Does POTUS have to follow the law?
- Thread starter HornHuskerDad
- Start date
Got a few minutes here. I've read the decision, the concurrence, and the dissent, and I mostly agree with the dissent.
You really have two issues in the case. First, is the agency required to follow the law, and if so, have they? Second, if they are required to follow the law and have failed to do so, what's the appropriate remedy?
I think everybody agrees that the agency must follow the law and has failed to do so. The statute is clear, and the agency clearly has screwed around. The concurring opinion outlines the blatant disregard for the statute that the agency's previous chairman illustrated. (After he got slammed by the Inspector General and after oral argument in this case, he resigned.)
The problem is remedy sought. This wasn't a normal lawsuit. It was a petition for writ of mandamus. Without going into a boring procedural analysis, a writ of mandamus is an extraordinary court order issued against an agency or a public official to correct clear violations of a clear duty to take a specific action. (In this case, the action at issue was to process the application.)
The keyword is "extraordinary." Courts aren't supposed to willy-nilly grant mandamus writs. (In fact, if courts were too quick to order agencies around with writs of mandamus, that by itself would present a separation of powers problem.) Accordingly, courts should abstain from granting mandamus relief unless it's truly going to make a difference. With the inadequate funding, it's not going to make an impact here, particularly since the agency technically isn't refusing to process the application but has merely delayed it pending funding.
What this really sounds like is a situation in which Congress has passed a law ordering an agency to act, but regional politics have prevented it from funding the action. I recognize that the agency previously jerked around, and I will disagree with paso in this sense. If you buy what the concurring opinion says, it's pretty clear that the agency (through its previous chairman) did act in bad faith. However, that doesn't make mandamus relief appropriate. The chairman should be removed (or resign, which he did) and perhaps prosecuted for a crime. However, the milk has already been spilled. Congress is going to have to appropriate more money. If they refuse in the face of funding, then mandamus might be appropriate.
Judge Kavanagh's opinion sucks. It is packed with vitriol and dicta, which is why the obviously less partisan Judge Randolf concurred rather than joining the opinion in its entirety. Most lawyers I dealt with who used such tones were either chick-lawyers with chips on their shoulders or dudes with small penis issues. The same thing applies to judges. They're still lawyers - just very well-connected (notice I didn't say well-qualified) lawyers. Kavanagh should have cut the crappy dicta and further discussed the mandamus issue, which he slopped through, even though it's just as important as the underlying issue.
Paso is right that the GOP is full of **** on the blocking of the DC circuit judges. If they want to reduce the number of judges on the bench, that's a fair argument. However, that's not a justification to block nominees. A court's size is changed by the law creating the court being changed, not by nominees being blocked.
You really have two issues in the case. First, is the agency required to follow the law, and if so, have they? Second, if they are required to follow the law and have failed to do so, what's the appropriate remedy?
I think everybody agrees that the agency must follow the law and has failed to do so. The statute is clear, and the agency clearly has screwed around. The concurring opinion outlines the blatant disregard for the statute that the agency's previous chairman illustrated. (After he got slammed by the Inspector General and after oral argument in this case, he resigned.)
The problem is remedy sought. This wasn't a normal lawsuit. It was a petition for writ of mandamus. Without going into a boring procedural analysis, a writ of mandamus is an extraordinary court order issued against an agency or a public official to correct clear violations of a clear duty to take a specific action. (In this case, the action at issue was to process the application.)
The keyword is "extraordinary." Courts aren't supposed to willy-nilly grant mandamus writs. (In fact, if courts were too quick to order agencies around with writs of mandamus, that by itself would present a separation of powers problem.) Accordingly, courts should abstain from granting mandamus relief unless it's truly going to make a difference. With the inadequate funding, it's not going to make an impact here, particularly since the agency technically isn't refusing to process the application but has merely delayed it pending funding.
What this really sounds like is a situation in which Congress has passed a law ordering an agency to act, but regional politics have prevented it from funding the action. I recognize that the agency previously jerked around, and I will disagree with paso in this sense. If you buy what the concurring opinion says, it's pretty clear that the agency (through its previous chairman) did act in bad faith. However, that doesn't make mandamus relief appropriate. The chairman should be removed (or resign, which he did) and perhaps prosecuted for a crime. However, the milk has already been spilled. Congress is going to have to appropriate more money. If they refuse in the face of funding, then mandamus might be appropriate.
Judge Kavanagh's opinion sucks. It is packed with vitriol and dicta, which is why the obviously less partisan Judge Randolf concurred rather than joining the opinion in its entirety. Most lawyers I dealt with who used such tones were either chick-lawyers with chips on their shoulders or dudes with small penis issues. The same thing applies to judges. They're still lawyers - just very well-connected (notice I didn't say well-qualified) lawyers. Kavanagh should have cut the crappy dicta and further discussed the mandamus issue, which he slopped through, even though it's just as important as the underlying issue.
