The interstate commerce angle is interesting because the reality is that enshrining net neutrality is, in many ways, preventing interference in interstate commerce.
Which is more impactful, a stage that allows data differentiation and prioritization of a local or affiliated commerce site, or a state with net neutrality that prevents those shenanigans?
So a law enshrining net neutrality is not interfering in interstate commerce, in fact it is preventing other entities from doing the same.
Maybe, but I think you might be looking at this from a liberal perspective. Keep in mind that the principled conservative perspective is that Internet providers should be allowed to create paid prioritization rules, both for their customers and general sites on the internet. That’s the free market at work.
So a law in California saying that that sort of interstate commerce is illegal is troublesome.
This is debatable of course (some would say any regulations are interference), but more importantly, even if what you are saying is true, it’s important to keep in mind that the federal government’s constitutional authority is to regulate interstate commerce. That includes, potentially, enacting regulations that burden interstate commerce.
In other words, the constitutional guiding principle is not ‘don’t interfere with interstate commerce.’ It’s 'only the federal government can regulate interstate commerce, unless it expressly abdicates responsibility over that area of interstate commerce to the states."
So–It’s OK for federal government to say “All huge packages shipped interstate must be scanned by security personnel before delivery,” even though that “burdens” interstate commerce. It’s not okay for states to do that. Also not okay for a state to exempt itself from that federal requirement.
Bear in mind Struble isn’t some kind of respected legal mind. He’s essentially a hack from a far right wing think tank. He graduated college 3 years ago, and has not really done anything other than work for blogs since. His resume is so thin that he lists unpaid internship on it.
The idea that the FCC took the position that they lacked the power to regulate the telecoms, and yet have the power to prevent any of the states from making any laws regulating such things? That is a pretty immense overreach of federal authority.
And all that without even getting into the fact that removing net neutrality was clearly a terrible decision stemming entirely from kickbacks and bribes from the large telecommunications companies.
What is the legal significance of the FCC taking the position it cannot regulate telecoms? The only significance I can think of is that you might consider it abdication of its pre-existing right to pre-empt the state’s regulation. But in the actual text of their net neutrality order, the FCC said it was pre-empting the states. So I don’t see how you can make the case that the federal government is abdicating it’s pre-emption authority, given that it expressly invoked it.
Note that the Obama administration maintained that Obamacare’s penalty on non-buyers of insurance was not a “Tax,” but the supreme court interpreted it as one anyway to keep the legislation legal. Courts do not necessarily stick with everything the federal government has said in the past and hold them to it, unless it has legal significance in context.
Regardless, as I said, even if we agree the FCC waived its authority to pre-empt, there is still the dormant commerce clause “backstop” – that prevents the states from regulating interstate activity generally, even where the feds aren’t involved directly.
Similarly, your claim of kickbacks is politically relevant, but would lack legal significance in this context.
Your attacks on the expert seem reasonable, but I’ve since cited additional articles in which other experts make the same argument about pre-emption.
You are acting as though the FCC can do anything it wants just by saying so.
The commerce clause does not prevent states from regulating industries that cross state lines.
Not “anything,” no. But their statement would trigger express pre-emption considerations. Regardless, I think the dormant commerce clause applies anyway – states generally cannot legislate interstate activities, or matters that clearly have huge interstate importance like internet regulations.
Note I said “dormant commerce clause.” It’s not quite the same thing as the the commerce clause.
No man, that’s not true. It happens all the time.
The feds have historically used the commerce clause to justify all kinds of regulation, but your idea that stuff involving multiple states is immune to state laws? You are going to have a hard time with that.
There’s nothing about this which DISCRIMINATES against interstate commerce.
From your Wikipedia link:
Likewise, California law requires milk sold to contain a certain percentage of milk solids that federal law does not require, which is allowed under the Dormant Commerce Clause doctrine because California’s stricter requirements apply equally to California-produced milk and imported milk so it does not discriminate against or inappropriately burden interstate commerce.[2]
The only problem here would be if California somehow only imposed regulations on stuff coming from outside California.
