Friday, December 1, 2017


President Donald Trump, acting through Secretary of the Interior Ryan Zinke and scorning the Republican-controlled Congress, is expected to unilaterally diminish national monument designations of his predecessor issued under the Antiquities Act of 1906. He seems to be targeting Utah’s Bears Ears and Grand Staircase-Escalante.

Parroting President Barack Obama, Mr. Trump is claiming limitless presidential power to flout the plain words of the statute by treating them as homonyms: The words sound the same as when they were enacted, but now mean something different or even the opposite. Mr. Obama’s homonymic theory of statutory interpretation of the immigration laws was repudiated by federal courts, and Mr. Trump’s version will fare no better.

The president’s bypassing Congress is certain to provoke one or more lawsuits.

In disclosure, the group Conservatives for Responsible Stewardship has hosted a legal analysis that I have written that concludes that the Antiquities Act does not endow the executive branch with unilateral authority to partially or fully revoke monument designations. Only Congress possesses the power to alter or revoke them through new legislation. That is the customary constitutional procedure for the exercise of legislative power, including the creation of national parks.

The legal case against Mr. Trump’s anticipated shrinkage of national monument designations is simple and overwhelming. The U.S. Constitution’s separation of powers does not tie the president’s hands. It simply means that the president must convince simple majorities in the House and Senate, which are controlled by his party, that identified monument designations should be altered.

The Antiquities Act unambiguously withholds delegation of legislative authority to the president to revoke or reduce national monument designations. In pertinent part, it provides the president with discretionary power to “declare … national monuments” on land owned or controlled by the United States with two conditions: the land must contain objects of “historic or scientific” interest; and, the boundaries must be confined to “the smallest area compatible with the proper care and management of the objects to be protected.” Nothing in the text or even subtext of the act hints that the president’s power to “declare” includes a power to abolish, slash or eviscerate. To declare a national monument under the Antiquities Act is an act of creation. To revoke or materially reduce national monuments are acts of destruction. To interpret declare in this context to include its opposite meaning might be legitimate banter in the Mad Hatter’s tea party in Alice in Wonderland. But it should have no place in a federal courtroom.

Congress understands the need to speak expressly, not through enigmas or conundrums, when it wishes to crown the president with authority to reduce the size of a national monument. Thus, in creating the Colonial National Monument in Virginia, Congress provided that the boundaries “may be enlarged or diminished by subsequent proclamations of the President upon the recommendation of the Secretary of the Interior.” The act of Congress of June 4, 1897, similarly empowered the president to modify any Executive Order that established a forest reserve “to reduce the area or change the boundary lines of such reserve, or may vacate altogether any order creating such reserve. Corresponding language is conspicuously absent for national monuments created under the Antiquities Act.

Strict adherence to constitutional processes distinguishes the rule of law from the rule of men. Mr. Obama didn’t get it, and Mr. Trump has learned nothing from the Obama example. Mr. Trump has persuaded Congress to supersede numerous regulations that ostensibly handcuffed commercial enterprise. He is the self-proclaimed master of the art of the deal. If he can’t convince a Republican-controlled Congress that certain national monuments should be abolished or rolled back, then he must accept the status quo until he unearths better arguments that do the job.

That’s what Thomas Paine meant when he sermonized that in the United States the rule of law is king; the king is not law.

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