Court: Obama Administration Flouting the law

[russ_watters]

Court: Obama Administration "Flouting the law"

While I think there is not much ado about the President's (any President's) ignoring of the War Powers Resolution (recent thread), I think there are some fairly serious examples where this and other administrations are overstepping their authority. One that popped back into the front-burner yesterday (and then immediately disappeared again if you weren't paying close attention) is the nuclear waste issue. I consider this to be the most serious mostly just because it is the only one that's actually going/gone to court, to get a direct rebuff from the judiciary.

In short, the Obama administration shut down and started to dismantle the Yucca Mountain nuclear waste repository just as it was ready to open, in violation of federal law, as per a 2-1 ruling by a DC district court. No doubt, this will continue to higher courts.

From the ruling:

This case rasises significant questions about the scope of the Executive's authority to disregard federal statutes...

Our...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...

As things stand, therefore, the Commission is simply flouting the law.

To reiterate, the President and federal agencies may not ignore statutory mandates or prohibitions merely because of policy disagreement with Congress.

The entire thing is pretty scathing.

http://www.cadc.uscourts.gov/intern...BD985257BC6004DEB18/$file/11-1271-1451347.pdf

CNN article: http://www.cnn.com/2013/08/13/us/nevada-yucca-mountain-order/index.html?iref=allsearch
Wiki: http://en.wikipedia.org/wiki/Yucca_Mountain_nuclear_waste_repositoryBasically what happened is that the Nuclear Waste Policy act of 1983 states that once the application to open Yucca is sumitted to the NRC by the DOE, the NRC has 3 years (plus up to 1 more if an extension is filed) to rule on it. The procedure was laid-out in such detail in order to prevent precisely the sort of political machinations that are happening here. After Obama announced that Yucca was not going to happen (in 2009), he first tried to pull the application, but that wasn't allowed. Then he had the NRC sit on it. A lawsuit was filed previously which was thrown out (delayed?) in 2011 because the Obama administration hadn't yet violated the law, it merely stated its intention to do so in the future (by declining to act on the application in the time alotted).

This is sort of an inconvenient administrative quirk of this issue, unlike with declining to deport illegal immigrants or prosecute drug offenders: In this case there is a clear procedure laid-out that Obama ran afoul of. I suppose if the application hadn't been filed yet, he could have just declined to submit the application. Or if the application gets approved he can simply ignore the legally required next step of opening the facility. More like the other issues (including the war powers issue), there is ultimately not much that can be done to compel Obama to execute the law beyond voting him out of office (too late) or impeaching him (or threatening to impeach him) over it. There is also a money issue here in that electric companies (we) are continuing to pay the federal government for the waste disposal service it is not providing, with the fund currently at $27 billion.

It will be interesting to see what the next step is:
1. Ignore the order?
2. Appeal and stall? (my prediction)
3. Have the NRC start processing the application...and not rule before Obama leaves office?
4. Approve the application, then do nothing?

I'm quite certain Obama will get away with this and I think this sets a very bad precedent where a President has shown he can ignore laws he swore to uphold, without consequence, for no better reason than that he just doesn't like them.

 

[jim hardy]

Behind every unit of GDP is a unit of energy.
If you wanted to decimate US's productivity you'd starve it for energy.
When you choke off coal and nuclear you block over 60% or ours.
http://water.epa.gov/scitech/wastetech/guide/steam-electric/index.cfm

I'm not here yelling "Conspiracy"

it's closer to Barbara Tuchman's "March to Folly" theory - big organizations come to behave like lemmings and do themselves in.
Parkinson said basically the same thing about bureaucracies.

But, as Churchill observed: 'Americans will do the right thing , after they've tried everything else. '

 

[mheslep]

...I'm quite certain Obama will get away with this ...

Have there not been numerous examples in the past where the courts have forced the executive to change course? Judge Siroca's subpoena of Nixon's tapes may be most famous. I suppose one could respond that the tapes were handed over only because Nixon agreed to do so, eventually, but that there is no mechanism to physically force a President to do anything aside from impeachment.

 

[russ_watters]

Have there not been numerous examples in the past where the courts have forced the executive to change course? Judge Siroca's subpoena of Nixon's tapes may be most famous. I suppose one could respond that the tapes were handed over only because Nixon agreed to do so, eventually, but that there is no mechanism to physically force a President to do anything aside from impeachment.

Subpoena-ing some records is a long way from forcing the executive to proceed with a decades-long, mutli-billion dollar project. There are lots of ways to stall such a project. In either case, Obama has already flouted subpoenas as well:

President Barack Obama is resisting a congressional subpoena for documents related to how the administration responded to the revelation of the failed operation known as "Fast and Furious" on the U.S.- Mexican border. It has already turned over thousands of pages of documents about the operation itself.

