Friday, February 19, 2016

OK, what is the blog saying about All Writs?

AEI: And second, contrary to the concerns expressed by some, the All Writs Act is not a grant of unbridled judicial authority. An order issued under the Act needs to be necessary to fulfilling some other action within the court’s authority and written to appropriately fulfill that objective without unduly burdening other parties. It is generally used when needed “to effectuate and prevent the frustration of orders [that a court] it has previously issued,” or to fill in “gaps” in the law that “threaten to thwart the otherwise proper exercise of federal courts’ jurisdiction.”
Easy to prove wrong.  What are the restriction on eminent domain seizure, for example, Findlaw says:

It should be borne in mind that while the power of eminent domain, though it is inherent in organized governments, may only be exercised through legislation or through legislative delegation, usually to another governmental body, the power may be delegated as well to private corporations, such as public utilities, railroad and bridge companies, when they are promoting a valid public purpose. Such delegation has long been approved.

So, seizure of property must be accompanied  by a specific law. But the judge's writ to comply, to a third party, has no such restriction   That is impossible, since Congress must pass a law for eminent domain, then Congress cannot assign the right of arbitrary seizure  to a judge.  Congress cannot delegate a power it does not have.

In the case of the Apple writ, Congress has had ample opportunity to write law that allows seizure of software in situations involving legal eavesdropping.  Congress never made such law, and seizure is disallowed.  A clear thinking court would reconcile this contradiction.

No comments: