The Administrative State, a Three-Legged Stool, the Supreme Court and FCC v. Consumers’ Research
The U.S. Supreme Court recently handed down its decision in Federal Communications Commission v. Consumers’ Research, a case involving the question whether Congress’s delegation of authority to the FCC to implement provisions of the Telecommunications Act of 1996 was unconstitutional. While the case concerns the FCC, it has broad applicability to federal regulatory agencies generally whenever Congress delegates authority to those agencies to implement federal law. This of course includes delegations to the Federal Trade Commission to enforce provisions of the federal antitrust laws and unfair competition laws, which in turn directly impacts health care organizations. A current example involves the pending challenges to the FTC’s rule banning most noncompete agreements. In those cases, the parties challenging the rule have asserted that, even if Congress did delegate to the FTC authority to promulgate the rule, the delegation was unconstitutional and the rule is therefore invalid.
Our white paper provides a detailed discussion of the case and its implications with respect to the constitutionality of congressional delegations now and in the future, including its impact on the FTC. It also discusses how the delegation issue interrelates with the well-publicized current disputes concerning the scope of presidential power and authority over the agencies. This of course includes the pending litigation concerning presidential authority to fire and replace FTC Commissioners.
