Defending the Rule of Law and Constitution Against Federal Overreach

Confidence in American authority is based on a fair, responsible, predictable and not arbitrary exercise of power by three independent branches of government created and defined by the Constitution.  The proper exercise of power may be summarized as 'The Rule of Law' as opposed to a less reliable "Rule of Man".  Maintaining The Rule of Law depends on the integrity of its defenders.  When a governmental branch overreaches its Constitutional authority in its exercise of power it debases the Rule of Law, endangering the independence of the other branches, the government ordained by the Constitution and the freedom of all citizens.  


Dave Harbour

With an admittedly limited academic, regulatory, business and military background we constructed the above description of America's "Rule of Law".  

While we have studied the importance of rules to civilizations ranging from Hammurabi's Code of ancient Babylon, to appearance of the Magna Carta 3,000 years later, to America's own evolution we invite readers to provide a more useful, accurate or persuasive understanding of our modern Rule of Law, here.  -dh

When we think about it, the consistent application of our society's statutes and rules is critical to America's energy and natural resource industries and those of Canada and the entire free world.

Arbitrary, inconsistent, political, deceitful, emotional or even racially motivated application of duly adopted policy — no matter how artfully portrayed or well intended — endangers investor confidence in energy and natural resource development, among many other failings.

Since the entire superstructure of prosperity in the United States and Canada — as we know it — is based on energy and natural resource exploration and production, diminished confidence in the Rule of Law threatens energy and natural resource investment along with the prosperity and freedom of citizens.

While Canada has its own challenges with the Rule of Law, today we focus on America's challenge which we believe poses a clear and present danger to survival of the Republic.

The most current example of overreaching federal jurisdiction is arbitrarily favorable treatment which the Administration — by bold and simple fiat — is gifting to one influential category of citizens subject to the 'Affordable Care Act', and not to other categories of citizens. Yesterday's Wall Street Journal editorial by David Rivkin and Lee Casey notes that, "By postponing the employer mandate, Obama has given millions of Americans the legal standing to sue."

We would note that Article II, Section 3, of our Constitution makes the President responsible for the enforcement of federal laws: “he shall take Care that the Laws be faithfully executed.”  It does not say that, "He shall take care that health, border protection and energy laws may be arbitrarily executed as the he wishes."

One might say of the many federal examples of overreaching jurisdiction: "Let me count the ways".

Examples of federal overreach include but are far from limited to these energy and natural resource related matters:

  • restricting human activity in newly deemed "Critical Habitats" for polar bears, beluga whales and steller sea lions whose populations are stable or increasing, not decreasing.
  • using a presidential Executive Order to create a new environmental activist bureaucracy to "zone the oceans" around America along with interior waters and lands, further restricting multiple use and increasing consumer prices — all without Congressional support and while diverting funds from approved priorities to this unapproved initiative.
  • using memoranda of understanding between the EPA and Corps of Engineers to impede the due process of project permitting, an end run around regulations and the Congress which significantly delayed and could have entirely stopped critical bridge projects in Alaska, among others.
  • using BLM agency planning processes to potentially block petroleum development in America's National Petroleum Reserve-Alaska and using the USFWS to deprive the country of oil in a small, congressionally approved oil and gas exploration corner of the Alaska National Wildlife Refuge.
  • using the EPA to delay or stop Alaska OCS development on leases sold by the federal government years ago to companies trying to supply America with billions of barrels of oil that could reduce foreign dependence and gasoline prices while injecting hundreds of thousands of jobs into the economy over a 50 year period.
  • using the EPA to create a 'watershed assessment' of an imaginary mining project in Alaska whose effect and precedent could be to outlaw natural resource projects on private, state or federal lands after leases have been issued but before development plans or the first permit applications have been filed.
  • using the EPA's regulatory power to cut carbon emissions in ways that are widely regarded as usurping Congressional authority while significantly increasing consumer energy costs, creating particularly harmful burdens for poor and elderly consumers and minority communities.
  • Using former Interior Secretary Ken Salazar (NGP Photo-R) to apply deep water Gulf of Mexico exploration moratoria to Alaska's shallow waters by bald faced fiat withoutKen Salazar by Dave Harbour, OCS, Alaska Chukchi, Beaufort, BOEMRE, DOI Federal Register or other public notice, without due process and without notifying Michael Bromwich by Dave Harbour, BOEMRE, OCS, Alaska OCS, Beaufort, ChukchiAlaska's Congressional Delegation or Governor or lessees who paid over $2 billion in good faith to his agency for leases to explore.  Meanwhile, as Salazar acted, a former DOI bureau head, Mike Bromwich (NGP Photo), insisted that no actual or de facto moratorium applied to Alaska.
  • Congressional end-runs, the most obvious being a multi-year failure to subject federal agencies to Congressional budget oversight committees flowing from the Administration's failure to provide the Congress with an annual budget pursuant to The Budget and Accounting Act of 1921 (31 U.S.C.A. § 501 et seq.).  Congress' failure to produce annual budgets pursuant to the Constitution, contributed to Administration power by enabling the Administration to reallocate funds previously authorized by Congress for the use of some agencies to purposes outside the intent of Congress (i.e. using budgeted resources to support unbudgeted Executive Order dictates, such as the Ocean Policy Task Force). 
Since our goal here is accuracy in objective reporting or in editorial remarks, we urge readers to provide us with any additions/corrections or comments that may further or better educate our readers on these sometimes very complex issues.  -dh

