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> It's called checks and balances, and it was how the system was designed to work. No, it's not. Just repeating "checks and balances" doesn't mean courts can b

by smsm42 8y ago

> It's called checks and balances, and it was how the system was designed to work. No, it's not. Just repeating "checks and balances" doesn't mean courts can be abused for doing something that is not court's purpose. The court's purpose is preserving the consistency of legislation (including the Constitution as supreme, very hard to change part of the law) and adherence of executive to the law. In this case, the executive is clearly within the law, but some people are unhappy about it, so they want to abuse the courts to make them legislate from the bench that the policy must be different. This is not how the system is designed to work, this is the exact opposite of it. > The courts aren't being used as a replacement, they're being used as a court. They are being used to force through a policy that is not supported by either legislature or executive. That's not a function of a proper court. > When one part of the government does something, you use another part of the government to counter it, until you've exhausted all your options. No, that's not how it's supposed to work. It's not "try anything until my side wins, then block any attempt of other side to try anything at all". Your side may temporarily win, but when the other side does the same, you end up with the broken system where nobody respects any decisions and the only thing that matters is which side you're on. I call such system broken.

peterwwillis 8y ago
> They are being used to force through a policy that is not supported by either legislature or executive. That's not a function of a proper court. They're asking the court to reverse the repealing of legislation, with the argument that the FCC should not have been allowed to repeal it because their legal reasoning was flawed. Who is pushing policy? Was Obama pushing policy by instituting regulation? Was the FCC pushing policy by repealing it? Are the states pushing policy by trying to get the repeal revoked? Yes, Yes, Yes. Welcome to government. It's all about pushing policy, any way you can. The system regulates the ability to push policy by allowing you to push policy, within the confines of the system, and gives you the tools to continually push or pull policy. > Your side may temporarily win, but when the other side does the same, you end up with the broken system where nobody respects any decisions and the only thing that matters is which side you're on. I re-watched the film Lincoln recently. It's basically about pushing for the 13th Amendment, well before it was politically tenable to adopt it. Bribery, back room deals, switching allegiances, concealing moves, political pressure, manipulation. Politics is the art of doing anything you possibly can to advance your agenda, to the exclusion of others' agendas. Your side doesn't even matter, it's what you can gain or lose that matters.
- paulddraper 8y ago
  > the FCC should not have been allowed to repeal it because their legal reasoning was flawed I have not been able to pin this down. What law/rule did the FCC allegedly violate?
  - openasocket 8y ago
    Check out the NY filing for more complete information about their arguments (https://ag.ny.gov/sites/default/files/nn_govt_petitioners_brief_and_addendum_final_filed.pdf https://ag.ny.gov/sites/default/files/nn_govt_petitioners_br...). But the short answer is that the FCC is being accused of violating the Administrative Procedures Act. The APA was created in response to the growth of government agencies tasked with creating regulations, essentially to curb the power of bureaucrats. Agencies are required to keep the public informed about possible changes to regulations and to allow for public participation, but what's relevant to this case is the process by which proposed changes are approved. In order to change the existing regulations, there has to be a formal review process, which involves gathering evidence and making a decision based on that evidence. Essentially, agencies like the FCC can't just change their rules on a whim, they have to look at all available evidence and actually come up with an argument for why the change needs to happen based on that evidence. Agency heads still get a decent amount of leeway, but standard is that their decisions cannot be "arbitrary and capricious." That's a legal term with a whole body of precedent behind it, google for more info. I should also point out that suing based on the APA has come up a lot in this administration. My girlfriend is involved with environmental lobbying groups, and a number of the EPA rule changes proposed under the Trump administration have been thrown out because they did not properly follow the APA. The DOJ's repeal of DACA is also currently being challenged as violating the APA.
