National monuments, about land or territory?

The Improved National Monument Designation Process Act (H.R. 1459) passed the House on March 26 by a vote of 222 to 201. It is currently before the Senate Committee on Energy and Natural Resources. S. 2608's purpose is "to provide for congressional approval of national monuments" and of restrictions on their use. It would limit President Obama's ability to designate national monuments at his own discretion through executive orders.

The presidential authority to make such designations comes from the Antiquities Act of 1906. The act allows the president to unilaterally impose tighter restrictions on the use of federally owned public land as a means to protect national treasures. The restriction is often based on environmental concerns and it encounters stiff resistance on the state level, especially when it disrupts commercial interests like fishing, drilling, mining or timber.

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Eight bills with a purpose similar to S. 2608 failed in the House during the 112th session (2011 to 2013). The congressional monitoring site GovTrack.us gives S. 2608 a 7 percent chance of getting out of committee and a 2 percent chance of becoming law. Why so many doomed bills about national monuments?

There are at least three reasons: executive orders are a flash point between the Republicans and Democrats; there is battle between Congress and the executive branch over the separation of powers; and, November elections are nigh.

Republicans vs. Democrats. The designations have a long history of bipartisan bickering, with presidents often reversing the executive orders of a predecessor. For example, in the first year of his presidency, 2001, President George W. Bush reversed President Clinton's ban on building roads in national forests, and his limit on mining on public lands. The political moves reflect each party's voting base. A 2013 Pew Survey found that 69 percent of Democrats considered environmentalism a top priority, compared with 32 percent of Republicans.

Congress vs. the executive branch. There is general outrage at the use of executive orders to bypass Congress and to impose "one-man rule." But the designation of national monuments raises a separate objection. The House accuses the Antiquities Act of being unconstitutionally broad and in conflict with the property clause of the Constitution. Article IV, Section 3, Clause 2 reads, "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."

Nevertheless, the president exercises almost limitless power over establishing national monuments. Technically, he must designate the "smallest area" that is compatible with the protection sought; in reality, national monuments can be huge. For example, in June, Obama announced, "I'm going to use my authority as president to protect some of our most precious marine landscapes just as we do for our mountains and rivers and forests." The authority would almost certainly include an executive order. On June 16, The Washington Post reported that the marine protection program should begin later this year "after a comment period." It could expand the Pacific Remote Islands Marine National Monument from approximately 87,000 square miles to about 782,000, prohibiting many if not all commercial activities.

The November elections. The measures are seen as rewarding or bribing environmentalists into voting for Democrats in the elections. They are seen as punishing Republican candidates and voters. Consider New Mexico. In May, almost a half million acres in the state were designated as a national monument; the stricter federal control that results may well eliminate public grazing on the land. This slaps at Republican politicians and at the ranchers who tend to support them. In New Mexico, a Republican governor, a Democratic senator and all three congressmen (two Democrats, one Republican) are up for reelection. Many manuevers for advantage will occur.

But Republican rage returns primarily to executive orders that bypass the separation of powers. On July 24, the House Rules Committee approved a resolution to file a House lawsuit against Obama's abuse of executive actions, especially the orders. H.R. 410 (Restore the Constitution Act) and its Senate companion S.8 2 (Separation of Powers Restoration) are currently trying to rein Obama in.

Meanwhile, Obama taunts Congress with his ability to rule without them. His 2014 State of the Union address declared war on congressional obstructionists. In announcing an executive order, he stated, "To every mayor, governor, and state legislator in America, I say, you don't have to wait for Congress to act. ... And as a chief executive, I intend to lead by example," later adding, "I'll use my authority to protect more of our pristine federal lands for future generations."

National monuments are not just about preserving land. They are about preserving territory.

McElroy is a research fellow at the Independent Institute.

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