Re: Do Not Call

[David M Wagner]

Title: Message

 

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. 

 

 

It certainly distinguishes the present case from FDA v. Brown & Williamson, on which the court relied in part.  There, Congress had manifested a positive disinclination to give the agency the power that it claimed.

 

David M. Wagner