Keystone and Executive Fiat

President-Elect Biden is planning a big first few days, Congress be damned.

CBC broke this story (“Biden indicates plans to cancel Keystone XL pipeline permit on 1st day in office, sources confirm“) yesterday afternoon:

U.S. president-elect Joe Biden has indicated plans to cancel the Keystone XL pipeline permit via executive action on his first day in office, sources confirmed to CBC News on Sunday.

A purported briefing note from the Biden transition team mentioning the plan was widely circulated over the weekend after being shared by the incoming president’s team with U.S. stakeholders.

The words “Rescind Keystone XL pipeline permit” appear on a list of executive actions supposedly scheduled for Day 1 of Biden’s presidency. 

The list shown to stakeholders is a lengthier version of a list already reported in the media based on a memo released publicly over the weekend by Biden’s chief of staff Ronald Klain. That publicly reported memo from Klain did not mention Keystone XL, but cautioned that the memo was not a complete list of planned actions.

The Biden team has announced plans to sign dozens of executive orders in the incoming president’s first few days in office.

I don’t have the expertise necessary to have a strong view on the merits of Keystone. The economic-environmental tradeoffs are complex and presumably not set in stone.

For those who aren’t regulars: I supported Biden in the primaries as the meh among equals and enthusiastically backed him over Trump in the general. And, because he’s a relatively moderate, pragmatic leader, I tend to trust his instincts—even moreso given the quality of the senior team he’s assembling.

My concern, though, is one of process: it simply makes no sense to have decisions of this magnitude being made on the whims of a single individual.

Something like Keystone is a long-term project. Once started, it should only be stopped after approval from Congress.

The same is true for arguably larger decisions like U.S. participation in something as far-reaching as the Paris Climate Accords. Under our Constitution, that should only happen with the signature of the President and a vote of sixty-seven United States Senators. Yes, that’s a giant hurdle. It is what the fundamental law of the land requires.

I’ve only skimmed the full list but there are clearly some measures—mandating of mask-wearing on federal property—that are fully appropriate matters for executive discretion. But it’s not obvious to me how overturning the so-called “Muslim ban”—which I absolutely support—can be done by fiat. The courts, quite rightly, held President Trump to the standards of the Administrative Procedures Act. How can those procedures have possibly been met hours into a Biden presidency?

Beyond the particulars, the Trump presidency has reinforced my pre-existing biases on this front. The person occupying the Oval Office simply shouldn’t have this much unchecked power. It’s easy to become complacent when it’s your guy snubbing his nose at a recalcitrant Congress controlled by the other party. But what goes ’round comes ’round.

FILED UNDER: Joe Biden, Presidency, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Tim D. says:

    The main thing to know about KXL is that the carbon found in existing coal, oil and gas reserves is already enough to send temperatures past 2C of warming. So new fossil fuel extraction projects are simply not compatible with meeting climate goals. KXL would facilitate greater extraction from the tar sands (the most carbon intensive form of oil) and would operate for decades to come — well past the 2050 net-zero goal.

    Biden should use every tool available to halt the expansion of fossil fuel extraction, accelerate the switch to renewable energy, and put in place programs to help affected workers and communities.

    We simply can’t afford projects like these any more.

    25
  2. Michael Reynolds says:

    Under Mitch McConnell the Senate, and thus the Congress, have become even more supine, fleeing responsibility for everything but approving lousy judges and lousy justices. If McConnell continues as per usual the Congress will – despite Democratic efforts – be equally irrelevant.

    If McConnell decides he wants to be part of the government again, he, Schumer, Pelosi and Biden should co-operate on urgent government reforms, both in terms of ethics and the corruption Trump left behind, but also in fundamental behaviors like the refusal of the Senate to function. Moderate Dems like Manchin and Tester, who might otherwise oppose ending the filibuster, should use the threat of changing their positions to get McConnell to behave like a United States senator with at least some passing concern for the country.