Paso is right that the GOP is full of **** on the blocking of the DC circuit judges. If they want to reduce the number of judges on the bench, that's a fair argument. However, that's not a justification to block nominees. A court's size is changed by the law creating the court being changed, not by nominees being blocked.
Statalyzer
10,000+ Posts
Pasotex, Deez, thanks for giving the item some serious thought and elaboration. I think I grasped most of your points (remember, I'm not a lawyer), but I'm having a bit of a problem with this one:
pasotex
2,500+ Posts
A concurrence means that the judge agrees with the conclusion, but not the manner in which the judge writing the opinion reached the decision. In this case, the concurring judge joined in (ie agreed with) three of the four parts of the opinion. If I read the opinion correctly (and understand the Roman numeral designations), the concurrence did join in the offensive comments.
pasotex
2,500+ Posts
This case is not a very good example of Obama's abuses of power since it is proceeding through the judicial system with no sign that he will not comply. I have never been a fan of the Imperial President and I guarantee you the Democrats in Congress are not either.
I have and continue to complain about the NSA program that I think violates the 4th Amendment rights of virtually every American.
Where were you guys in the Bush years? Your new found devotion to the 4th Amendment is quite fetching.
I have and continue to complain about the NSA program that I think violates the 4th Amendment rights of virtually every American.
Where were you guys in the Bush years? Your new found devotion to the 4th Amendment is quite fetching.
So what happens next? Is there an avenue for appeal, and, if so, who does it? If the law remains on the books and Congress doesn't provide additional funding, does the law continue forever, or does it eventually die off?
HHD
HHD
Uninformed
5,000+ Posts
pasotex
2,500+ Posts
The what happens next is a great question.
The Obama Administration could appeal to the entire DC Circuit (this is call en banc) and the United States Supreme Court. Quite frankly, I wouldn't. I would just spend the $11 million in a futile gesture.
The law does not ever go away, but without funds to do the evaluation Yucca Mountain never gets opened. If Harry Reid gets defeated or the Democrats lose the majority in the Senate, it is possible that funds will be appropriated to finish the evaluation (it is estimated that it will cost $100 million).
The Obama Administration could appeal to the entire DC Circuit (this is call en banc) and the United States Supreme Court. Quite frankly, I wouldn't. I would just spend the $11 million in a futile gesture.
The law does not ever go away, but without funds to do the evaluation Yucca Mountain never gets opened. If Harry Reid gets defeated or the Democrats lose the majority in the Senate, it is possible that funds will be appropriated to finish the evaluation (it is estimated that it will cost $100 million).
pasotex
2,500+ Posts
I have no idea about the funding part on laws remaining in limbo. This seems like a pretty unusual situation to me. It does make me think of the defunding Obamacare push in the House.
Laws that are not ruled unconstitutional or repealed just sit on the books.
Texas has a Sunset provision that requires agencies (and I suppose the laws supporting them) to periodically justify their existence or else they get eliminated. What exactly happens to the legislation surrounding the agency is a question for the courts. I am generally familiar with this because the Texas Residential Construction Commission (or some similarly named state agency) got eliminated a few years ago while most of the legislation still exists. I have not researched what happened and at a legal seminar back when this occurred we were speculating what would happen because the elimination of the agency left sort of a vacuum in the law.
Laws that are not ruled unconstitutional or repealed just sit on the books.
Texas has a Sunset provision that requires agencies (and I suppose the laws supporting them) to periodically justify their existence or else they get eliminated. What exactly happens to the legislation surrounding the agency is a question for the courts. I am generally familiar with this because the Texas Residential Construction Commission (or some similarly named state agency) got eliminated a few years ago while most of the legislation still exists. I have not researched what happened and at a legal seminar back when this occurred we were speculating what would happen because the elimination of the agency left sort of a vacuum in the law.
NJlonghorn
2,500+ Posts
pasotex
2,500+ Posts
This is a relatively mundane dispute concerning a federal agency. It is a close call with legitimate reasons for denying the relief sought by the two states bringing the suit (Washington and South Carolina). As such, there is no reason or room for the comments about the President that are quoted in the initial post. I will agree that the actual opinion is far less salacious than the press would have you think, but any attack on the executive branch is not something a judge especially one on the DC Circuit should do. It is very bad manners.
These are the quotes:
These are the quotes:
NJlonghorn
2,500+ Posts
I have now had a chance to read the dissent, and I find it very persuasive -- almost irrefutable. It starts with the basic legal principles that apply. To make it easier to read, I've removed the citations to prior cases, but it is important to note that every sentence cites to and/or quotes from a prior opinion by the DC Circuit and/or the US Supreme Court:
Okay, I think I'm confused again. After reading the replies above, I think I get the general thrust of the ruling. But I thought it dealt only with completing the required study of the feasibility of the site for waste storage. Does it actually involve handling, transportation, and storage of waste materials as a result of this ruling? And what are the two states named in the ruling currently doing with nuclear waste material? Does this ruling require them to ship it to Nevada? And why has not Congress supplied the necessary funding to enable compliance with the law they passed? Is this a NIMBY thing by Reid?
