The Nondelegation Doctrine Revisited: Universal Service and the Power to Tax

Abstract

Telecommunications Act of 1996 charges the Federal Communications Commission with creating and implementing a new federal subsidy program that provides to select beneficiaries. Unfortunately, Congress did not attend to many of the salient details regarding this program. Section 254 of Title 47 charges the Commission with creating a mammoth new entitlement program and with raising the funds necessary to pay for the program through assessments on providers of interstate telecommunications services. This dual delegation of unlimited revenue authority and an unchecked power to spend the monies raised presents very troubling separation of powers questions. The Nondelegation Doctrine Revisited examines and critiques the Federal Communications Commission's efforts to implement the federal universal service program. It argues that Congress has failed to take political responsibility for a major tax program and that this conflicts with the intentions of the Framers, well established separation of powers principles, and sound public policy. Article suggests that, consistent with the long-standing but seldom-used doctrine of ratification, Congress should be required to endorse, through appropriate legislation, the Commission's taxing and spending efforts to promote universal service.