The Supreme Court's Big Cases on Racial Gerrymandering and Nondelegation
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The U.S. Supreme Court hears two big cases, one on how much power Congress may constitutionally delegate to the administrative state, and another on whether racial gerrymandering is prohibited or may be required.

Welcome. I'm Kyle Peterson with The Wall Street Journal. We're joined today by my colleague, Alicia Finley. The Supreme Court has had some low profile cases lately, as is more often than not the case actually, since the justices hear only about 70 or 80 disputes a year. But this relative quiet period ends this week with two big cases that could have significant and lasting consequences for the law and the US political system.

Let's start with the one that is being heard today. That is Federal Communications Commission versus Consumers Research.

And the basic facts are these. In 1996, Congress passed a law asking the FCC to levy money from phone carriers to subsidize universal service. There are some vague principles in this law, like affordable rates, equitable contributions by the telecom providers. But the rest is up to the bureaucracy. And the FCC then

handed this power essentially off to a nonprofit company set up for that purpose, the Universal Service Administrative Company, which manages, administers the program. The money ends up as grants to schools, libraries, low-income, and rural customers.

And the question now for the courts is whether this is a constitutional granting, delegating of power from Congress to the executive branch in the FCC and then from the FCC to this nonprofit group. Let's listen to Justice Elena Kagan now.

suggesting that she thinks that this is a constitutional grant of power because Congress provided some guidelines on how the agency is supposed to use it. There are constraints on this agency and on their operation of the program. And if we're going to read the statute just

I mean, honestly, I think that that's a not credible reading of the statute. The statute clearly puts constraints on these are the services that all the rest of us take for granted that you can't take for granted in rural North Dakota.

And what this program says is that rural North Dakota citizens should also get what all the rest of us have long had. That's the nature of this program. The services that the rest of us have that are essential to life in a modern world, that are essential to education, public health, and public safety, which are providable at affordable rates. So if it really takes a lot of money, even then you can't get the program.

You can't get the service. Alicia, what do you make of this dispute? The federal government's position here, citing some precedent, is that delegations to agencies are fine as long as Congress supplies an intelligible principle, that is the phrase from the president, to guide the agency action. And there you heard Justice Kagan saying there are some principles that were laid down by Congress.

On the other hand, the challengers to this law are saying, come on, you can't tell an agency to raise as much money as it needs for universal service and affordable rates and equitable contributions because those terms could mean almost anything. Right. And so the 1996 law that you alluded to earlier gave the FCC kind of vague perspective.

principles to pursue, including affordable rates, which Justice Kagan alluded to, equitable telecom contributions, and basically impose this on the telecommunications rather than the internet fees. And I'm just going to say that separately, there is a dispute now whether the FCC would have authority to extend these rates and essentially taxes to the wireless bill that you pay on your internet service, not just through your telecom, in part because more and more

of the fees or charges that you rack up on your bill is actually for your internet rather than actually your telecommunications.

In any case, this law basically gives the FCC unbridled authority, which in turn then the FCC delegated its own authority to impose this tax to this nonprofit. And while it technically could veto it, whatever this nonprofit quote-unquote recommends, it rarely has.

And then, in fact, like it only has a few days after this nonprofit offers its recommendation and basically just rubber stamps whatever it recommends. And so, as you mentioned, there really isn't any intelligent principle. These are very vague guidelines. And Congress has in the past in many laws has inserted kind of such a vague delegations for agencies to regulate public interest just in equitable rates and

I think what the plaintiffs here are suggesting is that while Congress could have solved the problem if it had provided some kind of formula or cap, but the issue here is there is not. So as you said, that this nonprofit could essentially tax, could raise tens and potentially even hundreds of billions of dollars of tax without any congressional authorization. And that would actually raise other constitutional concerns about Congress's taxing power.

But this isn't the only example of this. There are other examples, the SEC, Congress actually also delegated to the SEC authority to do this consolidated audit trail. And then SEC has delegated that power to actually another private entity to also raise essentially fees to fund this regulation. So this isn't a one-off case. And I think you will see more

depending on how the Supreme Court rules on this, more challenges under both this private delegation doctrine that Congress or an agency can't offload its regulatory authority to another private group and that Congress can't outsource its own regulatory authority to an agency without any kind of intelligible principle.

