As I type this, Trump is in Salt Lake City announcing his plans to be the anti-Teddy Roosevelt.
Trump’s actions are a dramatic departure from conventional interpretations of the 1906 Antiquities Act, on which the monument designations are based. The act, advocated by President Theodore Roosevelt, was designed to provide safeguards to exceptional historic, cultural, and natural landscapes across the country, most of them located in the West’s public domain.
The Antiquities Act provides broad authority to presidents to act alone in establishing national monuments. Presidents have declared more than 150 national monuments, many of which became national parks. Four of Utah’s five national parks started as national monuments.
Though previous presidents have adjusted national monuments more than 40 times, all but 14 of those changes were made to expand monument boundaries. No prior president has revoked a national monument designation. None has come close to reducing boundaries by the nearly 2 million acres that Trump is removing from the Bears Ears and Grand Staircase-Escalante national monuments. This is all part of a gift to the drilling, mining and fracking industries.
Public opinion surveys have consistently found that Utah residents are about evenly divided on whether to shrink or maintain the existing boundaries of Bears Ears and Grand Staircase-Escalante.
It is an open question whether a President even has the authority to take away national monuments, or whether that power rests with Congress.
.@POTUS doesn’t have the legal authority to rescind a national monument designation. If he tries to, I’ll fight him every step of the way. pic.twitter.com/1SPMfknkN1
— Tom Udall (@SenatorTomUdall) April 26, 2017
In Trump’s way is the Antiquities Act of 1906 (which does not give the President power to revoke) and the 1976 Federal Land Policy and Management Act, which says the Interior Secretary “shall not .. modify or revoke any withdrawal (to protect land) creating national monuments under the Act of June 8, 1906.”
But the American Enterprise Institute disagrees. “Under Article I of the Constitution, only Congress can enact domestic statutes with any degree of permanence,” they write. “A basic principle of the Constitution is that a branch of government can reverse its earlier actions using the same process originally used.”
In response to the argument that the Antiquities Act says nothing about revoking a designation, the AEI notes that the Constitution is similarly silent about passing laws in general. It grants Congress the power to make laws, but there’s no explicit power for it to undo them. (Except by passing a new law.)
They also said that no president can bind a future president. “Presidents commonly issue executive orders reversing, modifying, or even extending the executive orders of past presidents, and no court has ever questioned that authority, even when it is used to implement statutorily delegated powers,” the AEI writes.
As for that 1976 land management law, the AEI says it only applies to the interior secretary, not the president.
Courts will settle this eventually.