Re: Bernstein hearing: The Press Release

[Greg Broiles <gbroiles@netbox.com>]

>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 |
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