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Comment by peterwwillis | Hacker News Reader

I came here to say the opposite. The states are doing what they can to limit damaging actions by the federal government. This is the system working for the people. Without the ability or interest from the states to push back against the federal government's decrees, we would be stuck with an authoritarian nation.

Currently, trying to pass meaningful legislation is like trying to squeeze a watermelon through a pinhole. That should certainly be addressed, but we can't ignore the current battle just to focus on the bigger war.

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> The states are doing what they can to limit damaging actions by the federal government.

Or rather, absence of action in this case.

> This is the system working for the people.

The system working for the people would be the states to make their own legislation. Using courts to force federal government to take action that elected executive and elected legislature do not support is not system working.

> Currently, trying to pass meaningful legislation is like trying to squeeze a watermelon through a pinhole.

Legislature is complex and hard. Not the reason to try and make courts into its replacement. That's not how the system is supposed to work, and doing that will result in a system even more broken than now.

> The system working for the people would be the states to make their own legislation. Using courts to force federal government to take action that elected executive and elected legislature do not support is not system working.

The tension between federal and state power is an intentionally designed feature of the system, and the fact that the states can push back is one of the several ways the system is supposed to work.

> The tension between federal and state power is an intentionally designed feature of the system

True, but "AGs of states finding friendly judge to force federal legislature to do their bidding" is not part of that design. If they just passed state-wide regulations and federal AG would sue them for it, then it'd be a different case, where one could justifiably invoke state rights. But in this case it's just plain lawfare.

It seems to me that it would be "lawfare" either way -- either the states would sue the Federal government or the Federal government would sue the states.

Lawfare is not when just somebody sues somebody else. It's when lawsuits are used to achieve goals that go way beyond and not connected with upholding the law - such as to enforce specific policy through courts, failing to pass it through legislative or executive branches.

The states brought suit in the court specified by federal law. They don't get to pick the judges. They're suing the FCC, not Congress.

The courts will either uphold the order or overturn it on procedural grounds. If they uphold the order, Congress doesn't have to do anything. If they overturn it, the FCC can try again, Congress can amend the procedures the FCC is required to follow, and/or Congress can enact the same rules the FCC improperly ordered.

The other part of the case is whether states can enforce their own regulations, which several have already passed. It's better for everyone to resolve that question promptly and with a single case. Declaratory judgment, where the courts resolve a dispute before it reaches a critical point, is part of the design.

It's called checks and balances, and it was how the system was designed to work.

> Legislature is complex and hard. Not the reason to try and make courts into its replacement. That's not how the system is supposed to work, and doing that will result in a system even more broken than now.

The courts aren't being used as a replacement, they're being used as a court. When one part of the government does something, you use another part of the government to counter it, until you've exhausted all your options. Then you can go back to the drawing board, which is to start a grassroots movement to push for overwhelming bipartisan support to force even a one-sided legislative branch to adopt the reforms you seek. It's an iterative process. Using the courts is not circumventing anything. You can always use legislation later to determine law that supersedes ruling by the courts, unless such legislation is found to be unconstitutional.

> It's called checks and balances, and it was how the system was designed to work.

No, it's not. Just repeating "checks and balances" doesn't mean courts can be abused for doing something that is not court's purpose. The court's purpose is preserving the consistency of legislation (including the Constitution as supreme, very hard to change part of the law) and adherence of executive to the law. In this case, the executive is clearly within the law, but some people are unhappy about it, so they want to abuse the courts to make them legislate from the bench that the policy must be different. This is not how the system is designed to work, this is the exact opposite of it.

> The courts aren't being used as a replacement, they're being used as a court.

They are being used to force through a policy that is not supported by either legislature or executive. That's not a function of a proper court.

> When one part of the government does something, you use another part of the government to counter it, until you've exhausted all your options.

No, that's not how it's supposed to work. It's not "try anything until my side wins, then block any attempt of other side to try anything at all". Your side may temporarily win, but when the other side does the same, you end up with the broken system where nobody respects any decisions and the only thing that matters is which side you're on. I call such system broken.

> They are being used to force through a policy that is not supported by either legislature or executive. That's not a function of a proper court.

