The Obama Administration has been handed another setback, the latest in a long list:
In a major rebuke on Tuesday, the D.C. Circuit Court of Appeals issued an unusual writ of mandamus, which is a direct judicial order compelling the government to fulfill a legal obligation. This “extraordinary remedy” is nominally about nuclear waste, writes Judge Brett Kavanaugh for the 2-1 majority, yet the case “raises significant questions about the scope of the Executive’s authority to disregard federal statutes.”
In re: Aiken County is another episode in the political soap opera about spent-fuel storage at Nevada’s Yucca Mountain, an Energy Department project that requires the approval of the U.S. Nuclear Regulatory Commission. The Nuclear Waste 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.
Yucca has since been infamously stop-and-go amid opposition from the green lobby and not-in-my-backyard Nevadans and Californians. This particular application was submitted to the NRC in June 2008.
Mr. Obama promised to kill Yucca as a candidate and the Energy Department tried to yank the license application after his election. But an NRC safety board made up of administrative judges ruled unanimously that this was illegal unless Congress passed a law authorizing it. Mr. Obama then teamed up with Senate Majority Leader Harry Reid of Nevada to stack the NRC with anti-Yucca appointees.
Although Congress appropriated money to conduct the review, the NRC flat-out refused, in violation of the three-year statutory deadline. “By its own admission, the Commission has no current intention of complying with the law,” writes Judge Kavanaugh, despite a 2011 ruling from a separate D.C. Circuit panel instructing the NRC to follow through. The ruling also invited Congress “to clarify this issue if it wished to do so.”
The problem is not a partisan or even an ideological one. The Obama Administration has experienced an abnormally large number of 9-0 Supreme Court decisions against it during its tenure.
The problem is one of executive overreach. Being elected president does not convey a mandate to do whatever you see fit. It conveys a mandate to enforce the law. And obey it.
Note that the dissent doesn’t claim that the Administration is not violating the law, but (citing the Cheney taskforce opinion) that the judiciary should be circumspect in using judicial powers to curb those violations. The majority wasn’t unconcerned about whether to use judicial power here, it waited two years for the executive to find a way to come into compliance, or for Congress to act.
I think this points to the problem of many of the defenses to the Obama administration’s overreaching tendencies — they don’t defend the act, but argue that it doesn’t matter because the courts won’t intervene for reason of lack of standing or other judicial esoterica. What the courts do shouldn’t necessarily be decisive.
George Bush was rigorously criticized, by the left, for the number of EOs exercised during his administrative watch, railing against his blatant executive overreach.
Now that Obama is going down the same path, with even more strident rhetoric of applying unilateral edicts should the Congress not go along with his ideas, the left’s only criticism is towards those who criticize the President’s actions, not towards their party’s president’s own demonstration of overreach.
Furthermore, it does seem that President Obama and his base do seem to view his election as a mandate to enforce what they want, ignore and/or even thwart what they don’t, whether or not a law stands in the way of their agenda. Push-back, either judicial or congressional, is seen as obstructive, rather than constructive, applying Constitutional checks and balances that has kept this country free from despotic rule — so far.