486 U. S. 57
May 16, 1988
For many years, the FCC had put forth technical specifications about broadcast signal quality for cable providers, and these regulations had pre-empted any state law imposing other technical specifications (even ones that were more stringent). When Congress passed a new law in 1984 about cable regulation that did not specifically mention pre-empting more stringent technical specifications, the City of New York charged that the FCC no longer retained the authority to continue their regulatory pre-emption.
The Supreme Court unanimously disagreed. White said that nothing in the text of the 1984, or its legislative history, suggested any intent to prohibit a regulatory practice that the FCC had already been going about for a decade. To the contrary, the law seemed to give the FCC the green light to continue all it had previously been doing. That pre-emption of more stringent standards was not specifically mentioned did not matter.
Based on regulatory precedent, this case seems clear enough. But it’s another troubling instance where the overall rule-making power of unelected agencies exceeds all reasonable bounds. In this case, and countless others, the non-delegation principle is a complete joke. I can still remember the elegant solution I heard Michael Farris propose back in 2005: simply require that all agency regulations be passed into law by an ordinary vote of Congress before they become effective.