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>A reasonable court would have directed the EPA to correct its process and given it a reasonable deadline, but left the ban in place Since when can the court t

>A reasonable court would have directed the EPA to correct its process and given it a reasonable deadline, but left the ban in place Since when can the court tell the executive or legislative branches what to do beyond "you must do this according to the law" and "you may not do this according to the law?" I have seen judges say in their opinion eg. for legislative issues things like "had congress written x law like this it would be constitutional" Which is clearly meant to help legislators. But I don't think the court can say "there is no law allowing the government to do this, but since that is what you meant/that is what is good we will allow it."

rincebrain 3y ago
Judges have a _lot_ of leeway. They don't usually do it, but the scope of what they _can_ do has historically been broad. Transiently keeping a ban seems pretty plausible as a possible outcome, to me. (I'm not trying to comment on whether the judge should or shouldn't have done that, just that there's a lot of historical precedent of judges going "shut up and do X". Consider the case of a slumlord being ordered to live in his own slum [1], or the woman who was told to write a report on the Book of Job as part of her sentence[2]. To say nothing of the history of the Fifth Circuit issuing rulings so extreme _this_ Supreme Court has sometimes stepped in to order emergency "nvm ignore that" interim orders muting the effects of their rulings before formally ruling on them.) [1] - https://www.csmonitor.com/USA/Justice/2013/0109/10-weird-criminal-sentences/Slumlord-ordered-to-live-in-his-own-building https://www.csmonitor.com/USA/Justice/2013/0109/10-weird-cri... [2] - https://www.postandcourier.com/features/faith_and_values/york-county-defendant-welcomes-biblical-penance/article_ae1f5f04-2d1f-576e-ade2-3217366d270c.html https://www.postandcourier.com/features/faith_and_values/yor...
- fngjdflmdflg 3y ago
  Were these cases about what the law says or what the repercussions are for breaking them? I don't think there is much leeway in terms of the former. Technically a judge can acknowledge that a law is unconstitutional without ordering the law not be enforced, but to my understanding it is still not enforceable even in that case. In any event I think you should read the actual opinion here because you seem to be making out the court as something it really isn't, at least in this case. In terms of the examples you provided here, I was initially surprised because the first example sounds like unusual punishment which is unconstitutional. After looking into the first case, this was not a federal court but more importantly it seems you have the facts incorrect. I can't find the documents from the actual ruling but you can see from the response of the judge to appeal of the ruling that what really happened was the landlord was put on house arrest. It seems that he did not live in Cleveland which caused him to have to live in one of his apartments.[0] And the house arrest itself was is response to a failure to comply with the terms of his probation. My guess is that he registered that apartment as a second home or something like that in order to get some benefit (I'm just guessing here) and so it wasn't just "one of his apartments." I really suggest you actually read some of these court decisions before making such broad statements about the court system. I also think it is interesting that you think the example you gave as you understood it was not extreme but that the Fifth Circuit is. [0] http://realneo.us/system/files/HousingJury20100723135802-1.pdf http://realneo.us/system/files/HousingJury20100723135802-1.p...
- rayiner 3y ago
  But that’s wrong. It comes from a tradition where judges were “dispensing the king’s justice” in an undemocratic society. We are more civilized now.
ajross 3y ago
> But I don't think the court can say "there is no law allowing the government to do this, but since that is what you meant/that is what is good we will allow it." The court literally conceded that the EPA has the authority to regulate this material! (See section IV at the end of the decision: "We hasten to add that our ruling to this effect does not render the EPA powerless to regulate Inhance’s fluorination process. The agency can properly proceed [...]") That's what's so infuriating here. The court recognizes that the EPA did something within its regulatory purview and for public health reasons that the court doesn't dispute. And it undid it anyway, quite literally "endangering public health" in a legal sense, all because of a technicality that even the court recognizes isn't material. Again, there are plenty of reasonable ways to address the procedural fuckup without stepping in and stopping the EPA from doing what the EPA is designed to do.
- fngjdflmdflg 3y ago
  Nobody is arguing whether or not EPA has the authority to regualte the process in general. When I say, "there is no law allowing the government to do this," "this" is referring to regulating the process without conducting the appropriate cost-benefit analysis required for ongoing uses. >stepping in and stopping the EPA from doing what the EPA is designed to do. The EPA was designed to follow the Toxic Substances Control Act (among other laws).
  - ajross 3y ago
    That's doing nothing but recapitulating the partisan nitpickery in the decision. My point was that the court had copious ways to enforce the technicalities under the law without maximally (!) interfering with the operation of the regulatory agency. They chose not to, not because of any genuine concern for the law but because they wanted to dick with the EPA for partisan reasons.
    - fngjdflmdflg 3y ago
      I'm not sure how following the law is partisan. Also your claim that the intent/spirit of the law is to not have the EPA perform a cost-benefit analysis before regulating these processes is wrong in any event. There is no way to claim that something explicitly written in the law is against its own spirit. I'm not familiar with European law but I bet even they would not accept that claim. If we could really decide all environmental laws based only on if they meet the goal of "regulating harmful materials for the benefit of public health and the environment" then congress would have just written that one line and be done with it. Instead they wrote that a cost-benefit analysis must be performed. That is the intent of the law because that is what it says. That is, if we can remove any statute based on some unwritten goal of what the statute should achieve, even if it is explicitly contradictory, then there is no point of the law at all.

