Careful what you wish for...

How Trump’s efforts to rollback national monuments might backfire

We have posted repeatedly here on Legal Planet on the Trump Administration’s efforts to rollback national monument designations made by prior administrations. Litigation over those efforts is still ongoing (and likely will be for a long time). However, I want to note some of the implications if the Administration should succeed in convincing the courts that it does indeed have the power to rollback monument designations (along the lines of the arguments made by John Yoo).

A court that reaches such a conclusion would likely reason that there is no explicit language in the original Antiquities Act that prohibits rescission or reduction of a monument, and therefore the President implicitly has the power to do so. (Again, I am on the record that such a conclusion is wrong, but let’s assume that is the result the court reaches.) In other words, the absence of explicit statutory language restricting a President’s ability to undo a predecessor’s action implicitly gives them the power to undo it.

Well, the Antiquities Act is not the only example of a federal statute that gives affirmative power to the President to do things, but does not explicitly restrict a future President from undoing those things. And thus, the reasoning that allows such a rescission to occur under the Antiquities Act could apply quite broadly, and in ways that I don’t think the advocates of rolling back monuments may have fully appreciated.

For instance, the congressional statutes that authorize the leasing of federal lands for oil, gas and coal development do not explicitly prohibit a future President from rescinding those leases. Thus, a future President who supported the “keep it in the ground” movement to restrict fossil fuel extraction might draw on a precedent allowing rollback of national monuments in order to rollback oil, gas, and coal leases around the country. (In fact, I think the language allowing rescission under the leasing statutes is probably stronger than in the monument context, including relevant Supreme Court authority.)

I’m sure there are other examples. As this article from New York Magazine earlier this year put it (in the context of analyzing Trump’s efforts to prop up coal-fired electric power plants), a Democratic president who emulated Trump’s aggressive use of executive power could do a lot.

4 Replies to “Careful what you wish for…”

Jai Rho says:

August 1, 2018 at 4:50 pm

“Well, the Antiquities Act is not the only example of a federal statute that gives affirmative power to the President to do things, but does not explicitly restrict a future President from undoing those things.”

Under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., executive agency action is unlawful if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706. When an agency takes an action that represents a policy change, it “must show that the new policy is permissible under the relevant authorizing statute and that there are good reasons for “disregarding facts and circumstances that underlay or were engendered by the prior policy.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515-516 (2009); see also, Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).

According to Trump appointee Brett Kavanaugh, an executive agency “may act only as authorized by Congress. . . Under the
Constitution, congressional inaction does not license an agency to take matters into its own hands.” Mexichem Fluor, Inc. v. EPA, 866 F.3d 451(D.C. Cir. 2017).

Since the Antiquities Act authorizes the President to designate national monuments, but does not authorize the President to change such designations, Trump’s rollback efforts are not authorized by Congress and should be unlawful under the Administrative Procedures Act.
1. bqrq says:
  
  August 1, 2018 at 5:41 pm
  
  Jai said;
  “……………Trump’s rollback efforts are not authorized by Congress and should be unlawful under the Administrative Procedures Act……..”
  
  Dear Jai,
  There may be an administrative appeals process whereby this unauthorized and unlawful rollback efforts could be properly adjudicated under administrative law. Check it out.
  1. BBQ Planet says:
    
    August 1, 2018 at 6:01 pm
    
    If you are embarrassed of your usage of the term “climate mongrel” on the previous article or that you made a claim you can’t back up about their “avowed atheism” then it is okay to admit it. We all make mistakes.
2. Brady Howell says:
  
  August 3, 2018 at 1:13 am
  
  See Exec. Order No. 10,355, codified at 3 C.F.R. § 873 (1949-1953). Putting aside the suspect nature of an argument that contravenes clear statutory text, the argument seems factually “dubious” because since the Order’s promulgation in 1925, the President, not the Secretary of the Interior, has designated numerous national monuments.
  
  although the APA does not specifically exclude the President from its scope, courts have held that it does. See Franklin v. Massachusetts, 505 U.S. 788, 800-801 (1992) (“The APA defines ‘agency’ as ‘each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include—(A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia.’ 5 U.S.C. §§ 701(b)(1), 551(1). The President is not explicitly excluded from the APA’s purview, but he is not explicitly included, either. Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the APA. We would require an express statement by Congress before assuming it intended the President’s performance of his statutory duties to be reviewed for abuse of discretion.”).
  
  Congress has arguably recognized and endorsed prior executives’ farsighted and decisive wielding of Antiquities Act authority when it converted numerous monuments to national parks or decreased the size of previously proclaimed national monuments. Yet, Congress has not seen fit to amend the law to make it more transparent even in an era where many laws were enacted that included public participation, and that the public can participate in the decisions governing the management of protected sites at the agency level.
  
  Under the Antiquities Act, Congress has specifically authorized the President to take unitary action. For the President to have the power to revoke a Monument designation under the Antiquities Act, the issue is whether that Act, not the Constitution’s grant of the executive power to the President, may be interpreted to imply the unstated power to revoke a Monument designation thereunder. And it indeed does seem that the court is likely to read into the Antiquities Act presidential power to revoke a proclamation as an inherent or executive glows of the presidency. That is because in the past Presidents have in fact changed or revoked executive orders implementing public land actions and Congress did not act — which, indicates the Preisent is operating at his highest ebb (of Justice Jackson’s twilight). A President likely may, should congress choose not to exercise its legislative power, revoke or amend a prior designations of a national monument wihrout violating the separation of powers doctrine. In fact, the President’s constitutionally prescribed oath of office, the Take Care Clause, and the Supremacy Clause confirm the President’s obligation to uphold the Constitution through all executive action — and the national monuments in question are larger than the statutory authority prescribed. All these reasons militate against assuming the President does not have this power.

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