Governor Sean Parnell, to his credit, has already sued the Federal government on multiple occasions based, among other things, on the application of arbitrary and capricious interpretation of Federal statutes and rules.

While some Congressional leaders have become more and more outspoken about the broad and deep instances of the Administration's overreaching accumulation of power and control over citizen behaviors, a strong defense against such overreach is yet to be manifest.

We suggest that great courage will be required of Members of Congress when faced with many bold threats to their area of jurisdiction.  On the one hand, they must recall the oath of office that, "I do solemnly swear (or affirm) that I will support the Constitution of the United States."  On the other hand lies the practical consideration of incurring the wrath of certain voting constituencies, certain media barons, certain colleagues and a certain chief executive.

We know that great courage is required of patriotic 'whistle blowers' within federal agencies.  We suspect that some public servants are confronted with fiscal abuse and other instances of mismanagement or even destructive, agenda-driven policies that taunt the public interest.  We sympathize that the honorable servants so confronted will recall their own oath, memorialized in 5 U.S.C. §3331, “…to support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”  We know that they face the decision of quietly watching injustice further injure the nation, or summoning great courage for a risky but noble effort to right the wrong.

Even the military, must not be blind to the examples of abuse/excess and/or incompetence so pervasive in the executive office they are bound to obey.  Soldiers, Sailors, Marines and Coast Guardsmen must recoil in shock when asked to directly and indirectly support certain Administration policies and actions.  Many of these self-sacrificing warriors must detest a management that produces events ranging from IRS political targeting of harm against certain innocent citizens … to lavish and wasteful spending as military budgets are cut … to decisions to leave Americans in Benghazi​ to die without available military aid or a determined effort to rescue our own.  How strained must be the sentiments of an enlisting or re-enlisting soldier when asked to recite an oath (i.e. that I myself have taken) which on the one hand obligates him to, "…support and defend the Constitution of the United States against all enemies, foreign and domestic…"  and on the other hand obligates him to, "…obey the orders of the President of the United States….".

And in fairness to the Chief Executive, how strained must be his own sensibilities?  After all, it must be deeply burdensome to him when on the one hand he wishes to follow a political agenda that requires certain displays of executive powers, and on the other hand knows he should adhere to his own oath of office to, "…faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

We pray that during perilous times our current and future leaders will become as courageous as were our Founding Fathers and Mothers.  We pray that, ultimately, each will honorably observe his or her oath of office and thereby uphold the Constitution and citizens' confidence in the Rule of Law.

In this way shall the Rule of Law preside over a rejuvenated American prosperity.  

In this way, shall America's great experiment in prosperity continue to bless future generations and serve as that shining beacon to our fellow man throughout the world.

Should leaders choose an easier path of appeasement that further erodes the Rule of Law, we wish to not speculate on the dire result and dread that could befall all Americans and, indeed, all the world's citizens.