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Welcome back. To underline the point here about delegation, Congress makes the laws. That's in the Constitution. That's how the US system of government is set up. But there are many instances where Congress can make a policy choice, but then hand off implementation to some kind of executive agency. That happens all the time. Often there is fact-finding involved. So Congress says,

If this pollutant, let's say, is found to be, or whatever pollutant is found to be hazardous to health in a certain way, it can be regulated in a certain way. That kind of thing is routine in the modern U.S. government. What I think the argument the plaintiffs are making here is that there is no policy choice that was made by Congress, essentially, because it said, we want universal service,

We want people in rural areas and low-income customers to be able to access telecom services. And we're going to tell the FCC to go figure out, essentially, how to do that, how much money to raise. And so it raises the question of whether this delegation goes too far. And there are two times in U.S. history during the New Deal that the Supreme Court's

struck down some kind of law as an excessive delegation, as Congress basically abdicating a policy question and giving it over to the executive branch under FDR. But that has not happened since. And part of what makes this case so fascinating to me, Alicia, is originalists, constitutionalists sometimes have talked about non-delegation doctrine as one of those things that needs to be revived.

There was a fascinating case a few years ago called Gundy, and this involved a law passed by Congress about sex offender registries. And in that law, it said there would be practical problems in trying to figure out how to apply that registration requirement to people who had older convictions, who were convicted before the law was passed. So what Congress said was, "We're gonna let the Attorney General figure that out."

And this came up to the United States Supreme Court in another of these non-delegation cases. And it was almost a 4-4 deadlock. It was heard a few days before Justice Brett Kavanaugh was confirmed to the Supreme Court. And the only thing that prevented a deadlock with the four liberal justices rejecting this non-delegation argument, saying that what Congress did was fine, and four conservative justices accepting it and saying this delegation went too far,

was a prudential vote, I guess is how I would phrase it, by Justice Samuel Alito. And what he wrote was, I support the idea of revisiting this non-delegation doctrine, but I don't want to do it on a one-off, case-by-case basis. I want to do it with a majority that is interested in doing it wholesale in a serious way. So there are four justices who have been on the record with

suggesting that non-delegation doctrine is something that the current Supreme Court should be looking at and picking up and taking cases on. To your point, Alicia, about more cases potentially after this one. And we don't necessarily know where Justice Brett Kavanaugh is on that question. We don't know where Justice Amy Coney Barrett might be on that question. I'm not sure she has much of a record, a paper trail on delegation questions.

But you suspect that since they took this case and the delegation here to the FCC was struck down by the Fifth Circuit, the court below, that maybe there is a majority of at least five justices who want to start hearing these delegation questions again.

Right. And this one, I think, could be ruled on very narrowly under the private delegation that an agency basically can't outsource its regulatory. The authority that Congress gave it to another agency, that would be in keeping with the chief justices and Brett Kavanaugh's ten incremental approach.

And you've seen that in the past and how they ruled before going all the way on an issue, whether that be public union dues. There are many other examples. They essentially lay the ground. So same thing with the CFPB seal of law and maybe teeing up Humphrey's executor, which we've talked about in the past. They didn't overrule the Humphrey's executor president outright when they said that the CFPB director needed to be fired at

will and the protections were unconstitutional in that case. They said, we're not going to extend this precedent any further. All wishes I'm trying to say is that you could get a very narrow ruling here that could tee up a broader ruling in the future in a case.

That raises that issue of the non-delegation Congress's power to delegate broad sweeping powers to a president. And there are a lot of potential cases that could come up to the Supreme Court, for instance. And this hasn't been challenged, but President Trump's invocation of this 1976 sanctions law to impose tariffs.

This law is very broad, and President Trump's use of this law being struck down as a violation of the court's major questions doctrine, which says that an executive requires express authority from Congress to undertake economically or politically significant actions.

