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Weirdest Neutrality Argument I’ve Read This Week

September 23rd, 2009 · 11 Comments

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.

Tags: Journalism & the Media · Law · Tech and Tech Policy


       

 

11 responses so far ↓

  • 1 Wilson // Sep 24, 2009 at 12:19 am

    So this argument rang a bell so I cracked open my Administrative Law text…it sounds like a version of the INS v. Chadha line of cases, but of course, unlike a legislative veto wherein Congress restricts executive activity, this is legislation. I am not a lawyer, but I cannot figure out what he is getting at either.

  • 2 Julian Sanchez // Sep 24, 2009 at 9:14 am

    Yeah, I don’t think that can be it… the problem in Chadha had to do with Congress trying to specify a process for itself that accomplished quasi-legislative goals without bicameral approval or presidential presentment. As you say, this is just straightforward legislation limiting a regulatory agency’s discretion.

  • 3 asg // Sep 24, 2009 at 2:57 pm

    This fails to top the USA Today column a few years ago in which the author (a law professor!) wrote that even if Congress were to amend the Constitution to permit the government to restrict speech in certain ways, the Supreme Court was unlikely to uphold the amendment.

  • 4 Julian Sanchez // Sep 24, 2009 at 4:52 pm

    That’s not as totally far-fetched as you might think. Foreign high courts have actually, on rare occasions, struck down formally validly approved constitutional amendments that the justices deemed so repugnant to the basic structure of the society that they were incompatible with constitutional government. Though I think you have to go pretty far into hypothetical land to come up with a case where our Supreme Court would even contemplate such a move.

  • 5 K.Chen // Sep 24, 2009 at 7:05 pm

    Odd. I had always thought of the purse strings as one of the constitutionally guaranteed Congressional powers.

  • 6 Seven at seven | One Fine Jay // Sep 28, 2009 at 7:03 pm

    [...] Sanchez (the second of my three favorite Libertarians) picks apart a specious argument in favor of “net neutrality.” As is the case with almost any political buzzword these [...]

  • 7 Weekly Web Watch 09/21/09 – 09/27/09 « EXECUTIVE WATCH // Sep 29, 2009 at 6:57 am

    [...] these rules; Koman argues that such an amendment would be unconstitutional.  Julian Sanchez, ah, disagrees, in rather spectacular [...]

  • 8 The Agitator » Blog Archive » Morning Links // Sep 29, 2009 at 9:02 am

    [...] In which Julian Sanchez teaches constitutional and regulatory law to a lawyer and tech writer. [...]

  • 9 Dave W. // Sep 29, 2009 at 9:35 am

    Thought experiment:

    Let’s say radio operators had fallen into the practice of importing indentured servants from Africa in order to run radio towers. The FCC was considering some rules to discourage this practice. Congress then decided to use the power of the purse (in the form of some type of “amendment”) to discourage the FCC from enacting the proposed rules.

    Okay, under that hypothetical, would it be accurate to say the following:

    “This 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.”

    I don’t know if this is the type of thing that he is getting at, but maybe . . . Once you give some measure of control to a government agency, it may be unConstitutional to specifically prevent it from policing its balliwick for Constitutional violations.

  • 10 Rimfax // Sep 29, 2009 at 1:53 pm

    Dave W. may strike close to the original argument with a bit of absurdum. Here’s another more absurd hypothetical:

    Does Congress have the authority to pass law blocking the Department of Justice from prosecuting baby rapers, under the fictional BIB Act (“Babyrape is Bad”)? Even in this absurd case, the answer would seem to be “yes”. Congress has the constitutional authority to pass law that prevents an executive agency from punishing behavior, even unconstitutional behavior. There is no precedent of judicial review that would find such a Congressional restriction to be unenforceable, regardless of how loathesome.

  • 11 ゴヤール // Jan 20, 2012 at 2:32 am

    rom prosecuting baby rapers, under the fictional BIB Act (“Babyrape is Bad”)? Even in this absurd case, the answer would seem to be “yes”. Congress has the

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