Read Jazz’s post from yesterday for background on this if you missed it. Briefly, a law passed in 1953 grants the president power to negotiate drilling rights in U.S. waters, but it also grants him the power to designate some of those areas off-limits: “The President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.” Obama wants to designate huge tracts of the ocean floor as no-go zones for drilling. No problem — Trump can just un-designate them once he’s sworn in, right? Nope, not according to liberals. The law says that the president can withdraw lands from consideration for drilling; it doesn’t say that he can change his mind later and reinstate those lands. If you want that to happen, your only option is to have Congress amend the 1953 law to make his power of reinstatement explicit. And that won’t be easy to do with only 52 Republican votes in the Senate and the Democratic filibuster still intact (for the moment).
David Harsanyi tries to imagine the apocalyptic rage on the left if Trump purported to do anything “permanent” via unilateral action in office. Which, actually, is exactly why I find this Obama gambit so surprising. Do O and the left really want to set a precedent, with the populist strongman a month away from taking office, that a president’s actions can’t be undone by successors unless the federal statute under which he’s acting explicitly says that they can? That seems like a stupendously terrible and easily abused principle to hand the Trump legal brain trust as they start strategizing for ways to make the Trump revolution “permanent.” You would think the left would want to (very belatedly) try to normalize the idea of limited executive powers that can easily be reversed by future occupants of the office. Harsanyi:
The problem is that Trump (and anyone else who comes along) has little reason not to adopt Obama’s unprecedented use of the executive power.
No post-World War II president (and maybe none in our history) justified executive overreach as a function of his office, regularly contending that Congress—which kept adding seats throughout his presidency—had abdicated its responsibility by refusing to go along with his plans. Whether courts found his actions constitutional or not (and quite often they did), it’s an argument that stands, at the very least, against the spirit American governance…
Whether it’s worth accessing this energy or not will be a worthwhile debate one day. More broadly, though, Obama’s move—and the hypocritical reaction to it—reaffirm that most Democrats aren’t concerned about norms or “democracy,” they’re concerned about furthering liberal agenda items.
The weirdest thing about this “permanent” ban is that it’s terrible politics for Democrats. If Trump signs an executive order purporting to reinstate the lands withdrawn by Obama and he wins that court case, it’s a victory for him and an embarrassment for O and his party. Even if Trump loses the court case, he could turn around and use the issue as a wedge against red-state Democrats who are up for reelection in 2018. We must amend the 1953 law, he’ll say, so that America can take another step towards energy independence. The cheaper we can make energy, the better the conditions are for growth. (If he wasn’t such a chump for Russia, he could also point out that the greater the supply of energy is and the cheaper it gets, the more damage it does to Putin’s oil-dependent economy.) Assume McConnell brings a bill to the floor in summer 2018 amending the law to reopen those lands for drilling. How does Jon Tester or Claire McCaskill or Joe Manchin vote on that, with their environmentalist left-wing base howling at them to hold out and Republicans hammering them to vote yes? There’s a chance Trump and McConnell get the 60 they need to beat a filibuster. And even if they fail, they’re poised to pick up seats that fall anyway — maybe enough to get to 60 and a filibuster-proof majority in a best-case scenario. They could vote again in 2019 and probably pass it then. In which case, what is Obama achieving here except damage to his party and a dangerous, easily abused approach to federal statutory interpretation? It’s bananas.
But it’s also pointless to try to shame liberals now after eight years of them cheerleading aggressive executive power grabs because they were frustrated by an obstructionist Congress. They embraced the idea that the president should have more freedom to act when the legislature isn’t moving as quickly as he’d like. Now Trump’s going to embrace it too.