8 ms·

Hopefully this won't go far. Federal law is supposed to be a minimum and States can go more restrictive (i.e. regulation through NN).

dfxm12 6y ago
Perhaps in theory, however, this administration has constantly given itself more and more power while the president's party mates in congress stood by and did nothing to check it. Yes, very recently, SCOTUS has checked the president's power a bit, but tying this stuff up in Federal Courts is, at best, a waste of tax payer money. Luckily, elections are coming up in November.
- swsieber 6y ago
  No matter who wins, I expect presidential powers to continue to expand. Trump does it with more flair, but Obama also did it.
  - mlthoughts2018 6y ago
    It’s a total difference of kind with Trump. I agree with you this keeps increasing over time, but Trump’s abuse of power is categorically unlike any president in almost a hundred years. The most recent comparable thing to me is probably FDR’s executive order for Japanese internment camps. https://en.m.wikipedia.org/wiki/Executive_Order_9066 https://en.m.wikipedia.org/wiki/Executive_Order_9066
  - bregma 6y ago
    Obama did it with more flair. Trump does it with more bluster. GW Bush did it with more stumbling. Clinton did it with interns [0]. Fact is it's a monotonic increasing function you can trace back as far as Roosevelt, maybe even Lincoln. [0] This may have veered off-topic.
    - minerjoe 6y ago
      Not sure why this is dead? I found it rather true.
      - chipotle_coyote 6y ago
        "Presidents generally support expanding executive powers" is true, but that doesn't mean that all presidents pushed to expand powers in the same way and to the same degree. "Obama did it with more flair, Bush did it with more stumbling" reduces these differences to mere aesthetics. More generally, "both sides are bad" is essentially the cynic's version of "both sides are valid," and should be treated with a similarly skeptical eye. False equivalence that gets you to nod your head in agreement is still false equivalence.
  - kevin_thibedeau 6y ago
    Obama was stuck with a Congress that wouldn't do its job because it was obsessed with sabotaging everything.
    - jfengel 6y ago
      And so with Biden, should he win. Even a wave election won't produce a filibuster-proof majority. And as with Obama, they will filibuster every attempt at legislation, so that they can cite it as proof that the Congress doesn't work so elect them.
      - mikeyouse 6y ago
        It's becoming pretty clear they're going to get rid of the filibuster if the Democrats take the Senate - probably rightly so.
        jfengel 6y ago
        At one time I might have defended the practice, since some things are important enough that they should require supermajorities. But there's already a high bar to clear, in that legislation has to pass the House and the Senate and the President. That alone guarantees gridlock more often than not. So I won't be sad to see it go. It's already gone in the one case I felt it was appropriate, for lifetime nominations to the Supreme Court, an enormous amount of power that doesn't require the input of the House.
    - toast0 6y ago
      Congress's job is to sabotage everything. It's called checks and balances. Both parties since time forever have been expanding presidential powers because convincing congress to do things is hard, but convincing congress to undo things is hard. If you're going to chastize Presidents for using executive actions for things that should probably be done by Congress, you should really chastize all of them. Otherwise, you're really just chastizing Presidents for taking actions that you don't like, but blaming the process instead of the actions.
tmaly 6y ago
has there every been any major rulings on the 10th amendment? I think this should be the issue here.
- voxic11 6y ago
  Yeah there was a recent one which nullified the federal ban on sportsbetting because the federal government didn't directly ban sportsbetting, instead it banned the states from enacting any new laws which legalized sportsbetting. The reasoning was that the federal government may be able to enact and enforce laws on sportsbetting, but it cannot force the state governments to continue to enforce their laws on sportsbetting if their legislatures want to stop. https://www.supremecourt.gov/opinions/17pdf/16-476_dbfi.pdf https://www.supremecourt.gov/opinions/17pdf/16-476_dbfi.pdf
- jcranmer 6y ago
  The Tenth Amendment doesn't mean what most of these arguments would have it mean. The disputes center on the limits of federal power, and here the Tenth Amendment merely tautologically says that the federal government doesn't have any power it doesn't have. Because of the Supremacy Clause, the states don't have any power to overrule the federal government, so the rest of it doesn't really apply. It should be noted that the original version of the text said "The powers not expressly delegated", but this version of text failed to pass Congress. It was only after deleting that word that the amendment passed. That one word change is key, since including that word would mean what people in these arguments want it to mean, so its intentional omission destroys those arguments.
  - tmaly 6y ago
    maybe we need to put that word back in.
lersrvwtogether 6y ago
