Double Trouble

Last term, the Supreme Court reversed a Fifth Circuit opinion that held the CFPB’s structure violated the Constitution because it was “double insulated” from the annual appropriations process.

The unfortunate track record of “double” arguments continued in this term, when the Supreme Court reversed an en banc Fifth Circuit opinion holding that the FCC’s collection of univeral-service fees amounted to impermissible “double-layered delegation” of Congressional power. The Supreme Court reasoned:

The court’s analogy and associated logic do not work. In Free Enterprise Fund, each of the two layers of for-cause protection limited the same thing—the President’s power to  remove executive officers. And when combined, each compounded the other’s effect, so that the President was left with no real authority. Or otherwise said, the two layers of restrictions operated on a single axis with the one exacerbating (we thought exponentially) the other. But that reasoning has no bearing here. A law violates the traditional (or call it, for comparison’s sake, “public”) nondelegation doctrine when it authorizes an agency to legislate. And a law—whether a statute or, as here, a regulation—violates the private nondelegation doctrine when it allows non-governmental entities to govern. Those doctrines do not operate on the same axis (save if it is defined impossibly broadly). So a measure implicating (but not violating) one does not compound a measure implicating (but not violating) the other, in a way that pushes the combination over a constitutional line. “Two wrong claims do not make one that is right.”

No. 24-354 (U.S. June 27, 2025) (citations omitted).