They're asking the court to reverse the repealing of legislation, with the argument that the FCC should not have been allowed to repeal it because their legal reasoning was flawed.

Who is pushing policy? Was Obama pushing policy by instituting regulation? Was the FCC pushing policy by repealing it? Are the states pushing policy by trying to get the repeal revoked? Yes, Yes, Yes. Welcome to government.

It's all about pushing policy, any way you can. The system regulates the ability to push policy by allowing you to push policy, within the confines of the system, and gives you the tools to continually push or pull policy.

> Your side may temporarily win, but when the other side does the same, you end up with the broken system where nobody respects any decisions and the only thing that matters is which side you're on.

I re-watched the film Lincoln recently. It's basically about pushing for the 13th Amendment, well before it was politically tenable to adopt it. Bribery, back room deals, switching allegiances, concealing moves, political pressure, manipulation. Politics is the art of doing anything you possibly can to advance your agenda, to the exclusion of others' agendas. Your side doesn't even matter, it's what you can gain or lose that matters.

> the FCC should not have been allowed to repeal it because their legal reasoning was flawed

I have not been able to pin this down.

What law/rule did the FCC allegedly violate?

Check out the NY filing for more complete information about their arguments (https://ag.ny.gov/sites/default/files/nn_govt_petitioners_br...). But the short answer is that the FCC is being accused of violating the Administrative Procedures Act.

The APA was created in response to the growth of government agencies tasked with creating regulations, essentially to curb the power of bureaucrats. Agencies are required to keep the public informed about possible changes to regulations and to allow for public participation, but what's relevant to this case is the process by which proposed changes are approved. In order to change the existing regulations, there has to be a formal review process, which involves gathering evidence and making a decision based on that evidence. Essentially, agencies like the FCC can't just change their rules on a whim, they have to look at all available evidence and actually come up with an argument for why the change needs to happen based on that evidence. Agency heads still get a decent amount of leeway, but standard is that their decisions cannot be "arbitrary and capricious." That's a legal term with a whole body of precedent behind it, google for more info.

I should also point out that suing based on the APA has come up a lot in this administration. My girlfriend is involved with environmental lobbying groups, and a number of the EPA rule changes proposed under the Trump administration have been thrown out because they did not properly follow the APA. The DOJ's repeal of DACA is also currently being challenged as violating the APA.

> they have to look at all available evidence and actually come up with an argument for why the change needs to happen based on that evidence.

Make sense. Proving this seems like it would be an enormously uphill battle.

It would have to be an unambiguously wrong decision on the part of the FCC. (Otherwise, the court essentially becomes the FCC by upholding/overturning any "wrong" decision.)

Given that it only became a policy recently, and the current amount of debate...it's hard to believe that the court would decide that not having NN is egregiously in the wrong. But we shall see.

Remember that the FCC has to explicitly provide their reasoning for making their decision. Those bringing this suit don't have to prove that not having NN is egregiously wrong, they just have to prove that the reasoning the FCC gave is egregiously faulty. It is a difficult battle, but not as hard as you might think.

Especially if the FCC points to things like the provably false public comments they collected as their reasoning. When they say use evidence like https://www.fcc.gov/ecfs/filing/1051157755251 it's not hard to prove that they didn't actually have reasoning for their decisions beyond "me and my lobbyists wanted it"

Wow, apparently that comment was taken from some kind of boilerplate. Who comes up with this stuff?

https://www.fcc.gov/ecfs/filing/1051157755250

> It would have to be an unambiguously wrong decision on the part of the FCC.

The court—in an APA challenge—is not addressing whether the decision is right or wrong, but whether the process by which it was arrived at was complied with the legally-mandated process. Whether the decision is wrong (ambiguously or not) is beside the point, though that might be relevant to a challenge on other bases.

> Was Obama pushing policy by instituting regulation?

Yes.

> Was the FCC pushing policy by repealing it?

Yes.

> Welcome to government.

There's no problem with either Obama's executive or Trump's executive pushing their respective policies. People elected Obama, people got Obama's policies. People elected Trump next, people got Trump's policies. That's how it should work. The problem is when people are unhappy with Trump's policies and try to use courts to declare that only one side of the issue is legal and another is illegal. That's not how policymaking should work.

