The Constitutionality of Obama’s Offshore Drilling Moratorium

A judge today overturned President Obama’s ill-fated, ill-conceived moratorium on offshore drilling so this presents an open door to discuss this topic. This case will proceed on appeal by the Administration and we’ll see where it goes down the road.

First and foremost, I think this ban based on executive order showed an acute ineptness to the reality of the Gulf economy and the effect this would have nationwide on energy prices. In enacting the deep offshore drilling ban, President Obama gave a sucker-punch to an already suffering region by kicking their economy even harder and disrupting the jobs of thousands of workers.

However, opinion aside, what does the constitution actually say regarding the President executive order?

The executive order is derived from Article II, Section 1, Clause 1 which states:

The Executive Power shall be vested in a President of the United States of America.

One has to wonder, what falls under the umbrella of executive privilege at the behest of the President? Presidential executive orders have been controversially used in the past for the purposes of Civil Rights as well as launching military campaigns. However, many historians agree that these may well have been unconstitutional uses of such vaguely delegated authority.

For example, The Heritage Guide to The Constitution states the following:

The Executive Vesting Clause’s general rule that the President enjoys those powers traditionally vested with executives (i.e., the executive power) is subject to two important limitations. First, the President lack executive authority explicitly granted to Congress. Hence the President cannot declare war, grant letters of marque and reprisal, or regulate commerce, even through executives had often wielded such authority in the past.

Page 180

When reading that paragraph, the two words which stuck out to me were “regulate commerce.” The President cannot, through executive order, regulate commerce. However, that is exactly what is being regulated with the moratorium on offshore drilling.

It would seem to me that an executive order which bypasses Congress and specifically addresses powers which have been delegated to Congress must be unconstitutional. However, it also seems that Presidents throughout the course of American history have gone above and beyond what most constitutional scholars would consider to be the bounds of President Executive Order.

It was my wife’s infinitely brilliant idea to check the The Heritage Guide to The Constitution she had sitting on her desk. Always good to have the country’s instruction manual within reach at all times.

  • ded

    Fu** all rpublcans. I hate all you bastards. Traders. Should be blind folded & shot. What’s the cost of all these wars vs unemployment bitches. I hope you all die & burn in hell.

  • Nate,

    I suppose you have to ask yourself, is the ban on offshore deep drilling a means to regulate commerce or something else. Is he seeking a way to prevent further catastrophe, or regulate commerce? I wont pretend to know the presidents motives as he has been accused of pushing for offshore drilling and later said he didn’t want drilling after this atrocious accident. If indeed his motive is to regulate commerce then the people have a right to challenge him. If it is a means of ocean, environmental, or human safety, then we have another argument.

    I know if and when that oil reaches the keys and destroys the last living Coral Reef in the inter-coastal United States there is going to be a violent storm of protest against offshore drilling. Though it appears that this event is seemingly inevitable. What a shame.

  • landreaux

    30,000 wells, one incident. Granted it’s a tragically big one, horrific. But, to cripple the region is incomprehensible. A pause, an inspection regime, you bet makes perfect sense. A blanket moratorium will kill the gulf oil industry for years. With so many options this decision smacks of a shadow agenda.

    Nate, great post.

  • Kendale,

    The Judge found no reasonable argument with regard to safety. Thus, the rest falls on commerce. The administration could not, as landreaux pointed out, make an argument that the moratorium made anyone safer.

    Since they could not demonstrate that, the judge had no choice but to toss it out since the President could not demonstrate it as a valid use of executive power.

    Makes sense to me.

    This may be a moot point since they are going to re-instate the ban:

    They’ll craft this one to fall somehow within the Judge’s reasoning for killing the first one I’m sure.

    There is no viable reasoning for banning all deep offshore drilling right now, none! This is a 100% political decisions especially considering the number of experts saying the 6 month ban is a horrible idea.

