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

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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"Anti-Government" Couple on Run After Kidnapping Their Own Children From Court-Appointed Guardian

This story probably isn't going to end well:
Joshua Michael Hakken and his wife Sharyn Hakken are on the run in
Florida after kidnapping their own two children from Sharyn's
mother this morning. Patricia Hauser has had legal custody of her
grandchildren, four-year-old Cole and two-year-old Chase, since
2012, when Joshua and Sharyn lost custody for displaying pot in
front of their sons at an "anti-government rally" in Louisianna.

ABC Action News has more: 

Investigators say Joshua Michael Hakken, 35 entered the home of
Patricia Hauser at 14040 Shady Shores Drive around 6:30 a.m. Hauser
is the maternal grandmother of Chase Hakken, 2, and Cole Hakken, 4.
It's believed Hakken's wife, 34-year-old Sharyn Hakken was waiting
outside.

Investigators did not know if the children were taken at
gunpoint and it was not clear if the mother was directly involved
in the abduction.

Reporters were told at a Wednesday afternoon news conference the
State of Louisiana took away the parents' parental rights and gave
Hauser temporary custody. 

Joshua Hakken tied up Hauser, took the children and fled in
Hauser's 2009 silver Toyota Camry, which was later found a few
blocks away.   

According to investigators, the couple lost custody of the two
boys after an anti-government rally in Louisiana. The father was
charged was possession of marijuana in the presence of the
children.

Afterward, Joshua Hakken tried to take the children, reportedly
at gunpoint, from a Louisiana foster care facility, but was
thwarted, according to the sheriff's office.

There aren't a lot of details out there right now, so it's
possible that the Hakkens really were a danger to their kids. But
it will be just so goddamn awful if all of this is the result of
them using some marijuana at a rally in front of their
kids. 

According to the Tampa Bay Times, the Hakkens run an
engineering firm in the Tampa area. Their parental rights were
terminated by a Louisiana court yesterday. 

Update: More on Hakken's June 17, 2012 drug
charge that may have gotten his kids taken away,
from the Time-Picayune police blotter: "Joshua M.
Hakken, age 34 of 3609 S Sterling Avenue, Tampa, FL, was arrested
for Possession of Marijuana, Possession of Drug Paraphernalia and
Possession of a controlled dangerous substance in the presence of a
minor."

Update II: Florida media outlets are really
playing up the anti-government angle. This is at the top of the
Orlando Sentinel's home page.

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Gay Marriage Debate To Continue After Supreme Court Rulings

NEW YORK -- However the Supreme Court rules after its landmark hearings on same-sex marriage, the issue seems certain to divide Americans and states for many years to come.

In oral arguments Tuesday and Wednesday on two cases involving gay couples' rights, the justices left open multiple options for rulings that are expected in June. But they signaled there was no prospect of imposing a 50-state solution at this stage. With nine states now allowing same-sex marriages and other states banning them via statutes or constitutional amendments, that means a longer spell with a patchwork marriage-rights map – and no early end to bruising state-by-state battles in the courts, in the legislatures and at the ballot box.

Read More...
More on Gay Marriage

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What Happens If SCOTUS “Punts” on Prop. 8?

A quick survey of the press coverage of yesterday's oral
arguments in the California gay marriage case reveals multiple
appearances of the word punt. Politico
asked, “Will Supreme Court Punt on Gay Marriage?” The
Village Voice
announced, “Supreme Court Hears Arguments Against California's
Same-Sex Marriage Ban, Punts.” Townhall.com
observed, “Early Indications: SCOTUS to Punt on Gay
Marriage?”

Let’s assume the Supreme Court does indeed avoid reaching the
constitutional question of whether or not Prop. 8’s ban on gay
marriage violates the Equal Protection Clause of the 14th
Amendment. What happens then?

One possibility is that the Supreme Court rules solely on
procedural grounds. Under this scenario, the Court would find that
the supporters of the original Prop. 8 ballot initiative have no
legal standing to defend the law in court, thereby voiding the
decision last year by the U.S. Court of Appeals for the 9th Circuit
that did recognize their standing and then struck down Prop. 8.