Alternatively, you'd also see a court or challengers raising the non-delegation doctrine. In fact, Justice Gorsuch has, in many of the cases the Supreme Court has ruled on the major questions doctrine, has suggested that it alternatively could actually strike certain things down under the non-delegation doctrine as well.

something I think could have come up under Biden or future Harris administration if they maintain that LNG or pause on the liquefied natural gas exports.

It's a challenge on the non-delegation doctrine because the Energy Department has the power to block these exports if it finds that they are not in the public interest. And that's just a really sweeping power. So I think there is, as you say, a lot of interest in trying to narrow this and force Congress to write more clearer laws.

And rather than just handing off this broad regulatory and actually spending or taxing authority to other agencies. And you've seen that in the Lopar Bright Enterprises ruling that struck down Chevron Deference. And then also with the West Virginia BPA, that kind of clarified major debt questions doctrine that

Supreme Court is really interested in strengthening the separation of powers and basically saying, you know, Congress's job is to enact laws. The president's or the executive's job is to enforce them. And we need to police the separation of powers to actually ensure, you know, and protect individual liberties. Hang tight. We'll be right back after one more break.

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Welcome back. I think your point about the broad options that are available in the Supreme Court here is exactly right. And just a note about what the Fifth Circuit did in striking down this delegation. Remember, so Congress told the FCC to raise some money from telecom carriers, and the FCC handed implementation off to this private nonprofit. And what the Fifth Circuit said is they were skeptical of that first move by Congress, but

But it was a double delegation, and that was so clearly over the line in the lower court's view that they didn't have to definitively address whether that congressional delegation itself crossed the line. So if the Supreme Court wants a way to rule narrowly here, it could do something similar. It could focus on this USAC, this private nonprofit that is running this program more or less.

Or it could do something broader, more like what the dissent in that Gundy case wanted to do. One last thought on this for me is the plaintiffs in this case are making the argument that what would

pass a delegation test is if Congress put any sort of number or cap on the tax. So in their view, this would still be fine constitutionally if Congress told the FCC, raise some money from telecom carriers to subsidize universal service, but no more than 20% or no more than X billion dollars. And so this would not necessarily be a demanding test. And there will be all sorts of delegations that would survive, even if there were other challenges that came up

in the wake of a ruling by the Supreme Court here, a reviving or reawakening of non-delegation doctrine. The second case we're going to talk about today is one that was heard on Monday. That is

Louisiana versus Calais. It is a challenge involving a redistricting map in the state of Louisiana. And Alicia, my understanding is the state of play here on the law is that sometimes the Equal Protection Clause is held to prohibit racial gerrymandering, drawing maps with knowledge and intent based on where people are living in terms of racial groups.

And sometimes the Voting Rights Act is held to require racial gerrymandering. Do I have that right? And what is Louisiana's way out of this rock and hard place? Right. So this is the third case in three years concerning this tension between the Equal Protection Clause and Section 2 of the Voting Rights Act. What happened here was after the 2020 census count, Republicans in Louisiana legislature redrew the House map.

And it included one majority minority district, which means that it had one district that had a majority of Blacks. Now, the state was sued by some liberal groups and claimed that, well,

Blacks represent 30% of the voting age population in Louisiana, and so therefore should be entitled to two of the state's districts. Now, Section 2 of the Voting Rights Act, 1965, actually expressly says it doesn't establish a right to proportional representation, which seems to be what the plaintiffs want.

But nonetheless, the lower court ruled for the liberal plaintiffs and it cited this high court's muddled gingals test from 1986 that proves that state legislatures are trying to dilute the votes of minorities. And

That test requires that minority populations to be large, compact, and politically cohesive to constitute a majority-minority district, and that whites vote sufficiently as a group to defeat minorities' preferred candidate. Now, this all seems kind of antiquated nowadays. It was really intended to, again, protect the rights of Blacks in the Jim Crow South.

but it really had no basis in the Constitution. Now, just fast forward, courts have really been struggling to balance this tension between the Equal Protection Clause, which basically says you're not supposed to discriminate based on race.

And Section 2, which essentially says, well, you actually do have to do that in order to ensure that Blacks have their own majority or an adequate number of majority-minority districts. And here, that's where Louisiana found itself after it got a ruling against it in the first case.

