In his enviro-extremism, President Obama is attempting to tie President-elect Trump’s hands by blocking vast swaths of the Arctic Ocean and stretches of the Atlantic from oil and natural-gas drilling. The gambit, announced by the administration on Tuesday, is part of an eleventh-hour wave by which Obama is flooding the regulatory zone: Promulgating so many rules – of the unpopular, hard-left variety that Democrats dare not unveil before Election Days – that he hopes the Trump administration will find it too cumbersome to undo all of them.
The incoming president should not let his predecessor get away with it. Obama’s lawyers apparently believe they’ve found a loophole that could make the anti-drilling ban stick. President Trump, however, will have the power to rescind it, and should do so promptly.
Obama will set an all-time record for pages added to the Federal Register this year. Actually, make that another all-time record, since he will (yet again) be breaking records he has set, and broken, repeatedly over the last eight years. In fact, the Competitive Enterprise Institute notes that on a single day in mid-November, Obama added an unprecedented 572 pages to the Federal Register.
Concededly, counting pages can be an imprecise or even misleading measure of presidential law-making. The Federal Register includes reams of documents besides rules and regulations. Plus, even rules that had the effect of rolling back rules would thicken the rule book. But let’s face it, Washington is rarely in the business of reining in its intrusions. The last eight years have been all about extending them – to the Arctic Ocean and beyond.
Trump will find it easy to cancel rules imposed in the late stages of the incumbent administration. Any rules that have not yet gone into effect can simply be suspended. And rules that have just gone into effect may be undone under the 1996 Congressional Review Act. The CRA empowers Congress, within 60 session-days of a rule’s implementation, to enact a resolution disapproving it. Such a resolution is not subject to Senate filibuster (i.e., it can be passed by a simple majority because the usual requirement of 60 votes to end debate does not apply).
For the most part, the CRA has been an illusory check on executive agencies run wild. A disapproval resolution, like any other congressional act, does not become law unless the president signs it (or unless the president’s veto is overridden). Obviously, a president is not going to sign a resolution that cancels rules promulgated by his own administration in furtherance of his agenda.
Still, the CRA has been successfully invoked once, in 2001. That example mirrors our current transitional circumstances: It happened at the start of the new Bush (43) administration, when Congress voted to revoke a rule implemented toward the end of the Clinton administration.
With Republicans in control of both houses of Congress as well as the White House, it will be possible to enact resolutions of disapproval, as long as it is done quickly. While the GOP margin in the Senate is thin, Republicans have been united in opposition, at least rhetorically, to Obama’s despotic style of governance. Now that they can easily do something about it, expect them to pass, and Trump to sign, resolutions that rescind brand new Obama rules.
Obama knows this, of course. His rule-making now is symbolism, an effort to buck up his demoralized left-wing base and shape how he is remembered. That is not true, however, of the anti-drilling gambit. On that, the outgoing administration hopes it has the incoming one outmaneuvered.
See, the anti-drilling edict was not issued as a rule. Obama’s lawyers combed the statute books and found a stray sentence in the 1953 Outer Continental Shelf Lands Act (OCSLA) (specifically, in section 1341(a) of Title 43, U.S. Code). It says: “The President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.”
From this, Obama claims statutory authority to bar exploration and drilling from any part of the Continental Shelf within American jurisdiction, apparently … forever. He reasons that, because the OCSLA does not prescribe a procedure by which lands that have been withdrawn by a president may be put back in play, no future president has the power to undo what he has done.
Obviously, the OCSLA gives a president, largely through the Department of the Interior, very broad discretion to manage development and preservation of the Continental Shelf. The statute provides the president with flexibility to react to circumstances that could impact either the environment or energy supplies.
Thus, the administration misses the point by highlighting Congress’s omission of any procedure to reinstate leasing in lands a president has withdrawn from leasing. That omission is unremarkable since Congress also didn’t prescribe a procedure presidents must follow to withdraw the lands in the first place. The withdrawal is accomplished by the president’s simple say so. Consistent with the congressional purpose of providing flexibility, reinstatement would be accomplished the same way. There is nothing in the statute suggesting otherwise.
Obama cannot tie a subsequent president’s hands by withdrawing lands from drilling. He can’t even tie his own hands. If the president had an epiphany tomorrow – if he suddenly realized that the ability to extract energy is in the vital interests of the United States (and of the world, which derives great benefit from U.S. energy development) – he could reverse his anti-drilling decision by simply announcing he was doing so. Or he could just have the Interior Department begin issuing licenses.
This would be entirely consistent with the OCSLA’s capacious grant of authority to the Interior secretary (in section 1334) to administer “the leasing of the outer Continental Shelf,” and to “at any time prescribe and amend such rules and regulations” as the department may previously have prescribed. Congress stressed that this broad authority is granted “notwithstanding any other provisions” of the OCSLA. Thus, if President Trump decided to reverse Obama’s withdrawal of lands from drilling, the secretary could immediately begin administering the leasing of those lands.
Perhaps Obama hopes that his ban will hold because Trump may not see any urgency in undoing it. As the Wall Street Journal reports, Obama’s action carried only “symbolic significance.” The is no real impact because “no commercial drilling is currently taking place in U.S. federal waters of either the Atlantic off the East Coast or the Arctic north of Alaska.”
Symbolism has its place, though. Even if there is no current drilling, leasing rights could be valuable. President Trump ought to announce that he will not continue Obama’s ban and will entertain bids. If the green crowd challenges any new leases in court, Trump should instruct the Justice Department not to defend the Obama administration’s specious theory that Congress, in a single, fleeting sentence that does not mention permanent withdrawals of land, empowered presidents unilaterally to impose perpetual drilling bans.
There was a legal way for Obama to impose an enduring ban on drilling. For the first two years of his administration, Democrats had complete control of Congress. Obama could have proposed a law removing U.S. portions of the Continental Shelf from energy exploration. Obviously, he didn’t do so for the same reason that he waited until after the 2016 election to announce his drilling ban: It would have been deeply unpopular and Democrats would have paid the price at the ballot box.
Thankfully, the days when Obama could impose by edict what he could not get enacted by congressional legislation are coming to an end. His drilling ban will hold until January 20, 2017. After that, President Trump should waste no time rescinding it.