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Old 07-19-2011, 10:01   #15
FearTheBoomAndBust's Avatar
Join Date: Jul 2010
Location: West Palm Beach County & DC
Posts: 79
Yes, but then we get to the question of why it was necessary to give any agency the authority to interpret the US Code. Congress has legislative authority. Can they not simply draft provisions to tell the reader what a statute means?
The reason Congress gave the authority to write interpretations in the Code of Federal Regulations is because Congress was aware of the fact that if they tried to do it, nothing would get done, much in the way the debt ceiling talks are stalled now.

So Congress delegated the responsibility because there is the backstop of the courts to decide what is a reasonable interpretation.

One Amendment refers to reasonableness. The other does not.
All amendments refer to reasonableness at their root. Lets take the First Amendment, your freedom of speech is only protected as long as it does not present a clear and present danger; that is the courts found it reasonable to limit dangerous speech.

Ever since Marbury vs. Madison there has been Judicial Review in the United States, that means that all amendments can be limited to reasonable actions.

I'm sorry if I misinterpreted what you were trying to say.

In the organizational plan that you have laid out above, I contend that a new interpretation of the law, as issued by the agency charged with the duty to enforce it, is created solely through the executive branch. Congress has delegated the authority to interpret the law. As far as I know, it is not involved in the interpretation of that law after that point. The judiciary will not come into play until a challenge is mounted. It could be months, or even years, before the judicary gets involved.
Thats a very very reasonable point and I can see your reasoning behind that position. My contention would be that with the way the US judicial system is set up as soon as the law is tried to be used it will be challenged, maybe not to SCOTUS levels but easily up to the appellate level. I am however not a legal scholar, but that is what US Attorneys have told me, as well as what I have been told. As for Congress delegating the authority and that excluding them, I agree I will concede that one to you. However for something major to happen, they (Congress) will have to act. Also at any extent the Judiciary is still involved, for actually 2 reasons:
A) The BATFE, DEA, USSS, FBI, IRS CID, or EPA doesn't want a provision of the CFR to be overturned on Judicial Review, so the Judiciary is often consulted in the writing of the provisions.
B) The Judiciary still holds Judicial Review so the regulations are constantly subject to review from a second branch.

I hope that has clarified my position, i also am thoroughly enjoying this debate due to its logic and civility.
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