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

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

Baylen Linnekin
Reason Magazine

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 article continues at Reason.com



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