Perhaps looking at this from a different angle will help. Why not view this from practical effect.

Simon cites Hamden above noting something of a parallel here and there. And what is this parallel that Mass and Hamden have in common, again from a practical effect. So here we have Hamden addressing an act that, in the slice of a knife, denies access to the courts for a particular group, regardless of their current status within the court system. Mass, although regulatory based and not the subject on legislation, has a similar “freezing” effect as the EPA instead of deciding on the merits, merely refuses to act, either way. Hamden reduces the courts to a reading and dismissal function. Mass/EPA dismisses by non-action.

From a practical and business perspective the effect created by the EPA is the same as a court that claims no jurisdiction by result of legislative fiat. So what is the “average joe” to do? Where does he seek redress..be he a “state” or a detainee? It has been opined on various blogs that the remedy in Mass v. EPA was the election of a new President who would thus effect a change of course at the EPA. Certainly a new legislative branch would or could pass repeal legislation and rid us of the Detainee Treatment Act. But that route rids the courts of any co-equal role and the commonality between Hamden and Mass is purely that. The role of the Court.

By an executive direction (so it appears) the EPA simply refused to consider an issue. It is, however, the only regulatory agency with standing to consider the issue and in refussing it is much like a court that is stripped of its powers to consider or be involved by legislation, again directed by the Executive.

What the court dealt with in Mass is standing AND responsibilty..that the Court looked at the executive and legislative and said you have formed an unholy alliance that strips both us and the regulatory agencies – both charged with recourse for a particular or very broad group of addressees, of our ability to function in our normal way.

If you look at it that way, these two decisions are perfectly reasonable reactions to overreach..and as the law basis has to be strained a bit to justify the decisions (hence the dissent in Mass v. EPA), it demonstrates that a certain collection of justices look at an issue before them and say “this is crazy….” and find a way.

Actually I think it is refreshing that we average Joe Citizens can get something in there and get some action.

-Harold D. House