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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?

• nickodell 11y ago
  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.
  • ikeboy 11y ago
    Where in the Writs act or Constitution is an exception made for "dangerous uses"?
    • nickodell 11y ago
      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.
• msbarnett 11y ago
  > 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.