The Scope of the President's Power Under the Antiquities Act

The Antiquities Act of 1906 provides, in part, that “The President may, in the President's discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” 54 U.S.C. §320301(a).

Declaring a national monument brings with it substantial new layers of protected status to the areas or thing so designated. In recent months, questions have arisen whether a President may adjust or rescind a national monument designated in a prior Administration. The Trump Administration has repeatedly hinted at plans to do so, especially regarding some of the monument designations made in the final days of the Obama Administration, such as the Bears Ears National Monument in Utah.

In late August, Secretary of Interior Ryan Zinke issued a memorandum of proposals for changing the status or boundaries of certain national monuments, including reducing the size of Bears Ears. These and other actions promise to generate lawsuits in the coming months litigating the President’s authority to alter monument status.

Some argue that the power to designate under the Antiquities Act implies the power to alter or rescind. Others argue that Congress granted only limited authority under the Antiquities Act and intended it to be a one-way ratchet, allowing designation but requiring thereafter that any changes be done only by Congress.  Our experts debated these issues, focusing on matters of statutory interpretation, constitutional limits, and public lands policy, among others.

Featuring:

Todd F. Gaziano, Senior Fellow in Constitutional Law and Executive Director of Pacific Legal Foundation’s DC Center

Prof. Mark Squillance, Professor of Law and Director of the Natural Resources Law Center, University of Colorado Law School