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> With this US Supreme Court, I expect this New York Law will be overruled. Why? Just because the court is conservative and this is a progressive law, or is th

> With this US Supreme Court, I expect this New York Law will be overruled. Why? Just because the court is conservative and this is a progressive law, or is there is an actual legal basis for the court to overturn this law?

Retric 2y ago
The Supreme Court isn’t limited to what has an actual legal basis. Like jury nullification it’s a loophole arising from being the ultimate arbitrator.
- smlavine 2y ago
  Yeah, but they still have to argue something in the decision that isn't "we don't like this law". They have to argue that the state doesn't have the constitutional authority to make the law, or something like that.
  - telios 2y ago
    I'm not sure that's stopped them; it would be trivial for them to find some reason, as long as it leads to the conclusion they want.
  - jfoutz 2y ago
    No they don’t. Opinions are customary, but there is no law or regulation requiring that. Lawyers make arguments. Judges make decisions.
  - deleted 2y ago
    [deleted]
  - dartos 2y ago
    No, they really don’t. The supreme court’s power isn’t checked. The justices have the final say on just about everything.
jandrese 2y ago
The originalists will argue that since Net Neutrality wasn't written into the constitution then it is unconstitutional.
- krapp 2y ago
  Neither is the Supreme Court's power of judicial review but the originalists don't seem to take issue with that.
ensignavenger 2y ago
Requiring companies to provide a service to certain customers at a set price without compensation is a violation of the 5th Amendment. Pf course, New York and other states got away with this when they refused to allow evictions during the early years of the Covid Pandemic... but it this law goes even further, isn't during a health emergency, and doesn't even allow for a theoretical debt to be "owed" that there is no chance of ever collecting. The law is absurd and absolutely should be stuck down.
- kelnos 2y ago
  $15/mo is compensation. Corporations are not people, as much as some court decisions and politicians would like us to believe they are. A corporation's 5th amendment rights cannot be violated, because it does not have those rights. Corporate charters are allowed to exist at the pleasure of the government.
  - alwa 2y ago
    Is the compensation “just,” though? Seems like an awfully round number to be the result of a fair-minded analysis. The Affordable Care Act mechanism always struck me as one somewhat fair way to do it: the insurers set a price for a more-or-less well-defined product in a well-defined market. They compete with each other on that price, then the government achieves its desired social effects by subsidizing low-income insureds in proportion to that commercially-derived price. Just saying “well, insurance is $5 now” seems less convincingly fair to the people doing the work to deliver the service. And rather less sustainable in the long run.
  - ensignavenger 2y ago
    The compensation has to be just, which generally means Fair Market value. Corporations are owned by people, taking something from a corporation is no different than taking the thing from the corporations owners. Further, the law applies to not only corporate ISPs, but also individuals operating an ISP.
- GolfPopper 2y ago
  Alternatively, the service is unsuitable to be run for-profit and yet needs to exist, it should be run by the government.
HumblyTossed 2y ago
Because corporations want it overruled.
dotnet00 2y ago
Because the trend on HN is to be reddit-tier absurd and hyperbolic when it comes to the US Supreme Court.
- kelnos 2y ago
  That may be true in a general sense, but how do you figure, in this particular case? It seems entirely likely to me that SCOTUS will overturn this NY law, based on their actions over the past several years. Maybe they won't, and that would be great, but I think it's likely they will.
  - dotnet00 2y ago
    Regarding this specific case, I personally have no idea. I've had many times where I thought a suit wouldn't hold up in court, only to find that there was a sensible legal precedent for it to hold up (at least in terms of "yeah, this rule exists, so following the rule makes sense"). I've also had the opposite too, so overall I genuinely have no prediction on how the court will rule. Even the article itself kind of shows that the outcome isn't clear, seems like some judges think there is a legal basis for NY's law, others think that ISPs might be able to make a stronger argument. I'm not even sure if the court will rule at all, since unless I'm mixing up the way things work between different countries, the US Supreme Court gets to pick which cases it considers to be worth taking.
- azemetre 2y ago
  I can’t blame them. This is the same court that removed rights from half of Americans and tends to be extremely pro corporation. Not too mention the bribery that some members engage in and an unwillingness to abide by any ethical standards. Then you read that certain members of SCOTUS want to abolish OSHA. At some point you don’t get to claim to be nonpartisan when you rule by partisan lines.
  - exe34 2y ago
    > same court that removed rights from half of Americans when laws are made out of Congress, they can be struck down out of Congress. if it's important enough, ask your representatives and senators to turn it into a proper law.
dogsledsleddog 2y ago
Compelled pricing is quite rare, for example when regulators used it as an alternative to breaking up the original phone monopoly. If they don't admit there's a monopoly that should be subject to special regulations or face immediate break up then its not clear why they are forcing supposedly normal market participants to specific pricing.
jcranmer 2y ago
A potential legal basis is preemption by federal explicit non-regulation of the space. What's going on here is that the ISPs are essentially arguing contrary positions of law: to challenge the federal effort, they're arguing that the FCC has no authority to promulgate this kind of regulation; while to challenge the state efforts, they're arguing that the FCC's authority [that they're also arguing doesn't exist in the other case!] supersedes the state's authority.
- dataflow 2y ago
  > while to challenge the state efforts, they're arguing that the FCC's authority FCC, or Congress?
  - jcranmer 2y ago
    Congress established the statute that gave the FCC authority.
    - dataflow 2y ago
      Well they're arguing the statute didn't give the FCC this authority, right?
      - jcranmer 2y ago
        They're both arguing that it did and it didn't, depending on which view works better for them in which regulation they're arguing against.
        dataflow 2y ago
        My understanding is they're arguing that the FCC didn't have the authority to regulate net neutrality, but that Congress has the sole authority and/or occupies the field (and thus states can't). That doesn't seem incongruous?
        2y ago

