Activist Judge Throws Out Trump Executive Order, Restores Obama Drilling Ban
As President Trump continues to right the wrongs of the Obama years, he continues to meet resistance from the left via the judiciary. A federal judge has now ruled that “President Donald Trump exceeded his authority when he reversed bans on offshore drilling in vast parts of the Arctic Ocean and dozens of canyons in the Atlantic Ocean,” and thus restored Obama-era restrictions.
It seems like we’re constantly seeing executive orders made by President Trump, particularly those designed to reverse Obama-era executive actions, get thrown out by activist judges, and without any legitimate constitutional justification. One of the most well-known examples of this judicial activism was the one involving Trump’s temporary travel ban, which actually mirrored a previous ban on travel by Barack Obama, but was blocked in the courts over bogus allegations of Muslim discrimination. Trump’s authority to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” is laid out clearly in 8 U.S. Code § 1182 (f), but that didn’t stop the radical left from launching challenges in the courts. It finally ended up at the Supreme Court, which handed Trump a 7-2 victory.
Now we have another activist judge making an absurd ruling in order to protect Obama’s environmental legacy. The judge who made the ruling, U.S. District Court Judge Sharon Gleason, claimed that presidents have the power to remove lands from development, but not to revoke those removals. Seriously? Want to take a guess which president nominated Gleason to the bench? That’s right: Barack Obama. The reasoning behind the decision is so absurd it could only come from an Obama judge. And it gets worse. According to Gleason, “The wording of President Obama’s 2015 and 2016 withdrawals indicates that he intended them to extend indefinitely, and therefore be revocable only by an act of Congress.”
Gleason is arguing that because Obama wanted these drilling bans to be indefinite, that no future president has the authority to reverse them. Yeah, that’s not how it works. Any executive action, since not done with the consent of Congress, can be reversed by another executive action. In fact, it happens all the time. One common example is the Mexico City policy, that requires foreign non-governmental organizations that receive aid for family planning assistance from the United States to certify that they will not “perform or actively promote abortion.” First implemented in 1984 under President Reagan, it was reversed via executive order by Bill Clinton, restored by George W. Bush, reversed by Barack Obama, and most recently restored by Donald Trump. Imagine for a moment if, when Bill Clinton tried to rescind the policy, that a federal judge had claimed that Ronald Reagan had intended the policy to be “extended indefinitely,” which I’m sure we all would agree was his hope, and thus it would take an act of Congress to rescind it. That’s essentially the precedent Gleason is trying to set here.
Obama's drilling restrictions were not imposed by Congress, meaning they cannot require an act of Congress to reverse simply because "Obama wanted his ban to be permanent." Had those drilling restrictions been imposed via the legislative process, it be different. The most relevant example would be drilling in Arctic National Wildlife Refuge (ANWR), which was banned by Congress in 1980. President George W. Bush tried to open it up to oil exploration and drilling by urging Congress to lift that ban. They didn't—and Bush didn't attempt to do so via executive order. Why not? Because he constitutionally couldn't do it. Drilling in ANWR was eventually opened up by an act of Congress, which was signed by President Trump in December 2017.
Gleason has ignored the Constitution in order to protect the environmental legacy of the man who put her on the bench. It doesn’t change the lack of constitutional justification for her decision and the likelihood it will be reversed, even if it means taking it all the way to the Supreme Court. In the end, Trump has the authority to reverse previous executive actions, just as his predecessor did, and his successor will, too.
This has always been the key flaw in Obama’s method of governance. Obama was a “my way or the highway” type of president who refused to compromise on his agenda. He famously said that if Congress didn’t do what he wanted then he would have to act alone. “I’ve got a pen and a phone,” he warned and proceeded to legislate via executive action through the majority of his presidency. He even ignored the constitutionally dictated authority of the Senate to ratify treaties when he unilaterally signed the Iran nuclear deal and the Paris Climate Agreement. This is why it was so vitally important for Hillary Clinton to succeed him. Obama knew his legacy was written in pencil, not ink. He knew that all it took for pretty much everything that defined his presidency to be undone was for a Republican to win in 2016.
Radical environmentalists might as well enjoy this victory while it lasts… because it won’t last forever.
Matt Margolis is the author of The Scandalous Presidency of Barack Obama and the bestselling The Worst President in History: The Legacy of Barack Obama. His new book, Trumping Obama: How President Trump Saved Us From Barack Obama's Legacy, will be published in 2019. You can follow Matt on Twitter @MattMargolis