Republican leaders have been arguing against net neutrality since Barack Obama announced on Monday that he wanted to reclassify Internet providers as a utility.

In his prepared remarks, the president said that, “simply put, no service should be stuck in a ‘slow lane’ because it does not pay a fee. That kind of gate-keeping would undermine the level playing field essential to the Internet’s growth.”

ADVERTISEMENT

Texas Senator Ted Cruz responded by calling the president’s proposal “Obamacare for the Internet,” and insisted that “the Internet should not operate at the speed of government.”

House Speaker John Boehner quickly followed, saying in a statement that “[a] n open, vibrant Internet is essential to a growing economy, and net neutrality is a textbook example of the kind of Washington regulations that destroy innovation and entrepreneurship.”

The Republican argument is based on a 2005 Supreme Court ruling, National Cable & Telecommunications Association v. Brand X Internet Services, in which the court upheld that the Federal Communications Commission was correct to rule that bundled broadband Internet was not a traditional utility, and should therefore be treated differently than “telecommunications services” like phone companies.

However, attached to that ruling is a dissent by beloved conservative firebrand Antonin Scalia, in which the Supreme Court Justice makes a compelling argument that just because broadband services are not offered on a “stand-alone” basis, that does not mean they should be treated as different from services that are.

“It seems to me, that the analytic problem pertains not really to the meaning of ‘offer,’ but to the identity of what is offered,” he wrote.

ADVERTISEMENT

“It would be odd to say that a car dealer is in the business of selling steel or carpets because the cars he sells include both steel frames and carpeting. Nor does the water company sell hydrogen, nor the pet store water (though dogs and cats are largely water at the molecular level).”

“The pet store may have a policy of selling puppies only with leashes,” Scalia continued, “but any customer will say that it does offer puppies — because a leashed puppy is still a puppy, even though it is not offered on a ‘stand-alone’ basis.”