Arbitrary and Capricious, Indeed

[marmar]

from truthdig:



Arbitrary and Capricious, Indeed

Posted on Jun 24, 2010
By Ruth Marcus


The confirmation hearings for Supreme Court nominee Elena Kagan are about to get under way—and with them the inevitable denunciations of activist liberal judges substituting their policy preferences for those of elected officials.

Spare me.

If you’re worried about judicial activism, take a look at the Ronald Reagan-appointed federal judge in New Orleans who just lifted the Obama administration’s moratorium on deep-water drilling.

To get to this result, Judge Martin Feldman had to leap over two steep legal hurdles. First, he had to find that the decision to impose a six-month moratorium on such drilling was “arbitrary and capricious.” Second, he had to conclude that allowing the moratorium to remain in place would impose “irreparable harm” on the companies challenging it.

The “arbitrary and capricious” standard is supposed to protect against judicial activism. It means that government agencies are entitled to broad deference if they can show a reasonable basis for their action.

As the Supreme Court has explained, and Feldman quoted in his ruling, “an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” ............(more)

The complete piece is at: http://www.truthdig.com/report/item/arbitrary_and_capricious_indeed_20100624/

[AndyA]

1. If you want to talk about arbitrary and capricious, look no further than the Roberts court.

John Roberts.

Samuel Alito.

Antonin Scalia.

Clarence Thomas.

Corporations are people, they have the right to influence elections.

There's your arbitrary and capricious crowd.

[COLGATE4]

2. Interesting ;point of view, but

legally incorrect. In order to be granted a temporary injunction the plaintiff must show either that the action as arbitrary and capricious and/or that the plaintiff will suffer irreparable damages by the injunction being granted. The first is easy - in Administrative Law, "arbitrary and capricious" translates into "just plain crazy". Any action which is not just plain crazy by an administrative agency will be found to not be arbitrary and capricious. Secondly, the irreparable harm component is pretty easily satisfied - the companies and their employees are losing money every day the can't drill. There is no way they can get this money back as damages, even if they prevail. Therefore, there is a high degree of irreparable harm. Both elements are legally satisfied.

As much as Judge Feldman may legitimately be criticized for having stock in oil and oil-related companies which perhaps may have had some bearing on his disposition of this issue, from a legal standpoint he was right on track.

[Bluenorthwest]

3. But his ethics are of the lowest order, as I see it

Legal does not mean right, can do does not mean should do. Everybody knows that a judge with ties to a case should not preside in that case, legally allowed to do so or not. The law certainly does not require that he sit on the bench for such a case. It allows him to step down, and he did not. It is that simple. He was not compelled to do the right thing, but he was also not compelled to do the wrong thing. For a judge, the wrong thing includes any appearance of a lack of impartiality, because it is most important to keep the people's trust in the bench, not to keep a certain ass on a certain bench.
He was wrong to rule on this case, legally allowed to hear it or not. And the American people will recognize the greater intent, not the picked nit.

[COLGATE4]

4. That's your opinion, and that's fine -

my point was simply that he ruled the way any judge I know would have ruled on this set of facts. His recusing himself would not have changed the outcome. BTW, following the clear, established law in a case is not picking a nit.