Discussion in 'Amateur Radio News' started by KK5JY, Jan 17, 2017.
So what you are saying is that FCC has already made the case against the Constitutionality of ARPA?
Yes - I think it could be argued by an association that any rule promulgated by the FCC would be "arbitrary and capricious" under the meaning of the Administrative Procedure Act, because the underlying reasoning for the rule conflicts with the opinion of 2 expert agencies, including the expert agency responsible for promulgating the rule.
Moreover, the bill could also be unconstitutional under the the 14th Amendment, because it's not tied to a "real and substantial" relation to public safety and it could be unconstitutional under the 5th Amendment, because preempting private agreements qualifies as a "taking" of property value, without just recompense, which is also a no-go in the 5th's "takings clause."
I studied law and I could sit for the bar, but I have a full pension as retired detective for 20 years, I make more $$ as a broker/realtor, so why bother?
Anyway, just an opinion, but that's the basis for a suit opposing the rule in the DC Court of Appeals -- assuming Arp! Arp! ever passes.
What I am expecting to see is that it will be a group of hams who get together and make that argument to a court, because ARPA enabled their CA to restrict their antennas in a way that isn't in their CC&R, so they have to sue to get un-screwed from the new rule. We'll see.
The rule in Chevron only prevents Courts from overruling Agency Determinations, Congress can still pass law which countermines the agency ruling. Chevron just keeps the court at bay.
Perhaps, but in that case, the thing to do would be to argue in federal court that the enabling legislation was unconstitutional (an argument that would propagate to the rule enabled by the bill). Then Chevron [wikipedia.org] doesn't apply anymore, and the plaintiff gets the same relief, and in a possibly more permanent form.
You're both right. Chevron and the A.P.A. would apply where any party challenged the rule because of contradictory and/or ambiguous conclusions. The A.P.A. voids any rule that's arbitrary and capricious, while the Constitution voids laws that are facially invalid due to precedential constitutional prohibitions.
This is what Bill Nelson was talking about when he mentioned "endless litigation" -- and another part of the 5th Amendment that could invalidate the law and the rule, is the "void for vagueness" doctrine, where specific language is required so that people of average intelligence can understand what is allowed or prohibited, e.g. "effective" and "reasonable." Legally, what do those terms mean?
Void for Vagueness Doctrine - Part of the due process clause of the 5th Amendment.
Health Care Law (unconstitutional violation of commerce clause):
"I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the act with the individual mandate... The principal dispute has been about how Congress chose to exercise that power here." Vinson wrote.
Trans Bathrooms Law: (invalid under the Administrative Procedure Act):
"The court in this case went further and concluded that the guidance documents are also invalid because they contradict the relevant statutory and regulatory text in Title IX and the DOE’s implementing regulations. I am not sure the court needed to reach this question once it concluded that the guidance documents were invalid under the Administrative Procedure Act. I am also not sure that the court was correct to conclude that either the statute or the relevant regulations were 'unambiguous.' "
We could send him back into space on a one-way Elon Musk rocket ship.
Nelson needs to be voted out. His interests are always counter productive to Florida. He only likes to "get in the news" to seem popular. His non support of this bill was just plain stupid.
I guess that depends which side of the debate one happens to be on.