| 摘要 | Key Points
President Barack Obama’s midnight executive actions to designate vast areas of Nevada and Utah as national monuments can be easily revoked by the new administration.
The text, history, and executive practice under the Antiquities Act of 1906, as well as foundational constitutional principles, provide for presidential discretion in the creation and revocation of national monuments.
Even if the president’s discretion to revoke monuments is limited, his discretion to significantly reduce a monument’s size is strongly supported by the text of the Antiquities Act, its legislative history and purposes, and unbroken presidential practice.
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Executive Summary
The Antiquities Act of 1906 grants the president the power to designate national monuments in order to protect archeological sites, historic and prehistoric structures, and historic landmarks, such as battlegrounds. We are confident that, pursuant to this power to designate, a president has the corresponding power to revoke prior national monument designations, although there is no controlling judicial authority on this question. Based on the text of the act, historical practice, and constitutional principles, we have even more confidence that he can reduce the size of prior designations that cover vast areas of land and ocean habitat, although his power of reduction may in some instances be related to his implicit power of revocation.
An attorney general opinion in 1938 concluded that the statutory power granted to the president to create national monuments does not include the power to revoke prior designations. The opinion has been cited a few times in government documents, including by the solicitor of the Interior Department in 1947 (although for a different proposition) and in legal commentary, but the courts have never relied on it. We think this opinion is poorly reasoned; misconstrued a prior opinion, which came to the opposite result; and is inconsistent with constitutional, statutory, and case law governing the president’s exercise of analogous grants of power. Based on a more careful legal analysis, we believe that a general discretionary revocation power exists.
Apart from a general discretionary power to revoke monuments that were lawfully designated, we think the president has the constitutional power to declare invalid prior monuments if they were illegal from their inception. In the first instance, there is no reason why a president should give effect to an illegal act of his predecessor pending a judicial ruling. Beyond this, we think the president may also have a limited power to revoke individual monument designations based on earlier factual error or changed circumstances, even if he does not possess a general discretionary revocation power.
In addition to the above powers, almost all commentators concede that some boundary adjustments can be made to monument designations, and many have been made over the years. In 2005, the Supreme Court of the United States implicitly recognized that such adjustments can be made. The only serious question is over their scope. No court has ruled on this question. Some commenters claim this is because no president has attempted to significantly reduce the size of an existing monument, but that is simply inaccurate. In the act’s early years alone, some monuments were reduced by half or more.
Regardless of past practice, arguments that limit the president’s authority to significantly reduce prior designations are largely conclusory—and based on the erroneous premise that the president lacks authority to revoke monuments—or driven by a selective reading of the act’s purpose rather than its text. We believe a president’s discretion to change monument boundaries is without limit, but even if that is not so, his power to significantly change monument boundaries is at its height if the original designation was unreasonably large under the facts as they existed then or based on changed circumstances.
Introduction
As he left the Oval Office, President Barack Obama tried to exempt his environmental policies from the effects of the November 2016 elections. Five days before Christmas, the White House announced the withdrawal of millions of acres of Atlantic and Arctic territory from petroleum development. Obama continued his midnight orders by proclaiming 1.35 million acres in Utah and 300,000 acres in Nevada to be new national monuments. White House officials claimed that both types of actions were “permanent” because there was no express authority to reverse them. But that gets the constitutional principles and legal presumptions exactly backward. All the ex-president will prove is the fleeting nature of executive power.
These actions, like many others taken by the Obama administration, will remain vulnerable to reversal by President Donald Trump. In our constitutional system, no policy can long endure without the cooperation of both the executive and legislative branches. Under Article I of the Constitution, only Congress can enact domestic statutes with any degree of permanence. And because of the Constitution’s separation of powers, no policy will survive for long without securing and retaining a consensus well beyond a simple majority. Our nation’s most enduring policies—antitrust, Social Security, and civil rights—emerged as the product of compromise and deliberation between the political parties.
President Obama’s refusal to compromise with his political opponents will guarantee that his achievements will have all the lasting significance of Shelley’s King Ozymandias.1 The president’s only substantial legislative victories, Obamacare and Dodd-Frank, never gained bipartisan input or broad support. Trump executive appointees can begin unraveling both laws with executive actions, with legislation to significantly alter them to follow. President Obama’s refusal to yield an inch to Republicans intensified their opposition over many years and created a powerful electoral consensus to reverse these alleged reforms. The coming fight over public lands shows, in microcosm, the constitutional dynamics that render Obama’s legacy so hollow.
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