Comcast Net Neutrality Ruling and Healthcare Ruling Have Important Common Theme: Authority Must Be Tethered to Statute, Constitution

by Mike Wendy on December 14, 2010

The FCC is right now (still) developing rules that will regulate the Internet via Net Neutrality proscriptions.  We haven’t seen that Hidden Order, but if the Agency wants any chance of ensuring its rules don’t get overturned (again), it will likely take the advice of the court that threw out its initial Net Neutrality regulations and seek to tie its so-called “ancillary authority” (i.e., general, non-express authority like Net Neutrality rules) to the furtherance of a specific mandated responsibility.   In other words, there has to be specific authority in the Communications Act that its Net Neutrality regulations reasonably advance in order for those regulations to pass muster.

While it may seem in-vogue to say, “Heck, though the Constitution didn’t give me the power, I’m going to go ahead and do it anyway because it’s the ‘right thing’ to do,” the Comcast ruling, as well as yesterday’s healthcare ruling, reveal an important, limited government theme: If the authority ain’t there, regulators and legislators can’t simply create it out of thin air.

I hope this is a pleasant – and liberty-enhancing – trend.

Two quick excerpts:

From Comcast v. FCC

…It is true that “Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies.” It is also true that “[t]he Internet is such a technology,” id., indeed, “arguably the most important innovation in communications in a generation,” Yet notwithstanding the “difficult regulatory problem of rapid technological change” posed by the communications industry, “the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer … Commission authority.” Because the Commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any “statutorily mandated responsibility,” we grant the petition for review and vacate the Order.

From Commonwealth of Virginia v. Sebelius

…Despite the laudable intentions of Congress in enacting a comprehensive and transformative health care regime, the legislative process must still operate within the constitutional bounds. Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers…

…Because an individual’s personal decision to purchase – or decline to purchase – health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary.  This clause grants Congress broad authority to pass laws in furtherance of its constitutionally-enumerated powers.  This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power.  As Chief Justice Marshall noted in McCulloch, it must be within “the letter and spirit of the constitution.” The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution.  Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce…

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