Opinion

Showdown at Yucca Mountain

Jim Huffman Dean Emeritus, Lewis & Clark Law School
Font Size:

By a 2-1 vote, a panel of the United States Court of Appeals for the District of Columbia ruled this week that the Nuclear Regulatory Commission (NRC) must proceed with its evaluation of the Energy Department’s license application for a nuclear waste storage site at Nevada’s Yucca Mountain. In the words of South Carolina Attorney General Alan Wilson (South Carolina was one of the petitioners): “This decision reaffirms a fundamental truth: The president is not above the law.” In the words of Nevada Senator Harry Reid, the decision is not even “a bump in the road.”

The road Reid has in mind is that leading to the political result he wants – permanent death to the proposed nuclear waste storage site in his state. Reid gives no indication that he cares a wit whether the route taken comports with the U.S. Constitution. Wilson, though no doubt anxious to get existing nuclear waste out of his state, at least argues his case in terms we might like to hear from more of our elected officials. Especially President Obama.

In collaboration with Reid, Obama undertook early in his first term to kill the Yucca Mountain project. Reid saw to it that no more money was appropriated and the president ordered the NRC to shutter the project. As the DC Circuit notes, the absence of funding from Congress would justify a presidential order to the NRC to cease and desist. The problem, it turns out, is that $11.1 million of appropriated funds remain unspent.

In light of this available funding and a statutory mandate to conclude review of the project by a date long since passed, Circuit Judge Brett Kavanaugh concluded that the NRC “is simply flouting the law.” He acknowledged that a judicial order pursuant to a writ of mandamus is an “extraordinary remedy,” but said the court had no other choice if it was to comply with its constitutional responsibilities.

Circuit Judge Ray Randolph agreed with Kavanaugh, but thought his junior colleague went on far too long in explaining and justifying the ruling. It should be, Randolph implied, a pretty simple case to resolve. Indeed it should be.

Kavanaugh began his opinion with these words: “This case raises significant questions about the scope of the Executive’s authority to disregard federal statutes.” Anyone with a basic understanding of the separation of powers might answer that a president who has the constitutionally prescribed function to ”take Care that the Laws be faithfully executed” has no scope to disregard congressional mandates.

While it turns out there are a couple of circumstances in which the president can refuse to execute laws enacted by Congress (where there is no funding from congress and where the president believes the law to be unconstitutional) the basic idea that congress makes the laws and the president executes them is pretty simple. The fact that the president’s refusal to pursue the Yucca Mountain project reflects a policy disagreement (or political favor to Senator Reid) should require little more from the court than an order to the president to do what the Constitution requires him to do.

But this president consistently puts politics and policy ahead of the Constitution. What makes it particularly disturbing is that he does it unapologetically. He says that if congress refuses to act, he will do whatever is necessary to implement his policies. He says that if the courts get in his way, he will find a way to circumvent them. These are not the responses one expects from a president sworn to uphold the Constitution. Even President Nixon turned over the tapes when ordered to do so by the Supreme Court.

A dissenting Judge Merrick Garland argued that the $11.1 million will be only enough for the NRC to unpack and repack its Yucca Mountain boxes, which is probably true (and a sad commentary on our federal government), but not a reason to excuse the president and NRC from doing their congressionally mandated jobs. In defending his position, Garland observed that the court has allowed the executive to fail to implement congressional mandates for as many as 8 years. To which the response of any law abiding citizen should be – ‘shame on the court.’

Garland also endorsed the NRC’s argument that there is no point in forcing it to proceed with the Yucca Mountain project because congress will never approve the necessary funding. The court should not order the NRC to pursue a “useless act,” said Garland. But any executive agency or court that makes today’s decisions on the basis of predictions of what Congress will do in the future is effectively overriding what Congress has done in the past. Only congress can amend or repeal its own laws. The president and the courts our bound until Congress acts again.

Kavanaugh and Randolph are right to say enough is enough. Hopefully other courts will do the same in other cases challenging executive abuses of power. But the reality is that even a flood of such decisions will come, in each case, only well after the president has acted, at which time there often will be little a court can do to remedy the consequences.  What we really need is a president who accepts and embraces that his first responsibility is to the constitution, not to those who supported and funded his election.

PREMIUM ARTICLE: Subscribe To Keep Reading

Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign Up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!
BENEFITS READERS PASS PATRIOTS FOUNDERS
Daily and Breaking Newsletters
Daily Caller Shows
Ad Free Experience
Exclusive Articles
Custom Newsletters
Editor Daily Rundown
Behind The Scenes Coverage
Award Winning Documentaries
Patriot War Room
Patriot Live Chat
Exclusive Events
Gold Membership Card
Tucker Mug

What does Founders Club include?

Tucker Mug and Membership Card
Founders

Readers,

Instead of sucking up to the political and corporate powers that dominate America, The Daily Caller is fighting for you — our readers. We humbly ask you to consider joining us in this fight.

Now that millions of readers are rejecting the increasingly biased and even corrupt corporate media and joining us daily, there are powerful forces lined up to stop us: the old guard of the news media hopes to marginalize us; the big corporate ad agencies want to deprive us of revenue and put us out of business; senators threaten to have our reporters arrested for asking simple questions; the big tech platforms want to limit our ability to communicate with you; and the political party establishments feel threatened by our independence.

We don't complain -- we can't stand complainers -- but we do call it how we see it. We have a fight on our hands, and it's intense. We need your help to smash through the big tech, big media and big government blockade.

We're the insurgent outsiders for a reason: our deep-dive investigations hold the powerful to account. Our original videos undermine their narratives on a daily basis. Even our insistence on having fun infuriates them -- because we won’t bend the knee to political correctness.

One reason we stand apart is because we are not afraid to say we love America. We love her with every fiber of our being, and we think she's worth saving from today’s craziness.

Help us save her.

A second reason we stand out is the sheer number of honest responsible reporters we have helped train. We have trained so many solid reporters that they now hold prominent positions at publications across the political spectrum. Hear a rare reasonable voice at a place like CNN? There’s a good chance they were trained at Daily Caller. Same goes for the numerous Daily Caller alumni dominating the news coverage at outlets such as Fox News, Newsmax, Daily Wire and many others.

Simply put, America needs solid reporters fighting to tell the truth or we will never have honest elections or a fair system. We are working tirelessly to make that happen and we are making a difference.

Since 2010, The Daily Caller has grown immensely. We're in the halls of Congress. We're in the Oval Office. And we're in up to 20 million homes every single month. That's 20 million Americans like you who are impossible to ignore.

We can overcome the forces lined up against all of us. This is an important mission but we can’t do it unless you — the everyday Americans forgotten by the establishment — have our back.

Please consider becoming a Daily Caller Patriot today, and help us keep doing work that holds politicians, corporations and other leaders accountable. Help us thumb our noses at political correctness. Help us train a new generation of news reporters who will actually tell the truth. And help us remind Americans everywhere that there are millions of us who remain clear-eyed about our country's greatness.

In return for membership, Daily Caller Patriots will be able to read The Daily Caller without any of the ads that we have long used to support our mission. We know the ads drive you crazy. They drive us crazy too. But we need revenue to keep the fight going. If you join us, we will cut out the ads for you and put every Lincoln-headed cent we earn into amplifying our voice, training even more solid reporters, and giving you the ad-free experience and lightning fast website you deserve.

Patriots will also be eligible for Patriots Only content, newsletters, chats and live events with our reporters and editors. It's simple: welcome us into your lives, and we'll welcome you into ours.

We can save America together.

Become a Daily Caller Patriot today.

Signature

Neil Patel