Jonathan Wood is an attorney at Pacific Legal Foundation and an adjunct fellow at the Property and Environment Research Center. He represents commercial fishing groups in a challenge to one of the monuments established by President Barack Obama.
Interior Secretary Ryan Zinke has finally completed a months-long review of dozens of controversial national monuments, recommending major changes to 10 monuments, including shrinking six and relaxing regulation of the other four.
Before the specific recommendations became public, the president’s opponents were already threatening lawsuits, claiming the president has no authority to change existing monuments. With the recommendations now public, it is only a matter of time before the litigation floodgates open.
Everyone should take a deep breath. There are many reasons to criticize the president, but embracing tenuous legal theories for the sake of political expediency is a mistake.
The conflict over the Antiquities Act — the 1906 law governing the creation of national monuments — is another example where short-term politics are overtaking law and reason. Opponents of the president have seized on a politically convenient legal argument to deny President Trump the power to revoke or modify existing monuments. But there is very little to it.
Nothing in the Antiquities Act forbids the president from revoking or shrinking a national monument. And the theory is belied by history: Seven presidents have shrunk national monuments, including President William Howard Taft, who reduced the Navajo National Monument by nearly 90 percent.
Without law or history on their side, opponents of the review are left with an argument that would have repercussions far beyond the Antiquities Act — repercussions they will decry when the political winds shift. They argue that the president’s authority should be interpreted narrowly because the Constitution assigns the power to regulate federal lands to Congress rather than the president. The Antiquities Act does not expressly authorize the president to revoke or modify national monuments; therefore, he lacks that power.
Legal analysts, such as Pacific Legal Foundation's Todd Gaziano and University of California at Berkeley law professor John Yoo, have refuted that theory. But suppose a court accepts that reasoning and decides that a president cannot change the decisions of his or her predecessors unless Congress expressly authorizes the action.
Congress almost never does so. Countless statutes authorize the president to set policies but say nothing about amending or repealing them. Will Trump’s opponents accept arguments that block, for example, a President Elizabeth Warren from revoking his executive orders or amending the regulations his agencies put in place?
Executive orders and regulations generally implement authority delegated by Congress and thus would be subject to the same narrow interpretation as national monuments. In addition to regulating federal land, the Constitution charges Congress with regulating interstate commerce, taxes, immigration and the military. Will Trump’s actions on these issues be permanent unless Congress expressly authorizes modification?
There is a reason we allow presidents to undo the actions of their predecessors. A president who could unilaterally set policy forever would have far too much power and be free of political checks and balances.
President Barack Obama designated most of his record-setting monuments during the twilight of his second term, long after the threat of electoral defeat had passed. Free of political checks, he ran wild with this power. It took nearly a century for our presidents — from Theodore Roosevelt to Bill Clinton — to designate a total of about 110,000 square miles as national monuments. Obama alone added 860,000 square miles, including a 583,000-square-mile marine monument in the northwestern Hawaiian Islands.
No political decision is permanent; even the Constitution can be amended. But federal lands can be set aside in a relatively permanent way. They are our national parks, which require an act of Congress and the president’s signature to establish and the same difficult process to repeal.
It is fitting that the broad consensus required to establish a national park translates into more difficulty to reverse its establishment — just as it is appropriate that monuments that a term-limited president creates unilaterally can be modified easily. If monument supporters want to insulate these lands from presidential politics, they need to persuade Congress rather than relying on tenuous legal theories.