Professor Grossi is guest posting on The Huffington Post, where this originally appeared.
As I explained in my posting of March 14, the Government’s request for a decryption order addressed to Apple invoked the All Writs Act. That Act provides: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §1651. This text was designed to vest federal courts with the full range of remedial judicial authority one would expect a court to possess. That authority is an authority to enforce the rule of law within appropriate filed cases, not an independent authority to create new law. Hence, in a properly presented case, a federal court may issue a writ of mandate to require a party to comply with the applicable legal standard. But if there is no law to enforce, if there is no applicable legal standard, the All Writs Act does not vest a federal court with the authority to create one.
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