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Old 07-19-2011, 10:28   #18
Spats McGee
Senior Member
Join Date: Oct 2010
Location: Arkansas
Posts: 452
Originally Posted by FearTheBoomAndBust View Post
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.
Which leads us right back to the question of why that was necessary. Congress did delegate that authority, and I understand that. I would suggest that there are many folks in this country who would say that Congress surrendered its authority, rather than simply delegating it. That, however, is the subject of a different debate.

Originally Posted by FearTheBoomAndBust View Post
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.
True, but how many other Amendments have a federal agency dedicated to their regulation? Under the First Amendment, the presumption is that I'm entitled to speak, with no proof of such entitlement. If I want to buy from an FFL, though, I have to prove my entitlement to exercise that right, before such exercise takes place.

Originally Posted by FearTheBoomAndBust View Post
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.
You did not misinterpret it, and you are correct about judicial review and Marbury v. Madison. (A brilliant decision in the context in which it was made, IMO.)

However, there's one point that I was trying to make that you may have missed: Separation of Powers. Congress, a Legislative body, delegated Legislative authority to an Executive body . . . That's the point I was trying to get to. It's not only a bad idea, but may well be a violation of the Separation of Powers.

Originally Posted by FearTheBoomAndBust View Post
. . . . 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.
Perhaps, but . . . Government agencies may not want a provision of the CFR overturned, but I would submit that their objection is more practical than anything else. Having CFR provisions, or statutes, overturned is just an administrative headache more than anything else.

Perhaps more importantly, has there been any government, anywhere in history, that was not interested in expanding its power?

Last edited by Spats McGee; 07-20-2011 at 09:22.. Reason: Grammar correction
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