Retric 2y ago

The Supreme Court isn’t limited to what has an actual legal basis. Like jury nullification it’s a loophole arising from being the ultimate arbitrator.

smlavine 2y ago
Yeah, but they still have to argue something in the decision that isn't "we don't like this law". They have to argue that the state doesn't have the constitutional authority to make the law, or something like that.
- telios 2y ago
  I'm not sure that's stopped them; it would be trivial for them to find some reason, as long as it leads to the conclusion they want.
- jfoutz 2y ago
  No they don’t. Opinions are customary, but there is no law or regulation requiring that. Lawyers make arguments. Judges make decisions.
- deleted 2y ago
  [deleted]
- dartos 2y ago
  No, they really don’t. The supreme court’s power isn’t checked. The justices have the final say on just about everything.

jandrese 2y ago

The originalists will argue that since Net Neutrality wasn't written into the constitution then it is unconstitutional.

krapp 2y ago
Neither is the Supreme Court's power of judicial review but the originalists don't seem to take issue with that.

ensignavenger 2y ago

Requiring companies to provide a service to certain customers at a set price without compensation is a violation of the 5th Amendment. Pf course, New York and other states got away with this when they refused to allow evictions during the early years of the Covid Pandemic... but it this law goes even further, isn't during a health emergency, and doesn't even allow for a theoretical debt to be "owed" that there is no chance of ever collecting. The law is absurd and absolutely should be stuck down.

kelnos 2y ago
$15/mo is compensation. Corporations are not people, as much as some court decisions and politicians would like us to believe they are. A corporation's 5th amendment rights cannot be violated, because it does not have those rights. Corporate charters are allowed to exist at the pleasure of the government.
- alwa 2y ago
  Is the compensation “just,” though? Seems like an awfully round number to be the result of a fair-minded analysis. The Affordable Care Act mechanism always struck me as one somewhat fair way to do it: the insurers set a price for a more-or-less well-defined product in a well-defined market. They compete with each other on that price, then the government achieves its desired social effects by subsidizing low-income insureds in proportion to that commercially-derived price. Just saying “well, insurance is $5 now” seems less convincingly fair to the people doing the work to deliver the service. And rather less sustainable in the long run.
- ensignavenger 2y ago
  The compensation has to be just, which generally means Fair Market value. Corporations are owned by people, taking something from a corporation is no different than taking the thing from the corporations owners. Further, the law applies to not only corporate ISPs, but also individuals operating an ISP.
GolfPopper 2y ago
Alternatively, the service is unsuitable to be run for-profit and yet needs to exist, it should be run by the government.

HumblyTossed 2y ago

Because corporations want it overruled.

dotnet00 2y ago

Because the trend on HN is to be reddit-tier absurd and hyperbolic when it comes to the US Supreme Court.

kelnos 2y ago
That may be true in a general sense, but how do you figure, in this particular case? It seems entirely likely to me that SCOTUS will overturn this NY law, based on their actions over the past several years. Maybe they won't, and that would be great, but I think it's likely they will.
- dotnet00 2y ago
  Regarding this specific case, I personally have no idea. I've had many times where I thought a suit wouldn't hold up in court, only to find that there was a sensible legal precedent for it to hold up (at least in terms of "yeah, this rule exists, so following the rule makes sense"). I've also had the opposite too, so overall I genuinely have no prediction on how the court will rule. Even the article itself kind of shows that the outcome isn't clear, seems like some judges think there is a legal basis for NY's law, others think that ISPs might be able to make a stronger argument. I'm not even sure if the court will rule at all, since unless I'm mixing up the way things work between different countries, the US Supreme Court gets to pick which cases it considers to be worth taking.
azemetre 2y ago
I can’t blame them. This is the same court that removed rights from half of Americans and tends to be extremely pro corporation. Not too mention the bribery that some members engage in and an unwillingness to abide by any ethical standards. Then you read that certain members of SCOTUS want to abolish OSHA. At some point you don’t get to claim to be nonpartisan when you rule by partisan lines.
- exe34 2y ago
  > same court that removed rights from half of Americans when laws are made out of Congress, they can be struck down out of Congress. if it's important enough, ask your representatives and senators to turn it into a proper law.

dogsledsleddog 2y ago

Compelled pricing is quite rare, for example when regulators used it as an alternative to breaking up the original phone monopoly. If they don't admit there's a monopoly that should be subject to special regulations or face immediate break up then its not clear why they are forcing supposedly normal market participants to specific pricing.

jcranmer 2y ago

A potential legal basis is preemption by federal explicit non-regulation of the space. What's going on here is that the ISPs are essentially arguing contrary positions of law: to challenge the federal effort, they're arguing that the FCC has no authority to promulgate this kind of regulation; while to challenge the state efforts, they're arguing that the FCC's authority [that they're also arguing doesn't exist in the other case!] supersedes the state's authority.

dataflow 2y ago
> while to challenge the state efforts, they're arguing that the FCC's authority FCC, or Congress?
- jcranmer 2y ago
  Congress established the statute that gave the FCC authority.
  - dataflow 2y ago
    Well they're arguing the statute didn't give the FCC this authority, right?
    - jcranmer 2y ago
      They're both arguing that it did and it didn't, depending on which view works better for them in which regulation they're arguing against.
      - dataflow 2y ago
        My understanding is they're arguing that the FCC didn't have the authority to regulate net neutrality, but that Congress has the sole authority and/or occupies the field (and thus states can't). That doesn't seem incongruous?
        2y ago