DC circuit slaps Obama administration for refusing to follow statutory law

posted at 10:01 am on August 14, 2013 by Ed Morrissey

Could the Yucca Mountain case put the White House in a vise on the ObamaCare mandates? The DC Circuit Court of Appeals ruled yesterday that the Obama administration cannot ignore statutory law that requires the completion of the licensing process for the controversial nuclear storage site in Nevada, including a final decision on approval.  The Obama administration had avoided complying with the federal law that designated Yucca Mountain as a repository for nuclear waste:

In a rebuke to the Obama administration, a federal appeals court ruled Tuesday that the Nuclear Regulatory Commission has been violating federal law by delaying a decision on a proposed nuclear waste dump in Nevada.

By a 2-1 vote, the U.S. Court of Appeals for the District of Columbia ordered the commission to complete the licensing process and approve or reject the Energy Department’s application for a never-completed waste storage site at Nevada’s Yucca Mountain.

In a sharply worded opinion, the court said the nuclear agency was “simply flouting the law” when it allowed the Obama administration to continue plans to close the proposed waste site 90 miles northwest of Las Vegas. The action goes against a federal law designating Yucca Mountain as the nation’s nuclear waste repository.

“The president may not decline to follow a statutory mandate or prohibition simply because of policy objections,” Judge Brett M. Kavanaugh wrote in a majority opinion, which was joined Judge A. Raymond Randolph. Chief Judge Merrick B. Garland dissented.

As Glenn Reynolds wrote, “Seems like this might apply in quite a few situations.”  The Obama administration has decided to ignore statutory language in the Affordable Care Act in order to delay enforcement of the employer mandate, out-of-pocket caps on insurance, and a few other aspects of the law it champions to this day.  The Yucca Mountain case provides a similar scenario, and at least at the moment, legal precedent that would likely apply to an appeal of the waivers unilaterally imposed by President Obama.

The appeals court explicitly stated that a failure to bind a President to the statute has important implications for the principle of limited government — and so does the ObamaCare case. Once Congress passes a bill and a President signs it, it becomes binding law — binding on the President as well as everyone else.   In order to “waive” a mandate at this point, Obama has to go back to Congress and ask them to modify the statute accordingly.  Obama won’t do that because the House will insist on rolling back all of the mandates at the same time, and the Senate might actually go along with that approach after the serial disaster that this rollout has produced.

Instead, the formal constitutional-law scholar has convinced himself that statutes don’t apply to the President.  The DC court of appeals has just given Obama a basic lesson in constitutional law, one that stretches from the Nevada mountainside to the doors of HHS.  Perhaps the House might think about filing suit under this precedent to force Obama to come back to Congress.

Update: Joel Pollak at Breitbart agrees that this ruling is a big deal, and a potentially big problem for Obama on both ObamaCare and immigration:

That holding could be relevant to several other issues on which President Obama has decided to flout federal statutes. In 2012, after Congress refused to pass the “Dream Act” to ease immigration laws for illegal aliens brought to the country as children, Obama announced that he would direct federal agencies not to enforce existing immigration laws against them. That decision is already the subject of a lawsuit by ICE agents.

Kavanaugh noted that the Constitution protects the President’s prosecutorial discretion, but that applies only to the decision to enforce a law, not the decision to follow it. The ICE agents are suing on the grounds that the new Obama administration policy goes so far that it effectively violates existing immigration law.

More recently, the Obama administration has announced delays in the implementation of various aspects of Obamacare, such as the deadline for the employer mandate to provide employees with health insurance, which is explicitly required by the text of the Affordable Care Act. Republicans are adamant that Obama’s delay is unconstitutional and unlawful, and–to make the point–tried to pass a law codifying the delay, which Democrats rejected.

Of course, someone has to drag the White House into court on these issues first. How about it, House Republicans?


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Somebody’s gonna get audited on this one……
.
(just sayin NSA guy)

FlaMurph on August 14, 2013 at 10:04 AM

I love the smell of mandamus in the morning

txmomof6 on August 14, 2013 at 10:05 AM

Perhaps the House might think about filing suit under this precedent to force Obama to come back to Congress.

I’ve been thinking this all along. Does Congress enjoy having a co-equal branch of gevernment stick its finger in their eye?

Bitter Clinger on August 14, 2013 at 10:09 AM

Perhaps the House might think about filing suit under this precedent to force Obama to come back to Congress.

