Twentyone states filed suit against the Biden administration on Wednesday over the President’s decision to stop the Keystone XL Pipeline.
The crux of their argument in the suit is the following:
In 2011, Congress expressly directed the President to grant the Keystone XL cross-border permit or explain within 60 days why he thought it would disserve the national interest. If the President failed to grant or report his negative recommendations to Congress within 60 days, Congress would grant the Keystone XL permit by operation of law. Id. The President failed to grant the permit or report negative recommendations to Congress within the prescribed time period. President Obama instead purported to deny the Keystone XL permit without concluding it disserved the national interest, complaining that the 60-day time frame prescribed in the statute he signed into law provided an insufficient amount of time to make a national interest determination. But that was not an option Congress did not provide.
Because Congress authorized the Keystone XL permit by operation of law, the President sortied far beyond his constitutional precincts by purporting to unilaterally revoke it.
Put another way, in 2011, Congress told Obama to either allow the pipeline or give them a negative report on it within 60 days. Instead, Obama punted. He spent his entire administration declaring that the issues needed to be further studied before he could respond. Then, when Trump got into office, he approved the pipeline.
According to the lawsuit, once the pipeline was approved, the President no longer had the authority to pull the pipeline. Only an act of Congress could do that. The courts will have to decide whether that is a reasonable interpretation of the law, but at first glance, it does seem like they may be correct.
The President may be the most powerful man in the country, but he is not above the law and can’t unilaterally decide to change the law himself. Hopefully, the Supreme Court will end up agreeing with that premise.
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