It sounds easy -- on May 31, the president's oil price and allocation powers become discretionary rather than mandatory.
That clearly means that on June 1, President Carter could remove crude oil price controls unilaterally if he so pleased, right?
There are now at least four different interpretations of what "discretionary rather than mandatory" really means, and although Carter may not want to remove at once all the controls that have been implemented since the 1973 oil embargo, he could decide to deregulate gasoline some time after June 1. And he may find himself in court defending his right to do so.
The problem stems from the 1973 Emergency Petroleum Allocation Act's unclear legislative history, which, according to an internal Senate memo, offers "no helpful guidance as to the procedural or substantive limitations on the president's authority after May 31, 1979."
While the administration maintains that, as of June 1, the president has the power to decontrol without congressional approval, Congress begs to differ. It says such a move would require an "energy action," a procedure where any proposal to remove controls from oil or an oil product first must be sent to the Hill, where it can be killed by a one-house veto within 15 days.
Several products have been removed from controls in just this manner, the latest being jet fuel. But any talk of gasoline decontrol has been met with political intransigence and threats of veto.
Other interpretations of the President's June 1 powers include the fairly-easy-to-discredit notion that come May 31, all regulations controlling the price and allocation of oil will end automatically.
But although others agree the regulation governing oil sales in this country could remain in effect until the act's expiration Sept. 30, 1981, they disagree on the method by which the regulations may be removed before that time. Can the president remove regulations by executive order? Or must he follow Department of Energy rule-making proceedings?Or as many in Congress contend, must he take his chances with an energy action?
The provision causing all this trouble is the very section of the EPAA that provides for the termination of mandatory presidential authorities. But because of ambiguities in both language and legislative history, good arguments can be made for congressional review of presidential moves to exempt oil or gasoline from controls, or for the view that no such congressional action is required under law.
For instance, the president could impose an average world market price for oil without having to submit the plan to Congress, or Congress could use an energy action to approve or disapprove the president's measure.
Dealings with gasoline or other oil products are less clear-cut, however, because if the language of the EPAA is interpreted to permit amendments but not exemptions from price regulations, such efforts as gasoline decontrol would require congressional review even after June 1.
So, if the president sets a very high ceiling price for oil, say, $50 a barrel, "It could be argued that this is in reality an exemption from price controls and a litigant might ask the court to look behind this sham and to invalidate the amendment," according to the Senate memo.
Therefore, "the president must craft his measures after May 31, 1979, so as to avoid the appearance of creating an exemption to the regulations if an energy action is to be avoided."