Idle query

Where in the Constitution does it say that the Federal government has the power to cap runaway oil wells?

I hope the proponents of limited government will come forward with free-market plans to do the job. After all, socialism is much more dangerous than crude oil.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

36 thoughts on “Idle query”

  1. Good point! I'm also waiting for the "drill, baby, drill" loonies to get their asses down to the Gulf and help clean up their mess. Again, why should the "big government" they fear have to do all the work?

  2. What's your point, exactly? BP is the one who will be paying the costs of the spill and the entire cleanup operation. And yeah, it will be a great idea to shut all sea-based oil rigs in the Western world, just to help Iran to build the bomb and nuke Israel that much faster. Knee-jerk liberalism at its worst.

  3. I'd point out maritime jurisdiction (art. 1 § 8 cl. 10 and art. 3 § 2) but it seems that only extends to punishing crimes and adjudicating disputes. So the government could prosecute BP, and those whose property was damaged by the spill could bring suit in federal court, but nothing in the Constitution authorizes the government to take action.

    Aside from art. 1 § 8 cl. 18, of course. 😉

  4. I think that since the oil is going to have a huge, direct negative consequence on (1) threatened and endangered species; (2) Interstate and international commerce; (3) the US exclusive offshore economic zone, the impetus to federal action, whether direct or accomplished through polluter-pays mandates is incontestable. Oh, yeah, and since it's the feds who lease the tracts, this falls under merely administering what is already federally controlled.

    If you're trying to draw a parallel with the health-care mandate, then, well, epic fail.

  5. "If you’re trying to draw a parallel with the health-care mandate, then, well, epic fail."

    The more obvious parallel is surely with controlling GHG emissions?

    If "since it’s the feds who lease the tracts, this falls under merely administering what is already federally controlled" one could draw a parallel with the atmosphere — if not the atmosphere over the entire US, at least that part of it over federal lands.

    If "the oil is going to have a huge, direct negative consequence", well there are already huge negative consequences to the volatile price of oil that could be ameliorated by putting in a place an elastic tax that pegs the price at some fixed value regardless of world price swings. Not to mention that there are going to be some pretty huge negative consequences when the stuff runs out, so aggressive fed efforts on that score are helpful forward-looking moves.

  6. Since oil is a national security issue, capping the wells falls within the inherent war powers of the executive. There is an upside, though: this means we can waterboard Carl Svanberg and anyone with whom he's been in contact, which would include Rex Tillerson, Peter Voser, John Watson and Jim Mulva (rhymes with 'Dolores').

  7. BP is the one who will be paying the costs of the spill and the entire cleanup operation.

    You're deluded. Every affected polity, every podunk beach town with a motel and charter fishing boats, every county, every city along the Louisiana, Texas, and Mississippi coasts will incur expenses, will try its own restoration efforts, will watch helplessly as waterfront businesses shrivel and go under, as fish and shrimp stocks become poisoned, as swamps are fouled with petroleum that kills the birds and animals and vegetation. No "cleanup" can prevent more than a tiny fraction of this economic and ecological devastation.

    BP will pay some money for some work called "cleanup" and call the job complete, just as Exxon did in Alaska after the Valdez. Do you really think that the billions Exxon paid actually covered the costs to the public at large from that catastrophe?

  8. Judging by the death toll, socialism really IS more deadly than oil spills, unless you cut it with enough capitalism to blunt the effects.

  9. Good points Joe. Yes, this whole oil spill incident will indeed turn into knee-jerk liberalism at its worst, statistical probabilities be damned. The same kind of flawed logic that attacks the "drill baby drill" mantra based on this incident is what drove the democrat governor of my home state to call a moratorium on all parole releases from prison after a parolee shot and killed a police officer, leading to an unprecedented explosion in our state prison population and the distinguished honor of having the largest one-year incarceration rate growth among all states during 2008. As a result, we're now planning construction of four more prisons during the next five years at a cost of $200 million a piece to the taxpayers just to keep up with our prison growth which was previously projected to be flat. In economics I believe they refer to this as negative externalities. All because of knee-jerk liberalism. It doesn't matter about how improbable an oil spill is, it's all about ideology.

    Of course Mark and other liberals often confuse limited government with no government. I certainly don't know of any conservative who believe in no government. Within the "limited government" camp, there's a wide spectrum of views on how limited that government should in fact be. It's along a continuum. I personally think that cleaning up after an oil spill like this one falls within the basic mandate of government to protect its citizens and thus don't see government "intervention" incompatible with limited government in this case. We can argue about how limited government should be, but who really doesn't want limited government to some extent? If we were to dichotimize the concept, then the opposite of limited government would be unlimited government. Is that what Mark and other liberals are arguing for?

    And yes, socialism is more dangerous than crude oil.

  10. The "free market" mantra is internalize profit and externalize expense. They keep the profits of the oil business and hand the bill to the rest of the world. Anything BP pays for in this will be a small fraction of the real costs. 'Sorry about your ruined planet but shit happens.'

  11. Brett, your comment reveals much more about your definition of "socialism" than about history. No-one in the US is proposing the elimination of the kulaks, which in any case wasn't about Socialism.

