Trump’s War on Law: Why He Will Lose on the Antiquities Act

A defining characteristic of Trump’s first hundred days as president has been his  ineffectiveness and ineptness due in part to an indifference or misunderstanding of the concepts of constitutionalism and rule of law.  This flaw will again doom another of his initiatives–seeking to revisit presidential designations of public land as parks or monuments under the Antiquities Act.
Presidents derive their power from two sources–the Constitution and Congress.  Article II of the Constitution grants presidents executive power, to be commander-in-chief of the armed forces, to appoint justices and other individuals to posts, veto legislation, and “take care that the laws be faithfully executed."  But Congress may also delegate powers to the executive branch, placing conditions and limiting principles upon what presidents may do.  If presidents cannot trace their authority to the Constitution or Congress, they cannot act.  There is no inherent extra-textual presidential authority to act.  Presidential executive orders are defined by these two sources, and if  they act in ways inconsistent with either, the courts will declare the actions impermissible.
The federal courts did that to Obama, declaring executive orders to address immigration and  greenhouse gas emissions went too far.  Now three times already within Trump’s first 100 days federal courts have enjoined his executive orders regarding bans on Muslim immigration and retaliation against sanctuary cities.  One would think that Trump and his lawyers would have learned some lessons about following the law, but apparently not.  He is now taking aim at the Antiquities Act, and depending on what action he takes, the courts will also rebuff him.
On April 26, Trump issued an executive order directing the Department of Interior to review all presidential designations since 1996 of land of 100,000 acres of more under Antiquities Act to be reviewed.  What that review means is unclear, but Trump believes such large designations are illegal, hinting at undoing them.  Trump is wrong, and he lacks the authority to undo what previous presidents did, absent congressional authorization.
The Antiquities Act was signed into law in 1906 under Teddy Roosevelt. It simply stated that:

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...

At least 15 presidents across the two major parties have used the Antiquities Act to preserve and create park space or protect specific monuments.  Teddy Roosevelt first used it to protect Devil's Tower in Wyoming and the Grand Canyon in Arizona.  The last three presidents have extensively used the Act–often in the waning days of their administration–to preserve millions of acres of federal land.  For environmentalists this is great, but for some critics of presidential power and those who want to see more energy exploration or commercial use of federal property, this is an abuse of power.  This is where Trump comes in, literally trying to make real Sarah Palin’s “Drill, baby drill” wherever possible.
While the Antiquities Act gives presidents discretion to declare public lands as monuments, it does place limits on what they can do.   Remember, the Act is a congressional grant of power to the president of the United States.  Twice Congress has imposed limits on presidential uses; once after Franklin Roosevelt used it to create a Jackson Hole Monument in 1943, another after Jimmy Carter used it to protect part of Alaska. In both cases Congress responded to limit future uses of the Act in those states.
But there are two other limits in the Antiquities Act not readily seen that apply to Trump’s order.  First, Congress has effectively rejected the claim that there is a geographic size limit on the amount of land that a president may designate as a national monument under the Antiquities Act.  It has done that by failing to pass legislation after presidents have used the Act to designate large tracts of land as Monuments, including the several times it acted to recodify the law.  In effect, Congress has acquiesced to its use.  But more powerfully, in 1976, when Congress  passed the Federal Land Policy and Management Act (FLPMA), it rejected a recommendation by the Public Land Law Review Commission (PLLRC) to limit, among other things, the scope or size of the land that a president could designate under the Antiquities Act.
Second, notice the clear language of the Antiquities Act.  It gives the president power to designate land or entities as landmarks.  There is no explicit language giving a president power to  un-designate or withdraw land or entities as landmarks, or to reverse decisions made by previous presidents.  While in general the few court challenges to presidential use of the Antiquities Act have granted them broad discretion to act, the Supreme Court has also said that it is the job of Congress to limit discretion since they are the ones that defined the scope of the president to act here.
Moreover, given the original intent of the Antiquities Act to give presidents power to preserve historic landmarks, there is no indication that Congress intended or anticipated that once one president has used this power to protect something a subsequent president could reverse it.  Such action would defeat the very purpose of the law which was preservation.
Thus, there is no legal basis for Trump to be able to argue that any use of the Antiquities Act since 1996 was an abuse of presidential power or that he has the legal ability along with an executive order to reverse those uses.  Were he to go to court judges will tell him that the appropriate check is Congress and that only they can reverse past designations or amend a clear statute.
Trump will too lose this fight against the Antiquities Act.  It demonstrates a persistent pattern in his first 100 days regarding a contempt for the law that will largely stymie his presidency unless he learns that he must follow it to be successful.

The Education of Donald Trump

Slowly but surely the presidency of Donald Trump is being normalized.  By normalized it is

meant that the Trump presidency is increasingly being captured and confined by the institutional powers and realities of American and world politics.  This is something that Steve Bannon feared, and which both Trump’s supporters and distractors should recognize.

