In the recent Supreme Court decision on *FCC v. Consumers’ Research*, Justice Brett Kavanaugh's concurring opinion has sparked a nuanced discussion on the constitutional boundaries of delegation within the U.S. government. The case, which reversed the Fifth Circuit’s ruling that invalidated several aspects of the FCC’s regulatory framework, brings into question the limits of Congressional power under the non-delegation doctrine.

The Supreme Court, in a divided decision, upheld the FCC's method of operating universal service subsidy programs through a private company. The Fifth Circuit had earlier argued that this setup violated the non-delegation doctrine by allowing the FCC to determine mandatory contribution amounts from telecommunications carriers and by using the private company’s financial projections to set rates.

Justice Kavanaugh, while agreeing with the majority to reverse the Fifth Circuit’s decision, penned a separate concurrence that provides significant insights into his views on the delegation of legislative power. He affirmed that the practicalities of governance often require Congress to delegate some level of discretion to executive bodies. He argues that this is constitutionally acceptable as long as the executive acts within the bounds of legislative intent.

A key aspect of Kavanaugh's concurrence is his stance on delegations to executive agencies being equivalent to delegations directly to the President. This perspective aligns with the textual interpretation of the Constitution, which involves the President in the legislative process and allows for some level of re-delegation within the executive branch.

Further, Kavanaugh highlights the importance of the intelligible principle standard, a judicial precedent that allows Congress to delegate authority under broad but defined standards. He expresses support for this doctrine, acknowledging its role in maintaining a balance between necessary delegation for executive functioning and the preservation of Congress’s legislative power.

Additionally, the Justice addresses the major questions doctrine, suggesting that courts should require clear Congressional authorization for significant policy decisions delegated to the executive. This approach aims to prevent undue expansion of executive power by ensuring that major policy shifts are explicitly sanctioned by Congress.

Justice Kavanaugh’s concurrence also touches on potential issues with delegations to independent agencies. He suggests that such arrangements might pose problems under Article II of the Constitution, which outlines executive powers. His concern is that if these agencies operate without sufficient oversight from the President, it could lead to a diffusion of the executive power meant to be centralized under the Presidency.

The implications of Kavanaugh’s concurrence are substantial, indicating potential shifts in how future courts might interpret the boundaries of legislative delegation. His detailed reasoning underscores the ongoing debate over the balance of power among the branches of the U.S. government, a debate that is likely to continue influencing judicial decision-making in significant regulatory and administrative law cases.