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Let's take the current case of the FBI vs Apple. The FBI wants the courts to force Apple to enable the FBI to crack a previously uncrackable password.

What limits are there on any court's power to order Apple (or any private party) to do anything? (Particularly when the private party is not a litigant or a defendant.)

  1. Can a court order a (third) party to do an impossible act? (E.g., crack an uncrackable code).
  2. Can the ordered party be punished for not doing the impossible act they are ordered to do?
  3. What if the act is not provably impossible? (As no act can be proven impossible.)
  4. What if the act is possible but very expensive?

What jurisprudence governs (enables or limits) a court's power in such circumstances?

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    The courts have free reign. It is the basis of Common Law. Appeals courts and higher offices can override some decisions. When the U.K. is forced to leave the E.U. there'll no longer be anything at all to stop the corrupt government from implementing any spy laws that it wishes. Not that much has stopped them now. Democracy - good, isn't it?
    – Ken Sharp
    Feb 26, 2016 at 0:23
  • What's with the parenthetical to #3? It appears to statement #3 itself. (Or was that a little Godelian humor?) Plenty of acts are provably impossible. See the Halting Problem, Pauli's exclusion principle, etc. Or ask a schoolchild: You can't be in two places at once, etc.
    – feetwet
    Feb 26, 2016 at 20:37
  • @feetwet: To say that one can never do x is not empirically provable. Any attempt to do so is theoretical only. There are many famous examples in history of those who have attempted to do such a thing only to be later proven wrong as technology advanced. (e.g., -"Heavier-than-air flying machines are impossible." -- Lord Kelvin, President, Royal Society, 1895. is a typical example). Here are some other examples for your entertainment. Feb 27, 2016 at 3:30
  • I'm still not sure if I am missing some semantic wit here. At the risk of missing the joke ... how about: If X is logically impossible, then it is also "empirically" impossible, and furthermore can be considered "proven" impossible?
    – feetwet
    Feb 27, 2016 at 3:36

2 Answers 2

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Ultimately the answer (in the US) is the US Constitution. The courts pretty much have the unlimited power to interpret the law, and the limits on power mainly pertain to what the state can do. The length of the leash on the government depends on what kind of rights are at stake. The weakest and default limit is known as "rational basis", and comes down to asking whether a government action is rationally related to a legitimate government interest (such as stopping terrorist attacks) plus whether there was due process and equal protection. There are more rigorous standards (intermediate scrutiny, strict scrutiny) in case a law involves a "suspect classification", or in case a fundamental constitutional right is infringed. In the case of strict scrutiny, the government would have to show that it had a compelling interest in the action, the law would have to be "narrowly tailored" (i.e. does that thing and only that thing), and should be the least restrictive way to achieve that result. Roe v. Wade is probably the best-know example of that kind of review, which held that abortion laws "violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy".

A court would not order a party to do an impossible act. A court could order a party to do something which the party had argued was impossible, but you can interpret a court's decision to indicate that it rejected the argument. The defendant would not shoulder the burden of proving that the action was impossible, though they would have to counter the government's argument that the act could be performed if they believe it is not possible. (In the Apple case, the argument would probably be some Apple-internal document that says "Yeah, we can do it, but do we want to?"). There is probably an expense-related limit in that the courts would not order Apple to liquidate all of their assets to comply. But: if a case were to end up at the Supreme Court, the court is stricken with mass insanity and arbitrarily orders a defendant to do the impossible, there is only the option of impeachment and Senate trial to remove the offending justices, and that is just not going to happen. There is no higher authority that overturns SCOTUS.

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  • " if a case were to end up at the Supreme Court, the court is stricken with mass insanity and arbitrarily orders a defendant to do the impossible" then President Andrew Jackson would say "John Marshall has made his decision; now let him enforce it!"
    – user662852
    Feb 26, 2016 at 1:53
  • "A court would not order a party to do an impossible act." If there's someone who believes that, I have some real estate in Florida I want to talk to them about. Feb 26, 2016 at 4:45
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In the U.S.: the executive can choose not to enforce a ruling and pardon convicts; the legislative can pass new legislation which invalidates and even reverses previous rulings; the people can - well, you know. Torch and pitchfork stuff.

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