In reaction to President Trump’s ordering the Interior Department to review presidential designations of national monuments over the past two decades, 71 environmental lawyers have fired off a letter claiming the administration has no power or authority rescind or modify those national monuments, according to the morning newspaper.
“The plain text of the Antiquities Act makes this clear. The Act vests the president with the power to create national monuments but does not authorize subsequent modification,” their letter states.
In his final year in office President Obama designated a million acres of Nevada as national monuments, Gold Butte and Basin and Range.
The paper reports that Bret Birdsong, a UNLV law professor, was one of the signatories and that he cited an opinion by the attorney general in 1938 and a Supreme Court ruling from 1920 that dismissed a miner’s challenge of Theodore Roosevelt’s designation of the Grand Canyon as a national monument. It later became a national park.
“The Supreme Court looked at that 100 years ago and said it was bunk,” Birdsong is quoted as saying.
But the Congressional Research Service pointed out in November, after Trump’s election but well before he was sworn in, that no president has yet revoked a national monument designation and agrees that some legal reviews have concluded he may not do so under the 1906 Antiquities Act, but that has not been tested in court.
“On the other hand, Presidents have deleted acres from national monuments, proclaiming that the deleted acres do not meet the Antiquities Act’s standard that the protected area be the ‘smallest area compatible with the proper care and management of the objects to be protected,’ the report notes. “Presidents also can modify the management of national monuments, although the outer boundaries of this authority, too, appear to be untested.”
That attorney general opinion came from Homer Cummings when Franklin Roosevelt was contemplating abolishing the Castle-Pinckney National Monument in South Carolina. The AG opined: “The statute does not in terms authorize the President to abolish national monuments, and no other statute containing such authority has been suggested. If the President has such authority, therefore, it exists by implication.”
Castle-Pinkney was later abolished by Congress .
As for that implication that a president may reverse the decision of a prior president, one need look no further than Myers v. U.S. in 1926. In case involving the president removing from office a previous president’s appointee, the court stated, “The power of removal is an incident of the power to appoint …”
As for the Antiquities Act itself, the legal eagles like note the courts have upheld its use several times.
But the law has never been challenged on the basis of its constitutionality.
Article IV, Section 3 of the Constitution reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States …”
Can Congress with a mere law abdicate its power and turn it over to the president as it did with the Antiquities Act, or would that require a constitutional amendment?
A Heritage Foundation essay by a federal judge argues it may not:
Although the Constitution contains no explicit prohibition against Congress delegating its legislative powers (to the President or an administrative agency, for example), the principle of non-delegation is fundamental to the idea of a limited government accountable to the people. Indeed, the people, in whom sovereignty ultimately resides, carefully assign certain powers to each branch of government. The delegated powers are defined as placed in distinct branches of government for the “accumulation of all powers, legislative, executive, and judiciary, in the same hands,” writes James Madison in Federalist No. 47, “may justly be pronounced the very definition of tyranny.” While the executive must exercise some discretion in the application of law, lawmaking remains the prerogative of Congress.