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  3. Jay L Gischer says:

    There’s a pattern that might or might not be in play here. The bullet item on some list that someone on the media got hold of says “cancel KXL via executive action”. However, what we haven’t read is the executive action. What does it do, exactly, and how does it hold up?

    I mean, “cancel KXL” might be the political message, but maybe the executive action simply starts a process in motion? These are politicians we’re talking about, right?

    The Muslim travel ban, contrariwise, is a thing created by executive action, isn’t it? Dialed back by the courts, to be sure, but anything done by executive action can surely be undone by executive action, right? Oh, I’m sure Biden knows all the ins and outs of the bureaucracy and the APA.

    6
  4. MarkedMan says:

    I would think that whatever merit there is to your larger argument, you would agree that actions that were imposed by executive fiat (Keystone Pipeline approval, Muslim Ban) would be fine to be overturned by executive fiat.

    But there is another side to this. Since Reagan, it’s been a practice of the Republicans to populate agencies at every level with people who are actually hostile to the purposes of those agencies. The Democrats score a hard fought political victory and get, say, a consumer protection agency chartered and funded. When the Republicans gain power they refuse to accept that victory and instead use executive authority to embed people who are actively hostile to the agencies goals. This is true for the EPA, for Labor, for Civil Rights, for the Interior Department, and those are just the ones I can think of off the top of my head. For some other agencies they put in know nothing imbeciles, content to weigh the agency down by dead weight at the highest levels. Education and HUD in the Trump admin comes to mind.

    Face it, Republicans don’t accept the will of the people. When they lose, they bide their time until they can get their hands on the steering wheel again and run it into the ditch. As long as we have the biases built into the electoral college and the Senate, as well as the intrinsic bias between one Party that wants to fulfill the promises of the government and another that is content just to screw things up, Democrats shouldn’t give up any levers of power until and unless Republicans consistently demonstrate restraint when they are in control. They should make no attempt to negotiate a settlement at this point, since the word of a Republican is worth nothing.

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  5. Michael Reynolds says:

    Here’s something Biden should be able to do by fiat: tear down Trump’s wall.

    7
  6. Tim D. says:

    Also worth pointing out that Biden has clear legal authority to do this because it is an international pipeline and specifically requires a Presidential permit. The same authority Obama used to kill it the first time.

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  7. James Joyner says:

    @Jay L Gischer:

    The Muslim travel ban, contrariwise, is a thing created by executive action, isn’t it? Dialed back by the courts, to be sure, but anything done by executive action can surely be undone by executive action, right?

    @MarkedMan:

    you would agree that actions that were imposed by executive fiat (Keystone Pipeline approval, Muslim Ban) would be fine to be overturned by executive fiat.

    Honestly, that was what I always thought but, as the Trump administration demonstrated, not really. The APA has rather strict protocols that must be followed to overturn previous executive orders.

    @Michael Reynolds:

    Here’s something Biden should be able to do by fiat: tear down Trump’s wall.

    I wouldn’t think so. Congress funded the wall. One presumes he could unilaterally reverse Trump’s siphoning of Defense and other monies off to pay for the wall and otherwise stop asking for more funding.

    1
  8. Sleeping Dog says:

    My concern, though, is one of process…

    A concern that I share, such policy decisions should be made in conjunction with Congress or the senate in the mandated areas, but I concur with@Michael Reynolds: that the senate, particularly with Moscow Mitch as majority leader, hasn’t shown a lot of interest in governing beyond judges and campaign donations. I don’t know how to get out of this dilemma, while the anti-democratic lean of the Constitution aids and abets this obstructionism, it could exist regardless, because the larger issue is that the leadership uses the House and Senate rules to not only stymie the adoption of legislation that would support of disallow some executive actions, the rules are used to block discussion beyond polemics for the Congressional Record and star turns on C-span.

    3
  9. Scott F. says:

    The person occupying the Oval Office simply shouldn’t have this much unchecked power. It’s easy to become complacent when it’s your guy snubbing his nose at a recalcitrant Congress controlled by the other party. But what goes ’round comes ’round.