The federal government’s commerce clause power is immense (and most conservatives think it’s far exceeded its constitutional scope). But most people who believe in federalism, including liberals and conservatives, support the idea that states cannot regulate interstate matters, for the simple reason that it would make coherent interstate policy impossible.
Note that the case you cite hinged on the action not ‘burdening’ interstate commerce. I would argue that, if each state has its own net neutrality rules, that would be quite burdensome on interstate companies that need to formulate rules governing Internet use (like local ISPs), or policies that impact Internet use (like content providers). As courts have repeatedly said, (see American Library Assoc. v. Pataki, discussed below), Internet commerce would be burdened by each state having its own web of Internet rules about what practices are OK and what practices are not.
Great law review article on point, which discusses the dormant commerce clause and the Internet. Note that this article ultimately agrees with you, but notes that most experts believe that state regulations of the Internet conflict impermissibly with the federal government.
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1504&context=law_and_economics
Again, note all this is a secondary argument. I think the real problem facing california’s law is that its’ expressly pre-empted by the FCC. That argument hinges on the Supremacy Clause, not the Commerce Clause/dormant Commerce Clause. And I think it’s the better argument, and the one that will prove fatal for California’s law.
But you are missing a key difference in a case like Pataki.
In that case, the issue largely hinged on the fact that content is separate from infrastructure, and due to it’s fluidity and the way that it moves through the internet, that it would be very difficult for companies in another state to control at all whether they were violating NY law.
But this is not the case with much of the proposed state laws regulating the telecoms, because those regulations can be limited to consumers in those states. It’s similar to how insurance companies are regulated, or emissions laws for cars. The regulations apply to consumers in a given state.
So, if California chooses to regulate an ISP and say that they cannot slow your access to certain sites, it only applies to guys selling internet access to California consumers. It doesn’t stop them from selling slow access to people in other states, if those other states cost not to regulate it. Again, it’s identical to how insurance companies operates currently.
There’s no real impact under the dormant commerce clause. Especially when we note that the ISPs already have different pricing plans and crap based on where you live, for the exact same service. There is no rational argument that such state regulations would impede interstate commerce at all.
If Netflix wants to speed up its 4K streaming service as an exclusive benefit to say, Comcast’s customers, and Comcast pays for that privilege, would you agree that the purpose of this hypothetical interstate contractual arrangement would be frustrated by several states adopting net neutrality provisions – as well as the threat of many additional states adopting their own provisions? That’s all I mean when I say that the California-style rule would “burden” interstate commerce. You’re right that it would be technically feasible to implement, and that this is an important distinction to the content-based rules in Pataki. But it would frustrate interstate commercial activity, which is the federal government’s job!
No.
It does not.
Well, it would kill the point of the deal, and discourage interstate commerce in a similar vein.
No, it wouldn’t.
You are saying that it would, but your statement is entirely without merit. It’s just wrong.
There’s nothing about that which is impeding interstate commerce.
Well, that settles that.
Supremacy doesn’t work when the new law is : “there is no law.”
Net Neutrality is literally: “The ISPs can do whatever they want.”
You can write a law that says otherwise and not run into Supremacy because the Feds are doing nothing.
Sort of like say Emissions laws. Or gun control (barring running into a 2A infringement). Or a thousand other things.
When the Feds say “Meh, we’re not gonna do anything,” it doesn’t preempt someone else doing something. Otherwise literally all state and local laws would be unConstitutional, which is beyond inane. The is no Federal litter law. It doesn’t mean my town litter ordinance is running into the Supremacy Clause.
I’m sorry for not going into some drawn out explanation, but that’s just how it is. Your statement was wrong.
You are misinterpreting the impediment of interstate commerce to mean anything which impedes corporate actions. That’s not what it means.
It essentially means economic protectionism between states. The legal concept is meant to prevent states from engaging in interstate protectionism, taxing or otherwise impeding goods and services coming from other states to try and benefit locally produced goods.
The fact that a California law would negatively impact some deal struck between two corporations? It doesn’t matter.
Golly gee a trump supporter doesn’t understand what he is talking about.
Quelle surprise.
He’s gotta google up his talking points and he’ll get right back to you.