>From the (cited below) Froomkin blog:

      "...And, if you squint at it just right, it might provide what is


This just might be the universal insight that explains constitutional

I plan to steal it and use it without remorse, giving due credit, of

Thank you.

Bob Sheridan

-----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
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
> -----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
> 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
> 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
> telemarketing acts and practices."   an authority arguably much
> 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
> - 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
> > 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
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