The Mackinac Center for Public Policy signed onto an amicus brief in a case before the U.S. Supreme Court challenging the delegation of regulatory power to private entities. The case, Consumers’ Research vs. Federal Communications Commission, raises questions about the limits of governmental authority and the risks of empowering special interests to form policy decisions.

The amicus brief, filed alongside the Institute for the American Worker and the Pelican Institute for Public Policy, argues that delegating regulatory power to private industry groups violates the nondelegation doctrine and due process protections.

The case before the Supreme Court challenges the FCC’s reliance on the Universal Service Administrative Company, a private, industry-run entity, to set and administer fees collected from telecommunications companies. These fees are ultimately passed on to consumers. The Fifth Circuit Court of Appeals found this structure unconstitutional, ruling that it improperly allows private entities to exercise government power.

The Mackinac Center’s brief emphasizes that that government cannot avoid prohibitions on the delegation of authority by deputizing private entities. It supports the Fifth Circuit’s ruling that private delegations are unconstitutional because they violate the due process rights of the people and businesses subject to the rules established by an unaccountable, private entity. The company creating these regulations has a vested interest in these policies, creating a conflict of interest that undermines fairness and accountability.

“The government cannot sidestep constitutional limitations by outsourcing its regulatory authority to private actors who have a financial stake in the outcomes,” said Steve Delie, director of labor policy and an attorney at the Mackinac Center for Public Policy. “This case is about ensuring that policymaking remains accountable to the people, rather than being handed over to unaccountable industry insiders.”

The implications of the case extend beyond telecommunications. The amicus brief warns that similar delegations have been used in state and local labor policies, such as California’s Fast Food Council and Massachusetts’ Rideshare Council. There, too, private entities regulate wages and working conditions for entire industries. If upheld, the Supreme Court’s ruling could reinforce constitutional limits on such schemes and other instances where private parties are given unchecked regulatory power.

The Mackinac Center urges the Supreme Court to reaffirm the nondelegation doctrine and ensure that all regulatory authority remains subject to constitutional oversight and accountability. You can read the full brief here.