[mythtv-users] Broadcast flag thrown out

[Neil Rubin]

I don't read this as a nondelegation case. The nondelegation doctrine holds 
that Congress may not constitutionally delegate the legislative power to 
another branch, e.g., the executive branch in the form of the FCC. It would 
be an application of nondelegation if the D.C. Circuit had held that 
Congress could not constitutionally grant FCC the power to mandate the 
broadcast flag. Here, the D.C. Circuit merely held that Congress did not 
intend to grant the FCC such power. Put another way, nondelegation is a 
constitutional law doctrine, but this case was decided on statutory 
interpretation grounds.

According to my Con. Law casebook, you are right that the Supreme Court only 
invalidated legislation on nondelegation grounds during the Lochner
era, in Schechter
Poultry (1935) and Panama Ref. Co. (1935).

Neil

On 5/6/05, Gabe Rubin <gaberubin at gmail.com> wrote:
> This case was decided on a doctrine that had been considered dead
> until a few years ago, non-delegation. This same court had a similar
> analysis a few years in a case involving environmental regulations
> that the EPA promulgated (it is actually pretty funny when you think
> about it that most of the same constituencies that abhored that
> decision, will likely applaud this one). The Supreme Court reversed
> the DC Circuit on that, holding that the EPA had acted properly within
> their authority. But I suspect that with the language of the Eldred
> decision, and potentially what happens with the Grokster case that the
> Supreme Court may decide that IP law is best left up to Congress and
> not agency rulemaking. It will be real interesting if the Supreme
> Court upholds a non-delegation decision, and would, I believe, be the
> first time they did so since the Lochner era cases (1920s).
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