Requirement for Consent

range of Government activities. An important function of the Federal Register is that it includes proposed changes (rules, regulations, standards, etc.) of governmental agencies. Each proposed change published carries an invitation for any citizen or group to participate in the consideration of the proposed regulation through the submission of written data, views, or arguments, and sometimes by oral presentations. Such regulations and rules as finally approved appear therefore in the Code of Federal Regulations.”

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[ Black’s Law Dictionary, Fifth Edition, p. 551]

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The above description explains that the Federal Register also serves as the means by which notice is given to the general 7 public that laws by Congress can and will be enforced by rules and regulations that may adversely affect their rights. “Due 8 notice” to all of the affected parties is considered an essential and fundamental element of Constitutional “due process”. 9 Here is how the U.S. Supreme Court describes it: 10

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested [and affected] parties of the

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pendency of the action and afford them an opportunity to present their objections.” [Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)]

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These regulations are then subsequently published in the Code of Regulations (hereafter C.F.R.) after they are published in 15 the Federal Register. The C.F.R. then becomes the means by which Federal Government employees are informed of the 16 limits of their conduct when implementing the laws they are authorized and required to enforce under the authority of the 17 Constitution. The public record built during the public review process then becomes the means by which the courts enforce 18 the regulations against the public, because it helps establish legislative intent of both the agency and the public. 19 44 U.S.C. §1505(a) (which is positive law) requires that every document or order which has “general applicability and legal 20 effect” to all persons must be printed in the Federal Register. In other words, if the statute and the regulations that 21 implement it haven’t been published in the Federal Register, then the statute is unenforceable against the general public. 22 This means that all positive laws, including both the statutes and the regulations that implement them, must appear in the 23 Federal Register before one can reasonably conclude that the general public has been properly placed on notice about a law 24 according to which they must control their conduct. 25

TITLE 44 > CHAPTER 15 > Sec. 1505.

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Sec. 1505. - Documents to be published in Federal Register

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(a) Proclamations and Executive Orders; Documents Having General Applicability and Legal Effect;

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Documents Required To Be Published by Congress.

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There shall be published in the Federal Register -

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(1) Presidential proclamations and Executive orders, except those not having general applicability and legal effect or effective only against Federal agencies or persons in their capacity as officers, agents, or employees

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thereof;

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(2) documents or classes of documents that the President may determine from time to time have general

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applicability and legal effect; and

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(3) documents or classes of documents that may be required so to be published by Act of Congress.

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For the purposes of this chapter every document or order which prescribes a penalty has general

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applicability and legal effect.

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If a positive law statute was passed by the Legislative branch for which no agency in the Executive Branch ever claimed 39 responsibility and for which no implementing regulations were ever published in the Federal Register, that statute would be 40 a “dead law” that effectively is unenforceable against anything but federal employees, the military, and federal benefit 41 recipients. Note that paragraph (a)(1) in the above statute says no implementing regulations are required in the context of 42 federal officers, agents, or employees. 43

"... the Act's civil and criminal penalties attach only upon violation of the regulation promulgated by the Secretary; if the Secretary were to do nothing, the Act itself would impose no penalties on anyone ...The Government urges that since only those who violate these regulations [not the Code] may incur civil or criminal penalties, it is the actual regulations issued by the Secretary of the Treasury, and not the broad authorizing language of the statute, which are to be tested against the standards of the Fourth Amendment; and

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that when so tested they are valid."

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[Calif. Bankers Assoc. v. Shultz, 416 U.S. 21, 44, 39 L.Ed.2d. 812, 94 S.Ct. 1494]

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Requirement for Consent

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Copyright Sovereignty Education and Defense Ministry, http://sedm.org Form 05.003, Rev. 7-23-2013

EXHIBIT:________