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Western Legal Foundation: President Trump May Rescind Illegal Monuments

Jul 10, 2017 | by William Perry Pendley

DENVER, CO.  A nonprofit, public-interest legal foundation with decades of experience battling illegal orders, decrees, and regulations by the federal government regarding western federal land today argued that President Trump possesses constitutional and legal authority to rescind, revoke, and reduce illegal national monument decrees issued by both President Bill Clinton and Barack Obama.  Mountain States Legal Foundation (MSLF), which filed a federal lawsuit in 1997 challenging the creation of the vast Grand Staircase Escalante National Monument by Clinton in Utah and over the objections of Utahans, argues in comments filed with the U.S. Department of the Interior today that assertions that the monument decrees issued by Clinton and Obama are set in stone and may not be modified are unavailing, have no merit whatsoever, and should be ignored by President Trump and his advisors. 

“Just as no Congress can bind a future Congress, so can no president bind the nation in perpetuity,” said William Perry Pendley, MSLF president.  "It doesn’t make any sense to argue that President Trump lacks the legal authority to right the wrongs done purportedly pursuant to the Antiquities Act of 1906.  I don’t think it would take the federal courts long at all to dispose of any challenge to the presidential authority to do this.”

 The Act delegates authority to the president to designate as national monuments “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” on federal lands, requiring, in part, that the designations “shall be confined to the smallest area compatible with the proper care and management of the objects to be protected” on land “owned or controlled by the Federal government.”  The Act was passed for the purpose of “provid[ing] protection to the large Indian ruins of the southwest.”  Indeed, the legislative history of the Act demonstrates that Congress was concerned singularly with “the preservation of the remains of the historic past[,]” and that its entire and sole purpose was in order “to create small reservations reserving only so much land as may be absolutely necessary for the preservation of these interesting relics of prehistoric times.”  Congress “specifically rejected broader versions of the law that included protection of scenic areas within the Act.” 

Although no president has ever revoked a national monument designation, the power to revoke or diminish a national monument is inherent in the powers granted by the Act; in fact, presidents have diminished the size of national monuments established by their predecessors.  Moreover, the conclusion of the Attorney General of the United States in 1938 that the Act does not authorize the president to revoke national monument completely was in error because of his misinterpretation of a 1862 Attorney General opinion.  Nonetheless, the Attorney General did concede that “the president is free to revoke, modify, or supersede his own orders or those [of]  a predecessor, ” to ensure the designations is limited to “the smallest area compatible” with protection of the objects at issue.  Therefore that may be no area at all.  Furthermore, each branch of government can undo its earlier decisions; the Executive Branch is no different.  Even the U.S. Constitution is not immune from its citizens’ decisions to change it.

Mountain States Legal Foundation, created in 1977, is a nonprofit, public interest law firm dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.



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