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