Yesterday, after a month of waiting, California governor Jerry Brown signed SB-822, Senator Scott Wiener's bill restoring net neutrality, into law.
Co-sponsored with State Senate Majority Leader Kevin de León, and seen through the House by representatives Miguel Santiago and Rob Bonta, the bill, covered extensively by the Banter, brings the 2015 Obama-FCC guidelines back to California. It also takes a harsh stance against practices like interconnection and zero-rating, which broadband companies have leveraged to exert control over where their customers go online.
The Trump Administration Sues
However, Attorney General Jeff Sessions and the Department of Justice filed a lawsuit in the US District Court, Eastern Circuit of California, claiming that the law was "extreme and illegal." In his statement, Sessions wrote:
"Under the Constitution, states do not regulate interstate commerce—the federal government does...The Justice Department should not have to spend valuable time and resources to file this suit today, but we have a duty to defend the prerogatives of the federal government and protect our Constitutional order. We will do so with vigor. We are confident that we will prevail in this case—because the facts are on our side.”
FCC Chairman Ajit Pai supported the lawsuit as well, saying, “I look forward to working with my colleagues and the Department of Justice to ensure the internet remains ‘unfettered by federal or state regulation,’ as federal law requires, and the domain of engineers, entrepreneurs, and technologists, not lawyers and bureaucrats.”
Judicial Precedent and the Founding Fathers
The decision to sue is unsurprising, given that earlier this year, the DOJ previously sued California over its refusal to cooperate with Trump's immigration laws. They claimed that the federal government has the final say over how laws are enforced under the Supremacy Clause of the United States Constitution - the same case they are making now. Last July, California Judge John Menendez dismissed this argument, saying that "refusing to help is not the same as impeding." Since this newest lawsuit - like the last one - was filed in Judge Menendez's court, he may render the same judgment here, too.
Conservatives misrepresent the supremacy clause in an attempt to subject all 50 states to their will, but this is not what the Founders had in mind. While writing "the other 51" of the 85 Federalist Papers, Alexander Hamilton argued that "no legislative act, therefore, contrary to the Constitution, can be valid," and colleague James Madison said the Supremacy Clause should only apply to foreign affairs, like peace treaties and foreign commerce.
The Tenth Amendment of the Bill of Rights, which regulates the Supremacy Clause, states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Simply put: federal law only supersedes state law on issues that the Constitution delegates to the federal government. SB-822 is a state-specific law that does not infringe on federal government powers under the Supremacy Clause. In addition, Stanford Professor Barbara van Schewick, who advocated for SB-822 in its first hearings last spring, argued that when the FCC repealed net neutrality, it also repealed its own authority to preempt net neutrality protections on the state level - how can you regulate what you do not enforce?
A Frivolous Suit
This lawsuit amounts to nothing more than a legislative temper tantrum. Now that California has become the fourth state to enact net neutrality protections, Republicans realize just how fragile their agenda really is. There is no way they can control what we see and learn on the internet - especially given it is being used to learn how to resist them.