Tuesday, August 20, 2013

SOME THINGS NEVER CHANGE AND NEVER WILL …

Two Humiliating New Judicial Defeats for Obama Administration, in Remarkably Harsh Language

Of course, common sense and faithful execution of the nation’s laws have never been the Obama Administration’s North Star.
“The President and federal agencies may not ignore statutory mandates or prohibitions merely because of policy disagreements with Congress.” 
I'M THE PRESIDENT, … WHY CAN'T I DO WHAT I WANT?  THAT'S NOT FAIR!
That rudimentary truth, familiar to any freshman political science major, should not be necessary instruction for a former professor of constitutional law like Barack Obama.  The fact that it is necessary underscores the depth of lawlessness to which his administration has descended. 
On a more optimistic note, however, two new judicial rebukes this week, notable for their harsh terms, show that he remains subject to some degree of adult supervision. 
In the first decision, quoted in part above, the nation’s second-highest court commanded Obama’s Nuclear Regulatory Commission to cease “simply flouting the law” by refusing to rule on the Yucca Mountain nuclear waste depository in Nevada.  The governing 1983 statute mandates that the Commission “shall consider” applications and “issue a final decision approving or disapproving” within three years.  Here, however, the application in question was filed in 2008, making it more than two years overdue. 
                                                                                                       --- Barack Obama
That is no accident or innocent oversight, but rather deliberate delay in violation of federal law.  Obama had promised during his campaign to stifle the project, so his appointees to the Commission just refused to take up the application. 
Exacerbating matters, in 2011 the same D.C. Circuit Court of Appeals had directed the Commission to complete the procedure post haste.  “By its own admission,” however, “the Commission has no current intention of complying with the law.” 
Accordingly, the Court issued a rare writ of mandamus, which amounts to an extraordinary order compelling performance of a ministerial act when all other judicial remedies have failed.  In so doing, it felt compelled to address the broader issue of the Obama Administration’s habitual lawlessness: 
“This case has serious implications for our constitutional structure.  It is no overstatement to say that our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case by the Nuclear Regulatory Commission.  Our decision today rests on the constitutional authority of Congress, and the respect that the Executive and the Judiciary properly owe to Congress in the circumstances here.” 
In a second case this week, a federal court rejected a lawsuit by Obama’s Equal Employment Opportunity Commission (EEOC) against a Dallas, Texas, employer that used criminal background checks in its hiring process. 
Back in February, CFIF detailed a new EEOC memorandum informing employers that they may be sued for screening job applicants for criminal convictions.  At that time, we detailed how over 90% of surveyed employers use criminal background checks, often at the specific instruction of their attorneys.  After all, employers may be held liable for the violent or illegal acts of their employees against third parties or fellow employees.  Moreover, background checks help prevent such things as theft, fraud or other misconduct against the employer itself. 
Additionally, courts across the country have specifically ruled that employers are within their rights to refuse employment on the basis of criminal conviction.  In fact, the EEOC itself uses criminal background checks. 
Nevertheless, the EEOC announced to employers that, “criminal record exclusions have a disparate impact on race and national origin.” 
Dismissing an EEOC lawsuit against Freeman Company, which employs approximately 30,000 people, U.S. District Court Judge Roger Titus was having none of it: 
“The story of the present action has been that of a theory in search of facts to support it.  But there are simply no facts here to support a theory of disparate impact resulting from any identified, specific practice of the Defendant. "Indeed, any rational employer in the United States should pause to consider the implications of actions of this nature, brought based upon such inadequate data.  By bringing actions of this nature, the EEOC has placed many employers in the ‘Hobson’s choice’ of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.  Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks.  To require less would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.” 
Of course, common sense and faithful execution of the nation’s laws have never been the Obama Administration’s North Star.  From illegal “recess” appointments to Environmental Protection Agency overreach to ObamaCare revisions contrary to the law itself, this is an administration that considers itself above the law. 
Alongside Obama’s plummeting approval ratings, this week’s judicial branch rebukes offer a rude rebuttal to that belief.