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D.C. Circuit: Obama can’t ignore legislation just because he doesn’t like the policy

D.C. Circuit: Obama can’t ignore legislation just because he doesn’t like the policy

Yucca Mountain ruling has important implications for Obamacare implementation and other refusals of the Obama administration to comply with congressional mandates.

In an opinion released today involving the Yucca Mountain nuclear waste storage facility, the D.C. Circuit Court of Appeals has ruled that the Executive Branch has no authority to disregard congressional mandates merely on policy grounds.

This obviously has important implications for Obama’s decisions to disregard congressional mandates in areas such as immigration, and even as to Obamacare itself as to which Obama unilaterally has delayed implementation of certain key aspects.

The case is In Re: Aiken County (full opinion embedded at bottom of post) (h/t Don Willet):

This case raises significant questions about the scope of the Executive’s authority to disregard federal statutes. The case arises out of a longstanding dispute about nuclear waste storage at Yucca Mountain in Nevada. The underlying policy debate is not our concern. The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies (as well as relevant independent agencies such as the Nuclear Regulatory Commission) to implement within statutory boundaries. Our more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress.
Here, the Nuclear Regulatory Commission has continued to violate the law governing the Yucca Mountain licensing process. We therefore grant the petition for a writ of mandamus…..

Our analysis begins with settled, bedrock principles of constitutional law. Under Article II of the Constitution and relevant Supreme Court precedents, the President must follow statutory mandates so long as there is appropriated money available and the President has no constitutional objection to the statute. So, too, the President must abide by statutory prohibitions unless the President has a constitutional objection to the prohibition. If the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order dictates otherwise. But the President may not decline to follow a statutory mandate or prohibition simply because of policy objections. Of course, if Congress appropriates no money for a statutorily mandated program, the Executive obviously cannot move forward. But absent a black of funds or a claim of unconstitutionality that has not been rejected by final Court order, the Executive must abide by statutory mandates and prohibitions….

In this case, however, the Nuclear Regulatory Commission has declined to continue the statutorily mandated Yucca Mountain licensing process. Several justifications have been suggested in support of the Commission’s actions in this case. None is persuasive….

This case does not involve a Commission decision not to prosecute violations of federal law. Rather, this case involves a Commission decision not to follow a law mandating that the Commission take certain non-prosecutorial action. So the Executive’s power of prosecutorial discretion provides no support for the Commission’s inaction and disregard of federal law here….

This case has serious implications for our constitutional structure. It is no overstatement to say that our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case by the Nuclear Regulatory Commission.

Ironically, while Obama arguably is violating the principles articulated by the Court here when it comes to unilateral decisions not implement parts of Obamacare, who will bring suit to force Obama to implement Obamacare as written?

Are Republicans, who want Obamacare defunded and repealed, willing to force Obamacare to fail of its own weight by seeking an injunction requiring that the law be implemented as written?

Yucca Mountain Case – D.C. Circuit Court Opinion


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What happens when an Executive Order conflicts with a Congressional mandate? Does that make said Executive Order illegal?

    Bruce Hayden in reply to walls. | August 13, 2013 at 4:23 pm

    When you are talking about a Congressional mandate, presumably you are talking a duly passed and enacted statute (or a provision in such), and with some exceptions, the President cannot override with an executive order (the exceptions to this are most likely in places where the President’s Constitutional powers are supreme, as, for example in fighting wars and conducting foreign policy – but even that is constrained – I think that the leading case here is the Youngstown Steel case where President Truman tried to nationalize the steel industry during the Korean War, and was rebuffed by the Supreme Court). Still, this area of the law is complex, and one of the complexities is how explicit is the statute, and how egregiously does the executive order transgress.

      … the President cannot override with an executive order …

      Technically, no he/she cannot. However, they CAN override by failure to implement. By ignoring, in total or in part. With an emasculated budget-less Congress (I have explain how CR’s really work before) for 5 years now, and a court system that is routinely ignored (fear of being Andrew Jackson’ed), just who “enforces” anything the executive doesn’t want enforced? The DOJ reports to the President and it, too, selectively applies the law, or not. Are we not already in a de facto autocracy?

D.C. Circuit: Obama can’t ignore legislation just because he doesn’t like the policy

Obama: I can ignore the D.C. Circuit because I don’t like their ruling

make me…

    Exactly correct. Now you have your ruling: Who is going to enforce it?

