City of New York v. FCC

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.


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