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The Trump administration is suing California to quash its new net neutrality law
The Trump administration said Sunday it will sue California in an effort to block what some experts have described as the toughest net neutrality law ever enacted in the United States, setting up a high-stakes legal showdown over the future of the Internet.
California on Sunday became the largest state to adopt its own rules requiring Internet providers like AT&T, Comcast and Verizon to treat all web traffic equally. Golden State legislators took the step of writing their law after the Federal Communications Commission scrapped nationwide protections last year, citing the regulatory burdens they had caused for the telecom industry.
Mere hours after California's proposal became law, however, senior Justice Department officials told The Washington Post they would take the state to court on grounds that the federal government, not state leaders, has the exclusive power to regulate net neutrality. DOJ officials stressed the FCC had been granted such authority from Congress to ensure that all 50 states don't seek to write their own, potentially conflicting, rules governing the web.
Also at Ars Technica, TechDirt, and Politico.
Previously: California Gov. Signs Nation’s Strictest Net Neutrality Rules Into Law
(Score: 3, Informative) by captain normal on Tuesday October 02 2018, @04:19PM (9 children)
The powers of the Federal Government are specified in Articles 8,9 and 10 of the Constitution. The Amendments set limits on those powers, in particular the Ninth and Tenth Amendments.
I just do not see a "Supremacy Clause" anywhere in it. I highly recommend reading and rereading the Constitution at least once a year. It is an amazingly well crafted document.
http://constitutionus.com/ [constitutionus.com]
When life isn't going right, go left.
(Score: 5, Informative) by Thexalon on Tuesday October 02 2018, @04:50PM (8 children)
The Supremacy Clause is the second paragraph of Article VI [cornell.edu] of the Constitution. It was argued for in a couple of the Federalist Papers, and has been the basis of many important Supreme Court decisions, but I guess you just skipped over that part when you read it because it didn't fit what you wanted the Constitution to say.
But again, all of this is besides the point, which is that the position on whether state's rights is a good thing or a bad thing is extremely situational for just about everybody.
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 2) by fyngyrz on Tuesday October 02 2018, @06:11PM (7 children)
From the 2nd para:
That went completely out the window when SCOTUS arrogated power over the constitution with Marbury v. Madison. [constitutionality.us]
(Score: 3, Interesting) by Thexalon on Tuesday October 02 2018, @06:41PM (6 children)
The argument from Marbury v Madison isn't nuts:
1. This clause, and the structure of the US government in general, establishes an order by which conflicting rules are resolved: regulations lose out to laws lose out to treaties lose out to the Constitution itself.
2. The court's job is to interpret the Constitution, treaties, laws, and regulations in that order to figure out how the rules apply to actual situations.
3. If the court, doing its job, determines that something lower down the list would always conflict with something higher up the list, then that thing lower down the list doesn't matter any more and can be thrown out.
In terms of C code, what's going on is that we're starting from this:
But then someone digs into it, determines that some_test() always returns true, and thus refactors it into:
(Or, alternately, of course, they could determine that some_test() always returns false, and thus this gets refactored to just do_B();)
There are some checks on SCOTUS: The justices can't get there without the approval of the president and Senate, and if they ever do something Congress really really doesn't like they can in theory be impeached.
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 2) by RS3 on Wednesday October 03 2018, @02:17AM (2 children)
You're impressively knowledgeable and hopefully correct. Are you an attorney?
I thought a case could ultimately be brought before Congress if rejected by or lost in SCOTUS?
(Score: 0) by Anonymous Coward on Wednesday October 03 2018, @02:43PM
SCOTUS has the final say in interpretation of existing law (including constitutional). Congress has the power to change existing law (including constitutional).
For example, let's say the pseudo-left petty bourgeois apocalypse happens and Roe v. Wade is completely overturned or maybe they decide we now interpret homicide laws in the context of life beginning at conception... or sooner.... But anyway, the specifics aren't the point. Congress could then go ahead and either pass additional law, or they could amend the Constitution. Amending the US Constitution requires a 2/3rds majority of both houses.
