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Tuesday, August 1, 2017

ANALYSIS/OPINION:

The text, spirit, and 111-year history of the Antiquities Act of 1906 militate against presidential power to revoke a national monument proclamation made by a predecessor president. That conclusion does not disturb the U.S. Constitution’s separation of powers.


If a president signs a bill passed by Congress, it becomes law. A successor president may not repeal the law by a proclamation renouncing his predecessor’s signature. The Antiquities Act works in the same way. A presidential proclamation declaring a national monument may not be unilaterally revoked by a successor president. That would require new revocation legislation passed by Congress and signed by the new president.

The Antiquities Act was provoked by the vandalizing of ancient and prehistoric American Indian archeological sites on federal lands in the Southwest. Section 1 made such vandalizing a federal crime.

Section 2 was added to advance a broader public interest in historic preservation. It provides in relevant part:

“[T]he 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 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.”

Nothing in the text hints at presidential authority to revoke a national monument designation. The U.S. Supreme Court has repeatedly instructed that statutes must be interpreted according to their “plain meaning” unless the results would be absurd. And entrusting to Congress rather than the president the power to revoke a national monument designation is not absurd—no more so than entrusting to Congress rather than the president the power to repeal an earlier statute.

Suppose Congress authorized the president to build 400 F-16 fighter aircraft for the U.S. Air Force. It would be absurd to interpret the authorization to build as authorization for a succeeding president to destroy the F-16s. In other words, an authority to create is not inherently an authority to destroy what may have been created.

Similarly, the Jerusalem Embassy Relocation Act of 1995 directs the president to move the U.S. Embassy in Tel Aviv to Jerusalem absent presidential findings at six-month intervals that the move would compromise national security. It would be absurd to interpret the presidential authorization to move the embassy to Jerusalem from Tel Aviv as authority to do the reverse.

During the 111 years that have elapsed since the enactment of the Antiquities Act, no president has attempted to revoke a national monument designation irrespective of political or philosophical persuasion or enthusiasm for historic preservation. President Richard M. Nixon, for instance, issued no new Antiquities Act proclamation, but left existing proclamations undisturbed.

The craving for power is ubiquitous. The fact that no president in more than a century has attempted to revoke a national monument designation is strong evidence that the power does not exist.

Attorney General Homer Cummings advised President Franklin Roosevelt in 1938 of the same. The attorney general’s opinion underscored that the Antiquities Act contained no clear textual presidential authority to “abolish” national monuments. Whether right or wrong, that nearly 80-year-old opinion has never been repudiated by any court, succeeding attorneys general or Congress. When Congress amended the Act in 1950 to forbid presidential designations to expand or establish national monuments in Wyoming without express congressional authorization, it did not overturn the Cummings opinion. And according to the Supreme Court’s “acquiescence rule,” if Congress does not overturn a judicial or administrative interpretation of a statute, it probably acquiesces in it.

Finally, interpreting the Antiquities Act according to its plain language to prohibit presidential revocations of national monument designations of predecessors raises no separation of powers concerns The prohibition does not interfere with the executive branch responsibility to take care that the laws be faithfully executed or otherwise. Indeed, it does not interfere with any executive branch function whatsoever. And only “where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department” is a separation of powers issue raised, as James Madison elaborated in Federalist 47.

If President Donald Trump or any successor desires the authority to revoke national monument designations, they should urge Congress to amend the Antiquities Act accordingly. They should not torture the plain language of the Act to advance a political agenda at the expense of regular constitutional order. Our salvation lies in process, not results.


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