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.”
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.
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