The Structural Engineers: How a Pragmatic Majority Saved the Modern State from a Doctrine of Collapse

On a day dominated by judicial bombshells on parental rights, online speech, and executive power, it would be easy to overlook the Supreme Court’s decision in Federal Communications Commission v. Consumers’ Research. The case involved no salient social controversy. Its legal questions were a thicket of administrative law and bureaucratic procedure concerning a program few Americans could name: the Universal Service Fund, which subsidizes internet access for schools and libraries through the “E-rate” program. It was, by all accounts, the day’s most boring case. It may also have been its most important.

While other decisions ripped at the nation’s cultural seams, the ruling in FCC v. Consumers’ Research addressed a far more foundational question: Is the basic architecture of the modern American government, with its vast administrative agencies and delegated authority, fundamentally unconstitutional? For years, a powerful faction of the conservative legal movement has argued that it is, advocating for a revival of the “nondelegation doctrine” that would gut the power of federal agencies and force a radical restructuring of the state. In this quiet, technical case, the Supreme Court gave its answer.

In a 6-3 decision that showcased a rare and potent ideological alignment, the Court upheld the FCC’s authority and, by extension, the pragmatic design of the modern administrative state. The ruling is a decisive loss for doctrinal purists who wish to tear down the machinery of government on theoretical grounds. More importantly, it is a profound victory for the “structural engineers” on the Court—a pragmatic coalition that chose to shore up the foundations of the government we actually have, rather than condemn it for failing to adhere to an 18th-century blueprint.

The High-Rise and the Blueprint: A Battle Over Structure

To understand the stakes of the FCC case requires grappling with the central tension of modern American governance, a tension best captured by a simple analogy: our government has become a 30-story high-rise built upon a foundation designed for a single-family home. The Founders, in their 18th-century constitutional blueprint, envisioned a federal government of limited, enumerated powers. They could not have possibly conceived of a 21st-century nation that requires complex, expert agencies to regulate everything from telecommunications and environmental quality to financial markets and aviation safety. The administrative state—the vast collection of agencies like the FCC, EPA, and SEC—is the sprawling high-rise that history has demanded be built on that original foundation.

For decades, the Court has allowed this structure to stand, using a flexible legal standard known as the “intelligible principle.” As long as Congress, when delegating authority to an agency, provides some “intelligible principle” to guide the agency’s actions, the delegation is constitutional. The challenge in FCC v. Consumers’ Research was a direct attack on this standard.

The challengers, a conservative non-profit group, argued that in creating the Universal Service Fund, Congress violated the nondelegation doctrine. The statute directs the FCC to raise “sufficient” funds from telecommunications carriers to ensure “just, reasonable, and affordable” rates for schools, libraries, and rural areas. The challengers claimed this was a form of unconstitutional taxation by an unaccountable bureaucracy. They argued that the term “sufficient” was not an intelligible principle but a blank check, an illegal hand-off of Congress’s core power of the purse to unelected agency officials. Their goal was not just to defund the E-rate program, but to force the Court to adopt a much stricter, more rigid interpretation of the nondelegation doctrine, effectively condemning the entire high-rise of the administrative state as structurally unsound.

The Majority Opinion: Shoring Up the Foundation

Writing for the 6-3 majority, Justice Elena Kagan delivered a masterclass in pragmatic, institution-preserving jurisprudence. Her opinion systematically dismantled the challengers’ arguments and, in doing so, offered a robust defense of the modern administrative state’s legitimacy.

First, Kagan rejected the “blank check” characterization out of hand. She meticulously demonstrated that the statute, far from being vague, is filled with specific, guiding constraints. It clearly defines whom the program is intended to serve (schools, libraries, rural and low-income consumers), what services it should subsidize (those essential to public health, safety, and education that have become commonplace), and the principles that must guide the FCC’s actions (affordability, quality, and equitable access).

Second, in a deft act of judicial interpretation, Kagan argued that the very word the challengers saw as a grant of limitless power—”sufficient”—is, in fact, a powerful limitation. The word, she reasoned, sets both a floor and a ceiling. The FCC cannot raise less than what is necessary to achieve Congress’s stated goals, but crucially, it also cannot raise more. It is not a blank check, but a budget tethered to a specific, congressionally-defined mission.

Finally, and most powerfully, Justice Kagan’s opinion serves as a stark warning against the radicalism of the challengers’ position. Adopting their rigid view of delegation, she cautioned, “would throw a host of federal statutes into doubt.” To invalidate the FCC’s authority on these grounds would be to call into question the funding mechanisms for everything from the FDIC to the national parks system. It would invite a legal war against the entire operational capacity of the federal government. The majority was unwilling to light that fire. In the conflict between doctrinal purity and functional stability, they chose stability.

The Dissent and the Doctrinal Purists

The dissent, authored by Justice Gorsuch and joined by Justices Thomas and Alito, represents the voice of the “demolition crew.” Theirs is an argument of profound and internally consistent ideological purity. They contend that the Constitution grants the power to tax and spend exclusively to Congress, the branch most directly accountable to the American people. In their view, when Congress passes a law telling an agency to simply raise “sufficient” funds, it is shirking its most sacred and fundamental constitutional duty. It is an act of political cowardice, outsourcing the “hard choices” about who gets taxed and how much they pay to unelected bureaucrats who operate outside the democratic process.

For the dissenters, the “intelligible principle” test has become a judicial fig leaf, a standard so watered down over the decades that it permits virtually any delegation of power, no matter how broad. They see the modern administrative state not as a necessary evolution, but as an unconstitutional monstrosity—a “fourth branch” of government that was never authorized by the constitutional blueprint. This case, for them, was a prime opportunity to begin the long-overdue project of dismantling that structure by reviving a muscular, unforgiving nondelegation doctrine. Theirs is a call to tear down the 30-story high-rise, no matter the immediate chaos, because its very existence violates the sanctity of the original foundation.

A Coalition for Stability

The true significance of FCC v. Consumers’ Research lies not in its defense of the E-rate program, but in the specific 6-3 coalition that formed to deliver the judgment. For the second time in a single day, following the decision in Kennedy v. Braidwood, Chief Justice Roberts and Justices Kavanaugh and Barrett joined with the Court’s three liberal members to form a pragmatic, institution-preserving majority on a question of administrative law.

This coalition is a powerful signal. It demonstrates that while this Court may be reliably conservative on hot-button social issues, a clear majority is deeply unwilling to take a doctrinal wrecking ball to the functional machinery of the American government. They are, at their core, structural engineers. They recognize that they are stewards of the government we have, not revolutionary architects of a government that exists only in theory. In this quiet, “boring” case, they looked upon the immense, unwieldy, and historically necessary high-rise of the modern state, and rather than condemning it, they chose to reinforce its foundations. For anyone who depends on the stable and predictable functioning of the federal government, from school librarians to banking regulators, that is a decision of monumental importance.