> AWA allows courts to order anything so long as neither the Constitution nor laws passed by Congress explicitly forbid it.
And that interpretation the judge considers absurd:
"the government's construction of the AWA produces absurd results in application. If, for example the President sent to Congress a bill explicitly authorizing a court to issue the kind of order the government seeks here, and if every single member of the House and Senate were to vote against the enactment of such a law citing the kinds of data security and personal privacy concerns that Apple now embraces, the government would nevertheless describe the order sought here as permissible because Congress had merely rejected the bill – however emphatically, and however clear its reasons for doing so – rather than affirmatively passing legislation to prohibit the executive branch's proposal. Yet in such circumstances, it would be absurd to posit that the authority the government sought was anything other than obnoxious to the law."
And there's the related law in which Congress explicitly didn't oblige the companies: CALEA.
Wouldn't the same argument apply to any time congress delegates authority? I.E. They allow some agency to decree certain things with the force of a law. Whatever that agency decides within the bounds of the constitution is law, even if congress debated that point and didn't expressly permit it.
You're talking about e.g. EPA deciding to regulate a dangerous-but-previously-unregulated chemical. In that case it's reasonable for EPA to declare that it will regulate the chemical. FBI doesn't get to make such declarations with respect to its own investigatory powers.
If Congress debates whether they should ban the chemical and decides not to pass anything, does the EPA still have that right? If yes, what's the difference?
> If Congress debates whether they should ban the chemical and decides not to pass anything, does the EPA still have that right? If yes, what's the difference?
It's a separation of powers thing. The legislative branch has the power to empower a portion of the executive branch (the EPA) to do things like ban chemicals.
What can't happen is the legislative branch empowering another branch to empower other branches. Congress can't pass a law that empowers the judiciary to empower the executive branch. The executive branch has to go to the legislative branch directly. The FBI can't do an end-run around congress declining to extend its powers by going to the judiciary and "finding" those same powers in the AWA.
The argument here is that the FBI's reading of the AWA would mean that the AWA does exactly that, and is therefore unconstitutional.
So, consistent with the idea that a law should always be interpreted in a way that keeps it constitutional and compatible with other laws if at all possible, the FBI's proposed interpretation of the law must be viewed as incorrect.
When establishing the EPA, Congress wrote a law saying "All dangerous chemicals will be banned. The EPA will define what 'dangerous chemicals' means." (Actually, the first iteration of the EPA just gave grants to local organizations to clean up pollution, but I'm ignoring that for the moment.)
'Is this chemical dangerous?' is a specific question with a specific scientific and medical answer. 'Is this a dangerous use of federal power?' is an inherently subjective question. So, that would be one reason why your example doesn't raise the same constitutional concerns as the FBI's request.
Second, being able to ban chemicals is a power that is much more limited than the power to make arbitrary companies do arbitrary things.
Nowhere. However, the Writs act does require that the writ be, "agreeable to the usages and principles of law."
Orenstien's point is spot on. There's no act of Congress that prevents the government from seeking a writ to provide execution drugs.
If we accept the government's argument that Congress must explicitly deny the request, and the argument that burden must be calculated purely based on financial cost, the only factor that would weigh against a writ for execution drugs is the discretionary factor of closeness.
And that interpretation the judge considers absurd:
"the government's construction of the AWA produces absurd results in application. If, for example the President sent to Congress a bill explicitly authorizing a court to issue the kind of order the government seeks here, and if every single member of the House and Senate were to vote against the enactment of such a law citing the kinds of data security and personal privacy concerns that Apple now embraces, the government would nevertheless describe the order sought here as permissible because Congress had merely rejected the bill – however emphatically, and however clear its reasons for doing so – rather than affirmatively passing legislation to prohibit the executive branch's proposal. Yet in such circumstances, it would be absurd to posit that the authority the government sought was anything other than obnoxious to the law."
And there's the related law in which Congress explicitly didn't oblige the companies: CALEA.