By: Clif Burns

Clif Burns — Wed, 31 Mar 2010 15:04:29 +0000

@hillbilly. I agree with your analysis on the limitations of DDTC’s ability to avoid the APA. I really meant to say that DDTC claims the authority rather than actually has it. In that light, it would have been nice if they had claimed that authority here; certainly it would be much preferable for them to have used that here then in other instances in which they’ve declared rules to be final without public comment.

By: Hillbilly

Hillbilly — Wed, 31 Mar 2010 14:59:43 +0000

Clif: With respect and affection, while I agree with the conclusion of your post, contrary to the false and fraudulent statement ITAR 128.1, DDTC does NOT have “the right to adopt rules and make them effective immediately as final rules”. With the possible and limited exception of additions and deletions to the USML, DDTC rulemaking is just as much subject to the Administrative Procedures Act as any other regulatory agency. Its activities do not fall within the “foreign affairs function” exclusion in the APA. As the legislative history of the APA compiled by the Senate Judiciary Committee in 1946 clearly states, the foreign affairs function exclusion applies only to diplomatic and other activities involing foreign governments that have no affect on the public. The purpose of the exclusion was to avoid intrusion on functions constitutionally committed to the Executive. DDTC rulemaking clearly affects the public and is a delegation of the power to regulate foreign commerce, a plenary power textually committed to Congress. After US v. Mead, Chevron deference to the Executive branch is limited to those instances where the agency exercising delegated powers follows procedural requirements set forth in the APA or some other statutory scheme. DDTC claim that its power is unfettered by any procedural or due process requirements is one of the greatest usurpations of constitutional power since Lincoln.

Comments on: Pinch Yourself. You’re Not Dreaming

By: Clif Burns

By: Hillbilly