The Administrative State, a Three-Legged Stool, the Supreme Court and FCC v. Consumers’ Research
This white paper discusses the U.S. Supreme Court’s recent decision in Federal Communications Commission v. Consumers’ Research, a case involving the extent to which Congress may delegate regulatory authority to a federal agency, including the Federal Trade Commission, without violating Article I of the Constitution.
The case is of importance because the Court in recent years has been sharply divided as to the scope of permissible delegations and as to whether the standard for testing the same should be applied differently than it has in the past or be abandoned, in either case in favor of a nondelegation doctrine that narrows the permissible range.
It is also important because the constitutionality of delegations under Article I is deeply intertwined with questions as to scope of presidential authority to execute the laws under Article II and the federal courts’ exercise of independent authority under Article III when considering an agency’s interpretation of a law – and all of this ultimately goes to the heart of the ongoing dispute as to whether there is in fact an administrative state ripe for dismantling.
Of late, there has been an enormous amount of interest in and discussion and disagreement as to whether there is an administrative state ripe for dismantling.
Most recently, an important issue relating to this was front and center in a case decided by the U.S. Supreme Court on June 27. In Federal Communications Commission v. Consumers’ Research, 24‑354, U.S. (June 27, 2025), a case we have been following, the Court was called upon to consider the question whether and when Congress can delegate authority to an independent regulatory agency without violating Article I of the Constitution.
Introduction
Assuming there is an administrative state ripe for dismantling, it has functionally rested on a three-legged stool:
- The first being that Congress by legislation may create a regulatory agency and delegate authority to that agency without violating Article I, Section 1 of the Constitution (all legislative powers to be vested in Congress), provided Congress lays down by legislative act an “intelligible principle” to which the agency is directed to conform;
- The second being that, pursuant to such a delegation, Congress may provide that agency officials are only removable by the President for cause without violating Article II, which provides that “the executive power shall be vested in a President” whose duty it is to “take Care that the Laws be faithfully executed”; and
- The third (known as Chevron deference) being that whenever the language of a statute is ambiguous, it should be assumed that Congress has conferred interpretive authority to the agency, and courts must therefore defer to the agency’s interpretation as reflected in its rules and regulations, provided that interpretation is reasonable.
The third leg effectively fell off the stool when in 2024 the Supreme Court in Loper Bright Enterprises v. Raimondo[1] overruled its prior decision in Chevron USA v. Natural Resources Defense Council,[2] thereby eliminating Chevron deference and instead requiring that courts exercise their independent judgment when considering an agency’s interpretation of an ambiguous statute.[3]
The second leg has stood principally on the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States[4] in which the Court held that the Federal Trade Commission Act did not violate Article II notwithstanding that Commissioners of the Federal Trade Commission (FTC or Commission) can only be removed by the President for cause. That leg is wobbling and will almost certainly tumble when Humphrey’s Executor is either directly or effectively overruled by the Court when it is called upon to decide one of the cases now being litigated on account of President Trump’s recent without cause firing of members of the National Labor Relations Board (NLRB), Merit System Selection Board (MSSB) and Consumer Products Safety Commission (CPSC) along with Commissioners of the FTC.[5]
The integrity of the first leg (congressional delegation to an agency) was most recently tested and left standing when the Court handed down its decision in the Consumers’ Research case. There the Court applied the intelligible principle test and ruled by a six to three vote that Congress had not acted unconstitutionally when it passed the Telecommunications Act of 1996 (the Act) and granted the FCC the power to administer it.
Significantly, however, and as more fully discussed in the link below, the decision and the Justices’ opinions suggest that when the stool finally topples, it may do so with this leg wobbling but still in place, at the same time incapable on its own of providing any real support.
Read more in the white paper.
[1] 603 U.S. 369 (2024)
[2] 467 U.S. 837 (1984)
[3] Notably, the Court in Loper Bright recognized a distinction between deference and delegation. “When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the [Administrative Procedure Act] is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits.” 603 U.S. at ___.
[4] 295 U.S. 602 (1935)
[5] The demise of Humphrey’s Executor was most recently telegraphed when the Supreme Court in Trump v. Boyle et. al., No. 25A11, U.S. (July 23, 2025) stayed the enforcement of a district court order relating to President Trump’s without cause firing of members of CPSC. The district court applying Humphrey’s Executor had ordered their reinstatement. In an unsigned order on the emergency docket, the Court cited to the stay it had previously issued in Trump v. Wilcox, 24A966, U.S. (May 22, 2025) concerning the without cause firing of a member of the NLRB and of the MSSB. While the Court in both cases stated that its stay orders were not conclusive as to the merits, they strongly signal what a decision on the merits will be.
