President-elect Donald Trump has vowed to reverse many of President Obama’s executive actions. But with a mere stroke of the pen, can one president so easily undo the work of his predecessor? At least in the context of national monuments, the answer is likely “no.”
President Obama has created or enlarged 29 national monuments. Much of the protected areas are offshore. For example, President Obama added 442,781 square miles to a marine national monument near the Northwest Hawaiian Islands created by President George W. Bush in 2006. On dry land, the Obama monuments vary widely in size, including the César E. Chávez National Monument (10.5 acres in Keene, California, the home and workplace of the civil rights leader) and the Bears Ears National Monument (1.35 million acres in Utah containing rock art, ancient cliff dwellings, ceremonial cites, and cultural artifacts on sacred Native American sites).
Such designations occur under the authority of the Antiquities Act, a little-known 1906 statute that authorizes presidents, “in the President’s discretion, [to] 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.” Today, there are more than 100 national monuments, including declarations by every president since 1906 except three (Presidents Nixon, Reagan, and George H.W. Bush). It is important to note that monument proclamations are limited to lands already in federal ownership, rather than state or private property. It is also important to note that Congress explicitly delegated authority to presidents to “declare” national monuments by public proclamation, but was silent about whether or not presidents can reverse monument declarations. Congress has also designated national monuments on its own on nearly fifty occasions, without the involvement of the president. Like the Antiquities Act, such congressional designations are supported by Article IV of the U.S. Constitution, which gives Congress the “power to make all needful rules and regulations respecting the territory or other property belonging to the U.S.” As the U.S. Supreme Court has explained, this power over the public lands entrusted to Congress is “without limitations.” Kleppe v. New Mexico, 426 U.S. 529 (1976).
Despite Congress’ failure to explicitly give presidents the authority to reverse monument designations, does the Antiquities Act impliedly grant such authority? No court has ever addressed this issue, and no president has ever attempted to abolish a monument (although some have downsized monuments to conform with the statute’s mandate to confine monuments to “the smallest area compatible with the proper care and management of the objects to be protected”). Although little has been published on the topic, most sources doubt that such authority exists, including a 1938 Attorney General’s Opinion, reports by the Congressional Research Service, and law review articles.
Overall, then, the Antiquities Act is best viewed as a one-way ratchet that gives presidents power to declare, but not abolish, national monuments. In many instances, Congress has approved and strengthened monument designations first declared by nimble executive orders. For example, the Grand Canyon was originally protected by President Theodore Roosevelt’s 1908 proclamation of the 808,120-acre Grand Canyon National Monument. More than a decade later, Congress redesignated the monument as Grand Canyon National Park and later still transferred it to the protective management of the National Park Service. In such instances, the Antiquities Act’s one-way ratchet supports executive actions that support the status quo until Congress has time to take any further action it deems appropriate. This, likely, is the type of coordinated action that Congress intended to create through the Antiquities Act. In contrast, it is doubtful that Congress intended to authorize presidents to abolish their predecessors’ monuments, particularly on purely political grounds. In that case, the successive president would be acting unilaterally to deprive Congress of the opportunity to manage federal lands, in derogation of Congress’ broad Article IV authority.
If one concludes that President Trump (and succeeding presidents) lack the authority to reverse monument proclamations, does that mean there is no remedy against overzealous presidents who exceed their authority under the Antiquities Act? No. There is indeed a remedy, but it lies within the legislative branch with its sweeping Article IV authority over the federal lands. Congress can—and has—taken the President to task by downsizing or abolishing executively created monuments. On two notable occasions, Congress has gone even farther, by prohibiting presidents from creating any new national monuments in Wyoming (but only after Congress redesignated the 210,950-acre Jackson Hole monument as Grand Teton National Park), and by restricting executive authority to withdraw more than 5,000 acres in Alaska without subsequent congressional approval.
To date, courts have heard only a handful of challenges to presidentially proclaimed monuments. In each case (including two that reached the U.S. Supreme Court), the presidential monument proclamations were upheld, generally with little judicial discussion. Indeed, the courts suggested that separation-of-powers concerns cautioned them to tread lightly in second-guessing presidential exercises of discretion specifically authorized by Congress. If there was a fight to be had, the courts indicated, the dispute lay between the president and Congress, not between the president and the courts. Likewise, in the case of the Obama national monuments, any concerns should be addressed by Congress, and not by President-elect Trump or the courts.