. . . and then double-cross the Republicans. Forget about playing “hardball” or “softball” with the congressional Republicans. It’s time for President Obama to start playing Sharpball. It’s time that Democrats started playing by the same sharp-edged, elbows out rules that the GOP and the last homunculus they were able to get installed in the Oval Office play by.
In recent months, the proposed Keystone XL pipeline to pump Canadian tar sands oil across the United States to Texas has become a hot button political issue. Environmentalists oppose the project because – in the words of top climatologist James Hansen of NASA – opening up the tar sands to exploitation would mean it is “essentially game over” for the climate.
By law, the decision to approve or disapprove the Keystone Pipeline is within the jurisdiction of the State Department. That department, according to Friends of the Earth legal director Marcie Keever, “is required by law to fully evaluate potential environmental impacts, including the extreme levels of pollution produced by tar sands oil. Failure to assess the environmental impacts of this tar sands oil pipeline would violate the National Environmental Policy Act . . . . ”
So last month the administration hit on what it thought was an easy way to avoid this political hot potato until after the 2012 election: the State Department announced that it needed more time to review alternate routes for the pipeline “to avoid the [environmentally] sensitive Sand Hills region of Nebraska.” President Obama unconvincingly attempted to portray this delay as a simple matter of the State Department discharging its legal obligations and not one of domestic politics, although he acknowledged “that he would make the ultimate decision about the pipeline.”
But the GOP is attempting to take that decision out of his and the State Department’s hands. Today Republican leaders announced that they would agree to a bill extending the existing payroll tax cut only if that bill also contains a provision relating to the Keystone Pipeline. According to Talking Points Memo
The provision would require the administration to decide within two months whether to greenlight [the Keystone] pipeline . . . . Specifically, it would require the State Department to issue the permit for the pipeline, unless President Obama determines it’s not in the national interest. (emphasis added)
President Obama should take that deal. Specifically, he should take that deal, get the payroll tax cut extended, and then – two months later – tell the Republicans they can go screw themselves.
* * *
Just four days ago, the State Department issued a statement that said: “Should Congress impose an arbitrary deadline for the permit decision . . . the Department would be unable to make a determination to issue a permit for this project.” As I understand the situation, the State Department was arguing that if Congress were to deny it the time necessary to conduct the environmental review it needs to do, the department would have no choice but to deny issuance of the permit. This makes sense.
But now Congress is presuming to tell both the State Department and the President how to do their jobs. That is, Congress is going to flat out mandate that the State Department issue the permit. Then, it is going to flat out mandate that the President approve the permit unless he can affirmatively determine within only two months that allowing the pipeline to go forward would not be in the nation’s interest. Note how the burden of proof falls here: if Obama is simply incapable of determining within this arbitrary amount of time whether the pipeline project is or is not within the nation’s interest, then he will be required to let the pipeline proceed.
The Republicans’ insistence on this deal is obviously political. If Obama allows the pipeline to proceed then the GOP gets what it wants and Obama hurts himself with his supporters going into next year’s election. If Obama does not allow the pipeline to proceed then he hands the GOP a useful talking point going into next year’s election: Obama kowtows to the San Francisco hippies/drill baby drill/energy independence/Americans Need JAHBZ!! Once again we see the GOP’s utter willingness to disregard potentially dire policy consequences merely to secure a slight short-term political advantage in the immediate election cycle.
But while Congress enacts laws, it is the prerogative of the executive branch to determine how it will execute those laws. Here, Congress is presuming to instruct the executive branch as to how to do its job. Indeed, Congress is presuming to instruct the President as to how to do his job. This would appear to be a clear violation of the separation of powers doctrine. Quite simply, the deal the GOP is pushing appears to be unconstitutional.
Remember all those “signing statement” George W. liked to issue whenever Congress sent him a bill he didn’t fully approve of? I think President Obama should do something similar with the payroll tax cut deal. Take the deal, get the payroll tax cuts extended, and then when it comes time for him to make a determination regarding the pipeline he can just say:
Sorry, but after reviewing this provision of the bill we’ve determined it is an unconstitutional abridgement of the powers and responsibilities of the executive branch. We will continue our review of the environmental impact of the proposed pipeline and issue a permit once we’ve assured ourselves doing so is in the national interest.
Of course the Republicans are going to squawk, but they’ll squawk anyway – it’s an election year. Obama can portray himself as the responsible steward of the nation’s affairs without necessarily killing the pipeline before the election, the Villagers will marvel at and congratulate Obama on his new hardball Republican fake-out (which the average low-information voter will interpret as Obama being smart, cagey and a strong leader) and – at the worst – the matter gets thrown to the federal courts ultimately to be sorted out sometime after the election.
Yeah. I would have absolutely no problem if Obama were to take the deal being offered by the GOP leadership and then turn around and double-cross the Republicans immediately. After three years playing the betrayal game, I kinda think it’s his turn.