The president of the United States is given authority by Congress to designate lands as monuments or National Parks. President Barack Obama had taken many actions during his second term, including many that could be accomplished via executive orders. Many Republicans believe Obama over-used his authority to declare certain lands monuments or National Parks for the purpose of pursuing his political agenda than upholding the public interest. This is just one portion of the Obama legacy that Donald Trump is seeking to reverse as president.
The Antiquities Act (16 U.S.C. 431-433) was the first United States law to provide general protection for any general kind of cultural or natural resource. It established the first national historic preservation policy for the United States, allowing the president to set aside for protection “…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…” These protected areas were designated as national monuments, such as National Parks.
Before this act, some areas were set aside as monuments or National Parks by act of Congress and approval of the President. Section 2 allows the president to make such designations by executive order, but not to remove such designations authorized by previous presidents. That action much be first taken by legislation in Congress, in the form of legislatively revoking the designation.
No president has ever revoked a national monument of a previous president, under the Antiquities Act during the 111 years it has been in effect. In 1938, the U.S. Attorney General found that the president lacks authority under the Antiquities Act to revoke such designations issued by previous presidents. This is clearly a separation of powers issue, and decisions previously made under legislation enacted by Congress and signed the president can not simply be overturned by a later president by mere executive order.
“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,” Constitutional scholar Bruce Fein writes in an op-ed for the Washington Times, “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.”
As president, Donald Trump is within his authority to suggest that Congress change the law to allow the president to revoke these designations, but he lacks the authority to do that by executive order. If Congress changes the law in this way, President Trump and any future presidents, barring another change in the law by Congress, will have authority to cancel monument and National Park designations by previous presidents.
President Trump is seeking to overturn some of Barack Obama’s monument designations, which the administration and many Republicans believed were abuses of that authority by the previous president, by executive order. It is clear that Donald Trump, or any president, lacks legal authority to do this by executive order. Trump and Republicans in Congress, such as Sen. Orrin Hatch of Utah, would like to overturn abuses of the Antiquities Act by Pres. Obama that were believed to have been done in service to far-left special interests rather than the public interest.
Rather than taking this action, Pres. Trump should send to Congress a request to revoke the designations, made by Obama, that are believed to have been abuses of the authority. This will be a far better check and balance on Pres. Obama’s use of the Antiquities Act while at the same time keeping in place the current law for the future.