I think this is important. It’s time for Boehner to give the lecture in constitutional law a lesson on the Constitution. It might draw a big red circle around Obama’s conduct for low-information voters who voted for Obama but who are kind of put off by what’s come out since Snowden arrived on the scene. Maybe it’s not so great to have a liberal fascist in the White House after all.

That said, it’s disappointing that it wasn’t a 3-0 decision.

Garland: Clinton appointee who clerked for Brennan. Sigh.

BuckeyeSam on August 14, 2013 at 10:12 AM

Not like the Constitution is written in stone or something…it is an evolving document, a mere guideline, a road map of sorts, something to which the nation should aspire…except for the parts written by old now-dead white guys who owned slaves…

ANY other President so disposed to ignore the law, the Constitution, and generally rule as a petty banana republic dictator would have been stripped of power long ago…

But, this one?

It is illegal apparently to mock Obama in public…and the selling or purchasing of Obama comic masks is a felony requiring the Secret Service and the FBI to investigate.

King Barry I.

What a clown.

coldwarrior on August 14, 2013 at 10:13 AM

We’ve been down this road before. Obama will continue to flout the law.

NotCoach on August 14, 2013 at 10:14 AM

LOL Like he is going to listen to the courts even. He will then just get the judges changed to the ones that think the constitution is living breathing document.

watertown on August 14, 2013 at 10:14 AM

Instead, the formal constitutional-law scholar has convinced himself that statutes don’t apply to the President.

‘If the President does it, it’s not illegal.’

- President Richard Nixon

Resist We Much on August 14, 2013 at 10:14 AM

it’s very frustrating that we haven’t heard of any lawsuits being filed against Obama for flouting ACA

commodore on August 14, 2013 at 10:15 AM

Resist We Much on August 14, 2013 at 10:14 AM

If only Congress had the stones to give Barry the same treatment…

coldwarrior on August 14, 2013 at 10:16 AM

It’s time for Boehner to give the lecture in constitutional law a lesson on the Constitution.

LOL! LOL! LOL! LOL! LOL! LOL! LOL! LOL! LOL! LOL! LOL! LOL! LOL!

Resist We Much on August 14, 2013 at 10:17 AM

If only Congress had the stones to give Barry the same treatment…

coldwarrior on August 14, 2013 at 10:16 AM

He’s the First Black President!!!

He can do whatever he wants…because racism.

Resist We Much on August 14, 2013 at 10:18 AM

Alternate Headline:
Appeal Court Strikes Down… The Obama Administration’s Entire Governing Philosophy, Really.

dougwinship on August 14, 2013 at 10:21 AM

Instead, the formal constitutional-law scholar has convinced himself that statutes don’t apply to the President.

‘If the President does it, it’s not illegal.’

- President Richard Nixon

Resist We Much on August 14, 2013 at 10:14 AM

I immediately thought of that too when I read that sentence.

Bitter Clinger on August 14, 2013 at 10:22 AM

No worries. King Barry is above the law.

GarandFan on August 14, 2013 at 10:22 AM

It’s time for Boehner to give the lecture in constitutional law a lesson on the Constitution.

And who is going to teach Boehner?

AZCoyote on August 14, 2013 at 10:22 AM

it’s very frustrating that we haven’t heard of any lawsuits being filed against Obama for flouting ACA

commodore on August 14, 2013 at 10:15 AM

Currently no one has standing as no one has been “harmed” by any provision of the law because everything has been delayed and not implimented. One could make an argument that people who have been pushed from full time to part time employment may have standing, but that is up to the courts to decide.

Johnnyreb on August 14, 2013 at 10:22 AM

That said, it’s disappointing that it wasn’t a 3-0 decision.

Garland: Clinton appointee who clerked for Brennan. Sigh.

BuckeyeSam on August 14, 2013 at 10:12 AM

You wonder what some judges are thinking when they vote against something so obvious.

Bitter Clinger on August 14, 2013 at 10:23 AM

Barry is the Beast of Yucca Flats.

cyclown on August 14, 2013 at 10:24 AM

DC circuit slaps Obama administration for refusing to follow statutory law

“I won.”

– Emperor Obama I

ShainS on August 14, 2013 at 10:25 AM

Guaranteed Obama will just ignore this Appellate order. Kings don’t take orders they give orders.

tommyboy on August 14, 2013 at 10:25 AM

Currently no one has standing as no one has been “harmed” by any provision of the law because everything has been delayed and not implimented. One could make an argument that people who have been pushed from full time to part time employment may have standing, but that is up to the courts to decide.

