//  12/5/17  //  Commentary

On Monday, President Trump announced that his administration was taking dramatic action to reduce the size of two national monuments in Utah.  Under the twin pronouncements, Bears Ears is to shrink from 1.35 million acres to just 220,000 acres, and the Trump Administration will cut the size of Grand Staircase-Escalante almost in half.  The President’s historic announcement is out of step with historical use of the Antiquities Act and threatens to undermine this important protection of American natural resources law.

The decision comes as little surprise to environmental groups.  An executive order in April directed Interior Secretary Ryan Zinke to review national monuments designated in the last twenty years. Based on this review, the Secretary was to provide President Trump with recommendations on “[p]residential actions, or other actions consistent with law” that the Administration could use to achieve its policies priorities, such as energy independence and economic growth.  As Michael Berger pointed out in an earlier Take Care post, these priorities did not necessarily have a connection to the underlying values or goals of the Antiquities Act.  Secretary Zinke’s ensuing memo, which was leaked in September, recommended redrawing the boundaries of numerous national monuments.  In support of its recommendation, the Secretary’s memo specifically noted the fierce criticism of many of these monuments by state officials and local groups.  

Presidential proclamations under the Antiquities Act are often hotly contested.  In 1996, President Clinton announced the creation of Grand Staircase-Escalante in southern Utah, noting in the proclamation the important paleontological resources, diverse and fragile ecological communities, and unique geographic features of the region.  Many Utah officials, however, vocally opposed providing heightened protection to the 1.8 million acres identified in the proclamation. Although the Bureau of Land Management had studied the area for years, the relationship between federal and Utah officials was so poor that President Clinton announced the designation in Arizona.  Legal challenges claiming that the designation exceeded President Clinton’s power under the Antiquities Act failed.

Bears Ears has a similar story.  The monument was the last national monument designated during the Obama Administration, and its lands encompass about 1.35 million acres, which are dotted with over 100,000 Native American sites.  Although the goal of providing federal protection for the land reaches back to 1936, President Obama’s designation resulted in part from the petitions of five sovereign Native nations emphasizing the area’s cultural sites and burial grounds.  But while the Native nations and environmentalists celebrated President Obama’s proclamation, the Utah governor and other elected officials immediately denounced the designation.  (Of course, the arc of history is long, and although local groups such as those in Utah often oppose new national monuments, the history of Antiquities Act designations shows that local populations often come to value these protected lands.)

The political controversies surrounding these monuments provided some motivation for the Trump Administration’s decision.  But President Trump also has some precedent for the national monument reductions on his side.  President Wilson cut Mount Olympus National Monument roughly in half.  President Franklin Roosevelt reduced the size of Grand Canyon National Monument after lobbying from ranching groups. And while Presidents Kennedy, Hoover, and Eisenhower all added land to Bandelier National Monument in New Mexico, an area that President Wilson originally designated, President Kennedy also removed some 4,000 acres from the monument.

These prior reductions, however, were never contested in court, leaving the question of their legality unanswered.  And the Antiquities Act is silent as to the president’s power to modify an existing monument.  Section 2 of the Act provides the President with the power 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.” It also empowers the President to “reserve as a part thereof parcels of land,” as long as the territory designated is “confined to the smallest area compatible with proper care and management of the objects to be protected.” Mark Squillace and others have forcefully argued that presidents do not, by negative implication, have authority to abolish or diminish national monuments. As they explain, the Antiquities Act refers only to the powers to “declare” and “reserve” land.  Congress, meanwhile, retains power over public lands under the Property Clause, and any presidential action to alter monument designations would unconstitutionally intrude upon this congressional power.

Notwithstanding these compelling arguments that President Trump’s actions violate the language of the Act and the separation of powers, Trump’s announcement is troubling because its implementation would undermine the purposes of the Antiquity Act itself.  The 1906 passage of the Act was grounded in a recognition that the United States risked losing priceless natural and historical treasures. While the plundering of archaeological sites is not as pervasive as it was at the turn of the century, risks to objects of historical and scientific interest in these monuments still exist. In the months during which President Obama was considering whether to designate Bears Ears a national monument, at least six confirmed incidents of looting occurred in the area; designation under the Antiquities Act was meant to provide these resources permanent protection.  But President Trump’s announcement directly challenges this goal.  Should the inevitable legal challenges to the monument reduction fail, these lands could see their statuses shift back and forth depending on the presidential administration.  Not only would this uncertainty put historic and scientific resources at risk, but it could also sustain political feuding over these lands, which might otherwise follow the trend of turning locally popular within about a decade of monument designation.  

The Antiquities Act was meant to provide a means for the President, without the onerous process of seeking congressional approval, to shield pristine lands and invaluable historic areas from development.  For over a century, the Antiquities Act has preserved areas that would later become national parks, enabled scientists to conduct research with the support of federal protection, and protected natural resources against destruction.  President Trump’s announcement seeks to chart a very different course for the Act in the years to come.

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Fight for Contraceptive Coverage Rages in the Time of COVID-19

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

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Are There Five Textualists on the Supreme Court? If So, They’ll Rule for Transgender Workers.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

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