    - paulddraper 8y ago
      > they have to look at all available evidence and actually come up with an argument for why the change needs to happen based on that evidence. Make sense. Proving this seems like it would be an enormously uphill battle. It would have to be an unambiguously wrong decision on the part of the FCC. (Otherwise, the court essentially becomes the FCC by upholding/overturning any "wrong" decision.) Given that it only became a policy recently, and the current amount of debate...it's hard to believe that the court would decide that not having NN is egregiously in the wrong. But we shall see.
cabaalis 8y ago
What's broken is that there are "sides" at all. The American people are being restricted from free thinking on individual issues because of party-based politics. This is intentional, to create "wedge" issues out of thin air so we stay divided and whoever wants power has a shot at taking it.
- smsm42 8y ago
  Well, if the decision is "should we have state-enforced net neutrality regulations" then there would be "yes" and "no" sides I assume. Given binary-partisan US politics, there would be natural alignment of parties along such sides, but the yes/no question would remain even if we didn't have any parties at all.
openasocket 8y ago
This is very much a case of checks and balances. This article is a little misleading because it only quotes those filing suit saying that they don't like the FCC's actions. The actual suit filed (https://ag.ny.gov/sites/default/files/nn_govt_petitioners_brief_and_addendum_final_filed.pdf https://ag.ny.gov/sites/default/files/nn_govt_petitioners_br...) has actual legal arguments. First, they argue the process by which the rule was passed was in violation of the Administrative Procedures Act. Second, they argue that the rule exceeds the FCC's authority by preventing states from enacting their own net neutrality regulation.
- smsm42 8y ago
  You seem to think "checks and balances" means "we have so many ways to get what I want through and it's ok to use any of them in any ways as long as at the end what I want is getting done". It's not the case. "Checks and balances" does not mean "if legislature doesn't get us the result I want, we should try courts next". It means each branch of the government has its role, and for the courts it's upholding the existing law, not creating policy. It is clear that the current dispute is a policy/political one - should we follow one policy or another. The courts is exactly the wrong place to decide such things, no matter how many times you say "checks and balances". > they argue the process by which the rule was passed was in violation of the Administrative Procedures Act Which may or may not be true (most likely not, since it would be stupid to undermine important policy decision by not signing a proper form, but of course one should never overestimate the federal government workers and their capacity of keeping things orderly). But if it's true, then they can just re-pass the same decision, now signing all the proper forms in the proper places and the end effect would be colossal waste of time and money and the same outcome at the end of it. Since FCC is the one to decide the policy, and head of the FCC has decided to not have NN, arguing essentially "but you didn't fill the TPC report in triplicate!" is not an argument against the policy that can be effective. It's also not a proper way to enact a policy. > they argue that the rule exceeds the FCC's authority That sounds ridiculous. Instituting NN does not exceed FCC authority, but reverting to pre-2015 does? I am not a lawyer, but for a common person that makes zero sense. > by preventing states from enacting their own net neutrality regulation. Hasn't then 2015 ruling been equally invalid for preventing states from enacting their own policies which do not include net neutrality regulations? If we argue it should be in the state level (which I'm always fine with) then 2015 rule should be rescinded and they should sue for restricting the current rule only to federal policy but allow states to enact their own policies. But don't they sue for reinstating 2015 policy instead?