  12. On the other hand, thinking about the coalaks, owners of mines and the means of production in WV, maybe we should consider elimin… oh, well, just a thought.

  13. So? You want to define 'socialism' as what I'd call "socialism moderated with a large component of capitalism". The pure stuff does kill. In part because it's so unproductive, in part because you've got to kill people to keep it pure.

  14. I will admit that the free market has a rather different problem; While socialism can't be implemented in anything resembling a pure form without killing a lot of people, (Because it doesn't scale well above the family, and only works there because the family is embedded in a non-socialist economy.)the free market doesn't get implemented in anything like a pure form in representative democracies because it's not really all that popular. Once people get to vote on the matter, they vote to spend other people's money, inevitably. About the closest thing to a genuinely free market that's been tried on any real scale was Hong Kong before it got handed over to the Red Chinese. Worked great! But only because they didn't have control over their own government. And, you know, benign despots who will despotically refuse to rule over you, while not letting anybody else do it either, are rather thin on the ground.

    Just doesn't result in a lot of people dying, that's all.

  15. Brilliant question.

    Let me try to answer it. Let's go for the commerce clause

    "To regulate Commerce with foreign Nations" OK so the well isn't exactly foreign, but BP is. Can't the government regulate the flow of goods belonging to BP into the USA even though they are literally flowing ? "

    How about "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"

    Does that include capture of leaking oil ? I don't see why not. Grant a letter of Marque against the oil and it's constitutional.

  16. Ed Rendell instituted a 2-month parole moratorium after Philly Police Sgt. Patrick McDonald was killed in Sept 2008 by a recent parolee. There’d been an upward trend in the state inmate census before this happened. The moratorium did modestly increase the inmate population, but — as you might expect — the effect was transient. Other factors account for the upward trend & the state’s decision to build more prisons. I haven't previously seen conservatives claim that a less liberal governor would have neglected to review parole procedures after McDonald’s killing.

  17. Brett, you persist in your absolutist view of socialism. This isn't only unfair to essentially all actually existing people arguing for more elements of socialism in our society; it's also unfair to you. If when faced with a real world in which some of your fellow citizens want government to take more of an active role to ensure access to healthcare and to regulate the behavior of polluting and risky industries you sneeringly reply that the path of more government leads to the gulag and to the killing fields, all you do is to make sure that you have minimal ability to influence the people you're talking to. Similarly when people who do want more government involvement tar all believers in capitalism and the free market with the worst excesses of that approach – Bhopal, for example, or the Somali pirates, they perhaps get a thrill from twisting the knife, but they're not listened to.

    Whether you're even accurate in your claims about socialism is also highly doubtful, but I don't even think that it's relevant. By attempting to associate your ideological opponents with monsters from history, you do your own position a disservice.

  18. I question the prenmise here, that the federal government would do a better job of capping the blowout than BP and its contractors. The impression I get is that these are running round like headless chickens not because they are incompetent or unmotivated or constrained by resources, but because they are trying the state of the art and it isn't working. Perhaps the government should have more direct capability to deal with man-made as well as natural disasters, rather than leaving the first-response job to the companies that caused them; but that's another question.

  19. Who said anything about the government doing a damn thing? We all know, this will get done by the culprits! Politicizing this tragedy,(from either side) is PETHETIC!

  20. You don't need to find authority in the commerce clause or other regulatory clauses–Congress has the power to spend money "to promote the general welfare," and spending money to stop an environmental catastrophe obviously qualifies.

  21. Very good rea! And BP as the resposible party, will pay "We The People" back. probably sooner than say, GM?

  22. LOL! Very pithy. What a bunch of touchy bastards in the comments.

  23. If that "improbable" event can result in a catastrophe, then yes, extraordinary caution is called for even if the calling is done by a "knee jerk" liberal.

    I am a self defined "tree hugging" liberal but am looking for a new label as there will soon be no trees to hug.

  24. Actually, it is the Commerce Clause United States Constitution (Article I, Section 8, Clause 3)because an activity like this requires adjudication between the states. Giving the power to the states to license wells is not feasible because the activity of the well impacts several states. The well may be off the coast of one state, oil delivered by ship or pipeline to ad different state and of course, the states have different interests as to the desirability of wells. Lousiana may want a well but Alabama and Florida may not due to the potential impact on tourism. Also, how would oil companies handle it if they were subjected to various regulations from different states? The federal government is responsible for regulting commerce in that manner.

    Of course, the outer limits of the Commerce Clause were given in Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005). The court held that marijuana, grown at home, for personal use within a single state is subject to the commerce clause as long as it is part of a complete scheme of legislation designed to regulate Interstate Commerce. Justice Clarence Thomes had the best dissent when he said “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers.”

    Also, the federal government has only given states power to regulate out to a three mile limit and the well is thirty miles offshore so it belongs to the feds.

  25. Again Mark,who said anything about the government doing a damn thing? Please, do tell!

  26. The White House faced claims last night that the Gulf Coast oil spill could have been contained and kept far from land within days of the Deepwater Horizon explosion if oil from the gushing wellhead had been burnt off in line with a plan drafted by the US Government for precisely this sort of disaster.