Justice Department lawyer Ian Gershengorn told a hearing the matter was best left to the give-and-take of the U.S. government's two elected branches, the president and Congress, and should not be a matter for the courts.

http://www.reuters.com/article/2013/04/24/us-usa-courts-holder-idUSBRE93N17820130424

WASHINGTON — Just as the House Committee on Oversight and Government Reform was about to vote Eric H. Holder Jr. in contempt of Congress for failing to comply with a subpoena for documents in the flawed Fast and Furious gun-tracking case, President Obama asserted executive privilege and backed up the attorney general’s position in refusing to turn over the material.

http://articles.latimes.com/2012/ju...lege-over-fast-and-furious-documents-20120620

 

[mheslep]

Additional examples where this administration has ignored the law:

• Holder orders all US attorneys to stop charging nonviolent, non-gang-related drug offenders with crimes that carry mandatory minimums (August 12, 2013)
• Labor department decrees Affordable Care Act (AFA) cap on patient out-of-pocket expenses is waived, for now. (August 14)
• Office of Personnel Management, agency that runs federal employee benefits, restores the generous federal contribution to health benefits to Congressional staff which would have been eliminated under AFA. The AFA mandated that Congress/staff will obtain there health plans via the ACA 1312(d)(3)(D) *
• Immigration service ordered to stop deporting illegal immigrants brought here as children, even though Congress considered and dropped such a law (DREAM Act) the year prior.

*

(D) MEMBERS OF CONGRESS IN THE EXCHANGE.—
(i) REQUIREMENT.—Notwithstanding any other
provision of law, after the effective date of this subtitle,
the only health plans that the Federal Government
may make available to Members of Congress and
congressional staff with respect to their service as a
Member of Congress or congressional staff shall be
health plans that are—
(I) created under this Act (or an amendment
made by this Act); or
(II) offered through an Exchange established
under this Act (or an amendment made by this
Act).

 

[mheslep]

Subpoena-ing some records is a long way from forcing the executive to proceed with a decades-long, mutli-billion dollar project. There are lots of ways to stall such a project. In either case, Obama has already flouted subpoenas as well:
http://www.reuters.com/article/2013/04/24/us-usa-courts-holder-idUSBRE93N17820130424

The tapes were not just "some" records; they ended a Presidency. Still, point taken.

 

[russ_watters]

The tapes were not just "some" records; they ended a Presidency. Still, point taken.

I wasn't downplaying the importance*, just the process. Turning over records takes, what, a week? The Yucca Mountain stall game is in year 5. Even if the NRC proceeds with the application (not sure if Obama can appeal this), Obama may be out of office before it gets approved. Even if he isn't, he could still decline to move forward, setting off another multi-year legal battle. I don't see any way for the courts to really physically force Obama to open Yucca.

We can check back in a few months and see if anything has happened. This ruling made such little news, it wouldn't surprise me if Obama simply ignored it.

*That said, for Nixon, flouting the subpoena is what protected him from impeachment. For Obama, ignoring the courts is the offense itself. As bad as Fast and Furious was, there is almost certainly nothing in it that would get him impeached. And on Yucca, all that is at stake if he loses this battle is losing a policy argument and undercutting a political ally. It does blow the mind though that he would put himself in such good company with Nixon over such things.

 

[mheslep]

I don't see any way for the courts to really physically force Obama to open Yucca.

US Marshals?

The example of the courts enforcing school desegregation comes to mind. There, a judge went to the extreme of ordering St Louis to raise taxes in order to finance his plans. I found that an egregious judicious over reach but it happened nonetheless. But it need not go that far. Simply holding NRC commission members in contempt if they fail to act might suffice here.

 

[Vanadium 50]

I vote for ignore.

Cartoonist Lisa Benson drew the following: http://www.realclearpolitics.com/cartoons/images/2013/08/15/lisa_benson_current_cartoon_2013-08-15.jpg

This has been a pattern, and I expect the pattern will be followed.

The real pity is that nuclear waste is still accumulating and being stored "temporarily". Even if you don't like the Yucca Mountain solution, leaving waste in temporary facilities is surely worse.

 

[jim hardy]

Thanks Vanadium.

We've left our next generation a fleet of nuclear plants all built before mid 1980's , and as economically as possible. Given the five or ten year construction time, that makes them 1970's design at best, mine was mid 1960's technology. And we reneged on the promise to handle fuel with a recycling program, so it is piling up on plant sites. Most spent fuel pools are filled way beyond original design capacity. In forty years my old plant shipped but one fuel assembly away.

