This article was published by The McAlvany Intelligence Advisor on Friday, January 15, 2016:
The blogger at InvestmentWatch concluded last June that the “Constitution Is Irrelevant. Rule Of Law Is Dead. Ruling Class Oligarchy Is The Power.” In less histrionic terms, the New York Times agreed, noting that the Constitution is “losing its appeal” with people around the world. Some want to replace it, including a Supreme Court justice. Some want to amend it. The present administration apparently doesn’t bother itself over the matter. On the day after the State of the Union speech, Obama’s chief of staff, ignoring any Constitutional limitations on the power of the president to issue executive orders, said to get ready for “audacious executive actions” by the president in the last year of his second term.
But a Canadian oil company still thinks there’s relevance in the language of the Constitution, filing suit last week complaining that the president overstepped his Constitutional authority when he rejected its Keystone XL pipeline project in November. TransCanada filed two lawsuits against the Obama administration last week, one seeking damages under NAFTA and the other one asking a federal court to reject Obama’s decision. In that second one the company is also asking the court to rule that, in the future, no president will be allowed to overstep his Constitutional bounds when considering “cross-border” decisions like Keystone.
Kristine Delkus, TransCanada’s general counsel, wrote that “the president can exercise only powers granted by a statute or the Constitution. The administration acknowledged that no statute supports its action. Nor does the Constitution.”
She added:
No president before has prohibited construction of a major infrastructure project affecting such extensive domestic and international commerce. Nor has any president ever claimed the power to block cross-border trade [in order] to enhance his negotiating power abroad.
She was referring to the decision to reject based upon negotiations about to take place in Paris over a global-warming treaty:
The Obama administration’s decision to deny the pipeline explicitly acknowledged that building it would benefit the U.S. economy, create jobs, increase energy security, advance relations with Canada, not harm the environment, and cause no significant increase in greenhouse-gas production….
But environmental activists made rejection of the project a litmus test of the president’s climate-change credentials. The State Department’s official Record of Decision reasoned that permitting the pipeline to proceed would “undermine U.S. climate leadership” because “the understanding of the international community” – contrary to the administration’s own findings – was that the pipeline would increase greenhouse-gas emissions. Permitting construction would “undercut the credibility and influence of the United States” in negotiating with other countries, including at the coming Paris climate conference.
When word got out that TransCanada’s lawsuit was based upon Obama’s alleged violation of the U.S. Constitution rather than on environmental or procedural grounds, some constitutional lawyers concluded that it was a lost cause. James Rubin, an environmental lawyer with Dorsey & Whitney, a Minneapolis law firm, said the company’s suit would be “challenging” and that courts have considered “cross-border” pipeline decisions before and have generally found them to be within the president’s power to accept or reject. Ayesha Rascoe, writing for Reuters, concluded the same thing: “Courts in those cases have generally said the permitting process falls under the president’s Constitutional authority to conduct foreign policy” while Alan Dunn, a former U.S. assistant secretary of commerce called it “novel and intriguing.”
Richard Grimmett, a specialist in such matters working at the U.S. State Department, wrote in 1999 that the issue is far more complex than that suggested by Delkus: “The United States Constitution divides foreign policy powers between the President and the Congress so that both share in the making of foreign policy … making foreign policy is a complex process and … the support of both branches is required for a strong and effective U.S. foreign policy.”
But the conversation is relevant, especially with most of the Republican Party candidates for president declaring support for the Keystone pipeline while the presumptive Democrat candidate declaring against.
One can dream of a time when Constitutionalist majorities will inhabit the House, the Senate, and the White House, and then the “complex” issue of foreign policy can be settled in accordance with the tool the Founders created.
Until then, it’s good to have the conversation, and TransCanada is to be thanked for assuming the Constitution is still relevant, and doing something about it.
Sources:
The New York Times: ‘We the People’ Loses Appeal With People Around the World
Letter from TransCanada: Why We’re Suing Obama Over Keystone
Washington Post: TransCanada is suing the U.S. over Obama’s rejection of the Keystone XL pipeline. The U.S. might lose.
Fox News: TransCanada files federal lawsuit over Keystone XL rejection
Reuters: TransCanada sues U.S. over Keystone XL pipeline rejection
Reuters: TransCanada legal challenges over Keystone pipeline face long odds
U. S. Department of State: Foreign Policy Roles of the President and Congress, June 1, 1999
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