With January 20 drawing closer, we will continue to see exercises of presidential insulation–executive actions taken by the Obama Administration to make it harder for the Trump administration to undo his policies. At this point, we are past the point of no return for notice-and-comment rulemaking, or even the minimum 30-day effective date for publication in the Federal Register. Now, President Obama is limited to proclamations. On December 28, he made two such proclamations–establishing as national monuments Bears Ears in Utah, and Gold Butte in Nevada.
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by the authority vested in me by section 320301 of title 54, United States Code, hereby proclaim the objects identified above that are situated upon lands and interests in lands owned or controlled by the Federal Government to be the Gold Butte National Monument (monument) and, for the purpose of protecting those objects, reserve as part thereof all lands and interests in lands owned or controlled by the Federal Government within the boundaries described on the accompanying map, which is attached to and forms a part of this proclamation. These reserved Federal lands and interests in lands encompass approximately 296,937 acres. The boundaries described on the accompanying map are confined to the smallest area compatible with the proper care and management of the objects to be protected.
All Federal lands and interests in lands within the boundaries of the monument are hereby appropriated and withdrawn from all forms of entry, location, selection, sale, or other disposition under the public land laws, from location, entry,and patent under the mining laws, and from disposition under all laws relating to mineral and geothermal leasing.
And, in case you’re interested, no vehicles are allowed in the park.
Except for emergency or authorized administrative purposes, motorized vehicle use in the monument shall be permitted only on roads designated as open to such use as of the date of this proclamation, unless the Secretary decides to reroute roads for public safety purposes or to enhance protection of the objects identified above. Non-motorized mechanized vehicle use shall be permitted only on roads and trails, consistent with the care and management of the objects identified above.
This executive action did not come out of the blue. In 2013 and 2015, Senator Harry Reid introduced a bill to convert the Gold Butte into a national conservation area act. Those bills never made it out of committee, as Republicans blocked it. Reid lamented:
In 2013 and 2015, he proposed legislation to protect Gold Butte as a National Conservation Area. But the bills did not come to fruition.
On Thursday, Reid made it clear he blamed the Republican Party for the efforts’ failures.
“They have done everything they can to destroy our ability to work on public lands,” he said.
Who needs Congress when you have a President with a pen and phone. In August, Reid said he was “confident” that President Obama would act unilaterally before “the first of the year.” With three days to spare, Obama gave Reid his parting gift. This is yet another example of maladministration where President Obama discovered in the interstices of a century-old statute the power to do precisely what Congress declined to do.
The Antiquities Act of 1906 allows both the President and Congress to create “national monuments.” Section 2 provides:
That the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected
The statute vests the President with discretion, though he is required to only preserve “the smallest area compatible with proper care and management of the objects to be protected.” This is a fairly rare case where Congress delegates its powers under the Property Clause of Article IV. As a threshold matter, Prof. Donald Kochan (Chapman) suggests that this likely violates the non-delegation doctrine, as it lacks any intelligible principle, though enough presidents have acquiesced that it probably is beyond dispute.
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.
This delegation two questions for the incoming administration; (1) can President Trump simply modify the reservation, arguing that the area selected by President Obama was too large; and (2) can President Trump revoke the proclamation altogether.
In a 2000 report, the Congressional Research Service addressed these questions.
First, it concluded that the President can modify a monument proclamation.
Although few monuments have ever been abolished by Congress (as opposed to being folded into another conservation designation), and no monument has ever been terminated by a President,6 the question has arisen as to whether a President lawfully could modify a previously designated monument. At first glance, it would appear that this question should be answered in the affirmative since Presidents certainly have modified or revoked executive orders, and at times executive orders and proclamations have been used interchangeably to carry out land actions.7
The report cites a 1938 opinion from the Attorney General:
An attorney general’s opinion concluded that a President could validly modify a monument because the Antiquities Act directs that a monument “in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” 39. Op. Atty. Gen. 185 (1938)
The second question, whether the President can simply cancel the proclamation altogether, is far more complicated.
But some see the proclaiming of a national monument as a special category of action that may not simply be undone.
The same 1938 AG Opinion concluded that the proclamations cannot be revoked:
However, the Opinion also concluded that a President could not eliminate or terminate a monument established by previous Presidential action. The Opinion noted that there was no separate statutory authority for the President to revoke or terminate a monument, and therefore any authority that existed for this purpose must be implied by the other powers given the President in the Antiquities Act. The Opinion then reasoned that because the President had no inherent authority over lands, the President was acting only with authority delegated to him by Congress; a monument reservation was therefore equivalent to an act of Congress itself; and the President was without power to revoke or rescind a monument reservation.
The CRS traces the development of related laws since the Roosevelt administration, though notes the Antiquities Act of 1906 has not been touched. Here is its conclusion:
We have found no cases deciding the issue of the authority of a President to revoke a national monument. While in [Federal Land Policy and Management Act of 1976] FLPMA Congress expressly limited the authority of the Secretary of the Interior to revoke monument withdrawals and reservations, that language arguably does not affect the President’s authority under the 1906 Act, which FLPMA neither amended nor repealed. No President has ever revoked a previously established monument. That a President can modify a previous Presidentially-created monument seems clear. However, there is no language in the 1906 Act that expressly authorizes revocation; there is no instance of past practice in that regard, and there is an attorney general’s opinion concluding that the President lacks that authority.
This interpretation would allow the Trump Administration to scale back the size of the reservation. No doubt conservation groups would challenge this, but the statute vests the President with virtually unfettered delegation to determine the “smallest area compatible.” How small? Smaller than Marco’s hands?
At bottom, we have an exercise of presidential insulation–11th hour executive action taken by a lame duck president, preserving land Congress expressly refused to preserve, in a manner that his successor (likely) cannot undo. Unless the President finds a way to act, it is unlikely the Utah or Attorney General will prevail.
However, in the WSJ Todd Gaziano and John Yoo argue that the President can unravel the land grab:
The original purpose of the Antiquities Act was to protect archaeological sites and historic landmarks that “in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.” After studying the president’s legal authority, we conclude that he can rescind monument designations—despite the cursory but contrary view of Attorney General Homer Cummings in 1938. The history of presidential abuse led Congress in 1950 and 1980 to limit the act’s use in Wyoming and Alaska, respectively. While Congress could limit it further, the law’s text and original purposes strongly support a president’s ability to unilaterally correct his predecessors’ abuses.
In other words, none of Mr. Obama’s monument designations or drilling bans is permanent. The grant of power to a president implies the power to rescind it. In Myers v. United States (1926), the Supreme Court ruled that the president’s power to appoint officials, with the advice and consent of the Senate, includes the power to unilaterally remove them. In revoking an official’s commission that was issued after Senate confirmation, the president is negating a specific and official Senate act. Similarly, presidents have the constitutional authority to terminate a treaty, even though they need Senate advice and consent to make it.
Another prominent example of this principle is the executive’s power to issue regulations pursuant to statutory authority. When Congress grants discretionary authority to issue regulations, the courts have correctly held that it also confers the authority to substantially amend or repeal them. The rescission power need not be expressed in every statute; it is implied.