The Administration

Obama’s last-minute land grabs only the tip of presidential excess


Imagine a free government that would empower a single individual to sign a piece of paper that arbitrarily takes millions of acres of land out of public use without public input and without deliberations by the elected representatives of the people assembled in the legislature.  

Imagine a free republic where an individual can arbitrarily take away property rights and wipe out billions of dollars in potential value with the stroke of a pen.

Our founders would have found it preposterous, but that is what we have inherited in America in 2016.

{mosads}In the waning days of his administration, Barack Obama has been gobbling up land and eliminating potential wealth at a rate unprecedented in American history.  


In just the last week of 2016, Obama arbitrarily took 1.35 million acres in Utah to create the Bears Ears National Monument. This action came despite all elected representatives from the area (from the governor and state legislators to the members of Congress from Utah) being opposed to the action.

And it came irrespective of the years of delicate negotiations that had taken place to work out a compromise among the various interests.  The president also just set aside more than 300,000 acres to create the Gold Butte National Monument in Nevada.

But that is only the tip of the iceberg of Obama’s attempt to create a legacy of environmental preservation. In all, Obama has taken 554,590,000 acres of land and sea out of use for private citizens and out of the deliberative processes of government.

The overall size of Obama’s land grabs is astonishing, but the debate should not be about Barack Obama. And the interests of unfettered property rights should also not drive the debate.

The protection of precious wilderness areas is beyond doubt a public good. True conservatives should be proud conservationists just as environmental values have become so central to the left.  But we also must conserve the foundations of free government in the United States.

Obama has been making use of the 1906 Antiquities Act, which empowers presidents to act quickly to preserve places of national importance if they are under threat.  

Presidents from Teddy Roosevelt to Lyndon Johnson used the act sparingly. Ronald Reagan and the George H. W. Bush didn’t use it at all. Bill Clinton then rediscovered the act to set aside 5.7 million acres of land in his final days — numbers we thought at the time were astonishing.

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Then George W. Bush came along to blow the doors off all previous records, locking up more than 200 million acres in the federal national monuments storehouse. Now Obama is on his way toward tripling Bush’s record.

The past three presidents have abused the intent of the act in order to burnish their own legacies and have short-circuited the deliberative structures of constitutional government in the process.

What would the Founding Fathers have thought of a national government that empowers an individual to take land without congressional action or local control?

Well, they may not have recognized it as a free government at all. To Madison and other key Framers, the very definition of tyranny was the concentration of powers. Not even the most executive power friendly member of the Constitutional Convention would have counseled giving such power to any individual or group.

Rather, our Founders gave us a system of limited and free government based in competing interests and separated powers deliberating and coming to decisions that are more likely to be in the national interest than if a single person were empowered to make them himself.

Good public policy, whether tax rates or protecting the environment, is best made in the deliberative process that is the very core of our constitutional system.

Here interests clash with interests, as Madison outlined Federalist No. 10.

Local interests and national values can be discussed and heard by the public. Representatives and Senators can hear from bureaucrats, businesses, local governments and environmentalists. Presidents can consider bills before Congress, offer thoughts, objections and in the end issue vetoes when necessary.

Congress should now amend the Antiquities Act to limit the president’s arbitrary power to truly extraordinary times when a precious artifact or piece of land is in immediate and imminent danger.

There may well be times when a national treasure must be protected immediately, but Congress should also reserve the right to revisit the president’s decision at a later date, taking in a full range of interests and ensuring it’s the American people’s representatives in Congress or the states who make the laws under which we are governed.

Then the American people can issue their judgments on those who passed (or didn’t pass) the laws. None of this is possible when a politically unaccountable lame-duck president arbitrarily makes national policy as he heads out the door.

Gary L. Gregg II is director of the McConnell Center at the University of Louisville and author or editor of a number of books including Thinking about the Presidency.

The views expressed by contributors are their own and not the views of The Hill.

Tags Antiquities Act Barack Obama Barack Obama Bill Clinton Illinois national monuments Nevada Utah

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