Re: Do Not Call

[Jonathan H. Adler]

Title: Message

The Court addressed one aspect of this issue in TVA v. Hill.  In that case, completion and operation of the Tellico Dam in Tennessee was threatened by application of the Endangered Species Act.  In short, the ESA precluded the operation of the dam because the Fish & Wildlife Service had determined (erroneously, it would later turn out) that the dam would threaten the survival of the snail darter, a small fish species.   Completion of the dam was enjoined in federal court.  Nonetheless, Congress continued to appropriate money for the dam's completion.  Several members of Congress also made explicit their belief that their continued funding of the dam would ensure that it would be completed, the express limitations of the Endangered Species Act notwithstanding.  The Supreme Court disagreed, holding that continued appropriations to the project did not constitute implicit amendment of the ESA.  If Congress wished to exempt the dam from the restrictions of the Act, the Court held, it would need to do so by enacting legislation; mere appropriations would not suffice.  In the end, this is precisely what Congress did to assure completion and operation of the dam.   JHA   ------- Jonathan H. Adler Assistant Professor of Law Case Western Reserve University 11075 East Boulevard Cleveland, OH 44106 w) 216/368-2535 h) 216/771-7626 cell) 202/255-3012 [EMAIL PROTECTED] [EMAIL PROTECTED] ----- Original Message ----- From: Robert Sheridan To: [EMAIL PROTECTED] Sent: Thursday, September 25, 2003 10:20 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."