So what we have done is launched our kids to navigate the 2010's in a fleet of ~1970 Chevys with every single old worn out tire and oil filter stuffed in the trunk.

old jim

 

[SteamKing]

The Judiciary has been extremely reluctant to take on either the legislative or the executive branch of the Federal Government when political controversies arise between them. The Judiciary does not show similar reticence in dealing with state and local governments, because sanctions can be imposed on the lower orders (jail for contempt of court or heavy fines) which cannot be realistically imposed on the Congress or the President. Even if the Judiciary grew a spectacular set, seeing US Marshals take a President into custody for contempt of a judicial order would turn things quite upside down. The sorting out of the constitutional issues for such an act would be staggering.

When Parliament tried to rein in Charles I, it led to civil war.

 

[Bobbywhy]

The title of this thread, "Court: Obama Administration "Flouting the law" seems to be misleading, if not totally wrong. The below article says "the court said the nuclear agency was "simply flouting the law".


"WASHINGTON -- A federal appeals court says 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 waste 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 near Las Vegas. The action goes against a federal law designating Yucca Mountain as the nation's nuclear waste repository.
The court said the president can't ignore a congressional mandate simply because of policy objections."
http://www.cleveland.com/nation/index.ssf/2013/08/obama_administration_violating.html

 

[D H]

The title of this thread, "Court: Obama Administration "Flouting the law" seems to be misleading, if not totally wrong. The below article says "the court said the nuclear agency was "simply flouting the law".

You are misreading what that "simply" means. It was not meant to trivialize what the Obama administration is doing. Exactly the opposite is true. That word was chosen to highlight what the administration is doing. The court found (in a divided decision) that Obama is violating his oath of office, pure and simple.

 

[russ_watters]

Maybe Bobby is confused about NRC vs Obama. The court's writing switches back and forth in referencing them because they are interchangeable: the NRC is acting on Obama's behalf/direction. Just like the DOE was when it tried to pull the application a few years ago.

 

[Evo]

You are misreading what that "simply" means. It was not meant to trivialize what the Obama administration is doing. Exactly the opposite is true. That word was chosen to highlight what the administration is doing. The court found (in a divided decision) that Obama is violating his oath of office, pure and simple.

I am always amazed when a President is condemned for actions that have gone on for decades before he took office. Do you have any idea how many things a president has to deal with that have been in place for years before he took office? Do you really think all things are identified and dealt with immediately? That other things don't take precedence until they are brought to the forefront by the media?

http://www.reuters.com/article/2013/08/13/us-usa-courts-yucca-idUSBRE97C0IM20130813

Anyway, I agree with Russ's OP.

Here is background on why the DOE decided not to continue the project.

http://www.gao.gov/products/GAO-11-229

 

[russ_watters]

I am always amazed when a President is condemned for actions that have gone on for decades before he took office. Do you have any idea how many things a president has to deal with that have been in place for years before he took office? Do you really think all things are identified and dealt with immediately? That other things don't take precedence until they are brought to the forefront by the media?

It sounds like you are saying this is a matter of the Obama administration just not getting to it yet. Like it is on his "to-do" list and he intends to do it. That's not the case. He has explicitly said he would not allow Yucca to open. He didn't really have anything to do anyway: the facility was basically ready and all he had to do was not get in the way while the NRC reviewed the application and the DOE then opened the facility.

I'm not sure Bush ever so explicitly disregarded the law, but I'd love to see a similar example of where he was rebuked by a court.

Here is background on why the DOE decided not to continue the project.

I know it is stated as if the DOE is its own entity that came to its own decision, but only one relevant thing changed between 2008 and 2010: the President. Obama (+Reid) made this decision, not the DOE. Then Obama gave the DOE the job of trying to pull the application and justifying the decision. In any case, that GAO report is a fairly mildly worded but nonetheless scathing slamming of the Obama administration for its actions:
-There was no technical or safety basis given for the decision.
-It was stated that there were alternatives, but none were given.
-The move to dismantle the facility was "ambitious".
-Documentation of the DOE's activities was "limited".
-No plan was followed for an orderly shutdown.
-No risk analysis for the shutdown was performed, consistent with federal standards.
-The shutdown process would hinder re-activation, should the NRC approve the application (read: it was basically sabotage)

 

[Evo]

It sounds like you are saying this is a matter of the Obama administration just not getting to it yet. Like it is on his "to-do" list and he intends to do it. That's not the case. He has explicitly said he would not allow Yucca to open.

I'm not sure Bush ever so explicitly disregarded the law, but I'd love to see a similar example of where he was rebuked by a court. I know it is stated as if the DOE is its own entity that came to its own decision, but only one relevant thing changed between 2008 and 2010: the President. Obama (+Reid) made this decision, not the DOE. Then Obama gave the DOE the job of trying to pull the application and justifying the decision. In any case, that GAO report is a fairly mildly worded but nonetheless scathing slamming of the Obama administration for its actions:
-There was no technical or safety basis given for the decision.
-It was stated that there were alternatives, but none were given.
-The move to dismantle the facility was "ambitious".
-Documentation of the DOE's activities was "limited".
-No plan was followed for an orderly shutdown.
-No risk analysis for the shutdown was performed, consistent with federal standards.
-The shutdown process would hinder re-activation, should the NRC approve the application (read: it was basically sabotage)

I absolutely agree that the DOE mishandled this, I was shocked at what they did and how they did it. (I have not read the 80 page report, so maybe details are there.)

