Freedom Line Blog

Today, the D.C. Circuit Court of Appeals, commonly known as the nation’s second-highest court, heard oral argument on the latest attempt by the Obama Administration to regulate Internet service.  On two previous occasions, the same court rejected the administration’s efforts, so now we’re at Round Three.  Lawrence Spiwak of the Phoenix Center offers a helpful summary of today’s hearing, and while it’s impossible to predict the ultimate outcome, early signs are encouraging:

While it is difficult to make accurate prognostications about how a court will ultimately rule based on the questions raised at oral argument, several key points dominated the discussion:

As an initial matter, Judge Tatel clearly took umbrage with the FCC’s rejection of the roadmap under Section 706 the DC Circuit set forth in Verizon v FCC (and initially adopted by the Commission in its May 2014 Notice of Proposed Rulemaking) as the result of direct pressure from the White House. As Judge Tatel observed, given such a short time frame, the Commission’s radical departure ‘could not have been changed facts.’

Notwithstanding this displeasure, the panel generally agreed that they are governed by the Supreme Court’s holding in Brand X which emphasizes a focus on how customers perceive the offer of service provided. However, as the court also recognized that the FCC has great latitude the interpret this offer for purposes of regulatory classification, predicting whether or not the court overturns the FCC on wireline reclassification is a close call.

That said, the court appeared skeptical of the FCC’s reclassification of wireless broadband as a Title II common carrier service due to FCC’s gerrymandering of the definition of the term ‘public switched telephone network.’ Moreover, the court seemed concerned over the lack of public notice of the legal theory the Commission used to reclassify mobile broadband. As such, there is a better chance of the court overturning FCC on this issue.

Finally, as assuming the court upholds the FCC’s decision to reclassify broadband as a Title II common carrier service, the court did not appear convinced that the FCC’s application of Title II was entirely legitimate. In particular, a good part of the oral argument focused heavily on the fact that the FCC — in apparent response to last minute lobbying by edge providers to counter the analysis made in our law law review Tariffing Internet Termination: Pricing Implications of Classifying Broadband as a Title II Telecommunications Service — included ‘terminating access’ (i.e., the relationship between edge providers and BSPs) into ‘broadband Internet access service’ (‘BIAS’), even though they are distinctly different products serving entirely different markets.”

Hopefully, the judicial branch will once again reject this administration’s lawless and destructive overreach, and the light-touch federal regulatory approach to Internet service that existed through both the Clinton and Bush administrations will continue.

A federal district judge has said that President Barack Obama’s amnesty program for illegal immigrants violates the U.S. Constitution.

The only question: Does it matter?

Judge Arthur Schwab, a George W. Bush appointee, issued a ruling yesterday saying that, “President Obama’s executive action goes beyond prosecutorial discretion because: (a) it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case-by-case examination; and (b) it allows undocumented immigrants, who fall within these broad categories, to obtain substantive rights.”

Unfortunately, however, Judge Schwab’s declaration may be little more than a non-binding advisory opinion. According to conservative law professor Jonathan Adler – one of the originators of the ObamaCare subsidies challenge now before the U.S. Supreme Court – Schwab’s ruling came after he requested supplemental briefing in a case trying to decide how to sentence an illegal immigrant for a non-immigration-related crime. Apparently, Schwab wanted to know if the defendant qualified for protection from deportation under Obama’s plan. Schwab then used the occasion to find the amnesty program unconstitutional.

While legal experts like Adler try to figure out how much to make of this opinion, Schwab’s ruling points to a larger issue. Namely, that major policy changes have major policy implications. For example, legal immigrants are finding out that creating exceptions for illegals increases the costs on the law-abiding.

Time will tell if Obama’s amnesty program has a negative impact on the federal court system as well.

With its newest batch of regulations, the federal Department of Health and Human Services (HHS) essentially is telling non-profit religious employers that they can claim an exemption from ObamaCare’s contraception mandate, so long as they provide all the information necessary to violate the deeply held beliefs that justify the exemption.

