...The latest Antiquities Act conflict is over President Trump’s decision, on December 4, 2017, to reduce the size of two monuments in Utah: Bears Ears National Monument and Grand Staircase-Escalante National Monument. Fans of irony will appreciate how the two sides to this long-running conflict promptly adopted some of their opponents’ arguments. Supporters of the President’s decision—including many who have criticized recent Antiquities Act abuse—praised the decision as a wise use of the President’s broad power. Opponents of the decision—including a variety of interest groups that have defended past Presidents’ aggressive use of the law—now decry the lack of statutory standards and public process to limit the President’s actions.
Within a week of the President’s announcement, five lawsuits were filed by environmental activists, Indian tribes, and at least one outdoor gear company. Our Foundation was among those that intervened to defend the President’s authority. Those cases all raise an issue that, surprisingly, remains unresolved despite the statute’s age: Does the Antiquities Act permit the President to revoke or reduce an existing national monument, or is it a one-way ratchet?
Professor John Yoo and one of us answer this question definitively in our Yale Journal on Regulation article, Presidential Authority to Revoke or Reduce National Monument Designations. The article’s central scholarly contribution is to identify an important principle of American law: where a government branch or official is given a broad discretionary power, in the Constitution or a statute, it also includes the power of amendment or reversal by following the same procedure used to give the original decision effect. There are only a few special exceptions to this principle, which exist only when reversal is impossible, when unalterable private vested rights have been created, as with a presidential pardon, or when the original grant of power expressly provided for another means of amendment—such as Article V in the U.S. Constitution itself.
Thus, the President clearly has the power to remove officers, even though the Constitution only expressly addresses his power to appoint them. And Congress can repeal statutes even though the Constitution is silent about repeal and the process Congress must use to affect it.
Likewise, the United States Code is replete with hundreds of regulatory statutes, many of which are also for a protective purpose, authorizing agencies to issue regulations but saying nothing about subsequent amendments or repeals, yet courts routinely uphold such revisionary powers.
Pursuant to this strongly entrenched principle of law, the parties opposing President Trump’s decision to shrink the monuments face an uphill slog. By claiming that presidents can vastly expand national monuments but cannot repeal or significantly shrink any, they are essentially arguing that the Antiquates Act is alone among all federal statutes in how it operates. Their argument is made even more difficult by the failure to identify a single case where any court has held that a statute granting an executive official broad authority also silently withheld the authority to reconsider its exercise. Thus, to prevail, the challengers must convince the courts that Congress set aside this principle for the Antiquities Act and that: (1) it did so with no express text, which would be unprecedented, (2) without anyone in Congress noticing or commenting on this aberration at the time, and (3) that it continued to go unnoticed for over 110 years...
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Todd Gaziano is Pacific Legal Foundation’s Chief of Legal Policy and Strategic Research and the Director of PLF’s Center for the Separation of Powers; he is the co-author of the Yale Journal on Regulation article discussed above. Jonathan Wood is a Pacific Legal Foundation attorney and a research fellow with the Property and Environment Research Center. In addition to their involvement in the national monument litigation in Utah, Gaziano and Wood also represent commercial fishing organizations challenging the creation of the Northeast Canyons and Seamounts Marine National Monument.
I continue to be amazed the eviros and other left-of-center groups, purportedly proponents of democracy, support the broad interpretation of the President's authority under this Act. It is clearly one man, one rule. At any point in time, under their interpretation, one person, the President, can determine the status and use of any of the 640 million acres of federal land. And he may do so without any public hearings or environmental or economic analysis. He may do so over the objections of the local citizenry, the state legislature, the governor and the state's congressional delegation. I'm not sure what you would call it to vest that much authority in one person's hands, but it is sure not democracy.
The Yale Journal on Regulation article is embedded below or you can retrieve it at the link provided
http://yalejreg.com/articlepdfs/35-JREG-617.pdf
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