Last week, Federal Communications Commission Chairman Ajit Pai ignited a firestorm by announcing a plan to undo the 2015 regulation implementing “net neutrality.” His plan would be critical to undoing the Obama-era power grab at the FCC.
For the eight years of the Obama Administration, liberals worked through extra-legal means to achieve the policy goals they desired that did not have enough popular support to be passed by the legislature. Sometimes this took the form of convincing judges to ignore the text of statutes and regulations and decide cases on the basis of policy, over-ruling the will of the people expressed through their representatives. Other times, it took the form of agencies ignoring the rule of law, seizing power, and enacting new policies without regard to their statutory limits and without proper procedures such as rulemaking following notice and comment.
The implications, economic impact, and wisdom of net neutrality form an interesting policy debate. But that is what is important: It is a policy issue, and matters of policy should be decided by Congress or clearly delegated to an agency.
After court cases holding that the FCC had exceeded its statutory authority under the Telecommunications Act in its attempts to regulate Internet service providers (ISPs), the FCC changed its strategy. At the encouragement of President Obama, the federal agency reclassified Internet access as a “telecommunications service,” subject to much more regulation than the previous classification of “information service.”
The “telecommunications service” classification was designed for monopoly telephone services and gives the FCC extremely broad authority to regulate. Extending this regulatory authority to Internet service is unquestionably an extension of the FCC’s authority. It was an extension that was authorized not by Congress but by the FCC itself.
Even worse, this power grab was unclear. It was unclear what activity was prohibited, leaving ISPs in a state of uncertainty. When asked to clarify the new standards, the previous FCC Chair said: “We don’t know, we’ll have to see where things go.”
Chairman Pai’s proposed plan would return Internet service regulation to the previous regulatory framework—which had been upheld by the Supreme Court—and restore the FCC’s authority to the level granted by Congress. He publicly released it, unlike in 2015 when the details were released only after the FCC had already adopted them.
Liberals are attacking Pai for his efforts to reverse the FCC’s Obama-era power grab and restore the FCC to its statutory framework. Fortunately for the rule of law, he is standing firm and defending his proposal. Unfortunately the left is not only attacking this as a policy matter but have taken to threatening Commissioner Pai and his children, who all now have law enforcement protection. He is not the only one seeking to restore the rule of law after the power grabs of the Obama Administration.
The Consumer Financial Protection Bureau (CFPB) is only questionably constitutional, but in its six years of existence, it has exercised vast, unaccountable regulatory powers over financial institutions. Liberals desperately want to hold on to this power, even to the point of resisting President Trump’s constitutional and statutory authority to appoint a replacement for the previous CFPB director, who recently resigned.
President Trump appointed an acting director under the Federal Vacancies Reform Act, who has already announced the intention to freeze regulatory actions. CFPB’s Obama-holdover deputy director, Leandra English, asserted that she has the authority to direct the agency until President Trump’s permanent pick is confirmed by the Senate, even though CFPB’s own general counsel acknowledges that President Trump has the power to appoint an acting director. English sued to prevent President Trump’s acting director from taking office. Tuesday, a federal judge held that her claims do not have merit, but this case is far from over.
Environmental Protection Agency (EPA) Administrator Scott Pruitt ended the “sue and settle” practices by which activist environmental organizations could change and control regulatory decisions at the EPA without any transparency or accountability. Under this system, a liberal organization would sue the EPA over its implementation of a law. Instead of fighting the litigation, the EPA would settle with the organization and agree to the organization’s demands, thereby changing EPA policy and arguably the law. In essence, the liberal organization would be able to change statutes and regulations unilaterally and often receive a nice payment from the taxpayers, in the form of attorney’s fees, for its efforts.
These practices were antithetical to the rule of law. It was not even governing by unaccountable government officials; it was governing by activist private organizations with radically liberal agendas. “Sue and settle” was used at other agencies during the Obama Administration to make regulatory changes at taxpayer expense with no transparency or accountability, but Administrator Pruitt has been a leader in undoing this ceding of power to liberal organizations.
These are just a few examples of the immense amount of work remaining to be done in the Executive Branch to restore the rule of law. This effort is the opposite of a power grab. It is giving power back to the people through their elected representatives and taking power away from unelected activists inside and outside of government.
Michael Thielen is the executive director of the Republican National Lawyers Association.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
