Problems With Authority

Problems With Authority

Lawless regulators and the White House earn a judicial rebuke.

President Obama asserted the unilateral power to "tweak" inconvenient laws in last Friday's news conference, underscoring his Administration's increasingly cavalier notions about law enforcement. So it's good that the judiciary—a coequal branch of government, in case the Administration forgot—is starting to check the White House.

In a major rebuke on Tuesday, the D.C. Circuit Court of Appeals issued an unusual writ of mandamus, which is a direct judicial order compelling the government to fulfill a legal obligation. This "extraordinary remedy" is nominally about nuclear waste, writes Judge Brett Kavanaugh for the 2-1 majority, yet the case "raises significant questions about the scope of the Executive's authority to disregard federal statutes."

In re: Aiken County is another episode in the political soap opera about spent-fuel storage at Nevada's Yucca Mountain, an Energy Department project that requires the approval of the U.S. Nuclear Regulatory Commission. The Nuclear Waste Policy Act of 1983 requires that the NRC 503780.BY +4.76%"shall consider" the license application for the repository and "shall issue a final decision approving or disapproving" it within three years of submission.

Yucca has since been infamously stop-and-go amid opposition from the green lobby and not-in-my-backyard Nevadans and Californians. This particular application was submitted to the NRC in June 2008.

Mr. Obama promised to kill Yucca as a candidate and the Energy Department tried to yank the license application after his election. But an NRC safety board made up of administrative judges ruled unanimously that this was illegal unless Congress passed a law authorizing it. Mr. Obama then teamed up with Senate Majority Leader Harry Reid of Nevada to stack the NRC with anti-Yucca appointees.

Although Congress appropriated money to conduct the review, the NRC flat-out refused, in violation of the three-year statutory deadline. "By its own admission, the Commission has no current intention of complying with the law," writes Judge Kavanaugh, despite a 2011 ruling from a separate D.C. Circuit panel instructing the NRC to follow through. The ruling also invited Congress "to clarify this issue if it wished to do so."

Congress did not amend the 1983 statute. "As things stand, therefore, the Commission is simply flouting the law," Judge Kavanaugh continues. "In light of the constitutional respect owed to Congress, and having fully exhausted the alternatives available to us," the court had no option other than the mandamus writ.

So ponder that one: A federal court is stating, overtly, that federal regulators are behaving as if they are a law unto themselves. Judge A. Raymond Randolph notes in a concurrence that former NRC Chairman Gregory Jaczko, who has since resigned, "orchestrated a systematic campaign of noncompliance." If Mr. Jaczko worked on Wall Street he'd be indicted.

Judge Kavanaugh then offers some remedial legal education in "basic constitutional principles" for the President who used to be a constitutional law professor. Under Article II and Supreme Court precedents, the President must enforce mandates when Congress appropriates money, as well as abide by prohibitions. If he objects on constitutional grounds, he may decline to enforce a statute until the case is adjudicated in the courts. "But the President may not decline to follow a statutory mandate or prohibition simply because of policy objections," writes the court.

That is especially notable given that ObamaCare's employer-insurance requirement and other provisions are precisely such unambiguous statutory mandates, with hard start dates. The executive has broad enforcement and interpretative discretion but not the wholesale authority to suspend core parts of laws, even ones he co-wrote.

All of this highlights that Mr. Obama is not merely redefining this or that statute as he goes but also the architecture of the U.S. political system. As with the judicial slapdowns on his non-recess recess appointments that the Supreme Court will hear next term, Judge Kavanaugh warns that endorsing the NRC's legal position "would gravely upset the balance of powers between the Branches and represent a major and unwarranted expansion of the Executive's power."

The professors and pundits who fret about the Imperial Presidency go into hibernation when the President is a Democrat, so it is crucial that the courts reject Mr. Obama's increasing contempt for constitutional limits.

A version of this article appeared August 14, 2013, on page A10 in the U.S. edition of The Wall Street Journal, with the headline: Problems With Authority.