Actually it is a reflection of the law. The US government had the authority to prohibit export of crypto (at the time), but did not have the authority to limit it domestically.
If they had been given that authority things may have been different.
I always thought that the clipper chip died in the court of public opinion and not in a court of law. However, I do not understand your interpretation of circular reasoning.
Lets look at the case where X is regulate the sale of switchblades. The federal government has the authority to regulate the sale (commerce) of switchblade knives between states, the federal government does not have the authority to regulate the sale of a switchblade within a state.
> The federal government has the authority to regulate the sale (commerce) of switchblade knives between states, the federal government does not have the authority to regulate the sale of a switchblade within a state.
Let's look at the case of guns. Do you really think that Montana could say "you can sell Montana-made machineguns in Montan without satisfying federal law"? (The feds don't much care about switchblades. They care about guns.)
Well the feds did care about switchblades, that is why they passed a law banning the interstate sale of switchblades, "the Switchblade Knife Act, (Pub.L. 85-623, 72 Stat. 562, enacted on August 12, 1958, and codified in 15 U.S.C. §§ 1241–1245), prohibits the manufacture, importation, distribution, transportation, and sale of switchblade knives in commercial transactions substantially affecting interstate commerce[56] between any state."[1] Evidence for a continued interest in switchblades can be found in the recent exemption carved out for assisted opening knives in 5 USC § 1244.[2] (I think the exemptions in 1244 were passed within the last 5 years as part of a Homeland Security appropriations bill, but I'm fuzzy on the exact date.)
Wickard was 70 years ago, interstate commerce doctrine has evolved a lot in the intervening years. In fact I'm a little surprised that you used it as an example. It has been a while since ConLaw I, but I think Wickard is often used as an example of the height of the broad interpretation of the commerce clause. Are you arguing that there is no limit on the power of the the commerce clause? Or that Wickard is the controlling case? Lopez is one of many cases since Wickard where the Supremes walked back such a broad interpretation of the commerce clause.
> Wickard was 70 years ago, interstate commerce doctrine has evolved a lot in the intervening years.
The Supremes haven't overturned Wickard.
Yes, they did decide that the first version of the Gun Free School Zones Act didn't have a commerce nexus, but they seem quite content with the current version, which affects only those guns that have gone interstate.
However, the relevant question is whether the Supremes have ever decided that something sold can be exempt from the federal power to regulate interstate commerce.
Take machine guns. A Montana statute that allows unrestricted sale of machine guns made in Montana clearly affects "commerce" (in Montana at the very least) of guns not made in Montana, aka "interstate guns".
Do you really think that the Supremes would reject that argument? On what basis?
And, if they accept that argument wrt guns, why wouldn't they accept it wrt cantalope?
"Today...they simply pass a law that puts you in jail for its sale"
Today? They have always done that. Which is why the USC reads as follows:
"Whoever knowingly introduces, or manufactures for introduction, into interstate commerce, or transports or distributes in interstate commerce, any switchblade knife, shall be fined not more than $2,000 or imprisoned not more than five years, or both."
It is not circular. Interest and authority are two very different things. For example, the Federal government has the authority to wage war -- this has no bearing on a discussion as to whether they are philosophically correct in doing so.
The suggestion that policy is justified merely because it subsists upon formal authority is nonsense.
The point is that the government may not have the authority to do X or to create a law to do X. They may have the ability, but the supreme court decides if the authority exists.
The United States Constitution is the highest law, and provides for different treatment of foreign and domestic matters, so your statement is obviously false even under the most broad interpretation of "the government".
The President/Executive (closest to what many other countries would consider "the government") is also limited in most matters by the laws passed by Congress, so even assuming domestic regulation of cryptography were Constitutional (and I don't personally believe it would be), if Congress has not passed a law giving the Executive the authority to regulate it, the Executive cannot do so.
If they had been given that authority things may have been different.