The D.C. Court of Appeals decision yesterday in favor of the misleadingly named policy "net neutrality," which is actually government regulation of the heretofore free and thriving internet, was bad enough for the internet.
But it also said something about our failing defenses against government by decree, as a Wall Street Journal editorial ("The King and His Court") makes abundantly clear:
President Obama has run roughshod over Congress, and most of the media give him a pass. This has left the judiciary as the last check on executive abuse, and now even that may be falling away. That’s how we read Tuesday’s D.C. Circuit Court of Appeals decision propping up the new “net neutrality” rules to regulate the Internet like a 19th-century railroad.
A 2-1 panel in US Telecom Association vs. FCC upheld the Federal Communications Commission’s 2015 regulations that classify the Internet as a public utility under Title II of the Communications Act of 1934. The FCC has thrice tried to ram through regulation dictating what an internet-service company can charge for its services; the D.C. Circuit struck down earlier attempts. Now the court has endorsed the most legally and procedurally egregious iteration.
Basically, the FCC has reclassified the internet as a public utility, which shall be regulated like a public utility, and been upheld by a 2-1 panel on the appeals court. As the editorial explained, the court relied on a 1984 Supreme Court case that says that courts should defer to agency rule-making when the law is ambiguous. The court ignored an unambiguous 1996 statute that says that internet shall remain “unfettered by Federal or State regulation."
The court also ignored the decision last year in King v. Burwell that agencies, as the editorial puts it, "deserve no genuflection" in matters of “deep economic and political significance.” Regulation of the internet, one of the dynamic and bright spots in our lackluster economy, is certainly a matter of deep political and economic interest.
Although arcane, the decision is of utmost importance. It will likely be appealed. But it shows what a bind those who don't like government by decree are in these days. Is there no remedy? The editorial concludes:
Congress could pass a bill to restrain the FCC, but President Obama would veto it and the agency no longer follows the law in any case. President Obama and Harry Reid packed the D.C. Circuit with liberal judges precisely to remove the last check on rule by progressive decree. With the D.C Circuit in his pocket, the last check is the Supreme Court, and that may soon be gone too.