Sessions to Brown: California doesn't get to regulate the Internet, pal

Looks like California’s lack of civics education extends to its lawmakers — including Governor Jerry Brown. Yesterday, Brown signed a bill that imposes net-neutrality restrictions on Internet providers, but oddly declined comment on his Sunday action:

California Gov. Jerry Brown signed into law on Sunday a bill to restore net neutrality protections that President Donald Trump’s Federal Communications Commission killed late last year.

The new law prohibits internet service providers, or ISPs, from blocking or slowing access to legal online content, demanding special fees from websites to prioritize their traffic or charging customers for special exemptions to caps on their data use.

Brown signed the measure without comment, setting up almost certain showdowns with both ISPs and the FCC, which barred states from setting their own rules in its repeal last December of protections instituted during the administration of President Barack Obama.

FCC chair Ajit Pai objected to the bill when it was going through the state legislature and its disregard for federal jurisdiction on interstate commerce. “Only the federal government can set regulatory policy in this area,” Pai said in a speech last month.

Jeff Sessions agrees. Within hours of the announcement, the Department of Justice declared they would sue in federal court blocking enforcement of the 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.

This is so obvious as to beggar the imagination. Internet communications are not just interstate but global. Under the Constitution in Article I, Section 8, Congress has the authority “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” not the individual states. That was a particular decision made after the chaos of the Articles of Confederation to allow states to regulate commerce that lies completely within their boundaries but to give jurisdiction to the federal government for interstate commerce in order to deal with disputes between the states. The federal government’s definition of interstate has grown far too wide (thanks in large part to Wickard v Filburn), but internet traffic is a classic example of interstate commerce under any definition.

Put simply, the California legislature and Jerry Brown are busy engaging in stunt lawmaking. This is designed to curry favor with progressives frustrated over having lost an election and getting handed a setback on net neutrality, and nothing more. It serves as a distraction from the fiscal crises and economic woes besetting the Golden State, as well as the lack of progress on other progressive projects such as socialized medicine and the high-speed rail project. Brown himself must have realized how threadbare this attempt is, which is why he kept a low profile when signing the bill.

A federal judge will have no trouble at all shutting down this nonsense. Even the Ninth Circuit can read the Constitution.