California Governor Jerry Brown only has a few months left in office. So why let a little roadblock like the U.S. Constitution get in the way of his left-leaning vision?
The governor recently signed the most aggressive net neutrality legislation in the country, and he’s daring the Department of Justice to challenge him. Justice did, filing a lawsuit shortly after Brown signed the legislation.
The current fight isn’t about whether so-called net neutrality—which proponents say seeks to treat all internet data equally so that companies cannot charge more for moving certain types of data—is right or wrong. It’s about whether the Constitution’s Commerce Clause is determinative over interstate commerce issues.
Article I, Section 8 of the Constitution says, [The Congress shall have Power] “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Thus Congress, not California, has the power to regulate commerce that flows between the states. And if anything is the embodiment of interstate commerce, it’s the internet, which facilitates people in one state buying goods or services from virtually any other state—or country, for that matter.
That’s why when the Justice Department filed the suit, Attorney General Jeff Sessions said, “[S]tates do not regulate interstate commerce—the federal government does. Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy,” according to Reuters.
Ironically, when left-leaning states want to do something unconstitutional, they claim they are simply embracing the conservative principle of federalism, the notion that there is a proper role for the federal government and for states in regulating the affairs of each state’s citizens.
Conservatives strongly defend federalism, often citing the Tenth Amendment, which says, “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.”
However, interstate commerce is one of those powers specifically “delegated to the United States by the Constitution.”
When conservatives cite federalism, it’s to keep powers not constitutionally delegated to Washington in the hands of the states or the people. When liberals cite federalism, it’s usually to let the states do whatever liberals want to let them do, regardless of what the Constitution says.
The net neutrality battle is one California will almost surely lose. California is still one of the states, even if it sometimes wishes it weren’t.