Re: Bernstein hearing: The Press Release

>And the ITARs are only executive orders, no? Not laws, right? I'm curious 
>as to why they're considered valid. Anyone know?

They're administrative regulations. Legislative bodies (like Congress and
state legislatures) can delegate some of their legislative authority to
executive agencies (like the Forest Service or the State Dept) to make
rules which have the force of law. This is done because legislatures don't
have time to write all of the laws that bureaucrats think ought to be
written - so the legislature says "Fine, write your own damn laws."

Legislatures don't want to bother with deciding where you can build a fire
on federal lands or exactly how close you can fly to an airport if you're
not taking off or landing or what happens to undeliverable mail at the Post
Office. So legislatures give some of their lawmaking power to the agencies
that are in a position to see what needs to be regulated. The delegation of
power is limited by superior law (e.g., statutes written by the
legislature) and the regulatory duties of the agency (such that the Forest
Service can't write regs for the FAA, etc.) and by the grant of power itself.

This sounds like cops making up their own laws - and it is, but they have
to act like legislatures when they do it. This means that they must
(generally) publish proposed regs, accept comments, ignore them, and then
publish final regulations. Agencies can't change the regs on a daily or a
case-by-case basis, or change them without making the changes public. (But
"public" means "buried somewhere in the Federal Register".) 

And that's what the ITAR is - a body of administrative law developed by the
executive branch pursuant to a grant of power from Congress. (e.g., 22 USC
2778(a)(1), ". . . The President is authorized to designate those items
which shall be considered as defense articles and defense services for the
purposes of this section and to promulgate regulations for the import and
export of such articles and services. The items so designated shall
constitute the United States Munitions List.") It is subject to review by
the courts just like the product of Congress itself; and an agency can't do
something Congress can't do, like write an unconstitutional law.

(Which is not to say that I agree with the inclusion of crypto on the list,
or even the idea of "export controls", but I've seen the argument that
"ITAR is not a real law so none of this matters" float across the list a
few times and it's not realistic. Whether or not a given individual likes
the idea of administrative rulemaking, it's clear that the courts and the
government think that it's real, and will put people in jail for violating
administrative regs.) 
--
Greg Broiles                |  "We pretend to be their friends,
gbroiles@netbox.com         |   but they fuck with our heads."
http://www.io.com/~gbroiles |
                            |

Greg Broiles writes in a most informative posting:

: And that's what the ITAR is - a body of administrative law developed by the
: executive branch pursuant to a grant of power from Congress. (e.g., 22 USC
: 2778(a)(1), ". . . The President is authorized to designate those items
: which shall be considered as defense articles and defense services for the
: purposes of this section and to promulgate regulations for the import and
: export of such articles and services. The items so designated shall
: constitute the United States Munitions List.") It is subject to review by
: the courts just like the product of Congress itself; and an agency can't do
: something Congress can't do, like write an unconstitutional law.

It should be added though that most administrative regulations are
subject to judicial review by courts to make sure that they comply with
the law passed by Congress.  The ITAR, on the other hand, are not
subject to this sort of review and can only be challenged in the courts
on Constitutional grounds.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
Internet:  junger@pdj2-ra.f-remote.cwru.edu    junger@samsara.law.cwru.edu
                     URL:  http://samsara.law.cwru.edu

At today's SAFE crypto hearing in the House, Congressperns quizzed 
Gorelick about what the fuck the administration is trying to do by having 
their lackies attach amendments to the omnibus export act that would 
prevent judicial review of Commerce Dept export control decisions. It's 
already cleared the House.

"no court shall have power or jurisdiction to review any such decision by 
an action in the nature of mandamus or otherwise."

Bastards.

-Declan


On Wed, 25 Sep 1996, Peter D. Junger wrote:

> Greg Broiles writes in a most informative posting:
> 
> : And that's what the ITAR is - a body of administrative law developed by the
> : executive branch pursuant to a grant of power from Congress. (e.g., 22 USC
> : 2778(a)(1), ". . . The President is authorized to designate those items
> : which shall be considered as defense articles and defense services for the
> : purposes of this section and to promulgate regulations for the import and
> : export of such articles and services. The items so designated shall
> : constitute the United States Munitions List.") It is subject to review by
> : the courts just like the product of Congress itself; and an agency can't do
> : something Congress can't do, like write an unconstitutional law.
> 
> It should be added though that most administrative regulations are
> subject to judicial review by courts to make sure that they comply with
> the law passed by Congress.  The ITAR, on the other hand, are not
> subject to this sort of review and can only be challenged in the courts
> on Constitutional grounds.
> 
> --
> Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
> Internet:  junger@pdj2-ra.f-remote.cwru.edu    junger@samsara.law.cwru.edu
>                      URL:  http://samsara.law.cwru.edu
> 


// declan@eff.org // I do not represent the EFF // declan@well.com //

I fail to see how the Executive can simply avoid the authority and
oversight of the Judicial. Are there other circumstances of this? From
my constitutional reading the Judiciary has the right to review any law
passed by Congress.  The Executive only has the power to enforce, not to
unilaterally pass rules unrelated to enforcement.

Declan McCullagh wrote:
> 
> At today's SAFE crypto hearing in the House, Congressperns quizzed
> Gorelick about what the fuck the administration is trying to do by having
> their lackies attach amendments to the omnibus export act that would
> prevent judicial review of Commerce Dept export control decisions. It's
> already cleared the House.
> 
> "no court shall have power or jurisdiction to review any such decision by
> an action in the nature of mandamus or otherwise."
> 
> Bastards.
> 
> -Declan
>

Greg Kucharo <sophi@best.com> writes:
>I fail to see how the Executive can simply avoid the authority and
>oversight of the Judicial. Are there other circumstances of this? From
>my constitutional reading the Judiciary has the right to review any law
>passed by Congress.  The Executive only has the power to enforce, not to
>unilaterally pass rules unrelated to enforcement.

The executive branch cannot, but the legislative branch has the power to
restrict the jurisdiction of the courts in any way it wants to except
for cases in which the Supreme Court is given original jurisdiction (a
limited number of situations)  Ironically enough, Marshall's decision in
Marbury v. Madison was that the Judicial Act of 1789 which outlined the
jurisdiction of the court system was unconsitutional.  It is Congress
which gives the courts their jurisdiction, only the Supreme Court is given
original jurisdiction in the Constitution itself (interesting side note: The
case New York v. New Jersey regarding the ownership of Ellis island, I think,
was the first case of original jurisdction to be argued in the current
supreme court building if that tell you how often such cases come up...)

jim