An Obama-appointed judge throws out a Trump executive order overturning an Obama executive order.
Hard to see how this survives an appeal, even if it has to go all the way to SCOTUS.
9 thoughts on “More Lawlessness From The Judiciary”
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Madness… I would argue that ALL Presidential Executive Orders should be treated in the same manner as Recess Appointments. To wit, they must be affirmed by Congress or they lapse with the end of the current Congress — every two years is the “Sunset Limit”.
At the very least, they should sunset at the end of the President’s time in office.
As for this particular EO; Obama made a similar EO banning sales of leases in the Gulf of Mexico, and that was overturned by the 5th Circuit by exceeding his authority. This new ban was Obama’s second try that banned areas outside the 5th Circuit. Here, Trump is being like Obama; but in a way that I hoped would show how much Obama exceeded his authority. Unfortunately, these activist judges are clearly making political rulings rather rulings that follow any coherent principle.
The judge might be right on that particular law, if not on the basic principles of how government should work.
As I recall, Congress gave the President the power to set aside lands, and then they sort of ran out of ink and failed to grant the power to change his mind.
If the case looks like it will drag on, Trump should simply grant companies immunity from prosecution if they drill in the areas under Obama’s ban, rendering the ban absolutely meaningless. But I’m not sure that would actually work legally.
So instead he could declare the West Coast shoreline, and everywhere within 300 miles of it, a protected habitat were non-military vehicles are forbidden. Then the left will scream in outrage and argue that no President should have the power to set aside vast tracts of land and Trump can reply “Yeah. I agree. But there’s nothing I can do to fix this because Obama judges said…”
The legal argument is actually pretty solid. There is a law regarding the areas eligible for oil leases, and that law says that the president can remove areas from the list. It does not say that the president can add areas to the list, and as the judge correctly cited, this is consistent with congressional practice, if they’d wanted the president to be able to add areas, they would have said so. Of course, the countering argument is that restoring an area removed by a previous president does not count as adding an area. But I would not bet on this getting considered for appeal, much less being overturned.
It’s amazing how bad modern journalism is. I looked through several Google pages of news stories on the judge’s ruling, and none of them expressly cited or named any of the laws in question, or gave the numbers of the executive orders in dispute, or really anything useful to someone who wants more than gossip. The stories might as well have been written based on what the author’s third grader overheard at school.
So I was left to find 43 USC 1331 and 43 USC 1337, Trump’s Executive Order 13795, Obama’s Executive Order 13754, and the judge’s ruling (PDF).
Alaska is part of the 9th circuit, so winning on appeal is pretty much out of the question.
Since when does an Alaska judge have jurisdiction over oil leases in the Atlantic ocean?
The issue overall isn’t the legal standing of the law that Obama referenced or his ‘intent’.
The legal issue is that an executive order can be overwritten by any future Presidents. If any President wants the order to stand, he needs to push Congress to make it law.
This is the over-reach of this judge.
Well, that kind of opinion might be above the pay grade for a district judge.
The Wiki on executive orders (top legal research here!) says:
“Presidential executive orders, once issued, remain in force until they are cancelled, revoked, adjudicated unlawful, or expire on their own terms. At any time, the President may revoke, modify, or make exceptions from any executive order, regardless if the order was made by the current president or a predecessor. Typically, a new president reviews enforced executive orders in the first few weeks in office.”
One could argue that in passing 43 USC 1331 or 1337, Congress unlawfully tied the hands of the executive branch by inadvertently precluding a President from revoking or modifying a prior executive order.
That’s how I would fight this on appeal.
Then again, I can see the argument for upholding the original verdict. There are many EO’s that a President could pass that couldn’t simply be overturned. For example; how do you overturn building of a border wall? I’m sure you could stop future building. I suppose you could call for dismantling of the existing wall, but on the latter, you would need funds appropriated by Congress. As much as the military has funds to destroy things; I don’t think a future President could find in the Defense budget money for destroying such infrastructure.
I’m not sure how much of a fight this is for Trump. Arctic drilling isn’t viable at $60bbl. The real question is whether or not the state of Alaska is willing to sit on the sideline of the issue of its land and resources while Prudhoe Bay is near or past its peak in oil production. Major projects to increase production are non-existent. The closest is development of a new gas pipeline, but the big three players in the region aren’t agreeing on moving forward on it. I don’t see Alaska fighting here, so I don’t see Trump fighting for them.