    As Micheal notes, ‘recalcitrant’ isn’t the right adjective to use when referring to the Legislative Branch in its current state. ‘Derelict’ or ‘inert’ would be better descriptors. While I absolutely agree that too much power is in the hands of the Executive, especially the President, it has to be recognized that Congress could wrest a lot of that power back if they wanted to rebalance the branches. It’s just that they don’t want to do that hard work of compromise. See all of Steven’s recent posts on structural incentives to understand why.

    Keystone XL is a good example of the weakness of the executive order as a way to run the government, by the way. As I recall, the last legislative action on the pipeline was Obama’s veto of the Keystone XL Pipeline Approval Act in 2015 which the Republican Senate failed to override. Trump used executive orders to get Keystone XL permitted shortly after taking office. Biden is merely returning conditions to the status quo ante.

    Sucks to be a stakeholder in this massive project, but keep this example in mind the next time you want to extol the virtues of divided government.

    9
  10. gVOR08 says:

    @Michael Reynolds:

    tear down Trump’s wall.

    Nah. There are arguments that the wall is harmful. But mostly the argument was that it was a pointless waste of money. We already wasted the money. The military isn’t getting any of theirs back. Let’s not waste any more money tearing it down. Just take pictures of any breach in it and publish them under a TRUMP logo.

    3
  11. @gVOR08:

    But mostly the argument was that it was a pointless waste of money. We already wasted the money.

    I agree with this.

    1
  12. gVOR08 says:

    I wholeheartedly agree the president should not have this much unchecked power. We should be dismantling the Imperial Presidency. Congress should reclaim it’s rightful powers. And our experience with the Trump administration should have made this a top priority. But it isn’t. And as long as Biden has the power, he would be remiss in not using it, congress be damned. Wouldn’t be necessary if Moscow Mitch hadn’t damned congress to partisan obstruction, country be damned.

    Lets demand Republicans demonstrate they can act in good faith for the good of the country. Once they have we can demand Biden work with them. Not before.

    5
  13. Barry says:

    “My concern, though, is one of process: it simply makes no sense to have decisions of this magnitude being made on the whims of a single individual.”

    I agree, but here we are.

    1
  14. Kathy says:

    Here’s a radical idea: First let Biden be inaugurated, then see what he does, then criticize him for it, in that order.

    We know the press often simplifies things in their reports. Perhaps Biden is planning to start the necessary administrative procedures on day one pursuant to issuing an executive order, rather than to pull a trump and issue diktats on his whim as if it were divine law.

    Some, Biden has decades of government experience, and eight years as vice president. If he hasn’t learned by now the basics of issuing an EO, he never will. And he doesn’t strike me as the willfully ignorant type.

    I do have one question:

    I see the need to follow procedures when issuing an order that will harm or adversely affect many people. Is there the same need, in law, for orders that have no adverse effects?

    The travel ban obviously had many negative consequences for many people. For whom is there a negative effect in lifting it? The pipeline deal is different.

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  15. Michael Cain says:

    @Michael Reynolds:

    Moderate Dems like Manchin and Tester, who might otherwise oppose ending the filibuster, should use the threat of changing their positions to get McConnell to behave like a United States senator with at least some passing concern for the country.

    As I understand the Senate rules about precedents*, exceptions to the legislative filibuster can be as broad or narrow as the majority party prefers. There are several Democratic Senators besides Manchin and Tester who might well oppose a broad exception (heck, there are some that have said they oppose it). But they might be brought on board for narrow exceptions: eg, that the filibuster does not apply to bills addressing problems associated with a pandemic.

    * No one except the Parliamentarian really understands them.

  16. Kathy says:

    @Michael Cain:

    I wonder if they could simply change the rules to require a real filibuster. That is, if there’s no vote to close debate, then debate either carries on, with live senators arguing live on the floor*, or debate is closed and a vote proceeds.

    *Either in person or remotely, but in real time.

    1
  17. Kurtz says:

    Fuck it. Just dissolve the Federal Government. What’s the point?

