A quiet but significant divide has emerged on the U.S. Supreme Court over the limits of federal power, with Justice Amy Coney Barrett taking a more cautious approach than some of her colleagues, particularly Justice Clarence Thomas. At the heart of the debate lies the nondelegation doctrine—a long-dormant legal principle that could reshape how the federal government works if reactivated.

The nondelegation doctrine, once used to restrict Congress from transferring its core legislative duties to federal agencies, hasn’t been formally applied since the 1930s. Yet, some members of the Court have recently shown interest in reviving it. Justice Thomas, in particular, has voiced support for a broader application of the doctrine to limit the reach of federal agencies.

But Justice Barrett, appointed to the Court in 2020, expressed doubts during recent oral arguments in a case that challenges the authority of the Federal Communications Commission (FCC). The case, FCC v. Consumers’ Research, involves a federal program that collects funds from communications companies to support phone and internet services in rural and underserved communities. These charges are typically passed on to consumers.

The lawsuit argues that this method of funding represents taxation without direct congressional approval, and it questions whether Congress overstepped its constitutional role by allowing the FCC to manage this financial structure through a private administrator.

Justice Barrett pushed back against the idea that the funding program amounts to unchecked or unconstitutional taxation. “Throwing out a number like $3 trillion or $5 trillion doesn’t offer a clear standard,” she said during the session, signaling that she viewed the concerns raised by the plaintiff as more symbolic than practical.

She also challenged the broader implication that such a system inherently violates representation. When the plaintiffs’ attorney claimed the case was fundamentally about “taxation without representation,” Barrett called that framing “a little bit hollow” and pointed out that the FCC’s fund was operating under clear legislative authorization.

This perspective puts her at odds with Justice Thomas, who often advocates for a strict interpretation of the Constitution’s separation of powers. He has argued that allowing agencies to function without specific congressional direction undermines the authority of elected lawmakers.

This isn’t the first time the two justices have diverged on matters of constitutional interpretation. In another high-profile case, United States v. Rahimi, which addresses gun ownership rights for individuals under domestic violence restraining orders, Barrett again appeared to distance herself from Thomas’s originalist approach.

During those oral arguments, she brought up the details of a restraining order that barred the defendant from approaching his former partner and her child, highlighting the threats and behavior that led to the order. Barrett’s questions implied that she believes courts must consider practical implications and not rely solely on historical interpretations when applying constitutional protections.

This more measured approach reflects Barrett’s tendency to weigh legal tradition against modern realities. Rather than adopting sweeping rulings that drastically reshape precedent, she has often signaled a preference for narrower, incremental changes. While still conservative in her legal views, Barrett is emerging as a voice of moderation on a Court that has become increasingly ideological.

In the FCC case, the broader question revolves around whether modern government agencies can continue to operate with the flexibility Congress has granted them for decades. The federal government, through the FCC, argues that the universal service fund is essential for ensuring communication services reach every corner of the country. Defenders of the system say it’s an example of government adapting to complex needs through practical administration.

Opponents claim the program lacks transparency and accountability, with some pointing to examples of misuse or waste in similar initiatives. A law firm representing the challengers in the case has alleged that the fund has been subject to fraud and poor oversight, though supporters argue that such instances are not representative of the overall effectiveness of the program.

Ultimately, the Supreme Court’s decision in this case could significantly affect how federal programs are funded and managed. If the Court rules that the delegation of authority to the FCC was unconstitutional, it could lead to tighter restrictions on what federal agencies are allowed to do without explicit, case-by-case congressional approval.

Until the ruling is handed down—likely in late 2024 or early 2025—the debate continues behind the scenes. In the meantime, the subtle differences in judicial philosophy among justices like Barrett and Thomas offer a glimpse into how the highest court in the country balances tradition, modern governance, and constitutional authority in a changing legal landscape.