The President’s abuse of the Antiquities Act violates the Constitution’s separation of powers

April 09, 2019 | By JONATHAN WOOD

In 1972, Congress authorized the Executive Branch to set aside special areas of the marine environment—including the ocean up to 200 miles from the nation’s coast—as marine sanctuaries. However, it imposed appropriate limits on this power—requiring public notice of proposed sanctuaries, studies of environmental tradeoffs, and input from Congress and the states.

It seems the President likes the broad power Congress delegated but has soured on those limits. Since 2006, the President has asserted the power to designate these areas instead as “marine monuments” under the Antiquities Act of 1906—conveniently giving him all the power he covets without any of the restraints Congress imposed.

This week, we filed our opening brief to the D.C. Circuit in Massachusetts Lobstermen’s Association v. Ross, challenging this clear violation of the Constitution’s separation of powers. Our argument is simple: when Congress delegates power, subject to limits, to the Executive Branch to address a specific problem, the President cannot adopt a strained interpretation of an older statute to circumvent the limits Congress imposed.

In 2016, President Obama designated 5,000 square miles of the Atlantic Ocean—an area approximately the size of the State of Connecticut—as the Northeast Canyons and Seamounts Marine National Monument. The monument locks fishermen out of historic fishing grounds, hurting their businesses. And, according to the regional fishery councils—which Congress formed to regulate fisheries—the monument can undermine their efforts to ensure sustainable fisheries, by concentrating fishing in more vulnerable areas. It can also discourage fishermen from cooperating in conservation efforts by penalizing them, rather than rewarding them, when their efforts succeed. Unlike the National Marine Sanctuaries Act’s public, science-based process, the monument designation was done with minimal public notice or input.

The monument is also plainly inconsistent with the Antiquities Act’s text. That law limits the President’s monument-proclamation power to “land owned or controlled by the federal government.” The ocean is not land owned or controlled by the federal government. Presidents respected this limit for a full century after the Antiquities Act was enacted. But, in the last thirteen years alone, Presidents have designated more than 700 million acres of ocean as national monuments.

It’s almost as if Buster Bluth has secretly been put in charge of monument designations.

Protecting the health of the ocean is an important environmental problem. But our Constitution requires Congress to take the lead in crafting the solution. The President cannot simply do an end-run around the law by seizing power he wishes Congress would confer on him but never has. When he attempts to do so, he undermines the structure of our Constitution and the rule of law itself.