    We have an anti-democratic party that:

    -prevents as many people as possible from voting.

    -When they lose elections claim it was due to illegal voting in some form. And no, it’s not just Trump–they’ve insinuated it without outright saying it before. What? You thought they wouldn’t eventually play this card after spending years setting the deck?

    -When they are the out party, they refuse to fulfill their duties so that when they are in power they can stack the deck in their favor even more.

    -When their obstruction doesn’t work, they lie about the policies passed, try to repeal them multiple times even though they know they don’t have the votes, and water it down through regulatory capture.

    -they complain about regulatory agencies when they could amend existing laws or pass new ones to limit that power. That is what legislatures do. That is their fucking job, James.

    If US politics was a game of Monopoly, you would just watch the banker kite $500 bills whenever he feels like it, claim free parking house rules apply when he, but no one else lands on it, and charge himself less for properties, houses, and hotels. Then when other players object and ask for relief, you would scrutinize the rulebook and say, “relief is nowhere in here.”

    After all of that, I share your concerns. But, once again, Republicans only do what they do because Dems let them, or Dems exist, or something….

    Come on, man. We have a party who claims the government can’t do anything right, so they actively make it it dyscuntional and then say, “I told you so.”

    But don’t worry, I’m sure the stacked federal courts will allay your concerns. After all, McConnell made sure to leave enough seats open during Obama’s term.

    And before you repeat what you have said here before, no, Democrats didn’t play the same game with judicial nominations that McConnell did.

    9
  18. Kurtz says:

    @Kurtz:

    I didn’t type something I meant to after “I share your concerns.” Process is critical to effective government that also represents the governed. But when the other side lies and cheats with no repercussions, what option is there?

    4
  19. Daryl and his brother Darryl says:

    I thought I read a while back that the Keystone Pipeline was effectively stopped already?
    Maybe on the Canadian side?

  20. Daryl and his brother Darryl says:
  21. Gustopher says:

    Native Americans came out heavily for Biden, and they’re opposed to the Keystone Pipeline. So, part of this is simply rewarding loyal supporters.

    And the Trump administration was disregarding a lot of the potential impacts, so I can absolutely see halting permits while re-evaluating those, on day one, with a final decision later.

    Plus, it’s the right thing to do if we have carbon goals. Any carbon goals.

    5
  22. Michael Cain says:

    @Kathy:

    I wonder if they could simply change the rules to require a real filibuster.

    The problem isn’t the filibuster per se. The problem is the two-track rule: there can be two major motions open on the Senate floor at once. Before the two-track rule filibusters were very, very rare because it stopped not just one bill, it stopped all other Senate business. You can look at a time series graph of the number of filibusters per year and see exactly when the two-track rule was adopted.

    Historical note… the two-track rule was adopted because a group of Southern Democrats demonstrated that they were willing to shut the Senate down for months rather than pass various civil rights laws.

    3
  23. Kathy says:

    @Michael Cain:

    Well, there’s a downside to everything (that sounds familiar).

    But if debate has to go on, there can’t be any other business done in the meantime, can there, two or one tracks? I mean, you can’t vote, or debate, while some Senator is monopolizing the floor expounding on the virtues of deep-fried Twinkies, or reading the Greater Helena phone book into the record.

  24. Michael Cain says:

    @Kathy:
    From memory, so suspect, the whole tracking thing is a “practice” rather than a rule so the majority side could kill it and go back to the talking-forever filibuster whenever they want to. They don’t for several reasons.

    One of the things I strongly dislike about Congress is there’s the written rules of procedure, and then there’s the thousands of precedents and practices that override the rules. Only the Parliamentarians know how things actually work.

  25. MarkedMan says:

    @James Joyner:

    The APA has rather strict protocols that must be followed to overturn previous executive orders

    I suspect we have two different definitions. I took “executive fiat” to mean entirely within the authority of the executive branch, I.e.not involving Congress. But, sure, there is going to be a lot of work to unwind this crap. Fortunately the Trumpers were mostly incompetent and the Biden people won’t be

  26. Kathy says:

    @Michael Cain:

    I suspect any institution that lasts for a significant period of time becomes sclerotic at some point.

