The greatest threat to democracy isn’t fascism, white supremacy, or the left’s much-feared “bad orange man.” It’s the unelected and powerful federal bureaucracy that operates outside of the will of the people.
This bureaucracy can (and has) investigated and harassed peaceful citizens. It can (and has) directed taxpayer money to decidedly anti-American programs and blatantly political ends. It can (and has) tried to smear, slander, persecute, and imprison anyone who gets in its way.
Whether you call it the Deep State, the administrative state, or the swamp, it’s all part of the same problem: A large part of the federal government is uncontrolled and even outright antagonistic toward the people it is supposed to serve.
This terrifying reality helps explain many of President Donald Trump’s most significant actions in his first months—including nominating Tulsi Gabbard and Kash Patel to root out corruption in the intelligence and law enforcement apparatuses, respectively, and throwing USAID in the woodchipper.
I’ve argued before that the Department of Government Efficiency (DOGE) isn’t just about increasing government efficiency or cutting waste. Even more importantly, it’s about challenging the corrupt power systems that have effectively usurped the democratic will of the voters.
Now, it looks like the Supreme Court has a chance to get in on the government reform game with the so far little-noticed case FCC v. Consumers’ Research. Oral arguments are set for Wednesday, and if the Court rules based on constitutional principles instead of according to some legal technicality, the Deep State as we know it could see its foundation start to crack.
The issue is something called the Universal Service Fund (USF) under the Federal Communications Commission (FCC). The FCC is supposed to tax consumers to fund the USF in order to increase internet access, but it is as wasteful as government waste gets. One company funded by USF committed $100 million in fraud. Another person allegedly used money from the USF to buy a jet, a yacht club membership, and a Ferrari. Your tax dollars at work.
The fraud is bad enough, and any positive ruling by the Court will mean savings for taxpayers. But at its core, this case isn’t about waste. It’s about how the whole USF scheme works in the first place—and how a similar corrupt playbook has been deployed throughout the rest of the federal bureaucracy for decades.
According to the Texas Public Policy Foundation and the law firm Boyden Gray PLLC—the two organizations arguing against the government at the Supreme Court—the USF raises money through a private group of telecom insiders. In other words, the very companies that benefit from the tax the USF levies decide how much you will pay. The only reason this cabal even has the power to raise taxes is because the FCC gave them that power.
But wait, how does the FCC have the power to raise taxes in the first place? It doesn’t take a legal scholar to understand the first line of Article I, Section 8 of the Constitution: “The Congress shall have Power To lay and collect Taxes.”
That’s where this case gets interesting. Lawyers are arguing that the Court should crack down on the USF’s tax scheme not just because it’s wasteful, but because it violates something called the nondelegation doctrine, meaning that no branch of government can exercise the powers of another branch.
As Trent McCotter, a partner at Boyden Gray and one of the top lawyers on the case, said, “The Universal Service Fund statute represents the first time in American history that Congress gave an agency the power to raise domestic taxes, without any kind of objective limitations on the amount raised… Congress – and only Congress – must determine the taxes that Americans pay.”
Put simply, the nondelegation doctrine means the executive can’t let the judiciary take executive actions like directing foreign policy. The judiciary can’t let Congress take judicial actions like making rulings on legal cases (outside of impeachments). And Congress can’t let the executive take congressional actions like laying and collecting taxes.
If you remember your American government course, you’ll recognize that the nondelegation doctrine is really just a way to preserve the separation of powers, which was the primary safeguard our Founders instituted to prevent tyranny.
For generations, the federal bureaucracy has bypassed that safeguard by collecting executive, legislative, and judicial powers all into the singular body of the administrative state. If the Supreme Court rules that the USF is unconstitutional according to the nondelegation doctrine, it will be a shot across the bow for the entire federal bureaucracy.
This could be a chance for the Supreme Court to out-DOGE DOGE.
For example, the very concept of an “administrative law court” is a contradiction of terms. Courts are a tool of the judiciary, not the administrative state.
For years, Americans have been subject to insane, nation-altering “regulations” like electric vehicle mandates and bans on incandescent lightbulbs. Every reasonable observer knows such “regulations” are just another word for “laws.” Again, the Constitution is clear on such matters: “All legislative Powers herein granted shall be vested in a Congress of the United States” (Article I, Section 1).
The administrative state has been slowly eroding the separation of powers, and FCC v. Consumers’ Research could finally begin to restore a proper balance.
Every department, office, bureau, agency, commission, or board in the permanent bureaucracy that exercises an authority from another branch can be targeted and sued with renewed vigor if the Court rules against the legality of the USF.
Indeed, the president himself, as a constitutional actor, could declare that he has no authority to operate the parts of his administration that clearly violate the nondelegation doctrine. That could be a major boon for President Trump’s mission to dismantle large parts of the federal bureaucracy without having to surmount the Senate’s 60-vote threshold.
We’ll see what happens—it will be a few months before the Court issues its final decision. But a robust ruling on this case could be another hammer blow to the administrative state already reeling from the Trump administration’s program of constitutional restoration.
Horatius is the pen name of a writer who served in the first Trump White House and on Capitol Hill.
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