But that approach raises several new questions of its own. Does
District Court Judge Vaughn Walker’s earlier ruling against Prop. 8
remain in force (since the state of California, which has standing,
was still defending the law at that point in the litigation)? If
so, does that mean gay marriage is legal in California? Or does it
mean Judge Walker’s ruling applies narrowly, impacting only the
specific same-sex couples that brought the original suit?

Alternately, the Supreme Court might follow the lead of Justice
Anthony Kennedy. During Tuesday’s oral arguments, Kennedy
repeatedly suggested the Supreme Court should never have accepted
the Prop. 8 case in the first place. “I just wonder,” Kennedy said
at one point, “if the case was properly granted.” Later he raised
the issue yet again, telling the lawyer who was arguing in defense
of Prop. 8, “you might address why you think we should take and
decide this case.”

If Kennedy can convince four other justices that the Court was
in fact wrong to take the case, the Supreme Court might engage in a
maneuver that lawyers refer to as a “DIG.” That is, the Court would
dismiss the Prop. 8 case as "improvidently granted." This unusual
approach would leave the 9th Circuit’s ruling against Prop. 8 in
effect, thereby leaving gay marriage legal in California while the
Court remained silent on the issue for the other 49 states.

Finally, as Tom Goldstein observes
at SCOTUSblog, the Court could even rope in its forthcoming
decision on the Defense of Marriage Act in order to avoid ruling on
Prop. 8. As Goldstein writes:

the Court is going to address laws discriminating against
same-sex couples in the pending Windsor challenge to
DOMA.  That could be a basis for declining to decide
Hollingsworth [Prop. 8].  Perhaps more likely, any
member of the Court could vote to vacate and remand the judgment in
Hollingsworth for further consideration in light of
Windsor.  In that scenario, five members of the Court
could agree to vacate the Ninth Circuit’s decision on alternative
grounds (some concluding that the petitioners lacked standing and
others concluding that the court of appeals should rethink its
decision in light of whatever the Court holds in
Windsor).

Whatever the Supreme Court ultimately decides to do in the Prop.
8 case, Tuesday’s oral arguments
suggest that a sweeping endorsement of gay marriage in all 50
states is not likely to be included on the menu of options.

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The Ideal Gay Marriage Case Goes Before The Supreme Court Today

An 83-year-old widow with a huge tax bill is the perfect person to bring down an anti-gay law Bill Clinton signed in 1996.

Edith Windsor started her own crusade to bring down the Defense of Marriage Act, the Clinton-era law that says the federal government doesn't recognize same-sex marriage.

The Supreme Court will hear Windsor's DOMA challenge today, in a case that could give federal benefits to same-sex couples in the nine states where gay marriage is legal.

On Tuesday, the Supreme Court heard a related gay marriage case over California's gay marriage ban Proposition 8. The justices hinted that they might decide not to rule on the Prop 8 case at all.

But gay marriage activists are optimistic about a victory in the DOMA case since a couple of the court's swing voters will likely want the federal government to defer to states' own definitions of marriage.

The plaintiff whose story they'll hear today is a particularly compelling one. Unlike plaintiffs in many cases, Windsor wasn't hand-picked by lawyers to be the face of a legal battle.

Instead, she went out looking for lawyers to help her bring down DOMA because she was so incensed by the law, her lawyer Roberta Kaplan tells Business Insider.

By doing so, she started a case that evolved "the natural way where someone is truly indignant about what happened to them," says Kaplan, a corporate lawyer with Paul Weiss.

Windsor is an accomplished woman the Supreme Court's justices might be able to identify with, The New Yorker's Amy Davidson has pointed out. She's only a few years older than several of the justices and had an impressive career. (She was a systems engineer at IBM.)

She's also faced discrimination from the federal government. Windsor began to feel the effects of DOMA when her partner Thea Spyer died in 2007.

Because the IRS didn't recognize their marriage performed in Canada, Windsor had to pay $363,000 in taxes on Spyer's estate that a straight spouse wouldn't have had to pay.

Kaplan will argue today that the tax bill and the law that allowed it are unfair before the Supreme Court.

