While our country engages in a political civil war over Trump, the courts have granted Obama a third term, making most policy changes moot. The latest example is a radical California judge forcing Trump to continue Obama’s costly regulation limiting the output of methane emissions from oil and gas operations on federal lands.
If Congress fails to rein in the judiciary, there is literally no purpose to holding the midterm elections. After all, the judiciary has already largely gutted the 2016 presidential election. Not only are the courts rewriting the Constitution, national sovereignty, and every statute on the books, they are forcing Trump to continue all of Obama’s executive actions, whether illegal or discretionary. They are forcing him to continue Obama’s illegal amnesty, his transgender social engineering in the military, his contraception mandate on private employers, his “health care” funding for family planning groups, and many of his costly regulations, some of which were against statute to begin with.
As part of Obama’s executive legislation to promote his “Climate Change Action Plan,” he ordered the Bureau of Land Management (BLM) in 2016 to reduce the venting and flaring of methane from oil and gas production. The growth of oil and gas production is America’s very own Hanukah miracle, creating jobs and prosperity throughout the country, so naturally Obama did everything possible to crush its growing momentum. Methane is the primary component of natural gas, and this regulation is wreaking havoc on one of America’s fastest job-producing industries. Last year, President Trump included the methane rule among a number of Obama energy rules that he delayed, pending further analysis of the cost and purpose.
Let’s put aside the policy merits of Obama’s rule for the purpose of this article. This is a question of law. The EPA and states already regulate methane output of oil and gas. The BLM simply had no statutory authority to promulgate a new regulation. Even the extremely loose rewriting of the Clean Air Act, misconstrued to grant the EPA authority to fight the weather, simply cannot be applied to the BLM under any interpretation. There is no law on the books that comes close to vesting such power in this particular agency.
It was bad enough that Obama legislated from the executive branch and inhibited economic growth through a number of regulations. But much as with DACA, courts are now mandating that Trump continue regulations from his predecessor that were not only discretionary but downright outside statutory powers. On Thursday, Judge William Orrick of the U.S. District Court for the Northern District of California barred Trump from even delaying the regulation, noting that, in his estimation, Trump gave insufficient justification for ending the rule. Orrick is the same lawless Obama-donor judge who declared a nationwide sanctuary policy attempting to block the DOJ from punishing sanctuary cities.
This is a very dangerous political emergency that, if gone unanswered, will render Trump’s presidency meaningless. Trump’s war on regulations is widely touted as his greatest achievement and has likely contributed to the extra growth in the economy. It has become clear that the GOP Congress will not pass a single positive piece of legislation and will hide behind the fake 60-vote threshold as a rationale for not pursuing any constructive regulatory reform. Thus, Trump’s only legal play is to simply eliminate administratively Obama’s executive regulations, many of which were themselves a violation of the laws on the books. Yet now the courts are saying that unless Trump provides a political rationale for getting rid of something that is outside of statute, he must continue Obama’s policies.
The House of Representatives might use the Congressional Review Act to overturn this regulation, which would not be subject to a filibuster in the Senate. The problem is that Sens. Lindsey Graham, Susan Collins, and John McCain have already blocked the motion to proceed with this bill last May. Besides, a president should not have to come crying to Congress to overturn the discretionary policy of a predecessor, much less a lawless one.
It’s time for the pseudo-conservative legal movement, essentially a libertarian movement, to get on board with wholesale judicial reform. We get the message loud and clear that many of them aren’t too outraged over the judicial assault on our sovereignty and civil society. But regulatory policy is the glue that holds together all center-right coalitions. Under this new lawless practice, random environmental defense groups can get standing in any forum-shopped court and find a radical judge willing to place a nationwide injunction on any policy. They deliberately pick radical circuits, such as the Ninth Circuit, which guarantees them a victory upon the opposition’s appeal from the Obama-appointed district judge. Then, the Supreme Court, as we’ve seen throughout the year, is extremely slow to grant relief, if ever. It’s been 13 months since Trump’s inauguration, and he still can’t exercise basic Article II and Article I delegated powers on immigration.
Rep. Dave Brat, R-Va., has introduced legislation that strikes at the heart of this judicial charade. His bill strips district judges of any authority to grant injunctive relief outside the confines of their geographical jurisdictions or beyond the individual plaintiff with standing before that particular district court. They have no power to nullify nationwide policies, transmogrifying their judicial power to that of a quasi-legislature and quasi-executive veto. But to the extent courts have seized this power for themselves in very recent years, Brat’s bill would restore the balance of power between the legislative/executive branches and the lower courts.
Even if we are to continue regarding the Supreme Court as God, there is no reason such omnipotent power should be ceded to any randomly and insidiously shopped district judge. Otherwise we should save our breath and stop yelling at each other over political debates, because the courts will continue Obama’s policies regardless of who wins elections.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.