Johnnyreb on August 14, 2013 at 10:22 AM

Wouldn’t Congress have standing that a law it passed (and was signed by the President) is not being implemented as Congress wrote?

Bitter Clinger on August 14, 2013 at 10:25 AM

Currently no one has standing as no one has been “harmed” by any provision of the law because everything has been delayed and not implimented. One could make an argument that people who have been pushed from full time to part time employment may have standing, but that is up to the courts to decide.

Johnnyreb on August 14, 2013 at 10:22 AM

Doesn’t Congress have standing?

Who had standing in the Yucca Mtn case?

commodore on August 14, 2013 at 10:27 AM

In a rebuke to the Obama administration, a federal appeals court ruled Tuesday that the Nuclear Regulatory Commission has been violating federal law by delaying a decision on a proposed nuclear waste dump in Nevada.

By a 2-1 vote, the U.S. Court of Appeals for the District of Columbia ordered the commission to complete the licensing process and approve or reject the Energy Department’s application for a never-completed waste storage site at Nevada’s Yucca Mountain

Harry Reid was not impressed, and was last heard singing the Gay Cowboy Blues.

Steve Z on August 14, 2013 at 10:27 AM

Bark is carefully watching the beginning scene from “Braveheart” to see if there isn’t a remedy for all these pesky people getting in his way.

Bishop on August 14, 2013 at 10:27 AM

binding on the President as well as everyone else.

Well, thank the heavens Obama is king then.

/

Gatsu on August 14, 2013 at 10:29 AM

Perhaps the House might think about filing suit under this precedent to force Obama to come back to Congress.

Hahahahaha, good one, Ed. My first laugh of the day.

herm2416 on August 14, 2013 at 10:30 AM

Wouldn’t Congress have standing that a law it passed (and was signed by the President) is not being implemented as Congress wrote?

Bitter Clinger on August 14, 2013 at 10:25 AM

They sure can. Refuse to fund it until Obama complies.

Johnnyreb on August 14, 2013 at 10:32 AM

Obama has an executive order or waiver to solve this…

albill on August 14, 2013 at 10:35 AM

The Obama administration had avoided complying with the federal law

Deja vu all over again …

VibrioCocci on August 14, 2013 at 10:37 AM

Bishop on August 14, 2013 at 10:27 AM

“Primae noctis” is what being king/presidentin’ is all about.

coldwarrior on August 14, 2013 at 10:38 AM

Hahahahaha, good one, Ed. My first laugh of the day.

herm2416 on August 14, 2013 at 10:30 AM

I’m here all week. Try the lobster, it’s delicious, and don’t forget to tip the waitress.

Ed Morrissey on August 14, 2013 at 10:38 AM

Take this guy to court again

C’mon

cmsinaz on August 14, 2013 at 10:39 AM

Gooood! I’ve been screaming (as others have too) that O’s ignoring of statutory law IS the greatest threat to the country because completely undermines the rule of law.

Tater Salad on August 14, 2013 at 10:41 AM

“Messiah” Obama is not going to be a happy camper about these “phoney” court rulings. The Messiah gets what he wants, no matter what!!!!!!!!!!

SC.Charlie on August 14, 2013 at 10:41 AM

Watertown
You notice he insists that gop listen to the courts

What a farce

cmsinaz on August 14, 2013 at 10:42 AM

Did the comments on this post get disabled?

txmomof6 on August 14, 2013 at 10:43 AM

Currently no one has standing as no one has been “harmed” by any provision of the law because everything has been delayed and not implimented. One could make an argument that people who have been pushed from full time to part time employment may have standing, but that is up to the courts to decide.

Johnnyreb on August 14, 2013 at 10:22 AM

Congress, the House GOP should be in court forcing Obama and his voters to live with this crap-sandwich. The only waivers are for his potential voters, the rest of us have to live with it.

Tater Salad on August 14, 2013 at 10:44 AM

It was a 2-1 decision. This means nothing. What was the argument in the dissent. That is where SCOTUS or Kennedy or Roberts will hang their hat when this goes before the COURT. A 3-0 decision would have been meaningful.

xkaydet65 on August 14, 2013 at 10:46 AM

Wait? The president has to obey the law? I thought this was a supposed to be republic?

