Get Used to Judges Who Block Executive Orders


A federal district judge in Louisiana has blocked President Joe Biden’s executive order pausing all new leases for energy exploration on public land. The ruling mimics decisions issued by federal courts that constrained former President Donald Trump. It’s the latest evolution in the role of federal judges as obstacles to high-profile presidential edicts. Liberals happy with the way the federal courts constrained Trump must now acknowledge that judicial power is a double-edged sword.

The nuts and bolts of the opinion concern two federal statutes that direct the secretary of the interior to establish processes for leasing exploration rights: the Outer Continental Shelf Lands Act (for offshore projects) and the Mineral Leasing Act (for inland projects). To oversimplify, the processes are supposed to evaluate proposals in light of environmental as well as social and economic interests. Biden’s executive order effectively froze leasing contracts that were in process and ready to go, but that had not yet gone into effect.

To issue a preliminary injunction blocking the pause, the district court had to find that the 13 states that challenged the law had standing and also that they would be irreparably harmed by the pause. I think the court was right on the issue of standing, because I take a pretty broad view of who should be able to ask a federal court to challenge an executive action. But I’m much less convinced that the states are irreparably harmed by a pause in leasing contracts, as the court found. Federal contracts take time, and everyone involved with them knows they can be delayed.

The court then blocked the pause for two different reasons. First, it said that since the OCSLA doesn’t expressly mention a presidential power to pause leases, only Congress could do so -- pursuant to the clause of the Constitution that says Congress has the authority to dispose of federal property. That holding seems unconvincing. There is no reason the statute should have to mention pausing expressly, given that the statute gives the executive the power to make the decision.

More credibly, the court went on to say that Biden’s order was likely not legal because it violated the Administrative Procedure Act, which requires the executive to follow procedures and give reasons for its administrative actions. Whether the district court got this part right has a lot to do with whether you think the Biden administration gave a sufficient reason for its pause.

The explanation the executive order gave for the pause was that it took place

pending completion of a comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices in light of the Secretary of the Interior's broad stewardship responsibilities over the public lands and in offshore waters, including potential climate and other impacts associated with oil and gas activities on public lands or in offshore waters.

There is no doubt that it’s within the authority of the executive branch to engage in such a comprehensive review. If you have a strong, functional view of executive power, you would think that the president should be able to pause action by administrative agencies in order to do such a review. The APA says that agency decisions can’t be arbitrary and capricious; and there is nothing inherently arbitrary about reviewing policies. Pragmatically, the president should have some discretion to issue a pause where it’s necessary to protect the environment.

Yet in a series of cases that took place during the Trump administration, federal courts blocked a range of executive actions by the Trump administration for failing to conform with the APA. The most famous examples included Trump’s rescission of Barack Obama’s Deferred Action for Childhood Arrivals (DACA) program and the attempt by his Commerce Department to put a citizenship question on the census. In each of those cases, the courts held the Trump administration to rigorous standards of explanation of its actions -- standards the administration could not meet.

Seen from this perspective, the Louisiana federal judge’s decision imposes similarly rigorous standards on the Biden administration.

It’s extremely unlikely that the conservative-dominated U.S. Court of Appeals for the Fifth Circuit would overturn the district judge’s order. And unlike the Trump era, when the Supreme Court’s conservatives sometimes intervened to reverse lower court rulings that limited the president, the justices are very unlikely to weigh in on this case in its current form. 

Of course, the Biden administration can still begin an ordinary administrative process to issue new rules and regulations for exploration leases. It can reach different conclusions than those reached by prior administrations. And those conclusions will themselves be subject to judicial review. Nevertheless, this is clearly a defeat for environmental groups.

The upshot is that the federal courts can substantially interfere with unilateral executive action when they choose. When Trump’s lawless executive action was at stake, that intervention was highly desirable. The power, however, can’t be narrowly constrained to bad presidents and bad action. The activist judiciary is here to stay.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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