In a complaint filed by Peter Keisler, TransCanada has field suit against the Obama Administration over its unilateral decision to prohibit the construction of the Keystone XL Pipeline. (Fittingly, Obama was one of the Democrats who blocked Keisler’s nomination to the D.C. Circuit in 2007). They argue that the President’s actions violate the separation of powers. From the introduction of the complaint:
1. This case presents the question whether the Constitution grants the President unilateral power, unsupported by any statute and contrary to the expressed wishes of Congress, to prohibit the further development of the Keystone XL Pipeline on the basis that the pipeline would cross a U.S. border and would, if permitted to proceed, undercut the President’s influence in international climate change negotiations. …
5. Even had Congress not acted, the President’s assertion of power far exceeds any prior Presidential practice that could, through Congressional acquiescence or otherwise, possibly support the constitutionality of his action here. Congress has enacted statutes that limit the Executive Branch’s authority over certain cross-border commercial facilities and foreclose any role for unilateral Presidential action. For facilities not yet addressed by statute (including oil pipelines), certain prior Presidents have claimed and exercised limited unilateral powers to regulate those cross-border commercial facilities. Until now, those limited regulatory powers have been directly related to issues concerning the border crossing and have never been asserted to bar the development of a significant, predominantly domestic facility. No President has ever prohibited the development of a major oil pipeline, much less one supporting significant domestic commerce. Nor has any President prohibited the development of any cross-border commercial facility on the ground that he must restrict foreign and domestic commerce to enhance his influence in foreign affairs.
6. Basic principles of constitutional law establish that the President exceeds his authority where, as here, he purports to act without statutory authority and contrary to the expressed will of Congress to resolve an issue of domestic and international commerce that the Constitution authorizes Congress to address. That conclusion is especially clear where the President’s stated reason for aggrandizing his power at the expense of Congress’s is that he needs heightened powers to negotiate with foreign states. That is, he claims that he needs more power here to have more power elsewhere. That novel assertion of power has unprecedented effect and nearly boundless scope: under that rationale, the President could control domestic or foreign commerce whenever that might enhance his dealings with a foreign state. The President’s lawful power must arise from a statute or the Constitution. Here, it is grounded in neither.
Specifically, they cite from Secretary Kerry’s decision about how building the pipeline would harm the United States’s interests in reducing greenhouse emissions.
Despite these conclusions that the pipeline would not increase greenhouse gas emissions, the Secretary’s Decision reasoned that the government must “prioritize actions that are not perceived as enabling further GHG emissions globally.” And here, “the general understanding of the international community is that a decision to approve the proposed Project would precipitate the extraction and increased consumption of particularly GHG-intensive crude oil. Such a decision would be viewed internationally as inconsistent with the broader U.S. efforts to transition to less-polluting forms of energy and would undercut the credibility and influence of the United States in urging other countries to put forward ambitious actions and implement efforts to combat climate change, including in advance of the December 2015 climate negotiations.” …
59. The President agreed with that analysis. He said that “approving this project would have undercut [America’s] global leadership” on the issue of climate change. “And three weeks from now, I look forward to joining my fellow world leaders in Paris, where we’ve got to come together around an ambitious framework to protect the one planet that we’ve got while we still can.”
The remainder of the complaint is filled with citations to Youngstown, Noel Canning, and Zivotofsky. And this case applies a curious wrinkle between the President’s foreign affairs powers controlling domestic activity.
The asserted Presidential power to prohibit construction of the Keystone XL Pipeline exceeds the Constitution’s limits because it concerns a matter committed to Congress and is contrary to the express and implied will of Congress. The dispute falls within the third Youngstown category, and no basis exists to argue that Congress is without power over the pipeline’s construction. Even had Congress not spoken directly to the issue, the asserted Presidential power would violate the Constitution within the framework of the second Youngstown category because Congress has not acquiesced in the rationale for or nature of the Presidential power invoked to block the pipeline. The President’s need to prohibit international and domestic trade to secure greater negotiating power with foreign states resembles no rationale any President has asserted to limit any transborder facilities in the past, the breadth of its effect is unprecedented, and the prohibition encroaches on the power committed by the Constitution to Congress to regulate foreign and domestic commerce.
They argue that this case is an even stronger Zone-three case than Youngstown!
Congress’s action thus precludes any unilateral Presidential power over the Keystone XL Pipeline. Indeed, this case is stronger than Youngstown, where the Supreme Court held that President Truman lacked authority to seize domestic steel mills, see 343 U.S. at 585, because Congress has regulated the commercial activity at issue more comprehensively and directly than it had in Youngstown and has, in contrast to the Congressional action in Youngstown, expressly disapproved the specific Presidential action at issue. The lack of Presidential authority here is also supported by the fact that the prohibition on construction of the Keystone XL Pipeline directly interferes with foreign and domestic commerce, the regulation of which is textually committed to the Congress by the U.S. Constitution. See Medellin, 552 U.S. at 524.
Unlike most challenges to the President’s unilateral actions, here standing is clear. And I imagine the House of Representatives would be all-too-happy to intervene. And in a different era, this case would’ve been filed in the D.C. Circuit. But this was filed in the Fifth Circuit. This case could go to the Supreme Court, unless an intervening Presidential election moots the issue.
The New York Times reports that they are also seeking $15 billion in damages through a NAFTA proceeding.