    Bruce Hayden in reply to Browndog. | August 13, 2013 at 3:40 pm

    Which, BTW, is why the Obama Administration is trying to pack this court, trying to appoint more judges for it than it needs, esp. when a lot of the other circuits are short staffed.

    Aridog in reply to Browndog. | August 14, 2013 at 4:29 am

    Just my ignorant guess, but I feel like we are, nationally, in one massive state of denial about this law and order thing as administered today by this administration. Tell me where I am wrong. I will listen.

Humphreys Executor | August 13, 2013 at 12:19 pm

Obama and Harry Reid now must be thinking they have to pack the DC Circuit ASAP, maybe in time to consider a motion for re-hearing en banc.

There’s no money for Obamacare. It’s size is the size of the combined militaries (sea, air, marine, army, and whatnot). It just doesn’t “apply” … if patients only get access to paperwork. And, from doctors to hospitals you’re not able to “induct” them in Obamacare.

Add to this that doctors are now fleeing Medicaid and Medicare. And, not all 50 states are equal. Some are a heck of a lot better than others.

And, what’s Obama gonna do? He can’t send in the military to arrest doctors. Pompous guy has made this mistake before. He wants it done because he “sez so.” Nobody volunteers.

Don’t forget to work around agencies Obama “selected” 41 czars. And, oddly enough, there’s a good chance (of all people who really aren’t liked all that much), Obama selected Kerry not just to be Secretary of State; but to be the next democratic presidential candidate. (Yup. Elites choose. And, elites will supply the money.) While all the people are left out in the cold.

If Obamacare fails, will you be able to buy health insurance? Will it be affordable? Will it cover “pre-conditions? Will young people buy it? In the past insurance sells better to older folk, who depend on Medicare. The poor? Depend on “free” … which they get through Medicaid.

A byzantine bill passed Congress and got signed into law. Will people be shot who don’t comply?

Maybe, health care isn’t as amenable to “Federalization” … as we got from the TSA hoisted upon air travel?

If the wheels fly off the bus … the only way it moves forward is to expend the energy to push it. Congress critters are loathe to push. So? People waiting at the bus stop for da’ bus that doesn’t come … eventually have to find another way to get to where they want to go.

    Nobody volunteers.

    Nice concept. However, I do not believe for one second any majority will fail to volunteer. They. Do. Not. Have. The. Guts.

    For good reason perhaps…anyone who has *done battle* with the IRS can attest to the horror of that. I am assuming you have experienced some of this, so I am puzzled why you think any significant number will resist?

    Carol … the ACA is designed to have the *wheels come off the bus*, in accord with the Cloward-Piven Strategy. Failure will lead to one place, cradle to grave Medicare, as planned originally (Rep Dingell, Sr & Jr, D-MI) both the current one and his father in the past…e.g., 70+ years).

Obama: I can ignore the D.C. Circuit because I don’t like their ruling

Exactly what I was thinking. How many days till Obama invokes the ghost of Josef Stalin and asks, “How many divisions does the D.C. Circuit have?”

From the decision: “Of course, if Congress appropriates no money for a statutorily mandated program, the Executive obviously cannot move forward.”

Somebody call Karl Rove! Moron.

I’m sure Obama knows what he is doing. After all, he is a constitutional scholar and a law professor. And he’s the smartest man who ever lived.

Unfortunately, Congress will not push back against this President. In this rancid era of American politics, all actions are partisan and any resistance to Obama is racist, so the stage is set for a true leader to step up and unite both sides against tyranny. Whoever can pull that off will build himself a nice launching pad for 2016.

Anyone? Anyone? Bueller? Please?

I thought we had settled with with Nixon when he tried to unilaterally sequester spending.

    Subotai Bahadur in reply to Neo. | August 13, 2013 at 3:00 pm

    We settled it with Nixon. We settled it again with Clinton [Clinton v. City of New York, 524 U.S. 417 (1998)]. The president has no legal or constitutional right to ignore the law because it is not convenient to him.

    But de facto that is specifically what he is asserting. And he is getting away with it. Not one member of Congress, of either the Democrat or Republican wings of the Statist “Governing Party” in Congress will say a word. Because the elected “representatives of the people” have absolutely no interest in the Constitution or the responsibility they have to the people. As long as they have their perks, their wealth, and their power; they are perfectly content to let the Executive rule while they play.

    The courts [or at least those who have not been blackmailed or extorted into compliance] know that they have no force to back the law, so they are silent.

