A friend wrote to me asking my opinion on where the Federal government gets its authority to allow or disallow offshore drilling. It raised several troubling thoughts and more so in light of the United Nations Convention on the Law of the Sea (UNCLOS) treaty. The purpose of this page is to dedicate a discussion on offshore drilling from a Constitutional perspective and to analyze the implications of UNCLOS both on offshore drilling and its general affect on our Constitution. It is a work in progress so feel free to comment on mistakes and lack of knowledge. I freely admit them where appropriate!
Constitutional Power to Regulate Offshore Drilling
When querying whether Congress has power under the Constitution, to ask is to answer the question in the affirmative. As the Father of the Constitution, James Madison, pointed in out in Federalist No. 39,
[T]he proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
A cursory review shows that there is no enumerated power that could possibly allow for the federal government to regulate offshore drilling save for Art. 1, Sec. 8, Clause 17 that provides,
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;
If the states have do retain their sovereignty under the Constitution as the text requires, then the next logical place to determine offshore drilling would appear to be the individual state constitution setting forth geographical limits. Easy, right? Not so fast. Don’t forget that the Federal government has an alternative explanation of their authority if the first fails: the latent, active, inactive, sometimes dormant, but otherwise effectively persuasive Commerce Clause under Art. I, Sec. 8, Cl. 3.
Under this clause, Congress has enacted the Outer Continental Shelf Lands Act (OCSLA), which provides a system for offshore oil and gas development planning, leasing, exploration, and ultimate development. Don’t mistake the argument here. It isn’t that Congress lacks power to regulate commerce but what does the enumerated power to regulate commerce “among the states” mean. In Gibbons v. Ogden, Chief Justice Marshall wrote,
The subject to which the power is next applied is to commerce among the several states. The word among means intermingled with. A thing which is among others is intermingled with them. Commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior. It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. Such a power would be inconvenient and is certainly unnecessary. Comprehensive as the word among is, it may very properly be restricted to that commerce which concerns more states than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a state, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a state.
. . . .
This principle is, if possible, still more clear, when applied to commerce among the several states. They either join each other, in which case they are separated by a mathematical line, or they are remote from each other, in which case other states lie between them. What is commerce among them, and how is it to be conducted? Can a trading expedition between two adjoining states commence and terminate outside of each? And if the trading intercourse be between two states remote from each other, must it not commence in one, terminate in the other, and probably pass through a third? Commerce among the states must, of necessity, be commerce with the states. In the regulation of trade with the Indian tribes, the action of the law, especially, when the Constitution was made, was chiefly within a state.
The power of Congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several states. The sense of the nation on this subject is unequivocally manifested by the provisions made in the laws for transporting goods by land between Baltimore and Providence, between New York and Philadelphia, and between Philadelphia and Baltimore.
We are now arrived at the inquiry – What is this power? It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.
Having decried the federal power initially, I am compelled to admit that federal authority to regulate commerce in offshore drilling exists. However, the Chief Justice laid out the expanse of the power and then he applied it. In his “Purpose-Object” analysis, he made clear how the broad power is construed:
To what purpose are powers limited, and to what purpose is that limitation committed to writing, if those limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
To cut this short, Congress must enact legislation on offshore drilling if the PURPOSE of the legislation is to act upon a constitutional OBJECT. If the legislative purpose was to prohibit offshore drilling completely, it is clear that if the drilling took place solely within the boundaries of a state, the legislation is per se unconstitutional. The moment gas and oil resources leave a state, then surely federal regulations could attach to it but not prohibit the commerce “among the several states.” So, too, if the purpose of federal regulations were to regulate the environment of offshore drilling, one would again determine that no such federal object existed in the Constitution. This of course, make all federal environmental laws rightfully suspect because the purpose of such laws (i.e., regulating migratory bird stocks) doesn’t have any foundation in a federal object of regulating the environment.