> It's all about pushing policy, any way you can.

Not in a proper government. In a proper government, courts should not be for pushing policy. If you want your policy, convince people to elect you and then enact the policy. Otherwise there would be no stable government possible - the Republicans would appoint their judges which would block every decision of Democrats, and Democrats would appoint their judges which would block every decision of Republicans, and it will always be about which team wins and never about getting anything good done. We're almost there anyway, but it's not a good thing, and there's no reason to make it even worse. Even if that means sometimes your team doesn't win.

> Politics is the art of doing anything you possibly can to advance your agenda

Why not murder your political opponents then (say you could get away with it at least long enough for the policy to be enacted?) Why not fake mass casualty terrorist attacks in the name of your opponents? Why there should be any rules at all? I think you'd agree there's some place where we'd like to draw the line. I'd want the line to be at using legislature for lawmaking and courts for enforcing laws.

What's broken is that there are "sides" at all. The American people are being restricted from free thinking on individual issues because of party-based politics. This is intentional, to create "wedge" issues out of thin air so we stay divided and whoever wants power has a shot at taking it.

Well, if the decision is "should we have state-enforced net neutrality regulations" then there would be "yes" and "no" sides I assume. Given binary-partisan US politics, there would be natural alignment of parties along such sides, but the yes/no question would remain even if we didn't have any parties at all.

This is very much a case of checks and balances. This article is a little misleading because it only quotes those filing suit saying that they don't like the FCC's actions. The actual suit filed (https://ag.ny.gov/sites/default/files/nn_govt_petitioners_br...) has actual legal arguments. First, they argue the process by which the rule was passed was in violation of the Administrative Procedures Act. Second, they argue that the rule exceeds the FCC's authority by preventing states from enacting their own net neutrality regulation.

You seem to think "checks and balances" means "we have so many ways to get what I want through and it's ok to use any of them in any ways as long as at the end what I want is getting done". It's not the case. "Checks and balances" does not mean "if legislature doesn't get us the result I want, we should try courts next". It means each branch of the government has its role, and for the courts it's upholding the existing law, not creating policy. It is clear that the current dispute is a policy/political one - should we follow one policy or another. The courts is exactly the wrong place to decide such things, no matter how many times you say "checks and balances".

> they argue the process by which the rule was passed was in violation of the Administrative Procedures Act

Which may or may not be true (most likely not, since it would be stupid to undermine important policy decision by not signing a proper form, but of course one should never overestimate the federal government workers and their capacity of keeping things orderly). But if it's true, then they can just re-pass the same decision, now signing all the proper forms in the proper places and the end effect would be colossal waste of time and money and the same outcome at the end of it. Since FCC is the one to decide the policy, and head of the FCC has decided to not have NN, arguing essentially "but you didn't fill the TPC report in triplicate!" is not an argument against the policy that can be effective. It's also not a proper way to enact a policy.

> they argue that the rule exceeds the FCC's authority

That sounds ridiculous. Instituting NN does not exceed FCC authority, but reverting to pre-2015 does? I am not a lawyer, but for a common person that makes zero sense.

> by preventing states from enacting their own net neutrality regulation.

Hasn't then 2015 ruling been equally invalid for preventing states from enacting their own policies which do not include net neutrality regulations? If we argue it should be in the state level (which I'm always fine with) then 2015 rule should be rescinded and they should sue for restricting the current rule only to federal policy but allow states to enact their own policies. But don't they sue for reinstating 2015 policy instead?

I recommend reading the filing I linked (https://ag.ny.gov/sites/default/files/nn_govt_petitioners_br...) for their arguments, but I'll summarize them here.

The alleged APA violation isn't a matter of not filling out the right forms, it's that their whole ruling was based on faulty logic. Basically the APA specifies that agencies have to make their rulings based on existing evidence and provide evidence-based reasoning for their decisions. The agency gets a decent amount of leeway on that reasoning, as long as it is not "arbitrary and capricious," which is a legal standard. The filing claims they did act arbitrarily and capriciously. For example, part of the FCC's change was made on the grounds that BIAS providers have voluntarily committed to not throttling customers and there is little evidence that they have ever done so, which completely ignores the fact that the reason they historically have not throttled people is because it was illegal, and thus was not voluntary. Again, you can read the filing for more information about their argument, it starts on page 35 in the PDF.

