A Constitutional Argument Against the So-Called "Monsanto Protection Act"*

How awful is a new GMO law amendment you've probably heard about?


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…?"

Claudio.Ar / photo on flickr

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."

But the USDA has now foreclosed on that option.

While a plaintiff may still "file a new suit challenging such action," the USDA may overrule a judge's decision to grant "appropriate preliminary relief" even with a showing of "any present or imminent risk of likely irreparable harm."

While the rule under the amended law is temporary, word is its supporters are already moving to make it permanent. And you're naïve or stupid if you think other federal agencies won't be seeking the same power to override judges' decisions they don't like. That's why groups like the ACLU oppose the measure.

Judicial oversight is one of the few things that keeps us from absolute tyranny. It doesn't mean that courts always get it right. They don't. Far from it. It also doesn't mean that frivolous suits don't flourish. They do.

But to say that courts should do a better job of weeding out frivolous lawsuits is a far cry from arguing that the Legislative Branch, in cahoots with the Executive Branch, should usurp the role of the Judicial Branch.

Apparently, even USDA secretary Tom Vilsack shares some of these concerns about the amendment's unconstitutional nature.

"Secretary Vilsack has asked the Office of General Council (sic) to review this provision," the USDA told Politico this week, "[a]s it appears to pre-empt judicial review of a[n] action which may make the provision unenforceable."

Decisions about whether GMOs (or any other food product) are awesome, terrible, or somewhere in between should be left to the greatest extent possible up to individual producers and consumers.

In that vein, I find it ludicrous that companies like Monsanto are required to petition for USDA approval for many GMO crops before they're sold and planted. That sort of Precautionary Principle creep no doubt rests at the heart of this new GMO amendment. But the right answer here isn't to handcuff the judiciary. Instead, revoke the approval requirement.

Consumers, farmers, and others who have a justiciable claim that a farm or food product has caused them harm must have judicial recourse. No agency may bargain away that right. The Constitution (or, at least, 210 years of constitutional interpretation) demands it. No food, no government, no corporation, and no person–even one in the "exalted station" Chief Justice Marshall identified in 1803–is above judicial review in this country.

*Column title changed to reflect the fact several liberartarians, including those noted in this article, support the measure and several progressives, including those noted in this article, support a constitutional argument against the GMO law.