In an effort to undo what many perceive as a grotesque abuse of authority, President Donald Trump has signed an executive order calling for a review national monuments.
On its face, the presidential designation of monuments doesn’t seem particularly controversial. However, under rules such as the Antiquities Act of 1906, the federal government has taken control of 640 million acres. That figure amounts to 28 percent of the entire country, 60 percent of the total land in the 11 western continental states, two-thirds of Utah and more than 80 percent of Nevada.
Needless to say, states want their land back. But the legality of Trump returning it to them remains uncharted waters.
The Big Land Grabs
The passing of the Antiquities Act of 1906 was considered a valuable tool to preserve and protect historic sites for all Americans. More than 150 monuments have been designated by 16 presidents with the Grand Canyon being the most notable.
While the clear majority of presidential actions were perceived as conservation efforts, these federal land grabs became a heated issue when President Bill Clinton created the massive, 1.7-million-acre monument known as the Grand Staircase-Escalante in Utah. Utah Congressman Bill Orton challenged Clinton in court, but the federal courts sided with the ex-president.
To say President Barack Obama was prodigious when it came to federal land grabs would be an understatement. All told, he took 30 such actions that appear to underpin his climate change policies and regulations.
Much of the land Obama federalized is rich in minerals and mining resources. The 1.35-million-acre Bears Ears National Monument, again in Utah, has made the Antiquities Act a hot-button political issue. The taking of this tract of land has been lauded by native American tribes as a protection of ancestral grounds. However, the vastness of the grab has met with outcry by Utah officials that were in the process of setting lands aside through a public process.
Many Republicans, miners and energy industry insiders view the huge swath as a blockade against tapping natural resources. In other words, Obama made a political land grab.
Can Federal Lands Be Reversed?
The notion of millions of acres being a “monument” runs contrary to common sense. They are also exactly what the original sponsor, Iowa Rep. John Lacey, did not want more than 100 years ago.
The foundation of the legislation was that presidents would never federalize more than a few square miles in Lacey’s understanding. Unfortunately, executive abuse has occurred, and neither the federal courts nor the U.S. Supreme Court are filled with “original intent” scholars. Challenges to individual executive actions have proven futile because the law places no restrictions on land size.
The only action Congress could take to stop any president from seizing, say, half of Nebraska would be to amend the Antiquities Act. Changes could include size restrictions, legislative oversight, removing or limiting presidential authority, requiring the affected state’s approval, or simply just striking down the law altogether. However, given the ferocious obstructionist politics that exist in D.C., majority agreement on changes are highly unlikely.
But now comes the curious case of President Trump, a businessman, property mogul, populist and former TV celebrity once referred to as “The Donald.” Unlike career politicians living in “The Swamp” as the president has aptly called Washington, D.C., Trump has strong leanings toward limiting the power of politicians, even the Oval Office.
Since no president has attempted to return federal land, Trump’s executive order enters unknown territory about whether or not he has the authority to change course.
The Executive Authority Question
A strong place for Trump to hang his hat may be the law itself that states the designation must be the “smallest area compatible” with managing the historic and cultural objects.
While a huge tract may be needed to protect the Grand Canyon, opponents could face an uphill battle regarding the 1.35 million acres of Bears Ears. When weighed against Obama’s anti-mining, anti-oil agenda, the political implications could weigh in Trump’s favor at the federal or Supreme Court level. And while the law doesn’t explicitly state that Trump can undo land designations, there exists a strong, unchallenged process that presidents cannot be bound by previous administration’s executive orders. New administrations commonly override past ones.
By calling for a review, President Trump appears to be readying to shrink the boundaries rather than rescind Bears Ears and others. His argument would be that the massive land grabs don’t comply with the law and could couple that issue with his executive authority.
In any event, challenges or modifications to the Antiquities Act are necessary. No president should have the power to seize millions of acres that could be used to farm, mine, graze cattle or build communities.
~ Facts Not Memes