Windsor initially asked not-for-profit legal groups to argue her case, but they said it wasn't the right time, according to Kaplan. Kaplan felt differently when she and Windsor were introduced by a mutual friend.

"The minute I heard the facts of the case, it took me about three seconds to decide that it was absolutely the right case to bring," says Kaplan, whose firm took the case on free of charge.

Windsor's case involved a very specific injury that everyone can relate to: an unfair tax bill.

"Every American gets in their gut what it means to have to pay a huge tax bill where you wouldn't have to pay the same tax bill if you weren't gay. Everyone understands what that means," Kaplan says.

Windsor's age also makes her an ideal candidate to bring down DOMA. It will be easier to strike down DOMA if the Supreme Court rules the law must face "heightened scrutiny" because it impacts people who've endured a history of discrimination.

For Windsor, discrimination isn't "theoretical," Kaplan tells us. Windsor's brief to the Supreme Court chronicled her own "life in the shadows," as Lyle Denniston of SCOTUSBlog reported.

When she fell in love with Spyer nearly 50 years ago, the brief noted, it was a “a time when lesbians and gay men risked losing their families, friends, and livelihoods if their sexual orientation became known."

If the Supreme Court strikes down DOMA, same-sex couples in the nine states where gay marriage is legal will know the federal government now recognizes the legitimacy of their relationships. They'll also get benefits they didn't get before. If one spouse dies, the other could take his or her social security if it's more money. They won't have to pay estate taxes.

The repeal of DOMA could, in fact, have a very real impact on a lot of people. But one woman's story could help convince the Supreme Court to do away with the law.

Throughout preparations for the case, Kaplan, the lawyer who's telling that story, has kept a post-it note on her desk that's a variation of Bill Clinton's successful 1992 campaign phrase:

"It's all about Edie, stupid," the note reads.

SEE ALSO: The Worst Case Scenario For People Who Oppose Gay Marriage

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Supreme Court Appears Unwilling to Legalize Gay Marriage Nationwide

Washington, D.C.—The Supreme Court heard oral argument
today on California’s 2008 ballot initiative Proposition 8, which
amended the state constitution in order to forbid gay marriage. The
upshot appears to be that while a majority of the Court believes
Prop. 8 to be misguided, including both the four liberal justices
and Justice Anthony Kennedy, those justices are not willing to
strike Prop. 8 down as unconstitutional and therefore legalize gay
marriage in all 50 states. As Justice Kennedy declared in perhaps
the most significant statement of the morning, this case asks the
Court “to go into uncharted waters.”

Kennedy’s comments are certain to disappoint gay marriage
advocates. As the author of the Court’s rulings in both Romer
v. Evans (1996) and Lawrence v. Texas (2003), Kennedy
is one of the Court’s strongest voices in favor of gay rights. Yet
he gave no indication this morning that he saw the case against
Prop. 8 as a proper vehicle for establishing a sweeping win for gay
marriage. In addition to referring to the “odd” rationale of the
federal appellate court ruling against Prop. 8, Kennedy wondered
whether the Supreme Court should have even agreed to hear the Prop.
8 case in the first place. “I just wonder,” Kennedy said, “if the
case was properly granted.”

For the Court’s liberals, on the other hand, the main impediment
to legalizing gay marriage nationwide appeared to be the question
of jurisdiction. Because the state of California announced that it
would no longer defend Prop. 8 in court, the law’s legal defense
was taken up by a group of individuals who had supported the
original ballot initiative. So in addition to the constitutionality
of Prop. 8, the Supreme Court also considered today whether or not
those ballot supporters possessed the legal standing to defend the
law.

Justice Ruth Bader Ginsburg set the skeptical tone right from
the outset. “Have we ever granted standing to proponents of ballot
initiatives?,” she asked, knowing that the answer would be “no.”
Justice Elena Kagan promptly followed up. “Could the State assign
to any citizen the rights to defend a judgment of this kind?” she
questioned, her tone suggesting that she thought not. Chief Justice
John Roberts also voiced skepticism, declaring at one point, “a
State can’t authorize anyone to proceed in federal court...I don’t
think we’ve ever allowed anything like that.”

