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This article uses President Trump's issuance of the Keystone XL Pipeline permit to illustrate the dangers of an imperial presidency, one in which the exercise of discretionary authority, based on neither the text of Article II of the Constitution nor a statute, will in all likelihood be unchecked by Congress, the courts, or popular opinion. To understand the dimensions of this concern, Part I of this article briefly describes the process and requirements for a presidential permit. Part II identifies key facts surrounding issuance of the Keystone XL Pipeline permit, the chronology of its issuance, and commonly given reasons supporting or opposing the permit. Part II includes a discussion of non-legal arguments favoring permit issuance, such as its projected economic and national security benefits and the promotion of beneficial relations with a border country, as well as those against its issuance, such as its projected environmental harm and the dangerous precedent it may set as a way to avoid environmental accountability for presidential activities that may have a significant adverse effect on the environment.

Part III looks more closely at the constitutional arguments justifying the permit's issuance, finding potential support in the President's prerogative powers as well as in his constitutionally assigned role as Commanderin-Chief of the Army and Navy, his duty to oversee foreign relations, and to take care that the laws are faithfully executed. Part IV identifies the extent to which Article II cabins the President's authority to issue the Keystone XL Pipeline permit and how its issuance may violate the separation of powers doctrine. The arguments that the courts, Congress, and the public will check any abuse of power by the President and that this use of presidential power is supported by precedent are set out in Part III and then critiqued in Part IV.

The last part of the article, Part V, broadens the perspective on the issuance of the Keystone XL Pipeline permit. More specifically, the Part discusses how its issuance reflects an accretion of presidential power and questions the wisdom of potentially unbalancing the balance of powers between the two branches of government in the current political environment. Much of the Part's discussion centers on then--Professor Elena Kagan's strong support for a dominant president, what she calls a “presidential administration,” and those who disagree with that idea.

The article concludes the President may have stepped beyond the limits of his Article II enumerated and discretionary constitutional powers by issuing the Keystone XL Pipeline permit. In treading on Congress' constitutional authority, President Trump's action risks the creation of an uncheck-able imperial presidency, beyond even what Justice Kagan envisioned. This type of presidency may do serious permanent damage to the constitutional structure of our government, outlasting, in the specific situation, President Trump's days in office.

Publication Citation

Montana Law Review, Vol. 81, Issue 1, 5.