CONSTITUTIONAL INTERPRETATIONS

Federal Communications Commission v. Consumers’ Research, Sup. Ct. Docket No. 24-354.

The Telecommunications Act of 1996 authorizes the Federal Communications Commission (the “FCC”) to fund its programs by charging “every telecommunications carrier” operating in interstate commerce an “equitable and nondiscriminatory” but otherwise unspecified amount of money. 47 U.S.C. §§ 254(b)(4) and 254(d). Those provisions clearly violate the “Separation of Powers” intention expressed in the first three articles of the United States Constitution. They should accordingly be declared “void” by the United States Supreme Court, in the upcoming case of Federal Communications Commission v. Consumers’ Research, Sup. Ct. Docket No. 24-354.

The first clause of Section 1 of Article I provides that “All legislative Powers herein granted shall be vested in a Congress of the United States . . . .” One of the powers “herein granted” to Congress is the power to “lay and collect Taxes, Duties, Imposts, and Excises.” See U.S. Const., Art. I, § 8 (first clause). Article II provides that “The executive Power shall be vested in a President of the United States . . . .” See U.S. Const., Art.II, § 1 (first clause). Continuing with the idea of separating governmental powers among separate governmental agencies, Article III provides that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” See U.S. Const., Art. III, § 1 (first clause.)

But for one other provision in the Constitution, the quoted provisions grant the federal government’s power to tax the American people, and their businesses, exclusively to the United States Congress. The one exception is for the power of Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . .” See U.S. Const., Art. I, § 8 (last clause). In Section 254 of the Telecommunications Act, Congress delegated its power to “lay and collect Taxes, Duties, Imposts, and Excises” to the FCC. That raises the question of whether that delegation of power is prohibited by the Constitution despite the provisions of the Necessary and Proper Clause.

It clearly is prohibited. Congress’s taxing power includes the power to both “lay” and “collect” taxes. The ultimate collection of taxes imposed by Congress falls into the bailiwick of the President of the United States, as the exclusive holder of the federal government’s “executive” power. The FCC serves under the President, who appoints its members. However, Congress, in enacting Section 254, did not give the FCC any intelligible means to determine how much money in Congressionally approved taxes the unelected members of the FCC are to “collect” from telecommunications carriers. Section 254 violates the “no taxation without representation” idea on which the United States’ independence from Great Britain was founded. Therefore, Section 254 fails the propriety test of the Necessary and Proper Clause. Subsections 254(b)(4) and 254(d) of the Telecommunications Act are clearly violations of the federal Constitution as written.

In the early days of the American republic, one of the principal drafters of the original Constitution, Alexander Hamilton, explained that document’s intent, in part, as requiring the judicial branch of the new federal government to declare legislation “void” whenever the legislation was found to be “contrary to the manifest tenor of the constitution.” See The Federalist Papers, No. 78 (1788). Just a few years later, the Supreme Court of the United States adopted Hamilton’s interpretation when the Court declared that “a law repugnant to the constitution is void.” The Supreme Court of the United States should therefor declare the funding provisions of 47 U.S.C. §§ 254(b)(4) and 254(d) “void.”