Academic journal article Harvard Journal of Law & Public Policy

The Dynamic Incorporation of Foreign Law and the Constitutional Regulation of Federal Lawmaking

Academic journal article Harvard Journal of Law & Public Policy

The Dynamic Incorporation of Foreign Law and the Constitutional Regulation of Federal Lawmaking

Article excerpt

INTRODUCTION   I. THE LACEY ACT AND THE INCORPORATION      OF FOREIGN LAW  II. THE FEDERAL LAWMAKING PROCESS      A. The Vesting of Legislative Authority in         Congress: The Article I Bicameralism         and Presentment Clauses      B. The Delegation of Legislative Authority         to the Executive Branch: The Article II         Appointments Clause         1. "Static" vs. "Dynamic" Delegation         2. Delegating Federal Lawmaking            Authority to Federal Agencies            a. The Conventional Theory            b. Two Unconventional Theories            c. The Common Denominator         3. Delegating Federal Lawmaking            Authority to State Officers III. THE CONSTITUTIONAL ISSUES RAISED      BY THE LACEY ACT'S DELEGATION OF      FEDERAL LAWMAKING AUTHORITY      A. Article I Problems With the Lacey Act         1. The "Intelligible Principle"            Requirement            a. Laws Imposing Criminal Liability               Must Be Readily Available to the               Public            b. Laws Imposing Criminal Liability               Must Be Written in English            c. Laws Imposing Criminal Liability               Must Be Readily Understandable               by the Average Person            d. Laws Imposing Criminal Liability               Must Be Fixed and Precise         2. The "Private Nondelegation Doctrine"            a. The Supreme Court's Early Private               Nondelegation Doctrine Decisions:               Eubank, Thomas Cusack, Roberge,               Schechter Poultry, and Carter Coal            b. The Supreme Court's Later Private               Nondelegation Doctrine Decisions:               Currin, Rock Royal Coop., New Motor               Vehicle Board, and Midkiff            c. The Private Nondelegation               Doctrine Today         3. The Role of Due Process as            "the Law of the Land"         4. The Relevance of "the Law of the Land"            to the Lacey Act      B. Article II Problems With the Lacey Act  IV. A POTENTIAL NECESSITY DEFENSE   V. CONCLUSION 

INTRODUCTION

The Constitution of the United States establishes an interrelated system of national and state governments, each with its own separate authority that partially complements and partially overlaps the powers lodged in the other. The Constitution assumes that states have their own independent legal sovereignty drawn from their own constitutions and possess a general "police power" denied to the federal government. (1) The Constitution creates the national government and grants it exclusive authority to regulate some areas of responsibility, such as foreign affairs. (2) In cases of a conflict between state and federal law, the default rule is that the latter will supplant the former. (3) The result is that the Framers left the states and their regulatory authority in place except insofar as necessary to enable the new federal government to protect and regulate the nation as a whole and to prevent the type of destructive interstate economic warfare that had characterized government under the Articles of Confederation. (4) Yet, rather than always act as competitors, the federal and state governments have entered into a variety of cooperative endeavors, such as the different national social insurance programs that have existed since the New Deal. (5)

"The great innovation of this design was that 'our citizens would have two political capacities, one state and one federal, each protected from incursion by the other'--'a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.'" (6)

Foreign governments play no role in that scheme. Just as no state grants another the right to intervene in its domestic politics, nations do not cede sovereignty to each other. The prospect that the United States would grant a foreign government the legal authority to govern the people of this nation is absurd. …

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