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- Newsgroups: misc.legal
- Path: sparky!uunet!charon.amdahl.com!pacbell.com!ames!agate!usenet.ins.cwru.edu!gatech!news.ans.net!cmcl2!panix!eck
- From: eck@panix.com (Mark Eckenwiler)
- Subject: Re: executive orders
- Message-ID: <C1DGp5.764@panix.com>
- Organization: Superseding Information, Inc.
- References: <1993Jan24.060929.11298@athena.mit.edu> <1993Jan24.132802.25874@athena.mit.edu>
- Distribution: usa
- Date: Sun, 24 Jan 1993 18:58:16 GMT
- Lines: 36
-
- In <1993Jan24.132802.25874@athena.mit.edu>, wdstarr@athena.mit.edu sez:
- >
- >In article <1993Jan24.060929.11298@athena.mit.edu>,
- >jfc@athena.mit.edu (John F Carr) said:
- >
- >> 2. reversal of ban on abortion counseling at federally funded clinics
- >>
- >> I thought this was a law, not a regulation? Or is there a law that
- >> authorizes but does not require such restrictions? I know Congress
- >> tried to reverse the ban but failed.
- >
- >I dunno.
-
- Ted Frank has already given the correct answer. To summarize, the
- statute empowers HHS to promulgate regulations to carry out the spirit
- of the Act. What the Supreme Court did in Rust v. Sullivan was
- declare that a) the "gag rule" regs were not violative of Congessional
- intent and b) that the regs did not infringe the First Amendment.
- Conclusion (a) is merely permissive, however: it doesn't mean that the
- gag rule is compulsory, but rather only that it's a legitimate
- exercise of the authority delegated. Thus, the HHS Sec'y (or his/her
- boss) is free to rescind such regs at will.
-
- Note that there would be a complication if Clinton/HHS wanted to
- replace the regs with new ones. Under the APA (Administrative
- Procedures Act), a period for public comment must precede any
- rulemaking. The reason that the gag rule regs were never fully
- enforced, even after _Rust_, is that HHS conveniently neglected to
- abide by this APA provision.
-
-
- --
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-
- Mark Eckenwiler eck@panix.com ...!cmcl2!panix!eck
-