. “The boundaries of congressional power under the Foreign Commerce Clause admittedly lack any well-defined parameters.” Indigenous Env't Network v. Trump, 428 F.Supp.3d 296, 308 (D. Mont. 2019) (citing United States v. Baston, 818 F.3d 651, 667 (11th Cir. 2016)). “Little case law exists on the Foreign Commerce Clause, and the Supreme Court has never ‘thoroughly explored [its] scope.' ”

As Judge Mahoney noted, presidential directives are comparable to executive orders, which remain in effect through different presidencies until replaced, modified, revoked or lapse by their terms. Bauer, 2022 WL 2918917, at *2 (citing Benjamin Wilheim, Cong. Rsch. Serv., IF11358, Presidential Directives: An Introduction (2019), available at https://crsreports.congress.gov/product/pdf/IF/IF11358; and Indigenous Env't Network v. Trump, 428 F. Supp. 3d 296, 301 (D. Mont. 2019) (noting that an executive order from 2004 remained in effect until revoked by executive order issued in 2019)). It is undisputed that President Trump took no action with respect to the Succession Memo.

A President may not transgress constitutional limitations. Indigenous Envit'l Network v. Trump, 428 F. Supp. 3d 296 (D. Mont. 2019). In League of Conservation Voters v. Trump, 363 F. Supp. 3d 1013 (D. Ala. 2019), vacated and remanded sub. Norm, 843 F. App'x 937 (9th Cir. 2021), issues centered around whether the President had the authority to issue an Executive Order withdrawing a prior Executive Order under the OCSLA.

See Benjamin Wilheim, Cong. Rsch. Serv., IF11358, Presidential Directives: An Introduction (2019), available at https://crsreports.congress.gov/product/pdf/IF/IF11358; see, e.g., Indigenous Env't Network v. Trump, 428 F.Supp.3d 296, 301 (D. Mont. 2019) (noting that executive order from 2004 remained in effect until revoked by executive order issued in 2019). See Bldg. & Constr. Trades Dep't, AFL-CIO v. Allbaugh, 295 F.3d 28, 32-33 (D.C. Cir. 2002).

Courts determine where constitutional boundaries lie. Indigenous Env't Network v. Trump, 428 F. Supp. 3d 296 (D. Mont. 2019). The case of League of Conservation Voters v. Trump, 363 F. Supp. 3d 1013 (D. Alaska 2019), vacated and remanded sub nom.

The Court described the factual history that gave rise to this case in detail in a December 2019 Order in a related case. See Indigenous Environmental Network v. Trump , 428 F.Supp.3d 296(D. Mont. Dec. 20, 2019). All Parties have filed motions since December 2019.

This Court in Indigenous Environmental Network v. Trump discussed in lengthy detail the factual background that gave rise to both that litigation and this litigation. Indigenous Environmental Network v. Trump , No. CV-19-28-GF-BMM, 428 F.Supp.3d 296 (D. Mont. Dec. 20, 2019) (hereinafter " IEN December 2019 Order "); see Issuance of Permits with Respect to Facilities and Land Transportation Crossings at the International Boundaries of the United States, Exec. Order 13867, 84 Fed. Reg. 15491 (April 10, 2019) (hereinafter, "2019 Executive Order"); Issuance of Permits With Respect to Certain Energy-Related Facilities and Land Transportation Crossings on the International Boundaries of the United States, Exec. Order No. 13337, 69 Fed. Reg. 25299 (April 30, 2004) (hereinafter, "2004 Executive Order"); Providing for the Performance of Certain Functions Heretofore Performed by the President with Respect to Certain Facilities Constructed and Maintained on the Borders of the United States, Exec. Order 11423, 33 Fed. Reg. 11741 (Aug. 20, 1968) (hereinafter, "1968 Executive Order"). The Court directs the parties to its IEN December 2019 Order for a more complete factual background.