The Obama administration suffered a telling and potentially far-reaching defeat 
in the D.C. Circuit Court of Appeals this week on the need for the executive branch to abide by statutory law. While the issue at the center of the case involved an old and somewhat arcane controversy over nuclear waste, the implications may well alter the political calculus on immigration, drug policy and especially the rollout of Obamacare.
The appellate court ruled on a lawsuit arising over the White House’s refusal to complete the certification of Yucca Mountain in Nevada as a nuclear-waste site. Yucca Mountain has been a political football ever since Congress and the Bush administration chose the site in 2002 to store nuclear waste.
That decision remains deeply unpopular in Nevada, which has become a swing state in presidential elections. Instead of forcing the issue back to Congress for repeal, Energy Secretary Stephen Chu simply declared Yucca Mountain “off the table” for waste storage in 2009, and the Obama administration refused to comply with the statutory law passed in 2002 that required the federal government to proceed with certification.
Two states that face issues with nuclear waste storage, Washington and South Carolina, filed suit to force the White House to obey the law. They won their case with a broad ruling that applies to more than just nuclear waste.
The court wrote in its decision on In re Aiken County et al:
“It is no overstatement to say that our constitutional system of separation of powers would be significantly altered, if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case....Under Article II of the Constitution and relevant Supreme Court precedents, the President must follow statutory mandates so long as there is appropriated money available and the President has no constitutional objection to the statute.” That is the basis for the rule of law as well as the separation of powers under the Constitution – that the law applies to everyone equally, from the President to each citizen, including executive-branch agencies like the NRC and the Department of Energy.”
IMPACT ON IMMIGRATION AND OBAMACARE
The Aiken County decision sets precedent in the District of Columbia federal courts, unless overturned by the Supreme Court on appeal. That has significant impact on the Obama administration’s strategy to work around Congress on multiple areas – immigration and the Affordable Care Act in particular. In the case of the recently announced prosecutorial policy on drug cases by Attorney General Eric Holder, however, Aiken County boosts the Department of Justice’s plan to work around sentencing mandates through careful use of prosecutorial discretion.
The D.C. circuit decision explicitly endorses that option in the opinion while ruling it irrelevant to the core issue of the case, citing US v Nixon: “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” The court notes that discretion can become “very controversial,” but that does not change the clear and unilateral authority held by the executive branch to make those decisions. The court leaves the accountability for those decisions to voters.
That comes as both good news and bad news for the Obama administration on immigration reform. The announced strategy of declining to prosecute underage illegal immigrants – the so-called “dreamers” – would fall under prosecutorial discretion. A blanket pardon would also pass muster under Aiken County, although that would create a firestorm of opposition and a nightmare on the still-unsecured border as potential recipients of a pardon stampede into the U.S. to take advantage of it.
However, the ruling eliminates the ability of the Obama administration to ignore enforcement and border-security triggers in a comprehensive immigration-reform package in order to skip directly to full legalization, as long as Congress funds those enforcement and security provisions. That could help establish some credibility for the border-security triggers among conservatives, but distrust runs deep on that score thanks in part to the unilateral delays announced on the Affordable Care Act.
This ruling demolishes the strategy for the White House to delay the political impact of employer mandates and out-of-pocket caps on insurers until after the 2014 midterm elections. Those mandates were written into statute by Congress and signed by President Obama himself. Thanks to the manner in which the White House won its Supreme Court battle over Obamacare, these mandates are not prosecutions but taxes, enforced by the IRS. The law requires employers to report on health-insurance status each month, and it requires insurers to cover out-of-pocket expenses after a certain level.
The Obama administration cannot simply declare those mandates suspended on their own, as they have attempted to do over the past few weeks, no more than they can stall on Yucca Mountain indefinitely. The Department of Health and Human Services can only ignore these statutes, according to Aiken County, if the President finds them to be unconstitutional. That would be a neat trick, considering that the Obama administration fought for years to establish the constitutionality of the mandates. Otherwise, as the appeals court states, the executive branch has to work with the legislative branch to amend statutes with which they prefer not to comply, or follow the law.
The Aiken County ruling comes at a critical time for a nation built on the rule of law rather than the arbitrary rule of whim. The increasing imperial impulse of the Obama administration needed a sharp rebuke. Congress should force the White House to answer for these other manifestations of executive arrogance in the D.C. circuit as well.
