outlined in the law creating the Universal Service Fund were not enough. “There needs to be some kind of objective limit,” he asserted, which would demonstrate that “Congress itself has made that determination. It says we think universal service is this important.”

But two of the court’s conservative justices were dubious that simply setting a limit on the amount that the fund can raise would fix any supposed problem. Justice Brett Kavanaugh told McCotter that he would argue that “a solution to the problem you identify could be a trillion-dollar cap or $100 billion cap.” But “what exactly are you trying to accomplish,” Kavanaugh queried, with such a cap? And how would it be a better constraint than the requirement that the amount be “sufficient” to cover the costs of the program?

Justice Amy Coney Barrett appeared to agree. She suggested that a huge cap, like $3 trillion or $5 trillion, would be “just kind of throwing a number out there for the sake of throwing a number.” It “kind of seems like a meaningless exercise,” she told McCotter.

Justice Elena Kagan echoed Harris’s insistence that “there are some real standards in this program.” “The FCC,” Kagan observed, “can’t do anything by way of this program that is not basically geared towards getting those who live in very rural areas or who are very low income, getting those people access to services that all the rest of us have. That’s the nature of the program, and that’s the limit of the program.”

Justice Samuel Alito expressed concerns about waste and abuse at the Universal Service Administrative Company, and he pushed back against the government’s contention that the company only performed ministerial duties, with the FCC retaining all real control. When we are asking whether a federal agency has asked a private group to perform something ministerial, Alito inquired, why shouldn’t courts look at what has actually happened? And here, Alito emphasized, the FCC has “rubberstamped” “whatever the USAC has told them,” with “only a few exceptions.”

Harris countered that the FCC has corrected the USAC’s proposed contribution four times, demonstrating that it is “not just a rubberstamp.”

Justice Sonia Sotomayor chimed in. One explanation for why the FCC has rarely intervened in correcting the contribution recommended by the USAC, she noted, is that the FCC “controls every component of calculating that” contribution, so that it has no need to do so.

Clement stressed that upholding the 5th Circuit’s decision could have “disastrous effects” for “all the various beneficiaries of this program” – ranging from rural Alaska to Native American reservations to schools, libraries, and rural health care providers. And he added that universal connectivity benefits everyone. “I might not live in rural … Alaska,” he said, “but it’s nice to be able to place a call there.”

Barrett acknowledged that the consequences of invalidating the scheme were “a fair question to consider.”

Alito was skeptical that – as Consumers’ Research had suggested – if the scheme were struck down Congress could quickly fix it. “It’s never easy to get legislation enacted by Congress,” Alito observed, and it is “even more difficult right now than it has been at times in the past.”

Justice Ketanji Brown Jackson considered the impact of invalidating the universal service scheme on other laws. The government, Jackson noted, contends that “there are a number of different agencies that have similar revenue generating … fees.” If the universal service scheme is unconstitutional, she asked Harris, “are all of these programs in jeopardy” as well?

Harris responded that they would be.

Gorsuch was sympathetic to Consumers’ Research. At one point, he indicated that “what’s unique about this case is we have a tax that’s unlike any other tax that this Court’s ever approved.” And later he suggested that the case was similar to one of the 1935 cases in which the Supreme Court had relied on the nondelegation doctrine to strike down a federal law. As in the 1935 case, Gorsuch emphasized, “it was a regulated industry there that was making those decisions for its own benefit.” But it seemed unlikely that Gorsuch had four colleagues ready to join him.

This post is also published on SCOTUSblog.