I have to agree with the judge that voted against the other 2 that spending the remaining 11 million just because it was in the budget was incredibly wasteful and stupid.

Obama had promised from the beginning he would stop Yucca Mountain, my question is why did it drag on for so long? I have no idea why it's supposedly a bad idea, we dumped what, $15 billion into this project over the decades? I'm not happy about this, and reading the link I posted just created more questions.

 

[russ_watters]

...my question is why did it drag on for so long?

Why did the project take so so long to complete? Mostly it was locating and approving a suitable site. The length of the project may seem absurd when compared to normal construction projects, but isn't really that far out of line for a major government construction project with so much controversy. Nuclear plants when last built took nearly as long, with only half of the time being actual construction.

I have no idea why it's supposedly a bad idea...

It's not and I'm sure Obama/Reid know it. That's why they've (and the DOE have) never articulated a clear reasoning, nor (absurdly) did Obama let the "Blue Ribbon Commission" on nuclear waste consider it as an option (lest the panel recommend against the action).

 

[Vanadium 50]

It's a bad idea because nobody wants a nuclear waste dump in their back yards, particularly in the state of the Senate Majority Leader.

Instead, we have nuclear waste distributed around the country in much less secure sites, ripe for accident or terrorist plucking.

 

[mheslep]

The Judiciary has been extremely reluctant to take on either the legislative or the executive branch of the Federal Government when political controversies arise between them. The Judiciary does not show similar reticence in dealing with state and local governments, because sanctions can be imposed on the lower orders (jail for contempt of court or heavy fines)

Great point.

...which cannot be realistically imposed on the Congress or the President. Even if the Judiciary grew a spectacular set, seeing US Marshals take a President into custody for contempt of a judicial order would turn things quite upside down. The sorting out of the constitutional issues for such an act would be staggering...

In the Watergate precedent the court started ordering and threatening minions, not the President. The President can of course legally pardon anyone to maintain his separation from the courts but the abuse of that power would, I think, make crazy back bench impeachment rumors suddenly realistic.

 

[russ_watters]

Note, the US Marshals work for the President, so the Judiciary can't send them to arrest the President.

 

[mheslep]

Note, the US Marshals work for the President, so the Judiciary can't send them to arrest the President.

I doubt if any Judge would ever consider doing so, given the mechanism for removing the President is not the courts but Congressional impeachment. Presidential minions are different story.

I don't know how many take oath's of office, but the military and congressional oaths oblige takers to follow the constitution (as you know), not the President:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; ...

 

[aquitaine]

Obama had promised from the beginning he would stop Yucca Mountain, my question is why did it drag on for so long? I have no idea why it's supposedly a bad idea, we dumped what, $15 billion into this project over the decades? I'm not happy about this, and reading the link I posted just created more questions.

It's not a bad idea at all, the site was determined by the USGS to fit the requirements for waste disposal. What killed it was politics.

The Obama administration's rushed efforts to shut down Yucca Mountain were strictly political and could set back the opening of a nuclear waste repository by more than 20 years, according to a new report by a federal watchdog.

The administration killed the repository program last year without citing technical or safety issues, and restarting the costly and time-consuming process of finding a permanent repository or an alternative solution could take decades and cost billions of additional dollars, the Government Accountability Office reported yesterday.

It's a standard environmentalist claim to say "gosh, we don't know what to do with the waste, better hate nukes" when in reality we do know what to do with it but can't act on that knowledge because of their political obstructionism.

 

[russ_watters]

Yay, the NRC has decided to do its job!

The Commission today directed the NRC staff to finish the safety evaluation report (SER) for the Department of Energy’s Yucca Mountain construction authorization application. This direction is the agency’s response to the U.S. Court of Appeals for the District of Columbia Circuit, which in August ordered us to resume work on the application using approximately $11 million in unspent money from the Nuclear Waste Fund.

http://public-blog.nrc-gateway.gov/2013/11/18/commission-sets-path-forward-on-yucca-mountain/

 

[mheslep]

Closely related issue: a federal court http://www.businessweek.com/news/2013-11-19/nuclear-reactor-waste-fees-ordered-to-zero-by-appeals-court-1DoE to end the nuclear waste disposal fee paid by utilities ($750 million a year), given the stop work at Yucca Mountain.

[DoE] was ordered to send Congress a proposal to change the fee to zero until it “chooses to comply with the act as it is currently written, or until Congress enacts an alternative waste management plan,” the court ruled.