    With two thirds of the government submitting gladly to tyranny; there is no political path back from tyranny.

    Subotai Bahadur

MouseTheLuckyDog | August 13, 2013 at 2:42 pm

Let me briefly answer with respect to who will take action on Obamacare. The answer is that anyopne who is damaged by some provision being enforced will argue that the administration is violating the `4th amendment by ignoring some parts of the law, and that they should either uniformly enforce it or not enforce it at all.

Is someone expecting a lawless administration to suddenly sit up and obey the courts?


    Humphreys Executor in reply to Sanddog. | August 13, 2013 at 4:01 pm

    Unless the decision is overturned, there are enforcement mechanisms with teeth. The court issues a writ of mandamus to the NRC, if they don’t comply the commissioners can be held in contempt, fined or imprisoned.

Congress could start with something easier than Obamacare. How about filing suit to stop the Obama administration from paying out billions of dollars in food stamps each year to illegal aliens (and to stop spending millions of tax dollars advertising in Spanish, in Mexico, that illegal aliens in the U.S. can get food stampts)?

There is existing federal law that prohibits illegal aliens from receiving food stamps. Obama blatantly ignores the law, because he doesn’t like it and doesn’t agree with it. Congress’ response to date has been to send Obama a sternly-worded letter (which no doubt provided Barry with a good laugh). Why don’t they stop writing these stupid and ineffectual letters, and start filing lawsuits instead? Obama blatantly disregards federal law and his oath of office because he knows he can; the spineless wimps who pass for legislators in this country refuse to stand up to him.

It’s long past time for this bull$hit to stop!

    Bruce Hayden in reply to Observer. | August 13, 2013 at 3:51 pm

    The problem here is standing, and actual personal injury is typically required. Not physical injury necessarily, but rather injury of some sort to the person filing suit. The President ignoring Congress is not usually sufficient for standing for its members.

    I do agree though with the poster who has suggested that someone who is harmed by failure to implement a part of ObamaCare would likely have standing, and one place for this might be someone whose insurance costs have increased because the corporate mandate was waived, and, thus, the pool of healthy insured individuals was smaller as a result. Something like that – what we need for standing in a failure to enforce the law lawsuit is being able to prove some physical or economic injury to some named plaintiff (and, maybe even a class represented by that person or persons).

      Bruce Hayden in reply to Bruce Hayden. | August 13, 2013 at 4:16 pm

      Let me also add another place where non-enforcement may be sufficient basis for standing in regards to Obamacare – the announcement today that some companies will not be forced to comply with the coverage caps mandated by the legislation. Thus, should someone exceed the cap in their out-of-pocket expenses, and have to pay some of the excess, that would seemingly be sufficient injury to support standing.

[…] And … to get the legal lowdown with implications and everything!!! check out the Legal Insurrection blog: […]

I’ve been surprised all along that all talk of Congressional action in response to Obama flaunting the law has been political, i.e. would Republicans oppose deferred implementation of unpopular parts of ObamaCare? Shouldn’t Congress insist that Obama come back to them for authorization to change implementation dates as a matter of Constitutional principle? I’d love to see them do that as part of the debt ceiling negotiations. Bring Obama to heel on ObamaCare and set the precedent for the other laws that have been flaunted. My wildest dream would be for Congress to package immigration non-compliance, welfare rule changing, and ObamaCare in exchange for a debt ceiling increase.

Why are you complaining? By the time the appeals play out and the SCOTUS gets around to ruling Obama will be out of office before any of this stuff is over turned. It will be for the next POTUS to deal with the fall out.

In the immortal words of Hillary Clinton, “What difference does it make?” 4 dead Americans and 400 missing stinger missiles in Benghazi is nothing anymore than over 300 dead Mexicans and counting from Fast & Furious. It’s all phony and irrelevant because I make the decisions and how dare you question me, your leader. I’m in charge, you just shut up, who are you to say otherwise?

Such is the cynical abuse of executive power in play. In Obama’s view of the legal system, it’s not illegal until you are ruled against, so delay, deny and keep doing it until the last possible second and then once ruled against start the same offense over using a different line of reasoning, etc, etc, etc… He has absolutely no respect for the Law because he is the Law.

btw- Is the government the people when Obama and his servants are not accountable to the same Laws? The government can not be the people when those who hold office are not subject to the very laws they make and administer on/for/against the people.