How awful is a new GMO law amendment you’ve probably heard derided as the Monsanto Protection Act?
To answer that question, I’ve turned to page 199 of my dog-eared 2001 copy of Examples & Explanations: Administrative Law by William F. Funk and Richard H. Seamon. There, the section on the availability of judicial review of federal agency actions begins with a quote from Marbury v. Madison (1803), America’s most important Supreme Court decision.
“[W]hat is there in the exalted station of [an executive] officer,” writes Chief Justice John Marshall, “which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the claim…?”
Funk and Seamon rightly conclude this portion of Marbury v. Madison stands for the proposition that “the substantive statutory limitations on an agency’s authority found in its statutory mandate would count for little if the threat of judicial review was lacking.”
If a federal agency has the power to bar a court from overturning or halting the actions of that agency—an administrative rulemaking body to which Congress delegates far too much power already—then that body may (and will) act with impunity. The power of such an agency would, in fact, exceed that of Congress itself.
Such a law would be worse than almost any that preceded it in this country. Under no theory of agency with which I'm familiar can one delegate more power than one has. And yet this new amendment to the GMO law appears to place some USDA powers almost entirely outside the scope of judicial review.
In effect, this amendment gives the USDA the power to ignore a federal judge’s ruling in some cases. It would take the power of judicial review out of the hand of judges, crumple it up, toss it on the ground, step on it, and set it ablaze.
The law states that in the event a federal court invalidates USDA approval of a particular GMO crop, the USDA must still “ensur[e] that growers or other users are able to move, plant, cultivate, introduce into commerce and carry out other authorized activities” for an “interim period” of entirely unspecified duration.
"In the event that a seed is approved by the USDA but that approval is challenged by a court ruling, the seed can still be used and sold until the USDA says otherwise, according to that new law," writes ABC News.
While the law itself sunsets in six months, some previous enumerated USDA “interim” periods have lasted for at least two years. Unenumerated ones? The sky could be the limit.
Though it’s difficult in this case, please ignore if you will the deafening bluster from detractors and supporters of GMOs alike. I’m neither, and I find this background noise distracts from the real issue of judicial review.
(For the smartest, most balanced piece I’ve read on the GMO law, read Dustin Siggins’s excellent post over at the Tea Party Patriots blog. Thanks to Michele Simon, who’s quoted in the post, for pointing out Siggins's post to me.)
Greg Conko of the Competitive Enterprise Institute, who I often agree with, gets it wrong when he claims the GMO law “does not give USDA any new authority” and that the agency is merely implementing rules that reflect the Supreme Court’s holding in the 2010 case of Monsanto v. Geertson Seed Farms—in effect “codify[ing] existing case law and agency practice.”
The Court in that case, which is very much on point here, actually held just the opposite.
“First, if and when” a USDA action “arguably runs afoul of” the regulations at issue in the case, the Court held in Geertson, a plaintiff “may file a new suit challenging such action and seeking appropriate preliminary relief…. Accordingly, a permanent injunction is not now needed to guard against any present or imminent risk of likely irreparable harm.”