Immediately prior to the congressional recess in December, Congress passed an inefficacious two-month extension of the Social Security tax cut.  Additionally, they reauthorized another two months of unprecedented long-term unemployment benefits, along with more spending for Medicare ‘doc fix.’  None of it, including the entitlement spending, was paid for in any meaningful way.

Nevertheless, you might ask, didn’t we get the Keystone pipeline as part of the deal?  Well, in reality we got nothing.

Last week, Obama announced that he will deny the requisite permit to TransCanada’s Keystone XL pipeline, a decision that will cost thousands of jobs, billions in revenue from royalties, and cheaper products for all consumers.  Even though Obama was required to issue the permit within 60 days of passage of the payroll tax deal last December, the text of the amendment (Title V) offered Obama the following loophole:

(b) Exception.–

(1) IN GENERAL.–The President shall not be required to grant the permit under subsection (a) if the President determines that the Keystone XL pipeline would not serve the national interest.

(2) REPORT.–If the President determines that the Keystone XL pipeline is not in the national interest under paragraph (1), the President shall, not later than 15 days after the date of the determination, submit to the Committee on Foreign Relations of the Senate, the Committee on Foreign Affairs of the House of Representatives, the majority leader of the Senate, the minority leader of the Senate, the Speaker of the House of Representatives, and the minority leader of the House of Representatives a report that provides a justification for determination, including consideration of economic, employment, energy security, foreign policy, trade, and environmental factors.

Despite the fact that TransCanada has spent over three years complying with regulations and sundry environmental impact studies, Obama still has the power to issue a faux report deeming the pipeline a risk to our environment.  That is exactly what he will do this week.

This is yet another example of Republicans agreeing to pass a lousy bill on the credulous premise that there will be some ancillary benefit.  It turns out that the entire rationale for passing the bill – forcing Obama’s hand on Keystone – was erroneously conceived.

It is not too late to force Obama’s hand on the pipeline.  According to the latest CRS legal analysis, “[I]f Congress chose to assert its authority in the area of border crossing facilities, this would likely be considered within its Constitutionally enumerated authority to regulate foreign commerce.”  Even though presidents have broad authority to conduct foreign policy, the Keystone permit is more of an issue of foreign commerce.  Accordingly, CRS concluded that “whereas any independent presidential authority in matters affecting foreign commerce derives from the president’s more general foreign affairs authority, Congress’s power over foreign commerce is plainly enumerated by the Constitution, suggesting that its authority in this field is preeminent.”

In other words, Congress has plenary power to either absolutely force Obama to issue the permit or to issue it themselves.

The House should immediately pass Keystone legislation, either in a standalone bill or as part of other “must-pass” legislation.  They should ship it off to the Senate and let the 23 Democrats who are up for election stand before their constituents and kill job creation.  Not surprisingly, the overwhelming majority of voters agree.

Cross-posted to The Madison Project