>From the (cited below) Froomkin blog: "...And, if you squint at it just right, it might provide what is needed."
*** This just might be the universal insight that explains constitutional law. I plan to steal it and use it without remorse, giving due credit, of course. Thank you. Bob Sheridan SFLS -----Original Message----- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Michael Froomkin - U.Miami School of Law Sent: Friday, September 26, 2003 10:12 PM To: [EMAIL PROTECTED] Subject: Re: Do Not Call - the effect of congressional funding I seem to have missed some of the messages on this thread, for which I apologize. I've posted a number of items about the do-not-call decisions on my blog (including the results of a quick trawl through the congressional record for what was said on the floor yesterday which might be relevant to any R.A.V.-based challenge to the statute) at http://www.discourse.net , and I'd welcome comments there or here. On Fri, 26 Sep 2003, Robert Sheridan wrote: > Thanks very much, Yvette, > > for the perceptive analysis, which took effort. I still can't > download the opinion w/o freezing my hard drive. In the meantime, > there seems to be an even bigger objection from another USDC, to the > effect that by prohibiting some sorts of communication and not others > (commercial and not political, say) the FTC is engaging in > FA-prohibited content-based regulation. > > I appreciate your responding, and all of your challenging posts, in > fact. Keep up the good work. > > Yours, > > Bob Sheridan > SFLS > > -----Original Message----- > From: Discussion list for con law professors > [mailto:[EMAIL PROTECTED] On Behalf Of Barksdale, Yvette > Sent: Friday, September 26, 2003 6:11 PM > To: [EMAIL PROTECTED] > Subject: Re: Do Not Call - the effect of congressional funding > > > Hi Robert > > In West's Oklahoma District Court opinion he concludes that Congress > by subsequent legislation (including appropriations riders or funding > bills) could ratify agency action that was previously without legal > authority, but that Congress' intent to so ratify must be clear. > This "clearly expressed intent" standard makes sense since otherwise > Congress could not routinely fund any agency action without risking unwittingly > resolving legal disputes over the action's validity. However, if > Congress clearly intends to ratify agency action then it has the > power to do so. > > The "do not call" list appropriation merely authorized the agency to > "use funds" and "collect fees" for the "do not call" list, but, West > concluded, did not otherwise express an intent to give the agency > legal authority to create the list. > > A further complicating factor was also that previous statutes had 1) > specifically authorized the FCC to create a "do not call list" but 2) > authorized the FTC to merely regulate "Deceptive ...and other abusive... > telemarketing acts and practices." an authority arguably much narrower > than the across the board "Do not call" list which the FTC enacted. > The Court thus was even more reluctant to conclude that a simple line > item appropriation was sufficient to confer statutory authority which > existing statutes had arguably specifically withheld from one agency > and given to another. > > Of course now, Congress has clearly expressed its intent to ratify (by > enough votes to override a presidential veto - right?) so this issue > has gone away. > > There's still the Utah court's first amendment issue which West (D C > Oklahoma) also relied upon that as further supporting a narrow > construction of the agency's authority. That I don't understand - > isn't there clearly a right to refuse unwanted communications. In > other words > - you may not be able to shut the person up, but you can turn a deaf ear > - can't you. > > yb > > yb > > ---------- > > From: Robert Sheridan[SMTP:[EMAIL PROTECTED] > > Reply To: Discussion list for con law professors > > Sent: Thursday, September 25, 2003 9:20 AM > > To: [EMAIL PROTECTED] > > Subject: Do Not Call > > > > 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." > > > > > -- http://www.icannwatch.org Personal Blog: http://www.discourse.net A. Michael Froomkin | Professor of Law | [EMAIL PROTECTED] U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA +1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm -->It's hot here.<--