Biden's net neutrality push faces uncertain future at Supreme Court

October 2, 2023

Joe Biden wants to bring back "net neutrality," but the Supreme Court could get in the way.

Even two former Obama administration lawyers agree that the Federal Communication Commission's (FCC) attempted re-boot will likely be struck down under the "major questions" doctrine. 

Biden's latest power grab

Basically, the major questions doctrine says that Congress has to clearly delegate authority to federal agencies to make decisions with major economic and political significance.

The conservative Supreme Court has invoked the doctrine before to curtail Biden's climate agenda and his student loan forgiveness program.

Biden's latest government overreach is likely to get smacked down under the same principle, according to Donald Verrilli and Ian Gershengorn, who both served as Solicitors General for Obama.

They warned that Congress never gave clear authorization for the FCC to engage in the sweeping regulation it now seeks.

"Nothing in Title II of the Communications Act itself or in any other statute gives the Commission the clear and unambiguous authority to classify broadband as a Title II telecommunications service subject to common carrier regulation, and the Commission cannot reasonably conclude otherwise."

Government control

Of course, the Biden administration sees it differently.

Jessica Rosenworcel, the FCC commissioner, said the repeal of net neutrality rules under Presider Trump was "on the wrong side of history, the wrong side of the law, and the wrong side of the public.”

But Brendan Carr, one of the two remaining Republicans on the FCC, blasted net neutrality as a government power grab that would make the internet less free and more expensive.

"Utility-style regulation of the Internet was never about improving your online experience—that was just the sheep’s clothing. It was always about control," he wrote.

Biden fights for internet freedom?

The repeal of net neutrality under Trump led to apocalyptic predictions about the demise of the internet that never came true. Still, advocates of net neutrality say it is integral to prevent "throttling" of service and maintain an "open internet."

Of course, these are many of the same people who have championed aggressive censorship in recent years, especially since COVID.

In fact, the Biden administration has been rebuked in federal court for going to "Orwellian" lengths to censor Americans on social media. Given that context, many will look at Biden's push for "net neutrality" with skepticism.

In a statement screaming with unintentional irony, Biden said the FCC's move would prevent large corporations from dictating what content Americans are allowed to see online.

"President Biden supports net neutrality so that large corporations can’t pick and choose what content you can access online or charge you more for certain content,” said Hannah Garden-Monheit, special assistant to the president for economic policy.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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