In Presidential Maladministration, I describe a form of White-House led interference with the regulatory process, known as “presidential discovery.” Through this approach, the highest-levels of the administration urge the usually-conservative bureaucracy to “discover” powers in long-extant statutes, that have never before borne such wide-ranging interpretations. In the paper, I use the Clinton Administration’s “discovery” of the power to regulate tobacco under the Food, Drug & Cosmetics Act, as such an example. The Court in FDA v. Brown & Williamson, through the major question doctrine, invalidated this usurpation of power. Another example I discuss is the Net Neutrality Rule, in which the FCC–at the White House’s nudging– discovered the power to regulate internet-service providers under a New Deal-era statute.
Though I did not discuss it in the paper (80 pages is enough!), President Obama’s Clean Power Plan also fits the bill. Using decade-old statutes, that have never been interpreted to vest the executive with such authority, the administration discovered a power to regulate carbon in such a manner as to put entire industries out of business.
Yesterday, President Obama announced his latest executive action on the environment. Citing a six-decade old statute, the White House has discovered the power to prohibit offshore drilling in wide areas of the Arctic and Atlantic Seaboard. Coral Davenport in The Times offers this report:
Mr. Obama invoked an obscure provision of a 1953 law, the Outer Continental Shelf Lands Act, which he said gives him the authority to act unilaterally. While some presidents have used that law to temporarily protect smaller portions of federal waters, Mr. Obama’s declaration of a permanent drilling ban from Virginia to Maine on the Atlantic and along much of Alaska’s coast is breaking new ground. The declaration’s fate will almost certainly be decided by the federal courts.
“It’s never been done before,” said Patrick Parenteau, a professor of environmental law at the University of Vermont. “There is no case law on this. It’s uncharted waters.”
The move — considered creative by supporters and abusive by opponents — is one of many efforts by Mr. Obama to protect the environmental policies he can from a successor who has vowed to roll them back. The president, in concert with United Nations leaders, rushed countries to ratify the Paris Agreement on climate change, putting the multinational accord into force in record time, before Mr. Trump’s inauguration.
Environmentalists are already drawing comparisons between Mr. Obama’s use of the 1953 law to ban new drilling to what critics and opponents called his novel and audacious efforts to craft new climate change regulations: He turned to an obscure, rarely used provision in the 1970 Clean Air Act to write sweeping regulations that would require states to shift their electricity systems from fossil fuels to renewable energy sources.
Davenport’s analysis explains, to a T, the nature of presidential discovery–using an “obscure, rarely used provision” of an old statute to enact “sweeping regulations,” in ways that no President has ever done before.
And, if I can coin a new type of maladministration (perhaps for a future paper?) we also see evidence of “presidential insulation“–an outgoing president takes steps to insulate his executive actions from the incoming administration. So much for a “smooth” transition.
In many cases, Mr. Trump and a Republican Congress in line with the new president’s ambitions will be able to roll back some of Mr. Obama’s most recent environmental regulations. But because of new and legally inventive strategies, Mr. Obama and his staff may well have built firewalls around environmental policies that could hold off his successor — or at least keep him at bay for several years.
Sort of like when the Clinton Administration removed the Ws from the keyboards before President Bush moved into the White House.
Alas, with Congress in Republican control, and a Trump appointee bound for SCOTUS, these firewalls may not stand.
Opponents of Mr. Obama’s environmental agenda said they fully expect Mr. Trump to take actions to legally undo the ban.
“We don’t see how this could be permanent,” said Andrew Radford, a senior policy adviser with the American Petroleum Institute, which lobbies for oil companies.
Mr. Radford noted that after President Bill Clinton had used the same law to withdraw 300 million acres from oil and gas drilling from an area that had already been designated as a marine sanctuary, President George W. Bush reinstated about 50 million acres to fossil fuel leases.
“Similar to how President Bush issued a memo in 2008 to add areas back in, we’re hopeful that the Trump administration will take a look at this to reverse that decision and we look forward to working with them to make that happen,” said Mr. Radford.
Presidents come and go. The Courts remain. Soon enough, President Obama’s signature policies will fade–Clean Power Plan, Net Neutrality, Obamacare, the Iran Deal, etc. All that will remain are Sonia Sotomayor and Elena Kagan.