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I know we've been over this ground many times, but perhaps it's still worth
clarifying:
It's not a delegation of a "policy" decision -- it's asking the courts to
apply a legal standard. For instance, in this case, it was
Congress that decided that the sky would not fall with the peyote
exemption, and the federal government that failed to explain why the harms in
this case would be any worse or different than in the peyote case. This
was basic analogic reasoning, applying a statutory standard -- everyday
stuff for the judiciary. Nor was it beyond the Court's ken to conclude --
correctly -- that the exemption would not be required if the
treaty-based consequences would be severe, but that the government had not
demonstrated that the consequences of breaching the treaty would in
fact be as draconian as the State Department alleged.
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