As an additional check on both the federal legislature and courts, there is also what's known as an Article V Convention which can be called by 2/3rds of the state legislatures. The Article V Convention procedure has never been used. iirc, precedent is that if this is about to be used, Congress will just pass an amendment to deal with the concerns itself.
Hope that helps!
(Score: 0) by Anonymous Coward on Wednesday October 03 2018, @05:02PM
He can write C code. (Or at least psuedo-C, close enough.) Therefore he's not an attorney but rather works for a living.
(Score: 2) by fyngyrz on Wednesday October 03 2018, @11:00AM (2 children)
Actually, it is nuts. It's an argument that creates power from absolutely nothing.
Your point #2:
No. It is not to interpret. It is to obey. A judge's job is not interpretation of the law. To the extent that interpretation is required, it is checking the fit of the facts of the matter with the law.
If you read article III [cornell.edu] carefully, it says specifically, emphasis mine:
You see that? The "judicial power", not the "power to legislate." The judicial power is: hear or not hear, and if hear, guilty or not guilty on the basis of the law; and variations on that theme. When you step up before a judge, they do not (should not) have any constitutionally authorized power to say "the law is now this", although they have been getting away with it for quite some time.
Furthermore, a little bit later on in the same paragraph, we find:
Right there in article III, it is specified that congress regulates SCOTUS. Not the other way around. It's not left unsaid, and it is clear and succinct.
Looking at the question from the other direction, nowhere in article three (or anywhere else in the constitution) does it say that any form of the legislative power vests in SCOTUS. On the contrary, the constitution says that congress has the legislative power made available to them as enumerated, and that in the office of the president vests the power to veto or sign. That's it. What's more, that's specifically it: the constitution explicitly assigns that power in in a detailed, point-by-point manner to the legislature, and not at all to the judiciary, and even specifies that the judiciary is subject to the legislature, not that the legislature is subject to the judiciary.
The constitution constrains the legislature to various limits, both by enumeration (most of the constitution) and by specific and general restriction (pretty much the entire bill of rights.) Although declared as the supreme law of the land, it rests the power to control the breaking of that law in the hands of the voters: it most certainly does not rest it in the hands of the supreme court.
Madison v. Marbury is a straight-up arrogation of unauthorized power. There's no constitutional basis for it whatsoever.
It is important to understand that this is a circumstance where the power that the supreme court has arrogated is based entirely on their own claims, and not one whit upon any power actually authorized to them by the US constitution. It is difficult for most people to understand, because they have been indoctrinated with nonsense basically in the form of your point #2; they've been told (by SCOTUS, not the constitution) that such a thing is the job of the judiciary. But if you actually read the document, no such power is assigned to them, and on the contrary, it is quite pointedly and in detail assigned elsewhere.
Because they arrogated this power, we now have a system where both the details of the law and its validity is under the effective control of a very small group of people. Again, read the constitution: that is very clearly not the intent of the document.
SCOTUS should be reined in, and harshly, or, article III should be amended according to the procedure specified in article V. That we have failed to do either one speaks very poorly of our society and our educational system.
SCOTUS is authorized to decide individual cases one way or another, should they trickle up that far in the court system via appeal. That is the actual judicial power. SCOTUS is not authorized to either change or make law. That's an authority explicitly assigned to the legislature and to which SCOTUS is subject to as directly specified in article III (the second quote from it above.) Outcomes of individual cases, yes. The law, no. Judicial review is a power made up out of nothing, quite literally unauthorized. Why? Because it is neither authorized by the constitution, or by the legislature. There are no other sources of legitimacy for such a power. If it was okay to make such things up out of whole cloth as SCOTUS has done, you could interpret the law all on your own — that would be exactly as legitimate as SCOTUS claiming they can do it. Which is to say, not at all.
(Score: -1, Troll) by Anonymous Coward on Wednesday October 03 2018, @02:46PM (1 child)
This is an absolutely hilarious statement and demonstrates a profound lack of basic education on your part.
All human language is ambiguous and interpreted. Human language != code. Deal with it, cupcake.
(Score: 1, Funny) by Anonymous Coward on Wednesday October 03 2018, @04:12PM
Legal code?