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Posts Tagged ‘preemption’
November 16th, 2017 at 11:21 am
FCC Should Preempt Individual State Attempts to Regulate the Internet
Posted by Print

Among the many positive changes within the federal government since the end of the Obama Administration and the arrival of the Trump Administration, perhaps none surpass those brought by the Federal Communications Commission (FCC) under new Chairman Ajit Pai.

And the most welcome and beneficial change undertaken by the new FCC is its action to rescind Obama FCC decisions to begin regulating the internet as a “public utility” under statutes passed in the 1930s for old-fashioned, copper-wire telephone service.  The Obama FCC’s action instantly began to stifle new broadband investment, and was subject to legal reversal.  The internet thrived for two decades under both the Clinton and Bush administrations precisely due to the federal government’s “light touch” regulatory policy, and there was simply no rational justification for reversing twenty years of success in the name of even more federal government regulation and crony capitalism.

As the new FCC approaches completion on restoring regulatory sanity to internet service, it’s important that it include a preemption against future state efforts to regulate the internet in the same way that the Obama FCC hoped to make permanent.  We at CFIF take a backseat to no one in terms of valuing America’s federalist system, and the ability of individual states to serve as “laboratories of democracy.”  But there’s an important limit, one that is specifically included in the text of the Constitution.  Namely, matters of interstate commerce.  Our Founding Fathers recognized, based upon  economic warfare that they’d witnessed under the Articles of Confederation, that individual states cannot act in ways that disrupt truly interstate commerce in ways that contravene federal policy.  Accordingly, the Constitution specifically and rightfully empowers the federal government to protect interstate commerce against destructive state interference.

And there are few, if any, sectors of our economy more “interstate” than the internet.  Indeed, the internet is interstate by its very nature.  Doug Brake of the Information Technology & Innovation Foundation summarized the logic well in a commentary this month:

National and regional networks should be subject to uniform rules to keep compliance costs low and reduce complexity.  To the extent the upcoming changes to net neutrality regulation see any changes in business practices, which would be more minor than many expect, a uniform policy that allows for broad scale would be an important benefit…   Network applications now depend on economies of scale independent of the individual state in which they are consumed.  Technological advances are simply erasing the importance of state and local boundaries.  It is in the national interest to give these technologies room to grow unimpeded by artificial borders.

As such, beyond simply declaring broadband an information service, the FCC should make clear that broadband policy is made at the national, not state, level.  Former Chairman Kennard put it well in a 1999 speech titled ‘The Unregulation of the Internet:  Laying a Competitive Course for the Future.’   There he laid out why it was ‘in the national interest that we have a national broadband policy … a de-regulatory approach, an approach that will let this nascent industry flourish.'”

That’s exactly right, and it’s no less true today than it was in 1999.  The internet needed room to grow then, and it needs room and regulatory predictability to continue growing as it plays a progressively important role in  our lives and globally competitive economy.

We cannot allow a spaghetti bowl of individual state regulations to inhibit future internet expansion and innovation, and the FCC should act to preempt that destructive possibility.

July 30th, 2010 at 6:11 pm
NRO Debates the Politics and Law of Arizona’s Illegal Immigration Statute

National Review Online’s Andrew McCarthy pens one of the best explanations I’ve seen refuting the Obama Administration’s argument that Arizona’s SB 1070 is preempted by federal law.  A bit surprisingly, McCarthy’s column is in response to (and a bit in contention with) his colleague Heather McDonald.

McDonald wrote a column earlier today fretting about the hypothetical “preemption” consequences of an Arizona law enforcement official deciding to prosecute an illegal alien under SB 1070 after federal officials declined to prosecute under federal law.  McDonald implied such a scenario would trigger a successful preemption claim (i.e. federal law trumping state law) because the actions of the state and federal officials would be in conflict.

Though their actions may be in conflict, argues McCarthy, that doesn’t mean the laws are in conflict.  The distinction is crucial, but too often glossed over by pundits.

In a nutshell, the legislative branch makes a law and the executive branch has the discretion whether and how to enforce it.  Since police officers and prosecutors are agents of the executive branch at both the state and federal level, they have discretion whether and how much to enforce a law passed by the legislature.  (That’s why they can plea bargain cases and drop charges.)

So, if the federal layer of government decides not to enforce its law, but the state layer of government decides it will enforce its identical law, there is no legal conflict; only a different policy choice by each layer.

Thus, claiming that SB 1070 is unconstitutional because it is preempted by federal law is a non-starter since there is no legal conflict between the two.  In fact, they are identical.  Knowing the meanings behind the terms shows that the litigation surrounding SB 1070 is based on nothing more than a policy conflict between the U.S. Department of Justice and the State of Arizona over how to apply the same law.