There is an old political science and political adage that declares that presidents have more authority and freedom to act internationally than they do domestically.  This is because while the structures of the Constitution–such as checks and balances and separation of powers–limit the domestic power of presidents, they are more free to act internationally, especially with either congressional acquiescence or affirmative grants of power.  This recognition that presidents have more autonomy internationally is rooted in famous Justice Robert Jackson concurrence in the 1952 Supreme Court case Youngstown Sheet & Tube v. Sawyer.  Yes, in many ways this dicta is correct constitutionally, but it misses something far more powerful when it comes to defining presidential authority; specifically the political and institutional constraints on presidents and how, as Stephen Skowronek argues in Presidential Leadership in Political Time, how history and context defines presidential power.

Back in 2008 during the US presidential elections when lecturing in Europe I was asked how the presidency of Barack Obama would differ from that of George Bush in the area of foreign policy.  I argued that the best predictor of a new president’s foreign policy was to look to his predecessor’s.  Presidents really have far less freedom to depart from the past than many think.  The foreign policy establishment is big and powerful in the US and it largely bipartisan.  Geo-political forces such as  the state of the world economy, the political interests of other nations, and the overall limits on US power and reach too further define what presidents can do.  Yes some may claim some presidents made major shifts–Nixon and China–but the changing geo-political role of China in the world made such a choice inevitable.

Obama proved that.  After making numerous promises, the Obama foreign policy was defined by choices made by Bush. The war on terror continued, troops remained in Afghanistan and Iraq, Gitmo was not closed, drone attacks persisted, and the US did not fundamentally change Middle East politics even after the Arab Spring opening because entrenched support for Israel did not change.  Even Obama’s effort to make an Asian pivot has had mixed results, and he was unsuccessful in making many changes in how to handle Syria and North Korea.  Yes Obama did make some marginal changes, but fundamentally more continuity with Bush than a break.

The same is now true with Trump.   Candidate Trump disagreed with almost all things Obama.  The Iran nuclear deal would be torn up.  Trump pledged a Mexican wall, declare China a currency manipulator and impose tariffs on their products.  NATO was obsolete, the Syrian policy wrong, Putin and Russia a friend,  and global engagement must be retracted to put America first.  Great rhetoric, but the reality is tht slowly the forces that constrained Obama are constraining Trump.  

One now sees a new Trump.  The bombing of Syria, while a departure perhaps from what Obama did, is something that Hillary Clinton and most Republicans and Democrats in Congress support.  It produced a rift with Russia that now leads Trump to muse that perhaps our relations with that country are the worst ever (they are not).    Moreover, despite tough talk, trump’s options with Syria are limited, as they are throughout the Middle East.  Expect no major change in politics toward Egypt and Israel, and do not expect any major break in addressing the Palestinian quest for a homeland.

NATO is good, and China will not be declared a currency manipulator, and, in fact, if they help Trump to contain North Korea’s nuclear program, he will give them a great trade deal.  This statement is recognition that despite the show of force the US is demonstrating in sending ships to North Korea, there is little he can do along to change the politics in that country.  Gitmo will not be closed, the policy toward Cuba not reversed, and even the dropping of MOAB–the mother of all bombs–on Afghanistan–it was a policy in the works under the Obama administration.    Trump’s enhanced deportation policy and extreme vetting looks more and more like a variation of what Obama did–partly courtesy of the federal courts–and there will be no shift in the drone war

Nearly 90 days into the Trump presidency one can already seen more continuity with Obama than breaks.  Yes there are still rough edges, yes there appears to be no Trump grand strategy, but that lives a void to be filled by the bureaucracy and foreign policy establishment.  All this is exacerbated by the fact that Trump has not filled many key State and foreign policy positions, but that only means that the weight of the status quois filling the void.

The real sign of Donald Trump’s education or normalizing was the removal of Steve Bannon from the National Security Council.  Bannon saw the power of the bureaucracy and wanted to smash it.  Instead it smashed him and may soon lead to his ouster from the Trump administration in total.  That was a Trump presidency turning point.

It seemed just a few weeks ago people were talking of a failed Trump presidency, impeachment, or a major international crisis.   Yet increasingly likely is that an incompetent Trump will create the space for the bureaucracy to take over in the realm of foreign policy, for good or bad, and to the fear of delight of his supporters and detractors.

The Folly of Private Prisons

It’s deja vu all over again. Nearly a year ago to this date I did a blog and Minnpost column criticizing efforts to reopen the private prison in Appleton, Minnesota.  Guest what?  There again is a push to reopen it.  For all of the reasons a year ago I wrote to criticize the move, they all apply again today.

Private prisons are a major public policy mistake. This is true regardless of whether they are privately operated or, as is being proposed by the Minnesota Legislature, they are leased and run by the state.

Contrary to what their supporters say, private prisons are not less expensive and better than public facilities. Instead, their track record on cost, rehabilitation and safety is generally inferior to that of public facilities. And — especially pertinent to the current proposal — their use as a way to expand prison capacity has been to facilitate a war on drugs and petty crimes that has been racially discriminatory.

