The lure of legacy is pulling President Obama to designate national monuments at an unprecedented rate and with even greater vigor in the midnight hour of his last term. President Obama has already designated more than two dozen national monuments, the most ever of any President. Teddy Roosevelt designated 18 monuments; Bill ClintonWilliam (Bill) Jefferson ClintonBill Clinton on the mend after infection lands him in hospital Biden sends 'best wishes' to Clinton following hospitalization Appeals court allows Texas abortion law to stand MORE 19; and George W. Bush just 6.
President Obama’s monuments encompass 548 million acres of federal land and water, double the amount of any preceding President. This includes the recent quadrupling of the size of the Papahānaumokuākea Marine National Monument off northwestern Hawaii to 582,578 square miles, making it what some have called the largest protected place on Earth. He’s not done yet. Several possible designations loom, including the approximately 1.9 million-acre proposed Bears Ears national monument in Utah.
Some see these acts as excessive. But those who lodge complaints sometimes blame the President too quickly. Fault lies mostly with the U.S. Congress (of 1906) for delegating near plenary authority to a President to unilaterally convert normal public lands into high-level protected zones. The Antiquities Act of 1906 provides, in part, that “The President may, in the President's discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” This language has been interpreted by presidents as permitting proclamations of monuments for the preservation of places of natural significance, often the most controversial ways the Act is used.
The Antiquities Act was primarily intended to be an anti-looting statute that would allow the President to prevent the plunder and irreparable loss of artifacts and other national treasures. But the loose and poorly drafted language of the Antiquities Act does not compel such a limited mandate.
We should not be surprised that presidents interpret broad language of authority broadly. Some have refrained from that temptation, such as Richard Nixon, Ronald Reagan, and George H.W. Bush. But Teddy Roosevelt set the practical precedent by robustly invoking his newfound power as soon as it passed Congress. Most presidents since have similarly felt unconstrained by the original purposes of the Act, instead accepting the invitation to preservationist power afforded by the ill-drafted text.
There is a strong argument that Congress lacks the authority to delegate its power as broadly as some construe the Act. The U.S. Constitution’s Property Clause commits to Congress the “power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” When the Antiquities Act is broadly construed, it lacks any discernible, intelligible principle that would constrain the Executive branch’s exercise of monument designation power. Congress then abdicates its responsibility to manage federal lands. That should make the broad interpretation unconstitutional, but courts to date have not taken such a stance in the few cases that have challenged monument designations. Furthermore, each new Congress has largely acquiesced in the generous interpretation. If the power of the President were constrained by the motivating purpose rather than the text of the Antiquities Act, we might see fewer, more thoughtful designations.
The lack of congressional or even normal agency involvement in monument designations sacrifices beneficial deliberation and makes them less transparent means of preserving natural resources. For example, those living near the controversial 1.9 million-acre Grand Staircase-Escalante monument (designated twenty years ago this month) sharply criticized the Clinton Administration for its secrecy and disregard for the interests of the States and stakeholders. The Bears Ears proposal risks doing the same, especially as state and congressional officials propose alternative management mechanisms for achieving some of the protection objectives sought by the Obama Administration, but with greater stakeholder involvement.
Saying no to a broad presidential authority to proclaim national monuments does not mean saying no to conservation. Public lands statutes already give executive agencies powers to manage lands according to democratically-established standards. These include the ability to install limits on certain uses of the federal lands portfolio to accomplish preservation and conservation goals, subject to public participation requirements and judicial review. Moreover, when areas truly need high-level protective status, Congress has shown the competency to confer it when prudent, such as through the creation of national parks and wilderness areas. When preservation goals counsel greater protective status for federal lands, we should stick with these formal congressional mechanisms rather than empowering the executive to create what amount to de facto national parks.
Until the Antiquities Act is repealed or amended, we must rely on presidents to exercise self-restraint and see the wisdom of more participatory mechanisms to achieve conservation aims. But given our human nature to exercise whatever authority we are given, those worried about the excess of presidential power to proclaim national monuments should direct less attention at changing the decisions of the individual and more at changing the law that permits, indeed invites, those proclamations.
Donald J. Kochan is associate dean for research and faculty development and a professor of natural resources, property, and administrative law at Chapman University Dale E. Fowler School of Law in Orange, California.
The views expressed by authors are their own and not the views of The Hill.