New AEI Study Says President Trump Can Revoke National Monuments

WASHINGTON, D.C.; March 28, 2017: The American Enterprise Institute (AEI) today released a new paper, by two authors affiliated with Pacific Legal Foundation, explaining why presidential decrees are not “permanent” under our constitutional order, especially not pursuant to the Antiquities Act of 1906.

The paper, “Presidential Authority to Revoke or Reduce National Monument Designations,” by John Yoo and Todd Gaziano, will be discussed at a public event on March 29 at 4:00-5:00 p.m., hosted by Sen. Mike Lee, R-Utah.  Sen. Lee and House Natural Resources Committee Chairman Rob Bishop, R-Utah will provide opening remarks, followed by a panel discussion with Yoo and Gaziano, and critical commentary by Arnold & Porter retired partner Robert Rosenbaum.

Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and Pacific Legal Foundation trustee.

Gaziano is the executive director of Pacific Legal Foundation’s DC Center, its senior fellow in constitutional law, and one of the PLF attorneys for a coalition of New England fishing organizations suing to overturn a marine monument in Massachusetts Lobstermen’s Association v. Ross.

President Obama broke the record with the number of national monument proclamations he issued and the millions of acres of public lands he locked up for such monuments.  A few weeks before he left office, President Obama used the Antiquities Act again to proclaim 1.35 million acres in Utah and 300,000 acres in Nevada to be new national monuments.  White House officials claimed that both monuments were “permanent” because there was no express authority to reverse them.

Yoo and Gaziano previously argued in The Wall Street Journal that such claims of permanence were mistaken as a matter of law.  In their new AEI paper, they explain in detail why such extravagant assertions of unilateral power get the constitutional principles and legal presumptions exactly backwards.

“The text, history, and executive practice under the Antiquities Act, as well as foundational constitutional principles, provide for presidential discretion in the creation and revocation of national monuments,” said Gaziano.  “Moreover, the President’s discretion to significantly change monument boundaries, including substantial reductions in a monument’s size, is strongly supported by the text of the Act, its legislative history and purposes, and unbroken presidential practice going back to the early years of the act’s history.”

“A basic tenant of constitutional law is that no president can bind future presidents in the use of their constitutional authorities,” said Yoo.  “President Obama’s refusal to compromise with his political opponents will guarantee that his national monument proclamations are particularly vulnerable to reversal.  The coming fight over public lands shows, in microcosm, the constitutional dynamics that render Obama’s legacy so hollow.”

The new AEI paper also makes news by questioning a 1938 Attorney General Opinion with new insights into an 1862 Attorney General Opinion and by revealing new historical research not addressed in prior scholarship on the Antiquities Act.  It also discusses the special legal problems with monuments declared on the high seas, which is international territory that the United States neither owns nor controls.