    The plan requires the immediate deployment of specialised “fire booms” capable of burning 95 per cent of a slick— but not one boom was available on the Gulf Coast at the time of the blast, according to a supplier who eventually provided one eight days later.

    “The whole reason the plan was created was so that we could pull the trigger right away,” Ron Gourget, a former federal oil spill response co-ordinator and one of those who drafted the document, said yesterday.


    US had burn-off plan for oil spills but the equipment wasn’t there

  27. K, you need to get some facts straight about the Ed Rendell "knee-jerk". There had indeed been a slight uptick in the prison census before the parole moratorium, but it was only a result of another "knee-jerk" reaction by the state Parole Board in response to another police shooting just months earlier. If you go back immediately before this "knee-jerk" period though (late 2007 to early 2008), the state prison population was projected to flatten out. In fact it was projected that by Dec. 2013 the state's prisons would be just slightly above operational capacity (+286 inmates). Compare this to the projections immediately after the parole moratorium, which had the state prison population at 6,294 above operational capacity by Dec. 2013. That's about the size of three prisons. So in the period of a year, the 4-year forecast grew by three prisons. I guess this is what you refer to as a "modest increase" and a "transient" effect. Believe me, there has been nothing transient about it. The system is still recovering. A parole rate that hovered around 62% before the moratorium fell to 37.5% after the moratorium and is every so slowly inching back to its previous rate after nearly a year and a half later. Pennsylvania is no safer. Prisons are bursting at the seams, to the point that inmates have been shipped to Michigan and Virginia as well as to local jails. And four new prisons have to become a reality in order to just keep up. It is true that other factors go into the decision to build new prisons and that there were talks of these prisons before the moratorium, but this was mainly driven by the fact that new prisons are cheaper to run and could replace much older prisons. Talks don't revolve around replacing old prisons any longer, they revolve around adding. The parole system certainly could have been reviewed without all of this costly nonsense. Just setting the facts straght k.

  28. Well bux, that sounds like the CBO projections for the "health care mandate."

  29. Again, the upward trend in the inmate census predates the murder of Sgt. Liczbinski (3 May 2008) as well as the McDonald killing. During FY2006-2007 — the last fiscal year before the “knee-jerk period” — the inmate population grew 5.3%. (In the year ending 31 Jan 2010 — the most recent for which I have data — it grew 4.4%.) As I said, the growth rate increased during the 2 months the moratorium was in effect, & then returned to the range w/in which it had varied for over a decade. (If I knew how to import a chart into comments here, we could simplify this discussion. Anyone who wants to see the monthly census data going back 30+ years can find the PA DoC Annual Statistical Reports online, or drop me a line.)

    In fact it was projected that by Dec. 2013 the state’s prisons would be just slightly above operational capacity (+286 inmates). Compare this to the projections immediately after the parole moratorium, which had the state prison population at 6,294 above operational capacity by Dec. 2013.

    (Compare the Feb. 18 testimony of Jeffrey Beard, Rendell’s Sec. of Corrections, on the FY2010-2011 Budget Proposal: “… it was projected that by December 2013 [the Dept. of Corrections] would be operating slightly above operational capacity (+286 inmates). Taking into consideration current population projections and assuming that the release rate remains the same as it is today, (that is assuming the parole rate does not increase dramatically and that new initiatives are not enacted), it is anticipated that by December 2013 our agency will be operating well above operational capacity (+6294 inmates).”)

    The moratorium lasted all of 2 months & 2 days. Fewer than 1000 inmates were being paroled per month during the preceding period. Even if no one whose parole the moratorium delayed had ever been released, they would account for at most a few percent of the inmate population. They can’t account for the revision in the Dec. 2013 projection, as the analysts who made it understood. In this regard the moratorium is less important than the subsequent, evolving changes in parole policy & practice, along w/ everything else.

    As of Jan. 31, the inmate population was 117.8% of operational bed capacity. This is higher than the average since the last significant increment to capacity (in early 2001) — about 113% — but significantly lower than in the late ‘90s, when it hovered around 150%.

    The larger political point, that this reveals some peculiar defect of liberals or liberalism, is utterly witless.

  30. Ah, yes, the famous "elastic clause", which renders the rest of Article 1, section 8 surplusage, and even repealed the 10th amendment before it was ratified. I won't say that nobody could interpret 'necessary and proper' that way. Just that they couldn't do it in good faith… Not unless they were cracked in the head.

    You know what the difference is between the tax protesters who insist that their paychecks aren't really 'income', or that the 16th wasn't properly ratified, and people who claim the necessary and proper clause authorizes the government to do everything that was deliberately left out of Article 1, Section 8, and which the 10th amendment was adopted to rule out? The government's firepower is on the side of the latter, that's all.

    You're both intellectual frauds. The tax protesters are just intellectual frauds the government has no reason to back.

  31. BP, like Exxon, will only pay back a small portion of the damages it is causing. See this link:
    if BP manages to duck paying for a large part of the damages it causes, conservatives should be outraged, right? And they should be fighting to hold BP accountable, right? "Don't let BP externalize its losses, it distorts the free market."

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