President Obama has a long and well-known history of overriding laws by executive fiat. Stanford Law School professor Michael McConnell wrote in a July 2013 Wall Street Journal op-ed that President Obama’s decision to suspend the employer mandate of the Affordable Care Act for a year “raises grave concerns about his understanding of the role of the executive in our system of government.” This followed Obama’s effectively decreeing the DREAM Act for illegal immigrants who came as children, which Congress had decided not to pass, and effectively rewriting the No Child Left Behind Act. Since then, he’s suspended Obamacare rules governing “substandard” health-insurance plans and offered legal status to millions more illegal immigrants.
We should also recall Obama’s (literally) injudicious decisions to make “recess” appointments to the National Labor Relations Board (NLRB) when he deemed the Senate “unavailable to conduct business” even though it had been conducting pro forma sessions every three days. In National Labor Relations Board v. Noel Canning, the Supreme Court disagreed with the president, holding that the Senate is in session “when it says that it is.”
But less well known is that the president’s “I know best, so we can ignore the law and due process” mentality has also extended into areas of science-based regulation — or what should be science-based regulation. Questions of constitutionality aside, his abuses of discretion will incentivize bad behavior among individuals and companies.
An egregious example is the feds’ treatment of the fast-growing, genetically engineered Atlantic “AquAdvantage” salmon, which reaches maturity twice as rapidly as its wild cohorts. The changes — the addition of a growth-hormone gene from the Chinook salmon and a regulatory DNA sequence from the ocean pout — cause no detectable difference in the fish’s appearance, ultimate size, taste, or nutritional value; salmon with these alterations just grow faster, a tremendous economic advantage to those farming the fish in a closed-water system. The availability of such a salmon would also be a tremendous boon to consumers seeking low-fat and affordable sources of protein, especially in the face of food-price inflation and the obesity epidemic.
Normally, the review and approval of such a product would occur routinely in the depths of the FDA’s Center for Food Safety and Nutrition, but the review of the AquAdvantage salmon was hijacked and delayed indefinitely by the Obama administration — on the advice of an assistant White House chef, no less. The AquAdvantage still has not been approved, even though all the requirements were met in 2013. This ongoing delay is a violation of the Federal Food, Drug, and Cosmetic Act, which requires that the Health and Human Services secretary approve the AquaBounty application within six months after all the legal requirements have been met.
Another example of questionable “enforcement discretion” is the government’s failure to show any interest in the federal and state felonies committed by Cynthia La Pier, a Massachusetts woman who decided to place her own warning labels on certain foods in a local supermarket, a flagrant violation of the Federal Food, Drug, and Cosmetic Act. It would not be a difficult prosecution: On May 24, 2013, the New York Times ran on its front page a photo of the culprit in flagrante delicto, accompanied by an article that identified her and the scene of the crime.
What is the reason for this vigilante action? Basically, La Pier and her ilk disapprove of the FDA’s policy of not requiring labels to identify foods that are obtained from plants, animals, and microorganisms that have been genetically altered by the most modern, precise, and predictable genetic techniques. However, the FDA’s policy makes scientific and common sense, and, most important for law enforcement, it is dictated by federal law.
La Pier is hardly a candidate for the FBI’s Most Wanted List, but the unwillingness of the Department of Justice to investigate such obvious crimes illustrates yet again how enforcement discretion has morphed into all-progressive-politics-all-the-time. The feds are never too busy or resource-poor to selectively investigate and intimidate conservative groups seeking 501(c)(3) tax-exempt status, but they’re uninterested in brazen violations of federal law when it suits them.
Jonathan Turley, a law professor at George Washington University, testified before the House Judiciary Committee in December 2013 about the threat posed by a president who does not faithfully execute the laws. “The danger is quite severe,” he told the committee. “The problem with what the president is doing is that he’s not simply posing a danger to the constitutional system. He’s becoming the very danger the Constitution was designed to avoid.”
These examples capture perfectly the upside-down mentality of President Obama and his minions: By word and deed, they actually encourage anti-social behavior — ranging from illegal immigration to vigilantism — while discouraging innovation and investment in technological research and development.
There is no justification for a government that abuses executive discretion to further its parochial view of what America should be.
— Henry I. Miller, a physician and molecular biologist, is the Robert Wesson Fellow in Scientific Philosophy and Public Policy at Stanford University’s Hoover Institution. He was the founding director of the FDA’s Office of Biotechnology.