The Federalist Society Review
has just published an
by Free State Foundation President Randolph May and Senior Fellow Seth Cooper
titled "John Marshall’s Jurisprudence Supports Preemption of California's Net Neutrality Law."
On February 1, the U.S. Court of Appeals for the D.C. Circuit will hold oral argument on the appeal challenging the FCC's January 2018
Restoring Internet Freedom Order (RIF Order)
reversed the Obama Administration's FCC's action which had subjected Internet service providers to heavy-handed public utility-like regulation. The
substituted a light-touch, deregulatory regime, and the FCC asserted its authority to preempt state laws, like California's, which conflicted with the federal deregulatory policy.
Federalist Society Review article
, May and Cooper show that Chief Justice John Marshall's Commerce Clause jurisprudence in his famous
Gibbons v. Ogden
opinion supports the FCC's assertion of authority to preempt conflicting state neutrality laws.
Here are the first two paragraphs of the article:
"It may be hard to see a connection between steamboats plowing the waterways of our early republic and today’s high-speed broadband networks carrying the bits and bytes of internet transmissions. But there is a jurisprudential connection between Chief Justice John Marshall’s 1824 decision in
Gibbons v. Ogden
and the Federal Communications Commission’s (FCC or Commission) 2018 assertion of authority to preempt state laws interfering with interstate internet traffic. In
, Marshall established federal supremacy under the Constitution’s Commerce Clause to preempt a New York law that interfered with steamboat traffic between New York and New Jersey. Marshall determined that the New York law conflicted with a congressional act licensing coastal steamboat traffic, and that it therefore could not be enforced. As Marshall famously put it: 'Congress may control state laws so far as it may be necessary to control them for the regulation of commerce.'
often is considered one of Chief Justice Marshall’s three most important opinions. So it’s worth considering the relevance of the Great Expounder’s
opinion even to a matter as utterly contemporary, and as important to interstate commerce, as today’s internet. First, we will examine the FCC’s January 2018
Restoring Internet Freedom Order
—in which it asserted preemptive authority to invalidate state laws in conflict with the agency’s declared internet policy—and California’s reaction to the order. Then, we will show how the foundation laid in
, where Marshall was faced with incompatible federal and state laws, buttresses the current FCC’s authority to keep the internet free from conflicting state regulation."
The complete article, with footnotes, may be accessed
* * *
Randolph J. Ma
y, President of the Free State Foundation, is a former FCC Associate General Counsel and a former Chairman of the American Bar Association's Section of Administrative Law and Regulatory Practice. Mr. May is a past Public Member and a current Senior Fellow of the Administrative Conference of the United States, and a Fellow at the National Academy of Public Administration.
Seth L. Cooper
is a Senior Fellow at The Free State Foundation. He previously served as the Telecommunications and Information Technology Task Force Director at the American Legislative Exchange Council (ALEC), as a Washington State Supreme Court judicial clerk and as a state senate caucus staff counsel. He is an attorney, and he graduated from Seattle University School of Law with honors. Mr. Cooper's work has appeared in such publications as
Gonzaga Law Review
San Jose Mercury News
Des Moines Register