    I appreciate the need to set rigid, unbreakable rules that will endure the test of time, but the fact is situations and people change much over time. Rules that were sensible and necessary in the 1780s can be, in fact are, obstacles to progress and fairness in the 2020s.

    2
  27. OzarkHillbilly says:

    Either we want a habitable planet for our grandchildren to live on, or we want to line the pockets of a bunch of oil execs who already have more money than they can spend in 2 or 3 life times.

    Our choice.

    6
  28. Fundamentally this is where we are. I have moved beyond lamenting that the system is not working as it should to pointing out that this type of executive action is likely to increase as we creep towards a more authoritarian kind of government.

    (It is also another step towards the fact that a parliamentary system of government is far superior to presidentialism if one values democratic governance).

    5
  29. Ken_L says:

    Keystone assumed a symbolic power back in the Obama presidency, far removed from its actual importance. The fact construction still hasn’t started after four years of Trump suggests very strongly that it isn’t the massive game changing economic marvel that its supporters make out.

    On the larger point, however, it’s hard to disagree that Congress has been happy to allow/encourage the presidency to accumulate far more power than is healthy in a democracy. The same could be said of their willingness to leave contentious issues to the courts. There appears to be no way these trends can be reversed, which is why I’m glad I’m not an American.

  30. Teve says:

    @OzarkHillbilly: there was a point years ago when Rex Tillerson was head of Exxon where they were paying him enough money to buy my parents’ house every day. I remember thinking at the time, what a vast amount of money that was. Ha!

    Yeah let’s let these stupid assholes wreck life for billions of people so they can run up bigger pointless wealth digits.

    1
  31. James Joyner says:

    @Steven L. Taylor:

    (It is also another step towards the fact that a parliamentary system of government is far superior to presidentialism if one values democratic governance).

    That’s certainly true. It also brings the additional virtue of accountability: there’s no one to shift the blame to if things don’t work out.

    Still, we’ve always valued something other than pure democracy given our regional and cultural diversity. Narrow elections can bring huge swings in policy in a parliamentary system that I think would be disastrous here. Even given the differences between England, Northern Ireland, Scotland and Wales in the UK, they’re nothing like those between Mississippi and Massachussets.

    1
  32. SC_Birdflyte says:

    @Kathy: I quite agree. I think the Senate rules should be changed to provide that: 1) no filibuster may be launched until a motion to vote on approving a bill is made; 2) if a cloture motion is made and fails to achieve 60 votes in favor, the same motion may be re-introduced after 72 hours, with the votes to approve reduced down to 57, then to 54, finally to 51.

  33. Kurtz says:

    @James Joyner:

    Narrow elections can bring huge swings in policy in a parliamentary system that I think would be disastrous here.

    You mean like invading Iraq?

    1
  34. @James Joyner:

    That’s certainly true. It also brings the additional virtue of accountability: there’s no one to shift the blame to if things don’t work out.

    Accountability is a huge advantage. It is also, therefore, more democratic.

    Still, we’ve always valued something other than pure democracy given our regional and cultural diversity. Narrow elections can bring huge swings in policy in a parliamentary system that I think would be disastrous here.

    I think that is the CW. I am not convinced, however.

    And, again, if you don’t like presidents governing by fiat, would it be that bad to have a governing majority that has both the power to implement policy via legislation and then be accountable to the voters at the next election? That accountability thing would actually help put the breaks on truly wild swings of policy.

    Even given the differences between England, Northern Ireland, Scotland and Wales in the UK, they’re nothing like those between Mississippi and Massachussets.

    First, I am not so sure that the differences between Ireland and Scotland are less than those between MS and MA.

    Second, if India can have a parliamentary system, with its size and diversity, I see no reason why we can’t.

    1
  35. Rick DeMent says:

    @Michael Reynolds:

    … tear down Trump’s wall

    Well what little of it there is and hasn’t fell down …