Judge James Orenstein Has Something to Say

In a case in New York -- over a month before the San Bernardino (CA) shooting—the government was testing the same statute and same logic that it is now using to try to get Apple to write a backdoor for the San Bernardino shooter’s iPhone.This would be a good time, federal law enforcement figured, to test the limits of the the All Writs Act of 1789. But in the New York case, by sheer bad luck, the Department of Justice ended up in front of Magistrate Judge James Orenstein.

Magistrate Judge James Orenstein wrote in his opinion that whatever the Founders thought, it couldn’t possibly be what the government was advocating in the New York case, where they took a position more or less the same as the one they’re taking in the San Bernardino case. Judge Orenstein concluded that the government’s reading of the 1789 statute would call into the question the constitutionality of the All Writs Act itself, an outcome “so doubtful as to render [the government’s interpretation] impermissible as a matter of statutory construction.” The All Writs Act is “a limited gap-filling statute,” not “a mechanism for upending the separation of powers.” Judge Orenstein not only suggested that the government’s position would “trample” on the Constitution, he also said that it “thoroughly undermines… the more general protection against tyranny” provided by the separation of powers. But the magistrate judge wasn’t yet done with his attack. He scathingly added that the government had come seeking an All Writs Act order exactly because they knew they wouldn’t be able to pass the right legislation in Congress.