Shortly after he was sworn in, President Trump issued an executive order overturning Obama’s executive order an opening the Arctic to exploration and drilling. The enviro-nazis sued and yesterday an Obama-appointed judge in Alaska handed down a surprising, yet unsurprising, decision that because Obama had intended for his ban to last forever, it could not be changed by any other president, but only by act of Congress.
A federal judge in Alaska has reinstated a ban on oil-and-gas drilling in vast swaths of the Arctic Ocean, potentially undermining a central part of the Trump administration’s effort to expand offshore drilling.
Mr. Trump will need congressional authority, according to the ruling, to reopen drilling in Arctic areas and smaller parts of the Atlantic Ocean that the Obama administration put off limits just weeks before President Obama left office. The late Friday ruling invalidates an executive order Mr. Trump issued during his first months in office aimed to overturning the ban.
Mr. Trump issued an order in 2017 to overturn Mr. Obama’s action, part of his agenda to boost domestic energy production. But legal experts and analysts had warned that he may not have the power to overturn the ban under the Outer Continental Shelf Lands Act.
U.S. District Judge Sharon Gleason agreed. That 1953 law includes a sentence saying the president may “from time to time, withdraw” from consideration any currently unleased lands in federal offshore waters. It has been invoked only a handful of times and doesn’t include a procedure for a new president to undo actions by a predecessor.
Judge Gleason ruled that Congress had passed other laws that clearly authorized a president to revoke the decisions of a predecessor. This law had not, she said, concluding Mr. Trump didn’t have that authority.
The money quote is, (h/t NightTwister) “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”
The implications of this are rather stunning. The judge is saying that Obama’s decision, unlike any other president’s executive order, unlike even a regulation issued under the APA, exists in perpetuity because Obama so intended.
The idea that presidents have the power to establish policies which last beyond their administration is a concept utterly foreign to American jurisprudence until January 20, 2017. I would submit that a 1953 law that is silent on the ability of one president to overturn the decisions of his successors does so because in 1953 there was no doubt in anyone’s mind that the authority of a president ended when his successor was sworn into office. His policies survived only to the extent that his successors agreed with them. If that is not the case, the president has changed from “chief magistrate” to an “imperial presidency” right on to the status of Caligula Caesar who declared himself a god.
One of the unsettling things we’ve seen since the inauguration of President Trump has been the assertion by some members of the judiciary that President Obama was still, for all intents and purposes, the president. Take, for instance, the case of the Deferred Action for Childhood Arrival (DACA) policy. That policy was instituted by way of a simple memo signed by Janet Napolitano during her maladministration of the Department of Homeland Security. Now a federal judge, naturally in the Ninth Circuit, has ruled that this memo cannot be rescinded, that it is the law of the land.
This case is on its way to the Ninth Circuit. Trump will lose there, because if any circuit embodies the ethos that President Trump is not the legitimate president, it is that judicial shithole, And he will prevail in the Supreme Court. The net loss is several years of productive economic activity that could improve the lives of Americans and make the nation stronger. The shame is that there is absolutely no downside. I’m sure that Judge Gleason laughed herself into incontinence as she issued this ruling knowing that it would be overturned but knowing that she’d given the Resistance encouragement and stopped the hated Trump in his tracks.
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