According to the
news report by Bob Egelko of the San Francisco Chronicle on Sept. 25, the reason
the district court (Lee West, J., Oklahoma City) overturned the FTC's popular
"do not call" (50 million phone numbers listed so far) list which bans
telemarketers from annoying you by calling in the middle of whatever you thought
you were doing, is that although the FTC adopted regulations enabling the
service, and Congress later funded the cost of it, neither Congress nor its
funding legislation expressly granted legal authority to create such a
list.
Congress had
authorized a different agency, the FCC, to establish such a list, but the FCC
decided not to create a list and instead ordered telemarketers to keep their own
lists of people who said 'don't call.' The FTC appears to have taken up
the slack left by the failure of the FCC to exercise its power. The
dormant regulatory power, one might call it.
Query: If a
federal agency, without express enabling legislation from Congress, adopts
a practice that falls within an area in which Congress has the power to regulate
(instrumentalities of interstate commerce, phone lines), and Congress appears to
afterwards validate the practice, impliedly, by funding it, is that a sufficient
grant of legal authority to validate the practice?
Another way of
putting it might be to ask whether ratification by Congress is sufficient to
validate the assumption of a practice.
Didn't Marshall,
C.J., do exactly that in Gibbons v. Ogden when he looked back to the
longstanding practice of sovereigns everywhere to regulate navigation as a
subset of commerce? He ratified an existing practice, clothing it with
constitutional legality, after the fact?
Does acquiescence in
a government practice, followed by apparent ratification via funding by
Congress, suffice to recognize the implicit grant of a
power?
Or must all
government powers always be created by express grant
only?
Just thought I'd ask
since I've been unable to download the opinion and don't know whether such a
question was addressed.
Thanks.
R.
Sheridan
SFLS
Incidentally, last
academic year I asked for colorful or memorable Conlaw metaphors which drew
a number of good replies as well as a caveat against overusing such
devices. Here's a quote from Cardozo on point, from Berkey v. Third Avenue
Railway, 244 NY 84,94, (1926), quoted by Andrew L. Kaufman in "Cardozo" p.
449:
"Metaphors in law
are to be narrowly watched, for starting as devices to liberate thought, they
end often by enslaving it."