/sarc

Rule of law is anathema to progressives.

gwelf on August 14, 2013 at 10:48 AM

What is truly amazing is that there is a sitting Federal Judge that thinks the President does NOT have to follow the law of the land.

That way surly be there demons.

Jabberwock on August 14, 2013 at 10:49 AM

“If the President does it it’s not illegal.”

myiq2xu on August 14, 2013 at 10:50 AM

Is the OPM’s regulation saying in effect that Congress and their staff is exempt from Obamacare something to which this ruling would apply?

txmomof6 on August 14, 2013 at 10:54 AM

s/b are exempt

txmomof6 on August 14, 2013 at 10:55 AM

Could the Yucca Mountain case put the White House in a vise on the ObamaCare mandates?

The potential is clear. Our conservative/libertarian legal beagles need to mount this pony and ride it all the way home.

ACLJ?

Landmark Legal Foundation?

Heritage?

petefrt on August 14, 2013 at 10:56 AM

Maybe a little O/T, but the entrance to Yucca Mountain looks very similar to the Fellowship of the Ring before the gates of Moria.

To bury the nuclear wastes there, the judges only need to say “friend” in Elvish.

Steve Z on August 14, 2013 at 10:59 AM

txmomof6 on August 14, 2013 at 10:54 AM

they werent exempted from obamacare, they are having the portion they should pay subsidized by the taxpayer.

chasdal on August 14, 2013 at 11:00 AM

Fuggeddaboutit….. no one has the stones to do anything anyway. Is there an indictment? Don’t make me laugh. Oba-mao is a soul-less, thieving, crook beloved by the moronic, hysterical left.

ultracon on August 14, 2013 at 11:11 AM

If someone else hasn’t said it yet, please allow me:
“the formal constitutional-law scholar “ obviously is NOT a scholar, much less a constitutional law scholar.

This retard is a THC brain-overloaded pot-smoking brain addled sociopath who couldn’t find his behind with both hands w/o help.

avagreen on August 14, 2013 at 11:19 AM

Ed Morrissey : “Instead, the formal former constitutional-law scholar has convinced himself that statutes don’t apply to the President.”

FIFY

It is obvious that the former constitutional-law scholar knew and knows diddly squat about the constitution. He was and is a source of bad information. As well as lies.

Dasher on August 14, 2013 at 11:24 AM

Of course, someone has to drag the White House into court on these issues first. How about it, House Republicans?

Yeah, I emailed McCaskill and Blunt (Missouri’s Senators) about the President flouting the law and got a response back from McCaskil about how she’s working for Veterans and no response back from Blunt.

How can we make our voices heard? Ed, can’t you get a response for members of Congress?

Vince on August 14, 2013 at 11:28 AM

My formatting sucks.

Vince on August 14, 2013 at 11:29 AM

txmomof6 on August 14, 2013 at 10:54 AM

they werent exempted from obamacare, they are having the portion they should pay subsidized by the taxpayer.

chasdal on August 14, 2013 at 11:00 AM

They are exempting themselves from the pain of the consequences of their actions, which was to enact Obamacare in the first place. If the statute was ambiguous, then they could have resolved the ambiguity the other way. They did not due to pressure from the President and Congressional leadership. They are cowards, plain and simple. I would post what I really think of them, but would probably get banned.

txmomof6 on August 14, 2013 at 11:31 AM

I would post what I really think of them, but would probably get banned.

txmomof6
on August 14, 2013 at 11:31 AM

That’s OK. I can read your mind. And, I agree!

avagreen on August 14, 2013 at 11:43 AM

the form[er] constitutional-law scholar

Can everyone just agree to stop the charade already? It is like calling a saboteur a railway scholar because he learned just enough about railway bridges to blow them up.

Obama’s history shows he was not a constitutional law scholar as much as he was a community activist, grievance monger and race card player in his courses on “Current Issues in Racism and the Law.” The President taught this course no less than 12 times.

At a March 30, 2007, fundraiser he said, “I was a constitutional law professor, which means unlike the current president I actually respect the Constitution.”

in_awe on August 14, 2013 at 12:19 PM

A nation of laws to a nation of men in less than fivefour..three..OK King Barky the Incompetent did it in two years but he had the donk congress solidly in hand.

jukin3 on August 14, 2013 at 12:22 PM

You really have to be lame if you support obama…..

crosshugger on August 14, 2013 at 12:29 PM

Law Professor? Another false title reinforced and regurgitated by the Manure Spreading Media. King Putt was never close to this scholarly level. He was a Part Time LECTURER at Univ. of Chicago (great school BTW).
Here is the hierarchy:
Professor
Associate Professor
Assistant Professor
PhD Candidate
Lecturer
TA (Teaching Assistant)
Rankings and titles may differ between institutions.

