Rep. Marsha Blackburn (R-Tenn.) ( medilldc )

If lawmakers in Congress can't figure out how to handle net neutrality, the FCC shouldn't be allowed to, either.

That's the argument Rep. Marsha Blackburn (R-Tenn.) and a handful of other GOP lawmakers are making before a federal appeals court in Washington, in a high-stakes legal battle over the future of the Internet.

The lawmakers' filing this week takes aim at the Federal Communications Commission's net neutrality rules, which went into effect earlier in the summer and seek to regulate Internet providers, such as traditional telephone companies. The federal policy bans providers from blocking, slowing or speeding up Web traffic such as e-mail or streaming video.

Blackburn and her colleagues say Congress never explicitly gave the FCC the appropriate permissions to do that. Pointing to the 18-odd times Congress has tried and failed to reach a consensus on net neutrality, the lawmakers say the legislative gridlock itself provides evidence of an FCC power grab.

"That Congress spent nearly a decade struggling with whether and how to regulate the Internet does not provide a justification for the FCC to bypass that process," the filing reads. It adds that the country's system of government was purposefully designed to ensure that large, significant decisions would not be made without "careful deliberation."

[What House lawmakers still don't get about control of the Internet]

Mounting partisanship in Washington, of course, has produced political deadlocks that have disrupted not just net neutrality negotiations but also routine budget deals, judicial confirmations, and attempts to ensure that the country can repay its debts. On matters ranging from immigration to national security, the result has been for President Obama to threaten a greater reliance on executive orders to overcome congressional paralysis. Outside studies show that, in fact, Obama has used executive orders less frequently compared with his predecessors.

The FCC's net neutrality rules were not the product of one of these executive orders, though Obama did come out strongly in favor of the FCC's proposed policy last fall, dramatically shifting the terms of debate. But the FCC maintains that, as an independent agency, it always had the freedom to regulate Internet providers more strictly under powers granted to it in the Communications Act. That's the set of authorities it initially received from Congress.