Congress on the Constitution: "Tell it to the Judge"

William Perry Pendley
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Posted: May 01, 2007 12:01 AM
Congress on the Constitution: "Tell it to the Judge"

The Constitution provides, "The Senators and Representatives… shall be bound by oath or affirmation, to support this Constitution…." Thus, every other January, the U.S. House of Representatives and one-third of the Senate proclaim:

I do solemnly swear that I will 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; [] and that I will well and faithfully discharge the duties of the office on which I am about to enter.

Apparently there is a difference between taking this oath and taking it seriously.

Last January, the House of Representatives passed H.R. 6, the “CLEAN (Creating Long-term Energy Alternatives for the Nation) Energy Act of 2007,” which includes: the “Ending Subsidies for Big Oil Act of 2007,” the “Royalty Relief for American Consumers Act of 2007,” and an untitled section, under which revenues generated by Sections I and II will be spent on yet-to-be-determined “alternative” energy sources. This is typical: in the 1980s, after creation of a commission to recover “$1 million a day” purportedly lost in “unpaid oil and gas royalties,” Congress promptly spent an additional $365 million.

In 1995, Congress, to encourage exploration in the Gulf of Mexico’s deep water, granted some royalty relief for operators brave enough to go where none had gone before. Last summer that bore fruit with the discovery, 175 miles offshore in 7,000 feet of water, of 3 billion to 15 billion barrels of oil. Congress also gave the Department of the Interior (DOI) discretionary authority, but not a mandate, to limit the relief depending on oil and gas prices. The Clinton Administration adopted limits for most years; however, in 1998 and 1999, it did not. No skullduggery was involved; in fact, the DOI’s Inspector General wrote that industry officials reported the “mistake.”

Now Congress plans a “gun to the head” of anyone with an interest in the 1,032 deep- water leases from 1998 and 1999, demanding they “renegotiate”—an ironic term given the “take it or leave it” nature of federal contracts—those leases: 20 producing leases must pay between $158 million and $788 million each; 526 leases being explored or developed owe $9,375 to $21,600 each. If they refuse, they will be barred from new Gulf of Mexico leases.

Congress’s H.R. 6 could be a final Constitutional Law examination so replete is it with infirmities such as breach of contract, takings without “just compensation,” denial of equal protection and due process, and a bill of attainder. Should it become law, given its scope—it applies to anyone with “direct or indirect interest in, or who derives a benefit from” a targeted lease—hundreds must rush to court to seek, not only a declaration that the law is unconstitutional, but also a restraining order barring the DOI from issuing leases. One official testified that, over a decade, a three-year delay in issuing leases will cost the government $13 billion in bonus and royalty revenues and the nation the energy equivalent of 1.6 billion barrels of oil, not to mention hundreds of millions of dollars industry would have spent on new jobs and equipment to discover and produce that energy.

Plus, barred from operating in America’s most productive offshore region, just as Congress compelled the development of resources at risk of being drained by China’s drilling offshore Cuba, American companies will search for oil and gas elsewhere—Russia for example. Or, they will go on shore, to Montana, Wyoming, and Colorado, at a time when environmental groups clamor about “too much” energy development there.

The duty to “bear true faith and allegiance” to the Constitution applies to all officials, not just those who wear black robes. Congress’s failure to take that duty seriously usually impacts only those forced to defend their rights in court. With H.R. 6, Congress may have discovered a way to spread the misery.