The argument that the rule exceeds the FCC's authority is based on the fact that the FCC recently disavowed have Title II authority over broadband. Title II authority gave the FCC the ability to preempt state and local laws. The new ruling is based on Title I authority, which can only allow the FCC to preempt state and local laws if the authority is rooted in some other statutorily mandated responsibility, which the FCC does not have. The actual argument is pretty technical, but that's the gist of it.

> The filing claims they did act arbitrarily and capriciously.

And that's baloney. There are arguments for and against NN, and just claiming "pooh, these other guys just saying nonsense, ignore them" is not a valid argument. It's asking the court to decide that only one side of the policy is correct, and the other side is just idiots. That's not how political decisions should be made in a democratic country.

> which completely ignores the fact that the reason they historically have not throttled people is because it was illegal

If it was illegal before 2015, then doesn't returning to pre-2015 state keep it so? In any case, if it's not illegal now, the Congress can easily make it illegal, it's not for the court to decide that though. Again, the discussion of whether we can trust providers to not throttle and whether we need government regulation to enforce that does not belong in court. It belongs in public discourse, which leads to electing representatives, which produce relevant legislation (or don't if people do not elect those representatives that want to do it).

> The actual argument is pretty technical, but that's the gist of it.

I am not nearly qualified to evaluate the technical arguments on merit, but for a common person something like "it's legal to enact NN, but it's illegal to rescind this action" sounds insane. If they just said "you're ok to remove federal NN rules, but you can't prevent us to make such rules on more local level", then they might have an argument there (though it still doesn't make that decision "arbitrary", it's just a discussion about limits of federalism in a particular case) but is that what they are arguing? I thought they are arguing for the return of federal legislation as enacted in 2015, aren't they?

> Or rather, absence of action in this case.

Issuing an order is an action. The states claim that the federal executive didn't follow the legally required procedure.

> The system working for the people would be the states to make their own legislation.

The federal executive says they can't. The states are asking the courts to say they can.

>> The states are doing what they can to limit damaging actions by the federal government.

I wonder how many of those states made laws forbidding or working against municipal broadband.

and how many of them have made any effort to clean up the permitting processes for rolling out fiber.

Here is a list of all 22 states that filed, with links to their local roadblocks to municipal broadband (if any):

California : https://broadbandnow.com/report/municipal-broadband-roadbloc...

Connecticut

D. C.

Delaware

Hawaii

Illinois

Iowa

Kentucky

Maine

Maryland

Massachusetts

Minnesota : https://broadbandnow.com/report/municipal-broadband-roadbloc...

Mississippi

New Mexico

New York

North Carolina : https://broadbandnow.com/report/municipal-broadband-roadbloc...

Oregon

Pennsylvania : https://broadbandnow.com/report/municipal-broadband-roadbloc...

Rhode Island

Vermont

Virginia : https://broadbandnow.com/report/municipal-broadband-roadbloc...

Washington : https://broadbandnow.com/report/municipal-broadband-roadbloc...

It does not surprise me in the least that the executive branch of a state (which includes the AG's office) is supporting net neutrality at the federal level while the legislative is passing state-level laws to hamstring it.

I live in one of these states with bans on municipal broadband, NC. The relationship between our Republican super-majority General Assembly and our Democrat governor is completely dysfunctional, and our districts are so gerrymandered that we, the people, can't fix it. Republicans in the GA have been calling special sessions all summer to override the governor's vetoes. The GA recently put several state constitutional amendments up for referendum in November, aimed squarely at stripping the governor of more powers (something no one ever mentioned during our last Republican governor's term.) This is not going to change any time soon (see: gerrymandering.)

Our AG suing the fed is literally our only option to block most of the madness happening at the federal level (until the Supreme court rules on partisan gerrymandering,) because our legislative branch no longer works for the people, they simply push party and lobbyist agendas at all costs.

You both are likely correct.

How about "it's the fallback system working for the people"?

The ability for these State Attorneys General to do this is good. The fact that it had to come down to this is terrible.

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