Wheeler passed net neutrality: No Blocking, No Throttling, No Paid Prioritization (after FCC decided that ISPs are common carriers and thus FCC then had statutory authority). Pai's (former Verizon lobbyist) FCC then decided that ISPs are not common carriers and repeatedly argued that FCC thus now has no authority to regulate ISPs in regards to Net Neutrality. To now claim that the federal government has statutory authority which supersedes state Net Neutrality laws (without classing ISPs as common carriers) is incredibly inconsistent with the previously argued position. Here's to hoping that the winds change and we're able to resolve the patchwork of state Net Neutrality provisions (that we have due to declassifying ISPs as common carriers) next year.
- henriquez 6y ago
  To drastically oversimplify, the FCC's position is: 1. we refuse to regulate ISPs, 2. nobody else can either A look at other regulatory law, such as California's CARB and more stringent emissions standards than federal would seem to make Pai's position an uphill battle for the FCC. By refusing to do his job and by revoking the Title II regs (in an arbitrary and capricious fashion, no less), Pai has opened the door to a much more complicated scenario where ISPs are at the mercy of state regulators and their compliance costs just got 50x more complicated. Obviously the lobbyists don't like that, but everyone involved has been behaving in an extremely short-sighted fashion.
  - lersrvwtogether 6y ago
    Where is the power to regulate intrastate ISP commerce granted to the federal government? Certainly not in the US Constitution. What a slippery slope.
    - fuzzer37 6y ago
      Well there's the interstate commerce clause, not sure why them being an ISP changes anything.
      - 6y ago
jcranmer 6y ago
In order to block state regulation, federal law either has to establish regulations, or pretty explicitly state that it intends to have deregulation nullify state law. The FCC deregulation was effected by arguing that broadband services aren't in its remit for regulation, which makes it hard for the FCC to win an argument that it can overrule state regulations on the basis of its own inability to regulate them. This seems pretty much a slam-dunk for "it's not going to work" as far as the courts go, not that it stops people from trying.
- coldpie 6y ago
  > not that it stops people from trying Honestly this is the part I find most galling. My (and your) ISP is using the money I pay to them to fight a stupid, probably-losing lawsuit whose sole purpose is to injure me as a consumer. I'm paying to hurt myself, and I have no choice, because every ISP is fighting this battle.
  - jcranmer 6y ago
    It's not the ISP who's fighting the lawsuit, it's the FCC. So your glorious tax money is funding this. I don't know if that should make you feel better or worse.
    - coldpie 6y ago
      I admit I'm not great at legal stuff, but the article I read stated the broadband industry is involved: "The Trump administration and broadband industry are resuming their fight against California's net neutrality law, with the US Department of Justice and ISP lobby groups filing new complaints against the state yesterday." "Now that the Trump administration and broadband industry have filed amended complaints..." "The broadband industry's amended complaint was filed by the major lobby groups representing cable, fiber, DSL, and mobile Internet providers." https://arstechnica.com/tech-policy/2020/08/trump-admin-and-isps-restart-lawsuit-against-california-net-neutrality-law/ https://arstechnica.com/tech-policy/2020/08/trump-admin-and-... Here is the complaint itself, with plaintiffs "AMERICAN CABLE ASSOCIATION, CTIA – THE WIRELESS ASSOCIATION, NCTA – THE INTERNET & TELEVISION ASSOCIATION, and USTELECOM – THE BROADBAND ASSOCIATION, on behalf of their members": https://www.courtlistener.com/recap/gov.uscourts.caed.344150/gov.uscourts.caed.344150.52.0.pdf https://www.courtlistener.com/recap/gov.uscourts.caed.344150... If I'm reading this right, the FCC filed a separate complaint. So you're right: I (and you) am paying to hurt myself, twice! Awesome.
devwastaken 6y ago
It's interstate commerce, feds have a lot of power when it comes to anything that crosses state lines. Even if it's indirect. By employing net neutrality law in Cali, they affect the transmission of data in and out of Cali, therefore being interstate. Perhaps it's somehow special here, but that's my understanding of anything and everything that crosses state lines.
- ivalm 6y ago
  But feds argument was that they are not empowered to regulate ISPs. So effectively there is no regulation either way on Fed level and so the state isn’t going against anything.
anonunivgrad 6y ago
That’s not true. That is folk constitutional law. It might be descriptive of some areas of law as they currently operate, but that is not the constitutional federalism framework in the US. When the federal government acts in the areas where it has authority, its enumerated powers[1], then it can and often does preempt state law. Sometimes the preemption is explicitly in the law, but other times it is implicit and up to a court to determine whether a particular state action or kind of state action would undermine the federal regulatory scheme. If it is the policy of the US government that there is no guarantee of transit on the Internet, then there is a good argument that state regulations to the contrary undermine the federal scheme, which is to have a free market for transit. [1] the expansive reading of those enumerated powers is another question altogether

dfxm12 6y ago

Perhaps in theory, however, this administration has constantly given itself more and more power while the president's party mates in congress stood by and did nothing to check it. Yes, very recently, SCOTUS has checked the president's power a bit, but tying this stuff up in Federal Courts is, at best, a waste of tax payer money. Luckily, elections are coming up in November.

