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.