It redrew its maps while also without going all the way where the plaintiffs wanted in terms of or they did. They didn't fully accept the plaintiffs preferred maps, which would have actually potentially redistricted Speaker Mike Johnson out of his seat. Instead, they drew a different map that created a second majority minority district.

And that kind of is a 250-mile district that's, you know, it's snaked across the state from the northwest all the way down to East Baton Rouge. And it was as narrow as about 1.3 miles in certain places. And so the purpose was to try to essentially pack as many Black voters into this district as possible and reduce the number of white voters to comply with the court order.

But then it got smacked with another lawsuit by some white voters from the district saying, you know, you're violating the Constitution's Equal Protection Clause. And I think they were actually very into the goal of this suit. It was politically strategic. They wanted to force this up to the Supreme Court.

with the goal of potentially overturning the Gingles test or substantially narrowing what is required under Section 2. Let's listen to a piece of this oral argument. This is Justice Neil Gorsuch tangling with one of the attorneys about how much race was a factor in this mapmaking. Certainly politics played a role in this district, but didn't race play a role?

Absolutely, Your Honor. The state was trying to draw a district that would remedy the violation that we had shown. Which is another way of saying race predominated. Well, I would disagree with that, Your Honor. I think that means race was one consideration, and this court has long said in case that... I'm sorry. I'm sorry, Chief. Go ahead. Isn't saying race was one consideration another way of saying race predominated? And...

How do we square that with the 14th Amendment's promise that race should play no role in our laws? Well, in the redistricting context, this court has long recognized that legislators are always aware of race.

And the fact that race was one thing they were considering when they drew the map does not mean it was the predominant thing. It means that it was one of many considerations that they had. Politics was another. Communities of interest was another. And without some evidence that would disentangle those things and show that while actually race, among all of those considerations the state was considering, race was the one that actually drove the lines.

Alicia, what's your view of the potential outcome in this case? Justice Clarence Thomas has been saying for years and years that racial gerrymandering should not be allowed under the Constitution. And it certainly sounds like Justice Neil Gorsuch is leaning in that direction as well. Right. And there were actually four justices that kind of viewed it that way in a case that was heard a couple of years ago, Allen v. Milgan, involving Alabama's maps. Now, the chief justice in that case, along with Brett Kavanaugh,

sided with the liberals and ordered Alabama to add a second majority minority districts based purely on the Gingles precedent. And I think that was the decision was a little politically strategic,

by the chief in that there were going to be a couple of other big decisions coming down that year. Harvard being fair admissions, involving overturning the college's affirmative action, as well as the student loan case. So they were trying to give liberals something, a small victory in that case. But I think the chief has long been skeptical, going back to when he served in the Reagan Justice Department, about how Section 2 has been forced, and that he has...

At least his writings have suggested he is in agreement with Clarence Thomas on this, that there should be a kind of, it should be race neutral. So I think the Supreme Court could go all the way in overturning the King's precedent and writing a much more clear race neutral standard for Section 2. Another alternative, which you heard at the oral arguments, is, well, maybe the first court, lower court, that heard this,

the original maps or reviewed the original maps was wrong. And I think there's just also a strong case that that was true. And Justice Gorsuch brought that up and Justice Leto brought that up too, that it seemed that they were misapplying Gingles and that there actually wasn't any need for this second majority minority district. And so they may just decide their rule on that and then kick it back to the lower courts.

Or they could ultimately uphold this map and this challenge and say that, well, the legislature was trying in good faith to comply with the first court's order. So even if the first court's orders were wrong, that doesn't matter. The Louisiana legislator had a legally defensible reason to use race to draw that map.

And I'm not sure actually where the Supreme Court comes out with it. I think the justices have varying views that they express. I think they very much, all of the justices, want to get out of the business of reviewing maps. They keep on getting drawn back in. But whether they do it in this case or potentially another upcoming case, which actually was raised also in the oral arguments, that's not clear.

Thank you, Alicia. Thank you all for listening. You can email us at pwpodcast at wsj.com. If you like the show, please hit that subscribe button. And we'll be back tomorrow with another edition of Potomac Watch.

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