Judges themselves could grant a stay of the stay, the government said, and avoid the separation of powers problem.
If there is a separation of powers problem here, it must be found in the nature of the remedy, and not in the process involved.
That approach ignores the separation of powers problem that lies behind the congressional action; it assumes that Presidential functions are to be valued over congressional functions.
[n32] Thus, the separation of powers problem addressed by these statutes was first of all Presidential behavior that intruded upon, or burdened, Congress' performance of its own constitutional responsibilities.
Between the industry's success in challenging enforcement actions and the mine safety agency's reluctance to flex all of its powers, problem mines are almost never cited for having "a pattern of violations," which would allow stricter oversight.
Second, exercise of this "judicial" function does not create a separation of powers problem: we have held both executive and legislative officers subject to this judicially created cause of action, and, in each instance, we have rejected separation of powers arguments.
