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First: President Trump should roll out an energy drink. I want whatever he’s been drinking because the man doesn’t stop. This must be a bit like the Teddy Roosevelt years.
Second, that paragraph was a blatant hook to try and get you to read a few hundred words about a legal doctrine —”preemption”— which my law students judge the second-worst stretch of constitutional law (the first is the “dormant” or “negative” commerce clause about which there is zero hope of ever penning an interesting column). “Preemption” is itself a big stretch for non-lawyers. But stick with me.
Energy is freedom. Energy is also lower prices for everything that must be produced or transported. Energy production is at the center of President Trump’s domestic agenda because it is at the center of American prosperity and progress as well as driving down prices.
Getting energy out of the ground, or flowing from a small, modular nuclear reactor, requires an astonishing number of permits from a dizzying array of federal, state and local agencies. That’s because our core constitutional structures — the weight-bearing walls of our freedom — are the separation of powers and federalism.
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Our founders wanted it to be difficult to pass laws that limit individual freedom. Their genius was to design and amend the Constitution to protect individual liberties, the sovereignty of the states and to limit federal overreach.
Getting energy out of the ground, or flowing from a small, modular nuclear reactor, requires an astonishing number of permits from a dizzying array of federal, state and local agencies.
Those same framers knew, however — as did the states’ ratifying conventions that gave life to the Constitution — that a great commercial republic required the federal government to be able to legislate in support of interstate commerce. Thus, the Commerce Clause (Article I, Section 8, Clause 3 of the Constitution) provides that Congress has the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
The Constitution is silent on oil and natural gas extraction and transportation, as well as small modular nuclear reactors, just as it is on data centers to power artificial intelligence applications. Of course, it is silent on those topics because the Framers couldn’t have imagined those industries any more than they imagined airplanes, much less privately owned spacecraft. But all of those activities are “commerce” and Congress can regulate them and, in so doing, explicitly bar the states from interfering with those subject areas of commerce.
The Constitution is silent on oil and natural gas extraction and transportation, as well as small modular nuclear reactors, just as it is on data centers to power artificial intelligence applications. Of course, it is silent on those topics because the Framers couldn’t have imagined those industries any more than they imagined airplanes, much less privately owned spacecraft. (spxChrome)
The Framers did know (1) the preeminent value of freedom, (2) the sacred importance of property rights and (3) the need for the Congress to have the power to brush aside state and local obstacles to the furtherance of interstate commerce.
Right now, many state and local governments are inhibiting the production and transportation of energy, which limits the supply of energy. These interferences — usually in the form of permitting delays, denials or lawsuits — drive up the price of everything, because everything we buy requires energy to produce and transport.
For a thousand different reasons, many local, regional and state governments are hostile to energy production and transportation and use their permitting power to put permitting obstacles in the path of that production and transportation.
Even if permits are eventually issued, groups of environmental extremists immediately file expensive and time-consuming lawsuits to hinder the start of the projects. It is time for Congress to pass legislation to preempt these anti-energy production and transportation policies and extremist groups.
There is also an argument over federal preemption among AI companies and those worried about AI, but I don’t have an opinion on that because I lack any subject-matter expertise on AI. Before one weighs in on a federal preemption debate on any topic, they ought to know the area in detail.
I do, however, know about the permitting maze that surrounds energy production and transportation. From 1989, when I left the Reagan administration and moved back to California to 2016, when we returned to the Beltway because the needs of my broadcast career finally trumped the demands of my law practice, I represented large landowners (including energy companies) on federal, state and local permitting issues.
You wouldn’t believe the regulatory maze landowners must navigate to extract oil and gas from their own property and to construct pipelines to ship that lifeblood of the economy anywhere. These state and local permitting puzzles are absurd and redundant, and they are holding American economic growth back while also driving prices higher and higher.
There are scores of examples but let’s focus on just two. New York State has repeatedly blocked major pipeline projects, like the Constitution Pipeline and the Northeast Supply Enhancement pipeline. The construction of both would rapidly increase delivery of energy to New England and drive down ridiculously high home heating bills.
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It’s blue state-on-blue state conflict, but New York’s regulators are environmental extremists. It is time for Congress to step in and preempt the state and local agencies from interfering with the construction of these pipelines and others like them around the nation.
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Democrats profess to share those concerns. So, there should be no objection to including permitting reform to allow for more rapid development of all energy resources, especially for pipeline construction to efficiently carry that energy to where it is needed most — like the Northeast where sticker shock for home heating bills is real and only getting worse.
So, Congress, plug in some preemption language to the next “must pass” statute and get the energy flowing. Few issues are this easy to fix.
Hugh Hewitt is a Fox News contributor and host of “The Hugh Hewitt Show” heard weekday afternoons from 3 PM to 6 PM ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh drives Americans home on the East Coast and to lunch on the West Coast on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s “Special Report” news roundtable, hosted by Bret Baier weekdays at 6 pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996 where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcasting. This column previews the lead story that will drive his radio/ TV show today.
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