One of you guys please clear this up! (And have your Lawyer-to-English dictionary handy when you reply - but you all have done a pretty decent job so far in responding in terms we non-attorneys can grasp.)
HHD
One of you guys please clear this up! (And have your Lawyer-to-English dictionary handy when you reply - but you all have done a pretty decent job so far in responding in terms we non-attorneys can grasp.)
HHD
pasotex
2,500+ Posts
It does not require that the study be completed. The press coverage is terrible on this issue and makes it sound like Yucca Mountain will be open next week. The ruling merely orders that the NRC spend the $11 million that has been appropriated by Congress. This will not get the study done and is basically pouring money down a rathole.
The NRC requested $100 million for the study and the study must be completed (and the NRC issue a favorable ruling) before any waste can be shipped. I do not know what Washington and South Carolina are doing to store their nuclear waste, but they better have some long term plans because Yucca Mountain is not opening any time soon.
This is NIMBY by Harry Reid. Yucca Mountain is almost certainly the best place for us to store nuclear waste and I personally wish Reid and Obama would get it opened. This ruling does not do much toward that end.
The NRC requested $100 million for the study and the study must be completed (and the NRC issue a favorable ruling) before any waste can be shipped. I do not know what Washington and South Carolina are doing to store their nuclear waste, but they better have some long term plans because Yucca Mountain is not opening any time soon.
This is NIMBY by Harry Reid. Yucca Mountain is almost certainly the best place for us to store nuclear waste and I personally wish Reid and Obama would get it opened. This ruling does not do much toward that end.
NJlonghorn
2,500+ Posts
NJlonghorn
2,500+ Posts
And by the way, it is important to distinguish between the policy that Congress is seeking to accomplish, and the feasibility or futility of achieving it.
Congress has the authority to decide which policy goals are worth pursuing, and which aren't. The President and his agencies cannot say "we object to Congress's intentions, and refuse to comply."
Thus, in the present case, the dissent would have rejected an argument by the NRC that studying the Yucca site's feasibility was a bad idea. But that is not the position the NRC took. What they said is "Congress told us to do it, and that's all well and good, but we can't accomplish Congress's intent without more money." That argument should, imho, carry the day.
Congress has the authority to decide which policy goals are worth pursuing, and which aren't. The President and his agencies cannot say "we object to Congress's intentions, and refuse to comply."
Thus, in the present case, the dissent would have rejected an argument by the NRC that studying the Yucca site's feasibility was a bad idea. But that is not the position the NRC took. What they said is "Congress told us to do it, and that's all well and good, but we can't accomplish Congress's intent without more money." That argument should, imho, carry the day.
pasotex
2,500+ Posts
A little additional background might be helpful for the layperson.
This decision was issued by a panel of three judges.
The three judges had three different opinions.
The majority opinion was by Judge Kavanaugh and it was the one with the offensive language (or at least the language that I found offensive.
There was a concurring opinion. This judge joined in the decision by Judge Kavanaugh, but did not agree with all of his reasoning.
There was also a dissenting opinion. This judge disagreed with Judge Kavanaugh.
As a result of the concurring opinion, the decision was 2-1 ordering the NRC to spend the money.
This decision could be reheard by these three judges (unless rehearing was denied already), go to the entire eight judges of the current DC Circuit, or go to the United States Supreme Court.
This decision was issued by a panel of three judges.
The three judges had three different opinions.
The majority opinion was by Judge Kavanaugh and it was the one with the offensive language (or at least the language that I found offensive.
There was a concurring opinion. This judge joined in the decision by Judge Kavanaugh, but did not agree with all of his reasoning.
There was also a dissenting opinion. This judge disagreed with Judge Kavanaugh.
As a result of the concurring opinion, the decision was 2-1 ordering the NRC to spend the money.
This decision could be reheard by these three judges (unless rehearing was denied already), go to the entire eight judges of the current DC Circuit, or go to the United States Supreme Court.
^Good summary for the layman, pasotex. One last question - if the case is not reheard or appealed, what is the net result of the decision rendered by the court? Does it do anyhting besides ordering the spending of the $11M to further (but apparently not complete) the study?
HHD
HHD
Thanks, guys. Once we got the discussion going in earnest, we got some top-notch interchanges. I know that I learned something from it. One of the things I learned is that the newspaper report made headlines, but didn't really tell the story or the real issue. And I do realize that we have lawyers for a good reason - and I do appreciate everyone using his Lawyer-to-English dictionary to put it into terms that we non-attorneys can grasp.
Things like this really intrigue me - practicing law would be an interesting challenge. But at age 69, it's a bit late for me to go to law school, so I'll continue to ask questions on Hornfans as long as you are willing to tolerate me.
HHD
Things like this really intrigue me - practicing law would be an interesting challenge. But at age 69, it's a bit late for me to go to law school, so I'll continue to ask questions on Hornfans as long as you are willing to tolerate me.
HHD
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