Commentary Magazine


Jefferson Lives

When John Marshall became chief justice of the U.S. Supreme Court in 1801, notes the historian James F. Simon, the high court “could not, in fact, claim parity with the executive or legislative branch of the federal government in either prestige or power.” He sought to rectify that, first and foremost by thwarting the desire of new President Thomas Jefferson to devolve more power to the states. Marshall would thereby increase the high court’s influence and standing while creating a larger pool of executive power from which to claim an equal slice.

Jefferson, for his part, didn’t believe a government had to be powerful to be strong: “I believe this, on the contrary, the strongest government on earth,” he declared. The two would battle for years over the question, and there is no doubt that Marshall largely succeeded in amplifying the power of the court while protecting executive power in the process. What was so intriguing about this particular conflict was that an American president was trying to reject the expansion of his own prerogative.

The struggle between the high court and the executive branch we are much more familiar with is the reverse: presidents demand ever more power and discretion and the court seeks to rein them in. But that also means that without Jeffersonian presidents, the role of the court in curtailing presidential ambition is that much more essential. Which is why this week’s judicial activity has been heartening. On Monday, the Supreme Court heard opening arguments in National Labor Relations Board v. Noel Canning, a case centered on the president’s power to make recess appointments, and the justices appeared skeptical of the Obama administration’s case. Which is as it should be.

The Constitution provides the president the authority to make recess appointments to positions that would otherwise require Senate confirmation. But the Senate actually has to be in recess for that. President Obama decided the Senate was in recess even when it was not so he could get his appointments through. It was preposterously unconstitutional, and openly contemptuous of both the plain meaning of the Constitution and the English language. The idea that the president can decide when the Senate is in recess is risible, bordering on loony. (The president was an instructor in constitutional law, by the way, which is a blistering indictment of American elite education.)

The Supreme Court justices are far from issuing their ruling, of course, but their skepticism was cause for optimism from those who understand at least the basics of constitutional law.

The other case this week that deserves attention concerns what is known as “net neutrality”: the principle holding that Internet traffic must be treated equally by service providers regardless of its source. In 2010, fulfilling an Obama campaign pledge, the FCC codified that principle into law, intending to prevent a “tiered” Internet in which those who pay up–like video streaming services, for example–can have their content delivered faster than others.

Advocates of net neutrality fret that a tiered Internet privileges large companies like Google over upstart competitors, and will thus crowd out competition. Verizon challenged the FCC rule, arguing it amounted to statutory overreach. Yesterday, a D.C. appeals court panel agreed:

Deciding a lawsuit brought by Verizon, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit struck down the rules. The court said the FCC saddled broadband providers with the same sorts of obligations as traditional “common carrier” telecommunications services, such as landline phone systems, even though the commission had explicitly decided not to classify broadband as a telecom service.

“Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the commission from nonetheless regulating them as such,” Judge David Tatel wrote for the court.

Over at the Volokh Conspiracy, Jonathan Adler explains that the judges’ decision was more about process than policy:

The court held 2-1 that that FCC has the authority to regulate broadband providers, and that such regulation may govern broadband providers’ handling of internet traffic.  Despite this holding, the FCC did not prevail because the court also concluded (unanimously) that the FCC’s specific regulations here were unlawful because the FCC sought to regulate broadband internet providers as common carriers.  This victory for Verizon and the other petitioners may be short-lived, however, as the majority opinion suggests alternative steps the FCC could take to effectuate a “net neutrality” policy without exceeding its statutory constraints.

As in the case of the recess appointments (or, more accurately, Obama’s “recess” appointments), there are two separate issues at play. There is the question of the wisdom of the policy: should the president get to make appointments that would otherwise be rejected by the Senate, and should Internet service providers be prevented from favoring those willing and able to pay for special treatment?

Then there is the question of authority: who gets to decide when the Senate is in recess, and does the FCC have the power to treat Internet service providers as if they were telephone companies? The question of policy may be more interesting than the question of process, but it is far less significant in its implications for the system of American government. This week the courts seemed inclined to agree. Jefferson lives–for now.

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