[Apologies if this is a repeat, but I sent it this afternoon and it doesn't seem to have made it to the list]
It's axiomatic under administrative law that an agency must state the statutory basis for its claim of regulatory power. But Congress isn't an agency. Where in the constitution (other than arguably the 14th Amendment) does it say or imply that Congress is in any way obliged to rely on a particular power to do something? Of course, Congress is free to say that some particular restriction should run only as far as a particular power does (just as states can say that their long-arm goes as far as due process permits). And perhaps 14th amendment cases are a special case. And, perhaps, if Congress mentions a particular power we should read that as an implicit decision to disclaim other sources (although I'm slightly at a loss as to why one would apply such a rule of construction as a general matter). But as a matter of first principles, if Congress simply enacts a rule without stating any constitutional authority, is it not the court's job to examine all possibilities (or, maybe, jusst all those argued by the parties?) in order to save the statute? -- 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.<--