As Lyle Denniston of SCOTUS Blog explains, the rules “also required the organization to tell the government what its health coverage plan for its employees was by name and type, and to provide contact information to the insurer operating the plan.

“The added information was designed to enable HHS to then take the initiative to arrange for the religious organization’s female employees to have contraceptive coverage at no cost, and with no cost to the organization itself.”

The controversial HHS rules came to light because of a legal challenge filed by a Catholic university in Florida. A federal judge blocked enforcement of the rules pending the outcome of the lawsuit.

A couple of observations immediately come to mind. First, there is no such thing as free contraception. If the insurance company must provide it “free” to some customers, it will then pass on the cost to others (e.g. higher premiums). Even the manpower at HHS spent on coordinating this run-around the First Amendment costs taxpayers money.

This brings up another point. How can it be that the federal agency charged with implementing ObamaCare has the resources and personnel available to investigate, negotiate and procure “free” contraception to the thousands (and more) employees working at exempt religious employers?

It’s not like there’s a public health crisis over lack of access to contraception. If HHS has so many extra people and dollars laying around, it should funnel them to real priorities like fighting Ebola, or perhaps, finishing ObamaCare’s main insurance portal before the second enrollment period begins in a matter of days.

Instead we get demands for information in order to make religious objectors participate in the very activity they cannot abide.

Daniel Himebaugh, a friend and lawyer at Pacific Legal Foundation (PLF), sends along an update about his firm’s ongoing challenge to Obamacare as violating the Origination Clause. Under the clause, all bills raising revenue via taxes must originate in the House of Representatives.

As Dan explains in a blog post, “We contend that the legislation that eventually became Obamacare failed to comply with the Origination Clause because it contains a tax on individuals that originated in the Senate. That’s where Majority Leader Harry Reid took a bill the House had already passed – HR 3590, which would have provided incentives for veterans to buy their first homes – and replaced all its contents with what became the ‘Patient Protection and Affordable Care Act.’”

Importantly, none of the Supreme Court’s existing exceptions to the Origination Clause apply to the circumstances of Obamacare. Thus, striking down the entire law could be as straightforward as finding that the Senate failed to follow the constitutional process for passing a revenue bill.

PLF’s case, Sissel v. United States Department of Health and Human Services, is beginning its appellate journey in the D.C. Circuit, with an opinion anticipated early next year. CFIF readers and all lovers of liberty would do well to acquaint themselves with the details of the lawsuit, which the firm makes easy with links to a case page, an in-depth backgrounder and its opening brief.

Like the other legal challenges to Obamacare working their way through the court system, PLF’s case deserves not only a hearing, but a favorable result.

New York City Mayor Michael Bloomberg apparently doesn’t like it when others employ his own nanny-state tactics against him.  In his remarks yesterday after a federal court ruled the NYPD’s “Stop, Question and Frisk” policy unconstitutional, Bloomberg used some awfully sloppy and ironic language, considering his infamous habit of micromanaging citizens’ Second Amendment rights, their soft drink choices, their salt intake and so on:

“Let’s be clear.  People have a right to walk down the street without being targeted by police.  And we have a duty to uphold that right, which is why I’ve signed a law banning racial profiling, and it’s why the NYPD has intensified its training around Stop-Question-Frisk.

But people also have a right to walk down the street without being killed or mugged.  And for those rights to be protected, we have to give the members of our Police Department the tools they need to do their jobs without being micromanaged and second-guessed every day by a judge or a monitor.”

I certainly agree with Bloomberg that yesterday’s decision was incorrect, unwise and not supported by the applicable law or facts.  That said, it would be nice if he would practice what he suddenly preaches.  Hopefully, this moment will serve as a corrective for his own micromanagement inclination while the court decision itself heads down the road toward reversal.