WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) filed a brief in the Supreme Court of the United States urging it to cut back the administrative state by correctly applying the Court’s own precedents explaining the limits the Constitution imposes on agencies when they regulate. The consolidated cases IRLI filed in involve a regulation issued by the Federal Communications Commission (FCC), but the issues involved are highly relevant to expansive, unlawful alien work authorizations by the Department of Homeland Security (DHS) that IRLI is challenging in other cases.
In these FCC cases, Congress has charged the FCC with raising funds from internet services providers to subsidize rates in rural and underserved areas. The FCC, in turn, made a regulation sub-delegating this function to a group of industry insiders.
In its brief, IRLI shows that the FCC, like any agency, only has the authority to implement statutes passed by Congress, and that FCC’s sub-delegation regulation does not implement the statute that gives the FCC its fund-raising authority.
It is basic to administrative law, IRLI shows, that agencies only have the authority to conform to or carry out some principle of action laid down by Congress in a statute. And an agency only conforms to a statute when it makes a regulation that the statute affirmatively allows the agency to make. Here, the FCC gave a fundraising power to the FCC, and provided that the FCC could make regulations “necessary” to carrying out its functions, but neither provision permits the FCC to transfer its own statutory fund-raising function to a private group. Such an abdication of the FCC’s own functions is the opposite of being “necessary” to the agency’s performance of them.
“We have found it very helpful to file a brief in this case, because it is easily solved by application of a principle that has received insufficient attention,” said Dale L. Wilcox, executive director and general counsel of IRLI. “This principle flows from the Court’s own precedents, and is simply that, when an agency regulates under a statute, it has to do so in a way that statute affirmatively permits. This means that the FCC exceeded its authority, and it also means that DHS exceeds its authority when it creates massive alien work programs that are not affirmatively allowed by law. We hope the Court takes this opportunity to clarify administrative law, and limit agencies appropriately, by recognizing this vital constitutional principle.”
The cases are FCC v. Consumers’ Research, No. 24-354, and Schools, Health & Libraries Broadband Coalition v. Consumers’ Research, No. 24-422 (Supreme Court).
