Supreme Court nominee Brett Kavanaugh, during his second day of Senate confirmation hearings Wednesday, defended his dissent in a federal court decision that upheld the controversial Obama-era net neutrality rules.
When pressed by Sen. Amy Klobuchar, a Democrat from Minnesota, to explain why he disagreed with the rest of his colleagues on the US Court of Appeals for the DC Circuit that the Federal Communications Commission was within its authority to create the rules, Kavanaugh said he was simply following legal precedent and wasn’t looking to strip the agency of its power.
Kavanaugh, a judge on the US Court of Appeals for the D.C. Circuit, supported a petition from the broadband industry for the full court to rehear the case that upheld the FCC’s right to impose utility-style regulations on internet services. Specifically, the court in its decision said the agency had the authority to reclassify internet services as a so-called Title II service under the Communications Act. This reclassification served as the basis for the strict net neutrality rules adopted by the Obama administration in 2015.
The full court. It cited the so-called the US Supreme Court’s Chevron doctrine, which gives expert federal agencies the discretion to interpret ambiguous statutes. But Kavanaugh disagreed and wrote a dissenting opinion.
In defending his dissent to Klobuchar, who supports net neutrality, Kavanaugh cited the “major decisions” doctrine, which is related to Chevron. This doctrine says a court shouldn’t grant deference to a federal agency if Congress hasn’t spoken clearly on the subject, which he said wasn’t the case with the net neutrality rules.
“It’s OK for Congress to delegate various matters to the executive agencies to do rules,” he said. “But on major questions of major economic or social significance, we expect Congress to speak clearly before such delegation, and that’s what had not happened, in my view, with respect on net neutrality and I felt bound by precedent.”
But Klobuchar suggested his interpretation, which differed from the rest of his peers on the DC Circuit, who were appointed by both Democrats and Republicans, seemed to be a pattern with Kavanaugh, in which he used Supreme Court precedents selectively to arrive at a particular outcome.
Klobuchar noted that Kavanaugh’s explanation in his dissent that the court could distinguish between a “major” and “minor” question with respect to deferring to an expert agency when there was ambiguity in the law would be a “you-know-it-when-you-see-it” standard was the reason that the other judges didn’t agree with Kavanaugh.
When Klobuchar pushed him on why the White House touted his record of overturning agency decisions 75 times, he said there was no pattern of being “pro this or pro that.” In fact, he said, he’d probably ruled “dozens and dozens and dozens” of times in favor of federal agencies.
Earlier in the hearing, Kavanaugh had also made the point that he wasn’t anti-regulation. Instead, he said he opposes unlawful regulation.
“I am not a skeptic of regulation at all,” he said. “I am a skeptic of unauthorized regulation, of illegal regulation, of regulation that’s outside the bounds of what the laws passed by Congress have said.”
As for the net neutrality rules, they’ve been repealed in spite of the DC Circuit’s decision to uphold the agency’s right to impose the rules. In December, the Republican-led FCC rolled back the 2015 regulations, which prevent internet service providers from blocking or slowing access and prohibits carriers from charging internet companies a fee to access customers faster. The rules officially expired in June.
Several states — including California, Oregon and Washington — are pushing through legislation to protect these principles. Meanwhile governors in other states, like New York and Montana, have already signed executive orders banning the states from doing business with companies that don’t comply with net neutrality.
Democrats in Congress are trying to reinstate the FCC’s rules through the Congressional Review Act. A CRA resolution passed the Senate in May and must pass the House of Representatives by the end of the year. If it passes both houses of Congress, it still has to be signed into law by President Donald Trump to officially turn back the repeal.
There are also several lawsuits filed against the FCC to reinstate the 2015 federal rules, including suits filed by attorneys general in 23 states. Once again, the question of whether the FCC has the authority to change the classification of broadband will be argued in federal court.
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