The Obama administration suffered a setback Tuesday when the D.C. Circuit Court of Appeals ruled against it over the issue of nuclear waste storage at Yucca Mountain, Nevada, which President Barack Obama opposes. Though the ruling re-opens the issue, and provoked bipartisan backlash from Nevada Senators Harry Reid (D) and Dean Heller (R), the bigger impact is the fallout the decision may have for the White House on other issues.
In his decision, Judge Brett Kavanaugh, a George W. Bush appointee, held that the Obama administration and federal agencies could not ignore their statutory duty, under the Nuclear Waste Policy Act of 1983, to issue a final decision on the Yucca issue within three years. The Obama administration simply ignored that duty because of policy objections, Kavanaugh held, and therefore had failed to show the “constitutional respect owed to Congress.”
While a President may refuse to obey a statutory mandate if he has a constitutional objection to it, or if Congress has failed to appropriate the funds necessary to carry it out, he may not do so simply because he has a different opinion: “[T]he President may not decline to follow a statutory mandate or prohibition simply because of policy objections,” Kavanaugh said, referring to Article II of the Constitution and Supreme Court precedent.
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.
By effectively ignoring–at Obama’s direction–an application for consideration of Yucca Mountain by the Bush administration, the Nuclear Regulatory Commission had violated the law, Kavanaugh ruled. Further, he ruled, it was no excuse to speculate that Congress would likely deny the agency funding in the future to consider the issue: “A judicial green light for such a step…would…gravely upset the balance of powers between the Branches and represent a major and unwarranted expansion of the Executive’s power at the expense of Congress,” he said.
Though Congress had appropriated less money to the Yucca Mountain issue, that was no reason for the Commission not to spend previously appropriated funds, nor could that be interpreted as a sign that Congress had changed its policy. Ultimately, Kavanaugh said, “disagreement with Congress’s decision about nuclear waste storage is not a lawful ground for the Commission to decline to continue the congressionally mandated licensing process.”
Thus the Yucca Mountain nuclear waste issue has been re-opened–and the implications of that decision could have a major impact on other issues on which President Obama has sought to test the constitutional limits of his power.
Update: Ed Morrissey of Hot Air agrees, adding: “Of course, someone has to drag the White House into court on these issues first. How about it, House Republicans?”