Justice Jackson challenges private nondelegation doctrine in Consumers' Research case

In a significant legal development, Justice Jackson issued a concurrence in the case of FCC v. Consumers' Research on June 27, 2025. The case focused on respondents challenging the Federal Communications Commission's universal-service program, raising issues related to both the traditional and private nondelegation doctrines. Justice Jackson joined the Court's opinion affirming the rejection of these challenges but expressed skepticism about the private nondelegation doctrine's viability. He highlighted the absence of constitutional text supporting a per se rule against private delegations and noted that recent scholarship has illuminated similar historical gaps. His concurrence also referenced a specific article by A. Volokh, titled 'The Myth of the Federal Private Nondelegation Doctrine,' published in the Notre Dame Law Review, indicating a broader discourse on this legal issue. Jackson's remarks serve to encourage a reevaluation of this doctrine, suggesting it lacks robust historical foundation or legal precedent. In addition to Justice Jackson's thoughts, it was noted that during the same case Justice Gorsuch quoted an amicus brief written for the Reason Foundation. This brief outlined various concerns and arguments regarding the arrangement under scrutiny in the case, notably raising issues related to due process and the Appointments Clause of the U.S. Constitution. Though these points were not central to the court's ruling, they underline ongoing debates about the legality of private actors' involvement in public governance and regulatory frameworks. Ultimately, the case illustrates the complexities surrounding delegation of authority in regulatory matters, as it probes deeper into constitutional interpretations and interpretations of administrative powers. As the legal community reflects on Justice Jackson’s critical insights, the discourse surrounding the validity and implications of the private nondelegation doctrine is likely to continue evolving, especially as it pertains to the future of government regulation and the limits of private authority in these frameworks.