We cannot expect that this analysis would travel one foot in a federal court, especially when the federal courts enforce federal laws that make it a crime, for instance, to own a handgun that had at one time travelled in interstate or intranation commerce where an individual is the subject of a state protective order arising out of a domestic violence situation. Any lawyer who is familiar with protective orders will tell you that obtaining one is quite easy. I was involved in such a case where the spouse alleged petty acts to get the protective order and then called the federal marshalls because the alleged offending spouse had a gun made in Brazil 18 years earlier!
The Constitutional waters are, however, going to get a great deal murkier.
UN Convention on the Law of the Sea (UNCLOS)
“The oceans are the very foundations of human life . . . . Life itself arose from the oceans.” So says the UN in stark contrast to the Declaration of Independence and the inference that Adam and Eve started it all and had inalienable rights. I know, I know, the Declaration of Independence is filled with that frilly language and besides, aren’t Republicans globally warming up to this idea?
In May of 2007, President Bush urged the Senate for accession to UNCLOS. He told us it was good for us. Foreign groups are eager to sign on. What’s so bad with UNCLOS? For starters, that President Reagan and Sen. Jesse Helms, God rest their souls, would refuse it UNCLOS outright telling and our first sign of caution. And for good reason. Paul Weyrich discussed the numerous times UNCLOS was put on ice.
“The Secret Agenda behind the Law of the Sea Treaty,” [researcher Cliff Kincaid] says the Treaty is so extreme that former UN Ambassador Jeanne Kirkpatrick stated that “it was viewed as the cornerstone of Marxist-oriented New International Economic Order.” According to Kincaid, “This was conceived as a scheme to transfer money and technology from the United States and other developed countries to the Third World.” He points out that Kirkpatrick strongly opposed the Law of the Sea Treaty.
According to Kincaid, the Treaty would open the U.S. up to international lawsuits and climate-change legislation, providing a back door for implementation of the ungratified and costly global warming treaty. This is because the Treaty would establish a new international legal regime, including a new international court, to govern activities on, over and under the oceans, seven-tenths of the world’s surface. The provisions of the Treaty would also permit international rules and regulations governing economic and industrial activity on the remaining land area of the world in order to combat global warming and other perceived pollution dangers.
The UNCLOS is set to launch the International Seabed Authority, an international regime that will define country territories by defining the extent of maritime jurisdiction, the measure of the continental shelves, economic development zones (EEZs), areas of strategic importance for national security, and areas subject to resource and environmental management. This is supposed to happen in 2009. What does it mean? Well, fishing, navigation, and the environment are no longer under our own control and will be subject to an international police force. Why do it?
Proponents of UNCLOS assert without any sign of embarrassment, that a treaty having the advice and consent of the Senate and signature of the President, can amend the Constitution. I’m serious. They have no problem overlooking Art. V’s Amendment process that limits the way a Constitution can be amended. For these folks, it is enough that Article VI makes treaties supreme law of the land. Startling to say the least. These same folks openly state that sovereignty, like declarations of war, are no longer useful concepts. This is how to explain why conflicts with the Constitution are of no great moment. Why worry? After all, we are the UN and we’re all friendly, right? Well, let’s see what our “friends” are giving us.
Specific Constitutional Problems with UNCLOS
Part II, Section 1, Article 2: Sovereignty is exercised “subject to this Convention and to other rules of international law.” (Objection: If states retain their sovereignty over their territory, wouldn’t the 50 states each need to consent to the arrogation of UNCLOS power?)
Article 3 of this section purports to give states their “right” to establish their territorial seas up to 12 nautical miles. (Objection: ditto.)
Article 19 of this section sets out what the meaning of “innocent passage” is in the waters of a coastal state by reference only to the Charter of the U.N. It includes not simply threats but any activity not having a direct bearing on passage. Article 22 allows states to make laws that conform to UNCLOS. Without restating the entire section, disputes are not regulated by the U.S. courts but rather by an UNCLOS body. (Objection: What if one of the 50 states or the U.S. has a different construct of what constitutes “innocent passage” than that of the Charter? Too bad.)
Article 20 castrates our Navy by stating that submarines and other underwater vehicles must navigate on the surface and fly their country’s flag. (Objection: Though obvious, Congress is given the power to make those rules.)
****I will update this painstakingly difficult process soon. This is all for now.*****