Net Neutrality and Federalism

Two key topics come into play here:  federalism and regulatory bureaucracy.

The aspect of federalism that’s involved is the landmark Supreme Court cases from the 19th century, mainly Gibbens v. Ogden (1824) and the Wabash Rate Case (1886).  In both instances, the Court ruled that one or more states had encroached on Congress’s power to regulate interstate commerce by passing laws of their own.  The Court in the Gibbens case ruled that the power to regulate interstate commerce included the power to leave aspects of that commerce unregulated, and that therefore states must keep their own regulatory hands off interstate commerce.  However, for as open-and-shut as those rulings may have seemed, the lines are anything but clear, because today, regulation is a complex labyrinth, and businesses today are subject to a huge host of regulations that come from both the national and the state governments.  Consider banks, to cite one example.  Banks are clearly engaged in interstate commerce–just consider the fact that it’s possible to live in one state and have an account in another–and yet they are subject to state banking regulations as well as federal laws.

It also needs to be noted, at the federal level, that one of the ways that Congress regulates interstate commerce is by creating independent regulatory agencies.  The Federal Communications Commission (FCC) is a prime example of such.

With all that in mind, net neutrality stands to be considered.  Net neutrality involves internet providers, the services like Verizon, Time Warner, et cetera, that bring the internet to our homes.  During the Obama administration, the FCC issued regulations that it was not all right for those internet providers to control which web services people could easily get in their homes; that it was not all right to give preferential treatment to companies that they themselves were affiliated with or to charge extra money for access to certain websites and online services.  That’s net neutrality.  A year ago, the FCC with different personnel reversed those rules, meaning that internet providers can selectively play with your internet access if they want to.

Some of the states, most recently California, have attempted to fill that void by passing net neutrality laws of their own.  And guess what: the Justice Department, under our friend Attorney General Jeff Sessions, is suing, claiming that the states have encroached upon the federal government’s power to regulate interstate commerce.

Report on NPR, October 1, 2018

Article on Politico, October 1, 2018

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