Earlier this week, Donald Trump issued yet another one of his executive orders, this one directing Interior Secretary Ryan Zinke to review a generation’s worth of national monument designations – from President Clinton’s designation of Grand Staircase-Escalante National Monument in 1996 to President Obama’s designation of Bears Ears National Monument in 2016. The order calls on Secretary Zinke to recommend “Presidential actions, legislative proposals, or other actions consistent with law” to effect a series of vague policy goals, at least some of which (i.e., “energy independence” and “economic growth”) have nothing to do with the 1906 Antiquities Act. The underlying message of the order is that Trump can, and perhaps will, seek to unilaterally un-designate one or more national monuments.

The problem, here, as with his immigration executive orders and his sanctuary cities executive order, is that Trump can’t do that. The relevant provision of the Antiquities Act (Section 2) authorizes the President, “in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments.” The Act also authorizes the President to “reserve as a part [of national monuments] parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.” The Act does not authorize the President to declare national monuments to no longer be national monuments. And no president has ever sought to do so. Trump is, once again, abandoning his obligation to execute the law and proposing to make a new one of his own.

My thinking here is not original. A Congressional Research Service report issued just last year and another one issued in 2000 both reached the same conclusion: that the President lacks authority to undo national monument designations. (I commend these short pieces to readers interested in the difference between presidential proclamations and executive orders.) Also, as discussed in both reports, an Attorney General opinion from 1938 found the same thing. Even former Solicitor General Ted Olson, representing then-President George W. Bush, presented the argument to a Special Master appointed by the Supreme Court to hear Alaska’s claim to title of certain submerged lands originally reserved in Glacier Bay National Monument (now Glacier Bay National Park).[1]  

Now, to be fair, this executive order may not, on its face, be entirely illegal. In his 1938 opinion, the Attorney General did suggest that the President can shrink the size of a national monument if the President finds that the designated area is larger than “the smallest area compatible with the proper care and management” of the monument. And Presidents have altered the size of a few monuments. So perhaps Sec. Zinke will recommend Trump limit the acreage in Bears Ears, Grand Escalante, and elsewhere. The executive order also asks for “legislative proposals.” There is no question that Congress has the authority to abolish or re-draw the map of a national monument. And Congress has done so, though rarely. So perhaps Sec. Zinke will recommend that Trump ask Congress to do the dirty work. Of course, getting anything through Congress will be an uphill climb, to say the least.

Even so, the order, like so many of its predecessors, suffers legally from its own bluster. Trump’s policy statement, which I mentioned above, interjects a series of considerations that fall beyond the statutory delegation of authority in the Antiquities Act. As noted above, the Act requires the President designate “the smallest area compatible with care and management of the objects to be protected.” Trump has asked Secretary Zinke to consider energy independence and economic growth, among other insinuated flaws in previous designations, and proposed a balancing test, where the statutory purposes set forth in the Antiquities Act are “balance[d] against the appropriate use of Federal lands and the effects on surrounding lands and communities.” Relying on these factors, or this balancing test, would be contrary to the President’s duty under the law. Trump can’t just make up the criteria for national monuments. He has to work with the power Congress gave him.

We will see how this plays out. Meanwhile, in a future post I’ll do a deeper dive into the scope of Trump’s discretion under the statute.

[1] The Supreme Court’s decision in the case doesn’t reach the narrow question, but is consistent with the basic idea.

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