The debate to reopen the private prison in Appleton, Minnesota, is reminiscent of one that took place 19 years ago. In 1998 Minnesota was building a new correctional facility in Rush City. State Sen. Randy Kelly pushed hard for it to be privatized. I was part of a team of impartial national experts at the Institute of Criminal Justice at the University of Minnesota Law School hired by the state to research what we then knew about the performance of private prisons across the country. We looked at cost, recidivism, rehabilitation, safety and legal issues. We examined all of the studies that then had been done on private prisons, we did extensive interviews across the country, and we toured public and private prisons. The final 1999 report, "Privatization of Correctional Services: Evaluating the Role of Private Prison Management in Minnesota," was sharply critical of the claims made by its advocates.

Initially there is a significant ethical and moral question regarding whether the punishment of crimes should be done on a for-profit basis. This is human exploitation at its worst. One can also argue that the use of punishment and force by private individuals against another is inherently a governmental function and not something that should be privatized. Our report raised these questions, but it went beyond the normative considerations to the empirical: What was the actual track record of private prisons?

First, we found that many of the claims of cost savings were suspect. The standard measure of cost for prisons – per diem costs per inmate – did not always stand up. Yes in some cases private prisons were less expensive per diem, but not always. For example, in Oklahoma, where publicly operated prisons had to compete with private operators for contracts to run individual facilities, the public institutions came out less expensive about half the time. Cost was a wash. But even here the numbers failed to reveal hidden costs. In most of the contracts awarded to private prisons, the state was still on the hook for many medical expenses and it would be required to take back control of the prisons as a result of default or to deploy security in the event of riots. Public dollars subsidized private prisons to make them profitable and look as though they were cheaper than the public facilities. Additionally, by the time one added in the public dollars to oversee and regulate the private prisons the savings to the taxpayer disappeared.

We also found that there were costs associated with the savings. The areas where private prisons saved money was, first, in salary and skill level for corrections officers. Public facilities were generally well-paid union jobs that demanded a minimum skill level. Prison privatization across the country often was a union-busting activity that hired less skilled officers at much lower wages. Second, private prisons scrimped on educational and rehabilitation services. Third, they scrimped on everything else, leading, in the case of Oklahoma, to contracts than ran a hundred pages or more so as to require private operators to provide a range of services of sufficient quality that they tried to avoid in order to maximize profits.

What did all this mean? In general, private prisons have more safety problems than public facilities. There was more prisoner or innate-to-inmate violence and more civil-rights violations in private as opposed to public facilities. There was less emphasis on rehabilitation and higher recidivism rates in private prisons. Part of all this is a consequence of trying to save money by not providing services. But something else was also going on. No warden in a public prison wants repeat business. On the other hand, private prisons have a financial interest in recidivism. The interests of the state and private prison operators is contradictory.

Finally, there is also one other major problem we found then with private prisons: The employees are not public and therefore they can go on strike. Public prisons operated by the government employing public employees can prevent strikes by preventing the employees by state law from striking. Private prisons and their labor relations are governed by federal law, pre-empting any state laws that would bar strikes. The potential of a strike or other labor problems raises many questions about safety.

In the 18 years since the Minnesota report was issued I have continued to research and teach about private prisons. For six of those years I also taught criminal justice courses. Subsequent reports and studies largely reconfirmed the conclusions found in the 1999 report.

One might argue that the objections raised against private prisons do not apply to the current proposal in Minnesota, which is for the state to reopen the Appleton facility and staff it with state employees. Fair enough, but the last 18 years have revealed some lessons we could not have seen back in 1999 and which do clearly apply here. The rise of private prisons occurred alongside the war on drugs, the broken windows theory of crime (arrest for the petty stuff before it escalates), mandatory minimum sentences, and three-strikes-and-you’re-out laws.

Nationally the expansion of private prison space exacted a racially discriminatory war against people of color. In Minnesota, prison expansion led to an explosion in a prison population that has the worst racial disparities in the nation. Private prisons have become what Nina Moore argues in "The Political Roots of Racial Tracking in American Criminal Justice" — a linchpin in creating a separate criminal justice system for people of color that is separate and unequal. The private prison industrial complex is central to all the problems that Black Lives Matters rightly protests.

We have spent enormous sums of money since the 1980s incarcerating people instead of investing in them. Imagine had we invested in addressing racial disparities in schools, economic development in concentrated poverty neighborhoods, or civil rights enforcement to bar racial discrimination in employment and housing. We would not have needed to build more prisons.  The issue thus is not looking at how to jail more people but to figure out how to prevent people from being jailed.  It is by addressing the racial disparities in education, income, and voting in the state, and it is by looking at why we are jailing so many people to start.

If Minnesota truly wishes to address the concerns of Black Lives Matters it would not add more prison space that simply enables the currently discriminatory practices that extend beyond criminal justice to many other institutions in our society.

In sum, the lessons of prison privatization or expansion of any kind is that they are bad options for Minnesota. Gov. Mark Dayton is correct in vetoing any bill that would allow this to happen.