Law Professor my azz.

Missilengr on August 14, 2013 at 12:47 PM

it’s very frustrating that we haven’t heard of any lawsuits being filed against Obama for flouting ACA

commodore on August 14, 2013 at 10:15 AM

On what basis? If they *don’t* implement something, then you have no standing, according to the courts of late. They have to actually do something to you – and, evidently, failing to perform (and be limited to) your consitutional duties doesn’t actually affect anyone in the country.

GWB on August 14, 2013 at 12:58 PM

Is there any proof whatsoever that The One even knows the Constitution exists? Or that he is a scholar? Those records are sealed for a reason

jayhawkingeorgia on August 14, 2013 at 12:59 PM

The Obama administration had avoided complying with the federal law

The only law that our fascist-in-chief and his goons obey is the Law of Unintended Consequences.

bgoldman on August 14, 2013 at 1:03 PM

C’mon. Republican leadership has encouraged Obama to flout the law as written, and fail to enforce the individual mandate as well as the employer mandate. They want him to remedy unfairness occasioned by his dereliction of duty by engaging in further dereliction. These tools have no principles, they are guided purely by personal agendas and political expediency.

That said, some citizens, and at least 2 of 3 federal judges, take the law a bit more seriously and do not see it as malleable. Obama has so often flouted the law he has set up the courts to consider just exactly how far a President can go.

novaculus on August 14, 2013 at 1:40 PM

Where are all the screams of “Imperial Presidency!”?
In this case, it would be true!

Dexter_Alarius on August 14, 2013 at 2:06 PM

The question of standing to sue the Federal government was raised. In the Yucca Mountain case, the plaintiffs were state and county governments who were holding nuclear waste [primarily Washington and South Carolina] that would be removed once a nuclear waste repository was opened.

They will have standing to appeal the expected ignoring of the Writ of Mandamus by the regime. And that can be the hook that other groups can tie into. However, we can easily see that the Department of Justice will use every administrative delaying tactic they can to stretch out the actual appeal to the Supreme Court. Figure a year. And then figure another year while they wrangle with the Supreme Court over whether to accept. By then, it is likely that the Enabling Act the Left so desires will be passed in one form or another, and the case will be moot. Or it will go to the Court, and Chief Justice Roberts will be reminded of whatever got him to change sides at the last minute in the Obamacare case.

As far as the President [PBUH] being subject to the law in matters concerning Obamacare; as it stands only Members of Congress have standing to file on Separation of Powers grounds. Any one Representative or Senator. If a case is filed, and it will be filed in the DC District Court and they can try to file on an expedited basis in the DC Circuit Court of Appeals [the one that ruled on Yucca Mountain]; all the conservative legal foundations named above can pile on. And it will move a lot faster than waiting for the regime to comply with a court order.

IF the case is filed. We can rule out any Democrat filing, but any one of the 280 Republicans in the 113th Congress can with a signature start the process of resisting the seizure of power by the Left in general, and specifically start tearing Obamacare apart.

It is telling, about the remaining options available to preserve Liberty in the country, that there is not one Republican who will stand up to defend the Constitution. If they will not stand and fight for the rule of law and the Constitution now when the way is open; why should we believe that the Institutional Republicans will do any better after any putative elections in 2014 or 2016?

Subotai Bahadur on August 14, 2013 at 2:34 PM

The Sword of Damocles is being raised higher and higher …

It will fall, when the time is right, when all the CORRUPTOCRAT necks are gathered together in a nice straight line …

YEAH

#BeClingers ———-> #AmericaRISING

exodus2011 on August 14, 2013 at 9:50 PM

Obama announced that he would direct federal agencies not to enforce existing immigration laws…

I hereby instruct all such agencies to ignore this president’s instructions. I know I will!

Olo_Burrows on August 15, 2013 at 4:32 AM

Of course, someone has to drag the White House into court on these issues first. How about it, House Republicans?

POSTED AT 10:01 AM ON AUGUST 14, 2013 BY ED MORRISSEY

I don’t think I’ll hold my breath. Our GOP wouldn’t even fight if Obama tried to add six more Justices to the Supreme Court.

Chris of Rights on August 15, 2013 at 10:08 AM