rincebrain 3y ago

Judges have a _lot_ of leeway. They don't usually do it, but the scope of what they _can_ do has historically been broad. Transiently keeping a ban seems pretty plausible as a possible outcome, to me. (I'm not trying to comment on whether the judge should or shouldn't have done that, just that there's a lot of historical precedent of judges going "shut up and do X". Consider the case of a slumlord being ordered to live in his own slum [1], or the woman who was told to write a report on the Book of Job as part of her sentence[2]. To say nothing of the history of the Fifth Circuit issuing rulings so extreme _this_ Supreme Court has sometimes stepped in to order emergency "nvm ignore that" interim orders muting the effects of their rulings before formally ruling on them.) [1] - https://www.csmonitor.com/USA/Justice/2013/0109/10-weird-criminal-sentences/Slumlord-ordered-to-live-in-his-own-building https://www.csmonitor.com/USA/Justice/2013/0109/10-weird-cri... [2] - https://www.postandcourier.com/features/faith_and_values/york-county-defendant-welcomes-biblical-penance/article_ae1f5f04-2d1f-576e-ade2-3217366d270c.html https://www.postandcourier.com/features/faith_and_values/yor...

fngjdflmdflg 3y ago
Were these cases about what the law says or what the repercussions are for breaking them? I don't think there is much leeway in terms of the former. Technically a judge can acknowledge that a law is unconstitutional without ordering the law not be enforced, but to my understanding it is still not enforceable even in that case. In any event I think you should read the actual opinion here because you seem to be making out the court as something it really isn't, at least in this case. In terms of the examples you provided here, I was initially surprised because the first example sounds like unusual punishment which is unconstitutional. After looking into the first case, this was not a federal court but more importantly it seems you have the facts incorrect. I can't find the documents from the actual ruling but you can see from the response of the judge to appeal of the ruling that what really happened was the landlord was put on house arrest. It seems that he did not live in Cleveland which caused him to have to live in one of his apartments.[0] And the house arrest itself was is response to a failure to comply with the terms of his probation. My guess is that he registered that apartment as a second home or something like that in order to get some benefit (I'm just guessing here) and so it wasn't just "one of his apartments." I really suggest you actually read some of these court decisions before making such broad statements about the court system. I also think it is interesting that you think the example you gave as you understood it was not extreme but that the Fifth Circuit is. [0] http://realneo.us/system/files/HousingJury20100723135802-1.pdf http://realneo.us/system/files/HousingJury20100723135802-1.p...
rayiner 3y ago
But that’s wrong. It comes from a tradition where judges were “dispensing the king’s justice” in an undemocratic society. We are more civilized now.

ajross 3y ago

> But I don't think the court can say "there is no law allowing the government to do this, but since that is what you meant/that is what is good we will allow it." The court literally conceded that the EPA has the authority to regulate this material! (See section IV at the end of the decision: "We hasten to add that our ruling to this effect does not render the EPA powerless to regulate Inhance’s fluorination process. The agency can properly proceed [...]") That's what's so infuriating here. The court recognizes that the EPA did something within its regulatory purview and for public health reasons that the court doesn't dispute. And it undid it anyway, quite literally "endangering public health" in a legal sense, all because of a technicality that even the court recognizes isn't material. Again, there are plenty of reasonable ways to address the procedural fuckup without stepping in and stopping the EPA from doing what the EPA is designed to do.

fngjdflmdflg 3y ago
Nobody is arguing whether or not EPA has the authority to regualte the process in general. When I say, "there is no law allowing the government to do this," "this" is referring to regulating the process without conducting the appropriate cost-benefit analysis required for ongoing uses. >stepping in and stopping the EPA from doing what the EPA is designed to do. The EPA was designed to follow the Toxic Substances Control Act (among other laws).
- ajross 3y ago
  That's doing nothing but recapitulating the partisan nitpickery in the decision. My point was that the court had copious ways to enforce the technicalities under the law without maximally (!) interfering with the operation of the regulatory agency. They chose not to, not because of any genuine concern for the law but because they wanted to dick with the EPA for partisan reasons.
  - fngjdflmdflg 3y ago
    I'm not sure how following the law is partisan. Also your claim that the intent/spirit of the law is to not have the EPA perform a cost-benefit analysis before regulating these processes is wrong in any event. There is no way to claim that something explicitly written in the law is against its own spirit. I'm not familiar with European law but I bet even they would not accept that claim. If we could really decide all environmental laws based only on if they meet the goal of "regulating harmful materials for the benefit of public health and the environment" then congress would have just written that one line and be done with it. Instead they wrote that a cost-benefit analysis must be performed. That is the intent of the law because that is what it says. That is, if we can remove any statute based on some unwritten goal of what the statute should achieve, even if it is explicitly contradictory, then there is no point of the law at all.