Richard Koman at ZDnet on proposed legislation to block FCC net neutrality rules:
The amendment is a blatantly unconstitutional attempt to assert Congressional control of an executive function. They try to get around this by controlling “expenditures,” and I certainly don’t know the Supreme Court holdings on such approaches, but it seems to me that controlling purse strings is tantamount to controlling rulemaking.
Dude, what? Aren’t you supposed to be a lawyer? The FCC is a creation of Congress; the only power or authority it has is the power it gets on loan from Congress. The only genuine separation of powers question here is whether it’s actually constitutional for Congress to delegate so much quasi-legislative power to an autonomous executive agency. Congress could strip the agency of all its rulemaking power tomorrow and simply dictate to the commissioners the precise list of rules they must enforce. Legitimate debates over separation of powers have to do with prerogatives the executive branch has under the Constitution, no the ones Congress gave it. Even when it comes to the powers the executive has under the constitution, congressional use of “the power of the purse” to defund executive activities legislators disapprove—by defunding military operations, say—is how the system of checks and balances is supposed to work.
Anyway, the point is… this is just super bizarre. There’s no serious question whether that Congress has the power to overrule the FCC, and they’ve done it before—though not necessarily wisely. Not only is it not “blatantly unconstitutional,” but you’d have to have a pretty profoundly confused notion of how our system of government works to harbor any doubt at all that this sort of thing is within the purview of Congress. It’s especially odd coming from a guy who’s both a lawyer and a tech writer and otherwise seems to know his stuff pretty well.