by smsm42 8y ago

peterwwillis 8y ago

> They are being used to force through a policy that is not supported by either legislature or executive. That's not a function of a proper court. They're asking the court to reverse the repealing of legislation, with the argument that the FCC should not have been allowed to repeal it because their legal reasoning was flawed. Who is pushing policy? Was Obama pushing policy by instituting regulation? Was the FCC pushing policy by repealing it? Are the states pushing policy by trying to get the repeal revoked? Yes, Yes, Yes. Welcome to government. It's all about pushing policy, any way you can. The system regulates the ability to push policy by allowing you to push policy, within the confines of the system, and gives you the tools to continually push or pull policy. > Your side may temporarily win, but when the other side does the same, you end up with the broken system where nobody respects any decisions and the only thing that matters is which side you're on. I re-watched the film Lincoln recently. It's basically about pushing for the 13th Amendment, well before it was politically tenable to adopt it. Bribery, back room deals, switching allegiances, concealing moves, political pressure, manipulation. Politics is the art of doing anything you possibly can to advance your agenda, to the exclusion of others' agendas. Your side doesn't even matter, it's what you can gain or lose that matters.

paulddraper 8y ago
> the FCC should not have been allowed to repeal it because their legal reasoning was flawed I have not been able to pin this down. What law/rule did the FCC allegedly violate?
- openasocket 8y ago
  Check out the NY filing for more complete information about their arguments (https://ag.ny.gov/sites/default/files/nn_govt_petitioners_brief_and_addendum_final_filed.pdf https://ag.ny.gov/sites/default/files/nn_govt_petitioners_br...). But the short answer is that the FCC is being accused of violating the Administrative Procedures Act. The APA was created in response to the growth of government agencies tasked with creating regulations, essentially to curb the power of bureaucrats. Agencies are required to keep the public informed about possible changes to regulations and to allow for public participation, but what's relevant to this case is the process by which proposed changes are approved. In order to change the existing regulations, there has to be a formal review process, which involves gathering evidence and making a decision based on that evidence. Essentially, agencies like the FCC can't just change their rules on a whim, they have to look at all available evidence and actually come up with an argument for why the change needs to happen based on that evidence. Agency heads still get a decent amount of leeway, but standard is that their decisions cannot be "arbitrary and capricious." That's a legal term with a whole body of precedent behind it, google for more info. I should also point out that suing based on the APA has come up a lot in this administration. My girlfriend is involved with environmental lobbying groups, and a number of the EPA rule changes proposed under the Trump administration have been thrown out because they did not properly follow the APA. The DOJ's repeal of DACA is also currently being challenged as violating the APA.
  - paulddraper 8y ago
    > they have to look at all available evidence and actually come up with an argument for why the change needs to happen based on that evidence. Make sense. Proving this seems like it would be an enormously uphill battle. It would have to be an unambiguously wrong decision on the part of the FCC. (Otherwise, the court essentially becomes the FCC by upholding/overturning any "wrong" decision.) Given that it only became a policy recently, and the current amount of debate...it's hard to believe that the court would decide that not having NN is egregiously in the wrong. But we shall see.

cabaalis 8y ago

What's broken is that there are "sides" at all. The American people are being restricted from free thinking on individual issues because of party-based politics. This is intentional, to create "wedge" issues out of thin air so we stay divided and whoever wants power has a shot at taking it.

smsm42 8y ago
Well, if the decision is "should we have state-enforced net neutrality regulations" then there would be "yes" and "no" sides I assume. Given binary-partisan US politics, there would be natural alignment of parties along such sides, but the yes/no question would remain even if we didn't have any parties at all.

openasocket 8y ago

This is very much a case of checks and balances. This article is a little misleading because it only quotes those filing suit saying that they don't like the FCC's actions. The actual suit filed (https://ag.ny.gov/sites/default/files/nn_govt_petitioners_brief_and_addendum_final_filed.pdf https://ag.ny.gov/sites/default/files/nn_govt_petitioners_br...) has actual legal arguments. First, they argue the process by which the rule was passed was in violation of the Administrative Procedures Act. Second, they argue that the rule exceeds the FCC's authority by preventing states from enacting their own net neutrality regulation.

smsm42 8y ago
You seem to think "checks and balances" means "we have so many ways to get what I want through and it's ok to use any of them in any ways as long as at the end what I want is getting done". It's not the case. "Checks and balances" does not mean "if legislature doesn't get us the result I want, we should try courts next". It means each branch of the government has its role, and for the courts it's upholding the existing law, not creating policy. It is clear that the current dispute is a policy/political one - should we follow one policy or another. The courts is exactly the wrong place to decide such things, no matter how many times you say "checks and balances". > they argue the process by which the rule was passed was in violation of the Administrative Procedures Act Which may or may not be true (most likely not, since it would be stupid to undermine important policy decision by not signing a proper form, but of course one should never overestimate the federal government workers and their capacity of keeping things orderly). But if it's true, then they can just re-pass the same decision, now signing all the proper forms in the proper places and the end effect would be colossal waste of time and money and the same outcome at the end of it. Since FCC is the one to decide the policy, and head of the FCC has decided to not have NN, arguing essentially "but you didn't fill the TPC report in triplicate!" is not an argument against the policy that can be effective. It's also not a proper way to enact a policy. > they argue that the rule exceeds the FCC's authority That sounds ridiculous. Instituting NN does not exceed FCC authority, but reverting to pre-2015 does? I am not a lawyer, but for a common person that makes zero sense. > by preventing states from enacting their own net neutrality regulation. Hasn't then 2015 ruling been equally invalid for preventing states from enacting their own policies which do not include net neutrality regulations? If we argue it should be in the state level (which I'm always fine with) then 2015 rule should be rescinded and they should sue for restricting the current rule only to federal policy but allow states to enact their own policies. But don't they sue for reinstating 2015 policy instead?