- The Washington Times - Tuesday, February 26, 2002

Parochialism, the chronic bane of national strength, is afoot over Nevada's Yucca Mountain. President George Bush, pursuant to delegated legislative authority, has submitted to Congress Yucca's designation as the permanent repository for the nation's high-level nuclear wastes that have been dangerously accumulating for decades at scores of dispersed nuclear power plants.

Congress, however, crowned the governor of Nevada with a veto over the president's Yucca Mountain designation in the Nuclear Waste Policy Amendments Act of 1987. And Gov. Kenny Guinn has voiced his intent to thwart President Bush's nationally informed and politically accountable nuclear waste burial decision with his delegated veto. The Nevada viewpoint will prevail over the national under the Act unless both the Senate and House of Representatives pass a resolution of disapproval within 90 days of the governor's veto, which also becomes federal law with President Bush's signature or a congressional override of a presidential veto.

The United States Constitution, however, speaks the language of "We the people." It prohibits Congress from endowing Mr. Guinn, whose political accountability and vision are intrinsically local, to trump President Bush's Yucca nuclear waste site selection, a matter of serious national urgency.

Similarly, Congress could not authorize governors to veto ICBM site selections by the president. As U.S. Supreme Court Justice Benjamin Cardozo lectured in Baldwin vs. G.A.F. Seelig (1935): "The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division."

It might be urged, however, that nothing in the Constitution prohibits Congress from mocking Justice Cardozo's wisdom, and anointing state governors as co-partners in the legislative process, whether over nuclear waste disposal or otherwise. But Article 1 vests national legislative power with Congress to promote the political accountability of senators and representatives for their official actions. And Article II, section 2, clause 2 (the "Appointments Clause") requires that "officers" of the United States wielding significant executive powers be appointed by the president with the advice and consent of the Senate, a sister method for ensuring politically accountable executive decisions. Thus, the Supreme Court has ordained limits on congressional efforts to frustrate or attenuate accountability by shuffling off pivotal policy decisions outside the legislative or executive branches. For example, the high court nixed a federal statute delegating line-item veto power to the president in matters of taxation and spending.

Mr. Guinn's veto power over President Bush's Yucca Mountain repository designation is similarly dubious under the Appointments Clause.

The governor was not appointed by Mr. Bush and confirmed by the Senate as prescribed. Yet who could deny that in vetoing the Bush site selection Mr. Guinn will be exercising significant executive power of the United States comparable to President Bush himself when making the Yucca designation to Congress? Mr. Guinn's veto authority thus transgresses the Appointments Clause. But assuming Mr. Guinn's executive power is non-significant because subject to superceding federal legislation, "inferior" officers acting pursuant to United States laws must still be appointed by the president alone, heads of departments, or federal judges.

Gov. Guinn, however, was elected by the citizens of Nevada, not appointed by any federal authority.

The Constitution places further limits on the dispersal of federal or state governmental power to private or politically unaccountable figures.

Thus, the Supreme Court held in Seattle Trust Co. vs. Roberge (1928) that constitutional due process prohibits a legislature from empowering adjacent landowners with veto power over the land uses of neighbors. Likewise, in Eubank vs. Richmond (1908), the court held unconstitutional the delegation of customary official zoning and land use restrictions to clusters of private property owners. In both cases, the chief vice was standardless decisions by private parties unbeholden to the delegating public authority but given official sanction in the making or execution of laws.

Mr. Guinn's veto authority under the 1987 Amendments Act seems indistinguishable. It may be exercised for any reason or no reason. And Mr. Guinn is no disinterested party in the Yucca Mountain site selection.

Citizens of Nevada are his constituency, a parochial, not a national, constituency from where his delegated power originated; and, citizens of Nevada generally oppose Mr. Bush's site selection driven by their selfish NIMBY (not-in-my-backyard) instinct.

President Bush, of course, is no less politically calculating than Gov. Guinn. But the Constitution shrewdly marries that calculating to "We the people" of the United States, not "We the people" of a single state.

That marriage sharply inclines the president to favor national values and benefits, precisely what the Constitution intended.

September 11 has dispatched thousands of our fabulous soldiers abroad to fight international terrorism and to defend the liberties of all citizens of the United States. For a single state to complain that its citizens are disproportionately risking that last full measure of devotion in Afghanistan or elsewhere would smack of blasphemy. The risks of a Yucca Mountain repository to citizens of Nevada seem trivial in comparison.

Shouldn't we all ungrudgingly accept sacrifices on behalf of major national enterprises as welcome opportunities for our finest hours.

Shouldn't we invite ICBMs in our back yards if necessary to bolster national security? Isn't that attitude the best security for keeping the obelisk of the United States shining for the ages?


Bruce Fein is general counsel for the Center for Law and Accountability, a public-interest law group headquartered in Virginia.

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