From: "Peter D. Junger" <junger@pdj2-ra.F-REMOTE.CWRU.Edu>
Date: Sat, 11 Nov 1995 00:47:04 +0800
To: Cypherpunks <cypherpunks@toad.com>
Subject: Re: Exporting software doesn't mean exporting (was: Re: lp ?)
Message-ID: <m0tDvw0-0004JWC@pdj2-ra.F-REMOTE.CWRU.Edu>
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I did say that I would discuss the apparent disagreement between Mr.
Froomkin and myself on the issue of the seperation of powers and the
validity of the ITAR.  But, since I think that we were rather at
cross-purposes and not in any real disagreement--and since the subject
is a fair distance from the core concerns of this list--I will keep
this response short.  

The first place where Mr. Froomkin and I got at cross-purposes was
when I said:

  I would admit that a court might do this in an effort to hold the
  statute constitutional, but a court might also hold the regulations
  unconstitutional because they are overbroad.

And Mr. Froomkin replied:

  Technically, this is holding the regulations ultra vires, not
  unconsitutional; the difference matters.

which, at first, rather confused me, until I realized that in my haste
I had been assuming--since I automatically think of constitutional
challenges to the ITAR in terms of the first amendment--that the
``unconstitutionality'' in question was that of violating the first
amendment and was applying the first amendment doctrine of
``overbreadth'' to a constitutional challenge that might have been
based on some other ground, like ``lack of jurisdiction'', and yet Mr.
Froomkin's response seemed to relate to my separation of powers
argument, which can, of course, be quite properly be called an ``ultra
vires'' argument.

I think that it was my failure to keep the different strands of my
various arguments separate that is responsible for our apparent
disagreement here, and for that I apologize.

But I do think that Mr. Froomkin is wrong in claiming that holding the
regulations ultra vires is not the same as holding them
unconstitutional.  (I agree, however, that if one were to challenge
the regulations in a proceeding in the nature of quo warranto brought
under the Administrative Procedure Act, one would probably not talk
about the regulations being ``unconstitutional''; on the other hand, I
also have my doubts about whether one would use the phrase ``ultra
vires'' in such a proceeding.)  When a defendant in a criminal case
raises the defense that the regulations he is charged with violating
are ``ultra vires'' because Congress did not authorize them, that most
certainly is a constitutional issue, involving the supremacy clause,
the due process clause, the ninth-amendment, and the doctrine of
separation of powers.

But perhaps I still misunderstand what argument of mine--or that I
appeared to make--was the one to which Mr. Froomkin attached the
``ultra vires'' label.  

In any case, I want to thank him for doing so, because it brought home
to me the important fact that it is possible that the ITAR provisions
relating to cryptographic software could be struck down, not because
they violate the first amendment, or would violate it if passed by
congress, and not because the court is trying to dodge the difficult
first amendment issue, but simply because the provisions are not
authorized by any legislation.

In any case, my separation of powers argument appears in Junger, Down
Memory Lane: The Case of the Pentagon Papers, 23 CWRU L. Rev. 3
(1971).

After counting noses in the Pentagon Papers case I concluded that the
the only position that arguably was agreed to by a majority of the
justices in the case was that the injunction that the government
sought was not authorized by Congress, and that therefore the
government was not entitled to the relief that it sought.  And I
suggested that this meant that the court never determined whether
Congress could have passed a valid law authorizing the ``prior
restraint'' in such a case.  And finally I suggested that that was not
a bad way of avoiding a difficult constitutional question under the
first amendment.  (Or at least that is a thumb-nail sketch of how I read
the article now.)

With this explanation, I don't know whether Mr. Froomkin would persist
in his statement that:

  It's too far off topic to pursue any further, but I must take
  exception to the suggestion that we are well served by separation of
  powers intruding into other legal domains.  Bowsher tells us that
  causation principles go out the window in SOP cases.  That alone
  makes it radioactive.

I must admit that I don't know what it is that he is refering to.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
Internet:  junger@pdj2-ra.f-remote.cwru.edu    junger@samsara.law.cwru.edu