  • bones

    In the event that a deep water spill occurs, there appears to be no viable means to plug the leak or repair the damages. If such solutions to potential incident do not exist, then we must judge the potential consequences to that incident to be either acceptable or unacceptable. Personally I find the risks unacceptable, and until such time as we have a worst-case scenario plan.

    The real problem is that the government never properly regulated deep water drilling, and now we have an industry operating with risks that go far beyond the corporations that conduct them. That’s unacceptable, and I’m glad Obama recognized that, but someone in government really ought to have said so before they allowed 30,000 wells to be drilled in the first place.

  • Bill Hedges

    Obama’s slowness and determination to protect unions at ALL COST by not waving the JONES ACT will not merely haunt him but devastate the Gulf. We have small fishing boats removing oil here. Not fleet of MAN MADE oil removal ships. Thought not American made, as if environment or American people cares.

    Leaks have occurred in mid east and Netherland (13 Countries offered their help) and cleaned up. They have THEIR Ways to “suck up” under the water oil AS well. ‘No’ to their offers of help from obama. DUMB BUSH WAVED JONES ACT.

    Our stubborn idiotic EPA refuse oil removal methods that put less contaminated water back into the Gulf. Explain that one to me please !!! Remove 100% of oil are forget it ?

    One MIGHT guess/assume obama wanted a environmental disaster ! How outlandish right ? Silly idea ?

    Kendale says “he has been accused of pushing for offshore”. As obama political statements changed to gain votes during election, so has his stand on oil drilling. Depends on the millisecond his stance.

    I could possibly agree with moratorium on NEW DEEP WELL EXPORATION. Where stopping leaks is unknown with assurance. Yet that is not obama’s cause of action. More to raise oil prices to make alternate energy sources more competitive with high priced oil. Safe shallow Gulf drilling, Land closed to drilling places doubt on obama’s motives.

    Obamacare is a annoyance to obama compared to what Kendale says is “violent storm of protest”. There already is a mood to remove Democrat incumbents, this will had more furor, if humanly possible.

    Obama’s blanket ban I believe will not be allowed. A more reasonable ban is appropriate. Such as no new deep drilling moratorium.

    Open up locations less deep and land especially Alaska and NW area of United States. Where ability to stop oil leaks is
    well established.

    Bones clams “government never properly regulated deep water drilling”.

    Simple not true. Failure of obama administration to follow regulations, not more regulations needed. Waved important regulations:

    “The problems that led to the April 20, 2010, blow out actually began a year before when BP decided to ignore its own design and safety guidelines. To save money BP officials ordered the use of well casings which were likely to fail under the intense pressures of ocean water at 5,000 feet. And they did. Beginning around March 15, 2010, the casings showed signs of failure, a pipe got stuck in the well, the “blowout preventer” was leaking, and the Deepwater Horizon drilling rig was buffeted by pulsations of gas called “kicks”.

    “In early April they began pouring cement to stop the leaks, even though it was known that cement increased the probability of a massive gas flow blowout; a likelihood compounded by the inappropriate casings. However, time is money and BP was losing money. The choice was simple: Profits vs safety. As government regulators looked on impassive, BP chose a casing with an even greater chance of failure. In fact, although completely aware of the stuck pipe, gas leaks, inappropriate casing, the “kicks” and the risk of the cement, Federal regulators gave BP permission to proceed and to ignore mandated safety tests.”

    Bones there were few deep wells until Clinton gave incentives for drilling there. Relief of royalties was Bill’s plan:

    “Just as the subprime mortgage crisis had its roots in the Clinton Administration decision to require Fannie Mae and Freddie Mac to find enough low income borrowers so that half their loans were subprime, the Gulf oil spill also had its roots in misguided policies begun by the Clinton Administration.”

