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Why the "Monsanto Protection Act" is bad law


The "Monsanto Protection Act" is discussed some, but (for the most part) for the wrong reasons.  Actually, I'm discussing it partially for the "wrong" reasons, too -- I wasn't that interested, but my cousin asked me to. Once I did some research, though, I thought it really was worth slamming.

If you haven't heard, the "Monsanto Protection Act" is what many are calling a "rider" placed on a recent appropriations bill.  It says that the Secretary of Agriculture should ignore court rulings in a particular set of cases.  The scenario is when a plant has been preliminarily deemed to be unharmful, and therefore unregulated, by the Secretary, then later a court order tries to stay that determination.

Critics are saying that this gives carte blanche to Monsanto, the largest plant genetic modifier, who no longer has to worry with the courts.  That's taking it a bit far -- the Secretary of the Agriculture is already making a determination, and this only applies to the temporary status.

Anyway, this is a rider on an appropriations bill, and I'm sure it was added at the last minute in order to get Sen. Blunt (R-Mo) to sign on.  It is set to expire in 6 months, and there has been enough political heat that I suspect it will not make it into the next version.  People are talking about how it is a gift to a powerful lobby, and somehow both sides seem to be blaming the President.  (I'm not sure how he was able to convince a Republican to attach the rider, then get the House to vote for it and the Senate Republicans not to filibuster it; you would think he would use those powers for other issues.)  I don't particularly care.  It is a bad law, but those that saw it probably were willing to leave it in order to get the appropriations bill passed.

What makes it a truly bad law is that it is Congress ordering an Executive official to ignore the judiciary.  The Secretary of Agriculture said, basically, "Uh... I'm not sure I can do that."  And that is correct.  While Congress can give limits and exceptions to the jurisdiction of federal courts, nothing in the Constitution even remotely suggests that the Executive Branch can simply ignore a ruling.  It is impossible to call the Judiciary a co-equal branch if you ignore its only real power.

This usurpation of power is made even worse because Congress is ordering an appointed Executive official to act in a certain way ("shall"), with no apparent discretion.  The Secretary can make different decisions on the merits of the original determination, but the permits shall be issued, no matter what the courts said.  Crazy.  Now Congress is slapping both the Judiciary and the Executive.

There were many other ways to accomplish this.  It's not necessarily bad policy to allow a subset of farmers to keep planting and selling when a determination was previously made that a plant was unharmful, and the Secretary has taken that path in the past.  Congress could have restricted the jurisdiction of federal courts.  Congress could have changed the Plant Protection Act to make the finding of unharmfulness unnecessary, or discretionary, or ... whatever.  Maybe it could have made revocation create a one year amnesty for failing to get a permit.  There are many, many tools, but Congress here chose a very bad one.

The law probably will not last long enough to have a day in court, but I hope it does.  Letting a group lobby for this sort of legislation is like a kid convincing one teacher to order a different teacher to ignore the principal.  Okay, that's an absurd analogy, but this is an absurd situation, and I would love to see a 9-0 verdict from SCOTUS, with Justice Scalia issuing a scathing opinion about how Congress should at least try to follow the rules sometimes.

And, from what I know here, Senator Blunt should be voted out.  Monsanto is not the only constituent he has in Missouri, but this law will give special consideration to Monsanto at the expense of others.

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