//  5/3/17  //  Quick Reactions

President Trump reminded us this week that he’s no historian. But that hasn’t stopped him from trying to rewrite the past. Specifically, in an executive order last week, President Trump purported to rewrite the text of two of President Obama’s decisions that withdrew millions of acres of the Arctic and Atlantic Oceans from future oil and gas speculation. Today, a group of environmental organizations has argued in court that it’s 2017, not 1984, and the president can’t just pretend the past never happened.

To understand the case, let’s journey back to 2008, when Donald Trump was a registered Democrat and “Drill, Baby, Drill” was at the top of the charts. That catchphrase, made famous by Sarah Palin, was a reference to the GOP’s plan to make the United States energy independent by increasing offshore drilling. The phrase also became a bit of a one-hit wonder. First of all, Palin lost the 2008 election. Second, right after President Obama agreed to expand offshore drilling in the Gulf of Mexico, a drill there killed eleven people and spilled millions of barrels of oil into the water. And third, in 2011, the United States became a net petroleum exporter and the price of oil dropped dramatically.

So in 2015, President Obama dusted off his previously out-of-fashion environmentalist cap and began closing off areas to offshore drilling. The president issued two memoranda, one in 2015 and one in 2016, that withdrew millions of acres of federally owned land in the North Atlantic and Arctic Oceans from future oil and gas speculation. To do this he cited a 1953 law, the Outer Continental Shelf Lands Act. Section 12(a) of the Act states that the president “may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.”

President Obama wasn’t the first president to withdraw offshore land from future oil and gas speculation—presidents from Eisenhower onward have established “marine reserves” by doing the same thing. And even though President Obama merely issued a couple memoranda, the withdrawals appeared permanent. The Outer Continental Shelf Lands Act has a provision for withdrawing land from speculation, but it doesn’t have a similar provision for reinstating land.

Enter Donald Trump. President Trump campaigned on an oil platform—or at least he tried to—and last week he signed an executive order to reverse President Obama’s 2015 and 2016 decisions. But his lawyers must have seen the inconvenient truth that there’s no provision for reinstating withdrawn land for drilling. So how did he get around the law? He rewrote President Obama’s memos!

Here’s what section 5 of President Trump’s executive order says:    

The body text in each of the memoranda of withdrawal from disposition by leasing of the United States Outer Continental Shelf issued on December 20, 2016, January 27, 2015, and July 14, 2008, is modified to read, in its entirety, as follows:

"Under the authority vested in me as President of the United States, including section 12(a) of the Outer Continental Shelf Lands Act, 43 U.S.C. 1341(a), I hereby withdraw from disposition by leasing, for a time period without specific expiration, those areas of the Outer Continental Shelf designated as of July 14, 2008, as Marine Sanctuaries under the Marine Protection, Research, and Sanctuaries Act of 1972, 16 U.S.C. 1431-1434, 33 U.S.C. 1401 et seq."

In other words, President Trump refined President Obama’s memoranda by scrubbing “the body text” and leaving the residue in place. His order doesn’t reinstate any land for oil speculation. Like Winston Smith in 1984, he just pretends the land was never withdrawn.

Section 5 might as well begin, “We’ve always been at war with Arctic polar bears.”

The move appears too clever by half. And Earthjustice, the League of Conservation Voters, and a dozen other environmental groups are understandably annoyed. Their complaint today charges the president with reinstating withdrawn land for speculation even though only Congress has the power to dispose of federal property. And with section 12(a) of the Outer Continental Shelf Lands Act, Congress looks like it's decided that withdrawn land has to stay withdrawn.

I'm looking forward to the administration's response. On one hand, it's pretty typical for new presidents and their executive branch agencies to revoke past orders issued by the prior administration. Only two years ago, the Supreme Court delivered an opinion about this very issue, concluding that replacement rules aren't subject to heightened administrative requirements just because they completely change an agency's policy. We've seen this with President Trump's decision to return to the Mexico City policy (which said it would "revoke" an Obama-era memorandum) and with the Departments of Justice and Education's new guidance on Title IX in schools (which said it was "withdrawing" Obama-era statements). 

On the other hand, whenever new presidents legally withdraw or amend past orders, they're acting pursuant to some constitutional or statutory law that gives them the authority to change their minds. In this case, there appears to be only one statute, and that statute doesn't say anything about whether a president can revoke a decision to withdraw land from speculation. Besides, President Trump's order doesn't just revoke President Obama's decision—it rewrites "the body text." 

In any event, President Trump's order looks of a piece with the rest of his oeuvre as a historian. When he renovated Trump National Golf Course in 2009, he installed a plaque commemorating a made-up Civil War battle on what he called “The River of Blood” and what the rest of us call “The Potomac.” When told that actual historians called his plaque a fiction, he responded, “How would they know that? Were they there?” Maybe not in 1865. But in the case of President Obama’s memoranda: yes. We all were. 

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Fight for Contraceptive Coverage Rages in the Time of COVID-19

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

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Are There Five Textualists on the Supreme Court? If So, They’ll Rule for Transgender Workers.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

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