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?