    “In 1995, President Clinton signed the Outer Continental Shelf Deepwater Royalty Relief Act which exempted oil wells drilled deep in the Gulf from the normal royalty payments they would normally have owed the government for their oil. Usually, these payments amount to between 12% and 16% of their revenues, so exemption from this requirement did a great deal to catalyze drilling in deep waters in the Gulf of Mexico. As a result of the Administration action…

  • Bill Hedges

    Heard while watching Congressional hearing on Fox just now oil witness say drilling in 500ft of water had to be CAPPED. Seepage from this site can be stopped with 100% certainty, if 100% certainty exist.

    As obama blew his Presidential responsibilities in handling the leaking oil, he continues his SHAME in making matters worse with his unrealistic moratorium and cancellation of permit.

    Words of VP BITE ME clearly shows in black thick Gulf Sea water obama is not ready to be President. He’s ready to enter Kindergarten.

    “During his time in the Senate and while running for president, Obama received a total of $77,051 from the oil giant and is the top recipient of BP PAC and individual money over the past 20 years, according to financial disclosure records.”

    “An Obama spokesman rejected the notion that the president took big oil money.”

    Well, BP owns many GREEN companies. Need I say more. These companies gained our stimulus money though they are off our shores. I believe link not obama’s man, with good cause.

    Bring back Bush. Maybe Jeb in

  • Bill Hedges

    Judge has ordered oil activity to continue. Not that easy in reality. Re-issue of permits, gathering of workers. Limited number of vehicles to get men to rigs takes time. Re-open rigs from shut down, etc.

    Throw out your Chicago misfit advisors. This and near all your actions are hampering our Nations natural ability to survive.

    You tried to save the homes of home owners who were not qualified by Clinton’s plan is failing because of debt to income. Was ill advised idea. I believe Nate said way back when let them fail and sold to qualified individuals.

    Tax cuts instead of stimulus package could have keep jobs in America instead of mostly sent overseas for GREEN. Put a lock on your dreamland Utopia. When American ingenuity builds a better GREEN mouse trap it will change the World. Not your high oil price brings Green which punishes Americans.

    Now we have STIPPERS IN Gulf area wanting BP to pay.

    Pensacola beach__ closed. Damn !

    You have not grown up to the office. Not worthy the pay grade. Walk away…

    Bring back Bush. Maybe Jeb in 2012.


  • Jeb would make a lot better president than W.

    At least he was a better governor of Florida then W was President of the US.

    I would vote for Jeb

  • Robert Wayne

    And now here it is March 2011 and gasoline and the price of oil is skyrocketing thanks to you liberal retards’ poor excuse of a president and his stopping all drilling in the Gulf. The chickens are coming home to roost and the liberal scum are paying for their stupidity putting this no good S.O.B. Ovomit in the White House. The only bad thing is that those of us who knew what a disaster he’d be if elected are paying the price too.

  • Bill Hedges

    Robert Wayne

    You are so right.

    What bothers me most about Gulf disaster was BP that caused it. Company that was worse in following regulations in Gulf. BP gave most campaign contribution to candidate barry. Much of the GREEN stimulus went overseas. Guess what, a lot to BP.

    Is way past due but Noble Oil company started re-drilling in deep waters of Gulf recently.The new House is doing many things and more to do. Hope sensible oil policies come to for font. Drill baby drill. We have oil & gas, plenty of it, let’s burn ours not theirs. We need jobs.

    “Ovomit” is not disliked because we are racist, but what his agenda is doing to America…

  • Ken Becht

    The empty suit continually shows his ineptness on a daily basis. He has made more stupid quotable remarks than Dan Quayle has ever done. He has broken more promises in 2 years than you can shake a stick at. He has lied about dozens and dozens of other issues. He has had 2 decisions that are clearly unconstitutional. He has no clue about economics but then why would he. He has zero experience. Yet, the functional illiterates in the mainstream media still carry his water. The dolts who are liberals clearly have drank too much of the kool aid and are drunk with stupidity. Let the current occupant continue to whine like a child. Let’s change his diaper, give him a warm bottle and set him down for a long, long, long nap….like about 1.5 years. Then send him back to this THUGDOME in Sick-Cago.