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.

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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.