Early last month, on December 4, 2017, President Trump signed proclamations reducing the scope of two national monuments designated by his predecessors in the state of Utah, Bears Ears (designated by former President Obama as he prepared to leave office) and Grand Staircase-Escalante (designated by President Clinton in 1996).
My Pacific Legal Foundation colleague Jonathan Wood recently demonstrated, in an op ed published in the Washington Post, that the President has full legal power to take the action he took, and could even go further, to the point of rescinding previously designated monuments. Wood points out that seven previous presidents have reduced monuments. He then points to recent scholarship debunking the argument that presidential power under the Antiquities Act is a one way ratchet.
Despite this, the response to President Trump’s reductions of Bears Ears and Grand Staircase from environmental groups and for-profit outdoor equipment sellers has been predictable, not only in that they object to the reduction of these monuments, but in their reliance on a very weak legal argument: that presidents lack the legal authority under the Antiquities Act of 1906 to reduce a previously designated monument. Here is how the lawyers at NRDC and Earthjustice put it:
“President Trump’s action is contrary to the Antiquities Act, which authorizes Presidents to create national monuments, but not to abolish them in whole or in part. Only Congress—not the President—has the power to revoke or modify a national monument. President Trump’s proclamation purporting to dismantle Bears Ears National Monument exceeded his authority and is unlawful.”
But Wood’s Washington Post piece also demolishes this argument, with a sound constitutional policy rejoinder:
“There is a reason we allow presidents to undo the actions of their predecessors. A president who could unilaterally set policy forever would have far too much power and be free of political checks and balances.”
That is to say, who on the left really agrees with the proposition that any executive action taken by President Trump is forever irrevocable by his successors? If he cannot bind his successors in a matter in which Congress has left the president with discretion, than neither can he be bound by his predecessors.