11th Circuit to Judge Gold: Know Your Place.

The question of whether Judge Gold has the power to summon EPA Administrator Lisa Jackson to a Miami courtroom to talk about the lamentable state of Everglades restoration presents an interesting conflict for the folks in Atlanta.

On the one hand, the 11th is typically very deferential towards government power (and the Executive Branch in particular).

On the other hand, the 11th is also very protective of its own power, and by extension that of the district courts they oversee.

But in a split decision, Executive trumps Judicial nanny nanny boo boo:
The Agency argues that compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers and, absent exigent circumstances, the judicial branch must respect the discretion of the executive branch to designate which high-ranking official should represent the Agency in a judicial proceeding. The record establishes no special need for compelling the appearance of the Administrator; the Assistant Administrator is an adequate substitute. Because the district court abused its discretion by compelling the appearance of the Administrator, and there is no other adequate remedy available, we GRANT the petition for a writ of mandamus and direct the district court to allow the substitution
I'm having trouble with the first sentence --  "compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers....."

I think it certainly can encroach on the separation of powers, but does it always do so by definition?

Judge Martin's dissent hits the issue head on, which is that clearly the separation of powers is implicated (not encroached) but the order is appropriate given the history of the EPA's contumacious conduct toward the Court and the public -- which the majority refuses to acknowledge set the backdrop for Judge Gold's command:
[T]he EPA has unequivocally and repeatedly flouted and otherwise refused to comply with the court’s previously entered Summary Judgment order. As the April Order explained, on July 29, 2008, the district court issued a 101-page Order holding the EPA in violation of the Clean Water Act and prescribing directives to remedy those violations. Yet extraordinarily, over one year later the EPA had still not acted, and ultimately did not act until November 4, 2009, after the plaintiffs filed a motion for contempt. Furthermore, as the district court took great pains to explain, the substance of the EPA’s 2009 Determination flatly contravened the 2008 Summary Judgment Order. In the face of this inaction, the court warned that nothing short of the “effective[] repeal of [a] clearly expressed Congressional mandate” was at stake.
I also think it's a bit of cheap shot for the majority to dismiss concerns over the Everglades by noting that the EPA head also has a bunch of other really important stuff on her plate.

Finally, whatever happened to the mandamus standard of review?  That seems to have gone totally out the window here.

(I admit, I'm a standard of review junkie.)

As usual the barbed, bearded, cranky wondering Jew minstrel put it best:
"But even the president of the United States sometimes must have to stand naked ..."
Judge Gold got this right.


  1. me loves me some seperation of powers marbury v. madison constitutional ish.

  2. another awful opinion

  3. It's one small part of the rise of the executive, SFL. (C.f. "unitary executive".) Jefferson was worried about this 230 years ago.

    There might have been some notion that Obama would slow the process down. But it turns out otherwise.

    It is bad, and it is only going to get to get worse. Lawyers, if anyone, ought to really care about this, especially with the growing acquiescence -- and occasional collaboration -- of the judiciary.

  4. yeah how many of those 11th circuit farts are local people who understand the importance of the everglades. One as I recall, Fay and he is so out to pasture its lame o ville.

  5. no epa exists the treaty of 1794, 1821, 1848 that is supreme over the constitution provides for unmolested and unrestricted use of property


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