American Elephants

A Major Rebuke to the President From the D.C. Court Of Appeals by The Elephant's Child

Nuclear Waste

President Obama held one of his rare press-conferences on Friday, just before departing for a vacation. Asked a question about his authority to delay aspects of ObamaCare that were by law to take effect, the president asserted his unilateral power to “tweak” inconvenient laws. He believes his authority as president trumps mere law or regulation.

On Tuesday the D.C. Circuit Court of Appeals issued an unusual writ of mandamus, a direct judicial  order compelling the government to fulfill a legal obligation. This “extraordinary  remedy” is nominally about nuclear waste, wrote Judge Brett Kavanaugh for the 2-1 majority. The case “raises significant questions about the scope of the Executive’s authority to disregard federal statutes.” This is a major rebuke.

In re Aiken County is another episode in the long running political soap opera about storing spent nuclear fuel at Nevada’s Yucca Mountain, an Energy Department project that requires the approval of the U.S. Nuclear Regulatory Commission. The Nuclear Wast Policy Act of 1983 requires that the NRC “shall consider” the license application for the repository and “shall issue a final decision approving or disapproving” it within three years of submission.

Well, green lobby, not-in-my-backyard Nevadans and Californians, Harry Reid, endless delays, lies, obfuscations, protests and more delays. This particular application was submitted to the NRC in June 2008, and yes that certainly does add up to more than three years. Congress did not amend the 1983 statute.

The country has been searched for suitable sites. Everybody wants it somewhere else, but Yucca Mountain was chosen as the optimal site in the nation. Oddly, nobody worries about the nuclear waste stored hither and yon around the country, in places not nearly so well protected as Yucca Mountain.

“As things stand, therefore the Commission is simply flouting the law,” Judge Kavanaugh continued. “In light of the constitutional respect owed to Congress, and having fully exhausted the alternatives available to us,” the court had no option other than the mandamus writ.

A federal Appeals Court is stating, overtly that federal regulators are acting as if they may freely ignore the law. Judge A. Raymond Randolph notes in a concurrence that former NRC Chairman Gregory Jaczko, who has since resigned, “Orchestrated a systematic campaign of noncompliance.” If Mr. Jaczko worked on Wall Street, he would be indicted.

Judge Kavanaugh offered some remedial legal education in “basic constitutional principles” for the President who claimed only last Friday to be a constitutional law professor. Under Article II and Supreme Court precedents, the President must enforce mandates when Congress appropriates money, as well as abide by prohibitions. If he objects on constitutional grounds, he may decline to enforce a statute until the case is adjudicated in the courts. “But the President may not decline to follow a statutory mandate or prohibition simply because of policy objections” wrote the court.

The employer-insurance requirement that Obama decided to delay, and other such provisions are exactly such statutory mandates, with hard start dates. The executive has broad enforcement and interpretative discretion, but no authority to suspend core parts of laws — even ones that he co-wrote.

President Obama is redefining the structure of the U.S. Political system, not just changing statutes as it is convenient. It is crucial that the courts reject Mr. Obama’s increasing contempt for any constitutional limits on his authority or his  overreach, and remind him of the limits of his power.


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