Taken together, the combination of Kennedy’s hesitation about
entering “uncharted waters” and the apparent liberal consensus on
standing means the Court is unlikely to rule on the constitutional
merits of Prop. 8 and will instead limit its decision to the
particular circumstances present in California. That may still mean
the legalization of gay marriage in the Golden State, but the
ruling won’t go any further than that.

Watch Matt Welch interview Damon Root on today's oral
argument:

 

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Obama’s Gay Marriage Position Falls Flat at Supreme Court

Although the U.S. Supreme Court appeared extremely divided this
morning over the legality of California’s ban on gay marriage, the
justices did exhibit widespread agreement on one point: None of
them seemed to find the Obama administration’s position on Prop. 8
to be very convincing.

In the brief submitted earlier this month, the Obama
administration called for the nullification of the gay marriage
bans now in place in California and the seven other states that
forbid gay marriage while allowing civil unions. According to the
government, this differential treatment is an unconstitutional
deprivation of equal protection. In other words, it’s
unconstitutional for a state to recognize civil unions while not
recognizing same-sex marriage. The federal government took no
position on those states that offer neither civil unions nor gay
marriage.

Unfortunately for the president, that argument appeared to find
little traction during this morning’s oral arguments, as evinced by
these comments made by the justices in response to the Obama
administration’s position:

Justice Ginsburg: “So a State that has made considerable
progress has to go all the way, but at least the Government's
position is, if it has...done absolutely nothing at all, then...it
can do -- do as it will.”

Justice Breyer: “A State that does nothing hurts them much more,
and yet your brief seems to say it's more likely to be justified
under the Constitution. I'd like to know with some specificity how
that could be.”

Justice Sotomayor: “General [Verrilli], there is an irony in
that, which is the States that do more have less rights.”

Chief Justice Roberts: “You saying it's got to happen right now
in California, but you don't even have a position about whether
it's required in the rest of the country.”

Read more about this morning's Prop. 8 arguments
here. Read Reason's coverage of Prop. 8 here.

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Democrats Are Rushing To 'Evolve' On Gay Marriage Before Supreme Court Arguments Today

A flood of Congressional Democrats has come out in support of gay marriage ahead of Supreme Court arguments on two major cases Tuesday and Wednesday.& The latest was perhaps the most significant, as Alaska Sen. Mark Begich said in a statement Monday night that he now supported same-sex marriage. "Gay and lesbian couples should not be denied the ability to pledge their love and commitment through the civil institution of marriage," Begich said, according to BuzzFeed. "I believe that two committed adults of the same sex should be able to receive a government-issued marriage license, while religious institutions retain their right to determine which marriages they will perform." As a red-state Democrat up for re-election in 2014, Begich's turn marks the most meaningful political reversal in a Congressional group that also includes Missouri Sen. Claire McCaskill and Virginia Sen. Mark Warner.& Warner made his announcement on his official Facebook page Monday. "I support marriage equality because it is the fair and right thing to do. Like many Virginians and Americans, my views on gay marriage have evolved, and this is the inevitable extension of my efforts to promote equality and opportunity for everyone," Warner said. McCaskill, meanwhile, took an unconventional approach by announcing her shift on her Tumblr. It was a significant "evolution" from her position during a high-profile campaign in Missouri, when she said that the issue should be left up to individual states. "My views on this subject have changed over time, but as many of my gay and lesbian friends, colleagues and staff embrace long term committed relationships, I find myself unable to look them in the eye without honestly confronting this uncomfortable inequality," McCaskill said in the statement.& "Supporting marriage equality for gay and lesbian couples is simply the right thing to do for our country, a country founded on the principals of liberty and equality.&Good people disagree with me. On the other hand, my children have a hard time understanding why this is even controversial. I think history will agree with my children." Other prominent present and former politicians have in recent weeks announced their support for same-sex marriage, including former Secretary of State Hillary Clinton. And just more than a week ago, Ohio Sen. Rob Portman became the first sitting Republican Senator to endorse gay marriage. Please follow Politics on Twitter and Facebook.Join the conversation about this story »

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