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August 11, 2016

The Constitution Catches Up With Chairman Wheeler


The Hill’s headline from early 2015 read “FCC Chief Prepares to Overrule State Web Laws.” That should have been enough to grab the attention of anyone who ever took a high school civics class. An unelected, executive-branch federal regulator was asserting the power to overturn state law?

The key in the article’s title was the word “Web.” Was the FCC claiming that states were somehow trying to regulate interstate commerce? If so, that would be a violation of the Commerce Clause. And the proper course to assert federal control would be either federal legislation or a lawsuit against the states in federal court. While Congress has given the FCC some authority to pre-empt state-level communications regulators, it was a wild leap for the FCC to simply assert the sweeping power to overturn state law.

At least, that’s what someone who understands the Constitution and respects rule of law would say.

It turns out there were no interstate commerce issues in play, and it also did not fall within the FCC’s limited pre-emption authority. Tennessee and North Carolina had passed laws determining the conditions under which municipalities in their states could build and run broadband networks. The states had seen the financial ruin and taxpayer bailouts that typically follow such pie-in-the-sky projects, and were acting to protect their taxpayers. The states create their municipalities, after all, and have the authority to determine the scope of municipal authority.

Further, the states have a compelling interest in protecting their residents who happen to live in cities. Cities are not feudal states or fiefdoms, and municipal leaders do not enjoy some bizarre sovereignty over their residents. They can’t do whatever they choose under some twisted notion of absolute local control, and they can’t do an end run around state authority.

So it’s a pretty clear cut issue determined by federalism. Not something the federal government has anything to say about, much less a non-judicial or non-legislative branch of the federal government.

You would think someone who took an oath to “support and defend the Constitution and to bear true faith and allegiance to the same” would recognize this limitation. But you would be wrong.

FCC Chairman Tom Wheeler did indeed proceed to defy one of the simplest, most basic constitutional limits on federal power. And yesterday, the Constitution caught up with Wheeler, when the Sixth Circuit Court reversed the FCC’s order [PDF].

We cheer the Sixth Circuit’s actions, and chide Wheeler for wasting the FCC’s time and taxpayer dollars on this clearly unconstitutional folly. But we remain uneasy about the repeated attempts by the Obama administration and its appointees to defy legal and constitutional limits.

Rule of law is a wonderful, robust system, but it depends on the voluntary submission of legislators, executives, judges and appointed officials to rules and processes. When an official or agency feels free to shamelessly assert power in excess of warrant, we are only a little comforted when our freedoms are preserved by the better decision of a more noble actor.


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