swsieber 6y ago
No matter who wins, I expect presidential powers to continue to expand. Trump does it with more flair, but Obama also did it.
- mlthoughts2018 6y ago
  It’s a total difference of kind with Trump. I agree with you this keeps increasing over time, but Trump’s abuse of power is categorically unlike any president in almost a hundred years. The most recent comparable thing to me is probably FDR’s executive order for Japanese internment camps. https://en.m.wikipedia.org/wiki/Executive_Order_9066 https://en.m.wikipedia.org/wiki/Executive_Order_9066
- bregma 6y ago
  Obama did it with more flair. Trump does it with more bluster. GW Bush did it with more stumbling. Clinton did it with interns [0]. Fact is it's a monotonic increasing function you can trace back as far as Roosevelt, maybe even Lincoln. [0] This may have veered off-topic.
  - minerjoe 6y ago
    Not sure why this is dead? I found it rather true.
    - chipotle_coyote 6y ago
      "Presidents generally support expanding executive powers" is true, but that doesn't mean that all presidents pushed to expand powers in the same way and to the same degree. "Obama did it with more flair, Bush did it with more stumbling" reduces these differences to mere aesthetics. More generally, "both sides are bad" is essentially the cynic's version of "both sides are valid," and should be treated with a similarly skeptical eye. False equivalence that gets you to nod your head in agreement is still false equivalence.
- kevin_thibedeau 6y ago
  Obama was stuck with a Congress that wouldn't do its job because it was obsessed with sabotaging everything.
  - jfengel 6y ago
    And so with Biden, should he win. Even a wave election won't produce a filibuster-proof majority. And as with Obama, they will filibuster every attempt at legislation, so that they can cite it as proof that the Congress doesn't work so elect them.
    - mikeyouse 6y ago
      It's becoming pretty clear they're going to get rid of the filibuster if the Democrats take the Senate - probably rightly so.
      - jfengel 6y ago
        At one time I might have defended the practice, since some things are important enough that they should require supermajorities. But there's already a high bar to clear, in that legislation has to pass the House and the Senate and the President. That alone guarantees gridlock more often than not. So I won't be sad to see it go. It's already gone in the one case I felt it was appropriate, for lifetime nominations to the Supreme Court, an enormous amount of power that doesn't require the input of the House.
  - toast0 6y ago
    Congress's job is to sabotage everything. It's called checks and balances. Both parties since time forever have been expanding presidential powers because convincing congress to do things is hard, but convincing congress to undo things is hard. If you're going to chastize Presidents for using executive actions for things that should probably be done by Congress, you should really chastize all of them. Otherwise, you're really just chastizing Presidents for taking actions that you don't like, but blaming the process instead of the actions.

tmaly 6y ago

has there every been any major rulings on the 10th amendment? I think this should be the issue here.

voxic11 6y ago
Yeah there was a recent one which nullified the federal ban on sportsbetting because the federal government didn't directly ban sportsbetting, instead it banned the states from enacting any new laws which legalized sportsbetting. The reasoning was that the federal government may be able to enact and enforce laws on sportsbetting, but it cannot force the state governments to continue to enforce their laws on sportsbetting if their legislatures want to stop. https://www.supremecourt.gov/opinions/17pdf/16-476_dbfi.pdf https://www.supremecourt.gov/opinions/17pdf/16-476_dbfi.pdf
jcranmer 6y ago
The Tenth Amendment doesn't mean what most of these arguments would have it mean. The disputes center on the limits of federal power, and here the Tenth Amendment merely tautologically says that the federal government doesn't have any power it doesn't have. Because of the Supremacy Clause, the states don't have any power to overrule the federal government, so the rest of it doesn't really apply. It should be noted that the original version of the text said "The powers not expressly delegated", but this version of text failed to pass Congress. It was only after deleting that word that the amendment passed. That one word change is key, since including that word would mean what people in these arguments want it to mean, so its intentional omission destroys those arguments.
- tmaly 6y ago
  maybe we need to put that word back in.

