Showdown at Yucca Mountain

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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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.