The Monsanto Protection Act: The Unconstitutional Product of Bad Seeds in Congress

BY DANIEL BUTLER — Over the past few years, Congress has been supplying a steady stream of material to late-night television show hosts and comedians. The legislative laugh fodder ranges from the inherently comical (the labeling of pizza as a vegetable) to the seemingly sinister (the debt-ceiling debacle). So what display of Congressional incompetence prompted The Daily Show’s Jon Stewart to air a segment called “You Stuck What Where Now?

The answer is H.R. 933, the Consolidated and Continuing Appropriations Act of 2013 (“the Act”). Section 735 of the Act allows farmers to continue producing genetically modified organisms (GMOs) even if a federal court rules that they cannot do so. Proponents, who call this section the Farmer Assurance Provision, claim the goal is to protect farmers’ rights. Opponents, who label it the Monsanto Protection Act, charge that it is both a special interest carve-out and an unconstitutional usurpation of judicial power. A brief primer on the GMO process helps illuminate why this creates not just comic relief, but also constitutional concerns.

What are genetically modified organisms?

GMOs are those organisms, either plant or animal, that have had their DNA altered through a synthetic genetic engineering process. The process involves the extraction of certain genes from one species and the insertion of those genes into the DNA of another species. Advocates of GMOs explain that genetically modified crops are created to tolerate herbicides and produce their own natural insecticide, thus providing an economic benefit. Opponents fear that they pose an unnecessary risk to human health and environmental sustainability.

What does the new law do?

In order to produce genetically modified crops, biotech companies need to get approval from the Department of Agriculture (USDA). If the USDA approves the production, the crop is granted “non-regulation” status and the companies’ growers are free to produce the genetically modified seed. In the past, there have been legal challenges to these determinations, alleging that the USDA failed to conduct an appropriate environmental review. Prior to Section 735, if a federal court ruled in favor of such a challenge, the remedy would often be an injunction that ordered biotech companies to cease growing already cultivated crops. But now, with Section 735 on the books, biotech companies have an extra lifeline. After an adverse court ruling, biotech companies can request a temporary permit from the Secretary of Agriculture to continue the crop’s production. And under Section 735, the Secretary must immediately grant such a permit.

Proponents of the law, such as the agribusiness conglomerate Monsanto, argue that the law is necessary to protect farmers’ rights by preventing a requirement to destroy crops already planted. Missouri Republican Senator Roy Blunt, who wrote Section 735, explains, “What it says is if you plant a crop that is legal to plant when you plant it, you get to harvest it.” Blunt and his team of legislators admit that they worked closely with Monsanto executives in crafting the provision, but they balk at the suggestion that the bill is a special interest carve-out. They contend that the law protects the economic interests of farmers by ensuring that crop production is not affected by costly litigation battles.

What’s the problem?

Blunt’s assurances are superficial at best, and they detract from the main reason why so many opponents are up in arms. These opponents correctly conclude that the law usurps the power of judicial review from the courts and thus amounts to an unconstitutional violation of judicial sovereignty. The law effectively allows the Secretary of Agriculture, an executive officer, to overrule a judicial order. Even if the law actually protects a few farmers from frivolous lawsuits, it does so by transferring judicial authority to the executive branch, a clear violation of the principles laid out in the landmark case, Marbury v. Madison. And for that reason, the law should be ruled unconstitutional.

However, the law may not be around long enough for a constitutional challenge. Because it is part of the Appropriations Act for the fiscal year 2013, the law will expire with the rest of the Act in September. This gives its opponents some degree of comfort. However, some worry that the language could be inserted into more permanent legislation in the future and are raising awareness to prevent such an occurrence. In fact, awareness was a major issue during Section 735’s passage. As The Daily Show lamented, there was no debate on the law and many congressmen were unaware of the provision’s existence. However, Senator Jon Tester (D-MT), a vocal opponent of the provision, has campaigned against it. With the help of supporters, Senator Tester has convinced USDA Secretary Tom Vilsack to exercise some restraint. The USDA has stated, “Secretary Vilsack has asked the Office of General Counsel to review this provision, as it appears to pre-empt judicial review of a deregulatory action which may make the provision unenforceable.” Hopefully, the General Counsel’s office will advise the Secretary of the provision’s constitutional deficiencies, and he will accordingly decline to enforce it.

The safety of GMOs is still a debatable issue. However, judicial review is not. If Congress wishes to support GMO production, it must do so without trampling the constitutional authority of federal courts. Unfortunately, this provision, inserted by Roy Blunt and Monsanto executives into the Appropriations Act without any debate, is an attack on the authority of the judicial branch and on our system of checks and balances. For this reason, food safety advocates and constitutional scholars alike are more than justified in calling for the provision’s removal.

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