lersrvwtogether 6y ago

Wheeler passed net neutrality: No Blocking, No Throttling, No Paid Prioritization (after FCC decided that ISPs are common carriers and thus FCC then had statutory authority). Pai's (former Verizon lobbyist) FCC then decided that ISPs are not common carriers and repeatedly argued that FCC thus now has no authority to regulate ISPs in regards to Net Neutrality. To now claim that the federal government has statutory authority which supersedes state Net Neutrality laws (without classing ISPs as common carriers) is incredibly inconsistent with the previously argued position. Here's to hoping that the winds change and we're able to resolve the patchwork of state Net Neutrality provisions (that we have due to declassifying ISPs as common carriers) next year.

henriquez 6y ago
To drastically oversimplify, the FCC's position is: 1. we refuse to regulate ISPs, 2. nobody else can either A look at other regulatory law, such as California's CARB and more stringent emissions standards than federal would seem to make Pai's position an uphill battle for the FCC. By refusing to do his job and by revoking the Title II regs (in an arbitrary and capricious fashion, no less), Pai has opened the door to a much more complicated scenario where ISPs are at the mercy of state regulators and their compliance costs just got 50x more complicated. Obviously the lobbyists don't like that, but everyone involved has been behaving in an extremely short-sighted fashion.
- lersrvwtogether 6y ago
  Where is the power to regulate intrastate ISP commerce granted to the federal government? Certainly not in the US Constitution. What a slippery slope.
  - fuzzer37 6y ago
    Well there's the interstate commerce clause, not sure why them being an ISP changes anything.
    - 6y ago

jcranmer 6y ago

In order to block state regulation, federal law either has to establish regulations, or pretty explicitly state that it intends to have deregulation nullify state law. The FCC deregulation was effected by arguing that broadband services aren't in its remit for regulation, which makes it hard for the FCC to win an argument that it can overrule state regulations on the basis of its own inability to regulate them. This seems pretty much a slam-dunk for "it's not going to work" as far as the courts go, not that it stops people from trying.

coldpie 6y ago
> not that it stops people from trying Honestly this is the part I find most galling. My (and your) ISP is using the money I pay to them to fight a stupid, probably-losing lawsuit whose sole purpose is to injure me as a consumer. I'm paying to hurt myself, and I have no choice, because every ISP is fighting this battle.
- jcranmer 6y ago
  It's not the ISP who's fighting the lawsuit, it's the FCC. So your glorious tax money is funding this. I don't know if that should make you feel better or worse.
  - coldpie 6y ago
    I admit I'm not great at legal stuff, but the article I read stated the broadband industry is involved: "The Trump administration and broadband industry are resuming their fight against California's net neutrality law, with the US Department of Justice and ISP lobby groups filing new complaints against the state yesterday." "Now that the Trump administration and broadband industry have filed amended complaints..." "The broadband industry's amended complaint was filed by the major lobby groups representing cable, fiber, DSL, and mobile Internet providers." https://arstechnica.com/tech-policy/2020/08/trump-admin-and-isps-restart-lawsuit-against-california-net-neutrality-law/ https://arstechnica.com/tech-policy/2020/08/trump-admin-and-... Here is the complaint itself, with plaintiffs "AMERICAN CABLE ASSOCIATION, CTIA – THE WIRELESS ASSOCIATION, NCTA – THE INTERNET & TELEVISION ASSOCIATION, and USTELECOM – THE BROADBAND ASSOCIATION, on behalf of their members": https://www.courtlistener.com/recap/gov.uscourts.caed.344150/gov.uscourts.caed.344150.52.0.pdf https://www.courtlistener.com/recap/gov.uscourts.caed.344150... If I'm reading this right, the FCC filed a separate complaint. So you're right: I (and you) am paying to hurt myself, twice! Awesome.

devwastaken 6y ago

It's interstate commerce, feds have a lot of power when it comes to anything that crosses state lines. Even if it's indirect. By employing net neutrality law in Cali, they affect the transmission of data in and out of Cali, therefore being interstate. Perhaps it's somehow special here, but that's my understanding of anything and everything that crosses state lines.

ivalm 6y ago
But feds argument was that they are not empowered to regulate ISPs. So effectively there is no regulation either way on Fed level and so the state isn’t going against anything.

anonunivgrad 6y ago

That’s not true. That is folk constitutional law. It might be descriptive of some areas of law as they currently operate, but that is not the constitutional federalism framework in the US. When the federal government acts in the areas where it has authority, its enumerated powers[1], then it can and often does preempt state law. Sometimes the preemption is explicitly in the law, but other times it is implicit and up to a court to determine whether a particular state action or kind of state action would undermine the federal regulatory scheme. If it is the policy of the US government that there is no guarantee of transit on the Internet, then there is a good argument that state regulations to the contrary undermine the federal scheme, which is to have a free market for transit. [1] the expansive reading of those enumerated powers is another question altogether