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." > >
