The Antiquities Act and the limits of executive power

Portland navigable waters case

After several Native American artifacts were looted 
in the early 1900s, Congress passed the Antiquities
 Act of 1906 to allow presidents to establish “national
 monuments” and protect historic landmarks, structures,
 and similar objects on federal lands.

This delegation of authority was modest. Indeed,
 not only did Congress specifically limit presidential 
authority under the Act by requiring that any monument 
be made up of specific objects located only on 
federal lands, but the Act also mandated that any
land that is made part of a national monument be
 “the smallest area compatible” with protecting the
 landmark, structure, or object.

But modern presidents have not seen their authority 
as so limited. Nearly 90% of all areas designated as 
national monuments under the Act have come since 
the beginning of the 21st century, many larger than 
entire U.S. states. And when a president establishes 
a national monument, there are severe consequences 
for the millions of Americans who depend on public 
lands for their livelihoods, including cattle grazers,
 energy producers, and commercial fishermen. If a 
person violates the Act, they are subject to criminal
 sanctions, and presidents often restrict how public
 lands are used, creating severe economic consequences 
for individuals, industry, and even the states where 
a monument is located.

Because of these consequences, the modern expansion 
of national monuments has triggered various lawsuits that raise fundamental questions of legislative, executive,
 and judicial power. For example, litigants have 
challenged monument designations as ultra vires
 executive action because the monuments include
 things that are not “objects” under the Act, are not on
“land,” and include vast areas that are not “the smallest
 area compatible” with protecting a monument.
 Challenges have also raised constitutional claims and
 other doctrines designed to protect the Constitution’s 
separation of powers—including the nondelegation
 doctrine and major questions doctrine.

These issues will not go away anytime soon. Presidents, 
including the current president, have continued 
to designate large monuments, and members of 
the Supreme Court have stated that they are willing to
 review the limits on the executive branch’s authority 
under the Antiquities Act.

Read the full article, originally published in Mealey’s Fracking Report.