Members of Congress have the backbone of a watchdog that races to his kennel when danger appears.
They duck their constitutional responsibilities at every opportunity by looking to the President to take them off the hook.
A current example is Senator Orrin Hatch (R-Utah) and the Antiquities Act of 1906.
It endows the President with authority “to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interests that are situated upon the lands owned or controlled by the Government of the United States to be national monuments….” Presidential power to revoke, renounce or repudiate a national monument designation by a predecessor in the White House, including altering its metes and bounds, is nowhere hinted at in the text or subtext.
On December 28, 2017, President Barack Obama, as a lame-duck, proclaimed Bears Ears in southern Utah a national monument. The 1.35 million acres are sacred to local Native American tribes and house thousands of archeological sites detailing the history of its ancient inhabitants. The law does not allow President Donald Trump to revoke, or even redraw the lines, of Bears Ears without Congress changing the law because it is now a monument.
Prior to the President’s proclamation, Senator Hatch along with other members of Utah’s congressional delegation had devoted endless hours with Bears Ears inhabitants, tribes and government leaders seeking agreement on a more modest national monument decree. They fumed at President Obama’s disregard of their voices.
Senator Hatch rhetorically asked in an opinion column in The Washington Post, on April 25, 2017:
“In the months to come, the American people should ask themselves: ‘Do we want a president who is deferential to the people’s duly elected representatives in the management of public lands? Or do we want a self-appointed landlord who flouts Congress and the Constitution in the service of an extreme partisan agenda?”
But it is Senator Hatch and his political allies who are flouting the Constitution and laws.
Utah Governor Gary Herbert has asked President Donald Trump to rescind President Obama’s Bears Ears national monument status despite the absence of statutory authority for rescission. That is why no president in 111 years has abolished or voided a national monuments proclamation.
While Senator Hatch is urging Congress to withhold money to administer Bears Ears, the Constitution contemplates a more muscular response to alleged presidential abuses of the Antiquities Act: namely, a statute that undoes a national monument proclamation or alters its metes and bounds and which holds Members of Congress politically accountable to their constituents.
Thus, President Franklin D. Roosevelt proclaimed the 210,950 acre Jackson Hole National Monument in Wyoming on March 15, 1943. It infuriated Wyoming congressmen. They secured legislation—H.R. 2241—to abolish the monument, but President vetoed the bill.
In 1950, Congress created Grand Teton National Park from most of the Jackson Hole monument, and added its southern portion to National Elk Refuge. In the Constitution’s hierarchy of authorities, a congressional statute trumps unilateral executive action.
The 1950 law also provided that, “No extension of establishment of national monuments in Wyoming may be undertaken except by express authorization of Congress.”
In sum, if Senator Hatch or other members of Utah’s congressional delegation are exercised about President Obama’s Bears Ears national monument, the constitutional remedy is to pass a bill for President Trump’s signature to abolish or amend the proclamation. Members of Congress should be prepared to take the political heat from supporters or champions of President Obama’s handiwork. President Harry Truman lectured that, “If you can’t stand the heat, get out of the kitchen.”
The Antiquities Act does not empower President Trump to disturb a prior national monument proclamation in any respect. The words of the statute are as clear as the meaning of the word “is.” A president’s powers are limited to “declar[ing]” national monuments. A presidential renunciation or repudiation of a declaration would be the opposite of what Congress has authorized.
Process is the heart and soul of our constitutional order. Even noble ends do not justify unconstitutional means.
W. Bruce DelValle is a litigator and founding member of the Washington, D.C. constitutional law, commercial and civil litigation firm Fein & DelValle PLLC. He is a native Texan who grew up on the Gulf Coast of Florida. DelValle graduated from Penn State University and worked as a nuclear engineer prior to attending law school at Washington and Lee School of Law.