OBAMA’S KEYSTONE XL DECISION TRIGGERS CONSTITUTIONAL CHALLENGE: Oil giant TransCanada has filed an intriguing (and underreported) lawsuit against various Obama Administration officials involved with the Administration’s decision to deny a cross-border permit for the Keystone XL pipeline.

The gravamen of the lawsuit is that the President has no unilateral authority under the Constitution to restrain foreign commerce, since the power to regulate interstate and foreign commerce is given solely to Congress under Article I, section eight.

Writing a few days ago in the Wall Street Journal, TransCanada general counsel Kristine Delkus explained:

This decision . . . was contrary to basic principles of constitutional law. 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.

The Supreme Court’s famous 1952 ruling in Youngstown Sheet & Tube Co. v. Sawyer, rejecting President Truman’s claim that he could seize private steel mills, sets out the governing principles that also defeat President Obama’s similar claim of unilateral power. Unless Congress expressly or implicitly approves of presidential action, the president has no independent power to act unless the matter falls beyond the scope of Congress’s constitutional interests.

Article I of the Constitution provides Congress with power over the domestic and international commerce at issue. And in early 2015, both houses of Congress passed legislation—later vetoed by the president—directing that the Keystone XL pipeline be constructed without any further presidential action.

Still, even if Congress had not acted, Mr. Obama’s action is unlawful because it falls far outside of the limited tradition of presidential-permit approvals. Presidents have for many decades lightly regulated certain border facilities through a permit-approval process focused on distinctly cross-border and operational concerns. No president before has prohibited construction of a major infrastructure project affecting such extensive domestic and international commerce. Nor has any other president ever claimed the power to block cross-border trade to enhance his negotiating power abroad.

The key is the last paragraph. Congress has not enacted a law authorizing the Keystone XL (bills must, after all, survive a presidential veto to become a law). But so what? Congress–and Congress alone–possesses the power to regulate interstate and foreign commerce. When Congress fails to use this power, the power does not magically devolve to the President, any more than do the other enumerated congressional powers such as the power to tax, establish a uniform rule of naturalization or bankruptcies, coin money, establish post offices, etc.

In the absence of an affirmative exercise of Congress’s power to regulate foreign commerce, the legal default is a “free flow” of such commerce. Indeed, this is the essence of the Court’s Dormant Commerce Clause jurisprudence, in which courts invalidate state laws that interfere with the free flow of interstate commerce (by discriminating against out-of-staters), even though Congress has not chosen to exercise its affirmative commerce power.

President Obama’s justification for his executive order denying the free flow of oil across the U.S.-Canadian border? Climate change. Yes, you read that right. President Obama claims the right to regulate foreign commerce because of climate change. In his words:

America is now a global leader when it comes to taking serious action to fight climate change.  And frankly, approving this project would have undercut that global leadership. . . .As long as I’m President of the United States, America is going to hold ourselves to the same high standards to which we hold the rest of the world.  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.

So President Obama is claiming a unilateral power to restrict the free flow of foreign commerce based upon his perception that the U.S. needed to have credibility with an international community hellbent on reaching a climate change agreement in Paris. But this is not a situation in which national security concerns could, at least in theory, support unilateral presidential action under Article II. There is no evidence–nor does the Obama Administration make such a claim–that the Keystone XL pipeline poses a risk to national security; if anything, reducing dependence on oil generated by OPEC nations enhances U.S. security. In the words of the State Department’s Record of Decision and Statement of National Interest:

Canadian oil is a relatively stable and secure source of energy supply for many reasons, and few countries share all of the political or physical characteristics that enable Canada to remain in this position. Its producing areas are physically close to the U.S. market, and there are limited chokepoints to disrupt trade between Canada and the United States. Canada has a low likelihood of political unrest, resource nationalism, or conflict – above-ground factors that sometimes disrupt oil production in other regions. Additionally, it is not a member of OPEC, which acts to restrict oil production and influence market conditions. The Canadian oil sector is efficiently run, without undue political interference. Canadian oil sands projects have low production decline rates compared to conventional oil fields, providing greater geologic certainty of future supply levels.

Instead, the Obama Administration’s purported constitutional basis for restricting foreign commerce is that the President’s “executive power” under Article II, section one, combined perhaps with his power over foreign affairs in Article II, section two includes a shockingly broad power to do what the President thinks is best for the country, including regulating commerce, if/when doing so may enhance the President’s ability to negotiate non-binding international “agreements” that do not even rise to the level of treaties. I suppose by this logic, President Obama could have enacted much of Obamacare unilaterally, without the need for legislation, if the international community was in the middle of “universal health care” talks.

But hey, I’m sure this President–who is a self-proclaimed constitutional law scholar–would never do anything to undermine the Constitution’s separation of powers.