The King and His Court The D.C. Circuit bows to government by executive decree.
http://www.wsj.com/articles/the-king-and-his-court-1465946708
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.
Judges David Tatel and Sri Srinivasan ruled for the FCC in large part by invoking Chevron deference, a 1984 Supreme Court doctrine that says courts should bow to agency rule-makings when the law is ambiguous. But the relevant 1996 statute says the internet shall remain “unfettered by Federal or State regulation,” which is not vague. The law further says that a service “that provides access to the Internet” may not be straddled with Title II.
The Supreme Court said in 2015’s King v. Burwell that agencies deserve no genuflection in matters of “deep economic and political significance.” This surely applies to reordering the most powerful commercial engine of the century.
There’s also last year’s Utility Air Regulatory Group v. EPA in which the High Court ruled that agencies can’t impose rules “unrecognizable to the Congress that designed it.” Newt Gingrich and friends ran Congress in 1996 and didn’t want central command of the internet. Yet the D.C. Circuit ignored these instructions and relied on one precedent involving a discrete transmission issue.
This abuse of Chevron is reason enough for the Supreme Court to overturn the circuit, but there’s more. The decision renders the Administrative Procedures Act meaningless: The FCC proposed one rule and then subbed in a different scheme after pressure from President Obama. No notice, no comment period. The circuit court calls the final draft a “logical outgrowth” of the proposal. This is an invitation for bureaucracies to publish obtuse drafts and finalize something else when convenient. CONTINUE AT SITE
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