Calls for the rescinding of Bears Ears' designation as a national monument seem to be growing louder by the day. This week, the American Enterprise Institute, a conservative think tank, released a paper titled Presidential Authority to Revoke or Reduce National Monument Designations that argues that President Trump has the implicit power to revoke, adjust, or nullify national monuments made under the Antiquities Act, despite the fact that the Act doesn’t explicitly give the president the power to rescind a designated national monument.
With this argument at their back, Congressional Republicans are starting to breathe down the president’s neck about using his executive powers to rescind Obama's Bears Ears designation. But given the line of the law and its historical use, legal scholars argue that President Trump couldn't revoke a compost bin if it were designated a national monument.
"If Congress wants to change the way the law is implemented, they have to do that through legislation," says John Ruple, associate professor at the Wallace Stegner Center for Land, Resources and the Environment at the University of Utah. He guesses that since Congress itself can't really act on undoing national monuments without large public outcry, "they're looking for alternative ways to get to an end, and with the hope or the expectation that maybe a presidential action is that vehicle."
Congress passed the Antiquities Act in 1906. Widespread looting of archeological sites throughout the Southwest demanded an expedited way of protecting valuable, meaningful territory “of historic or scientific interest," so Congress delegated the power of declaring national monuments to the president, who would act on Congress' behalf to protect the land. The Act does not stipulate explicitly that the president has the power to revoke any monuments made by his predecessor. Nor does it allow a president to shrink the territory of the monument — something that Congressional Republicans might like to see.
"While there are examples of prior presidential monument revisions, the legal justification for a significant cutback is very much in doubt, and the reasons given for carving away at Bears Ears have no historic precedent," says Ruple. Woodrow Wilson, for example, once reduced the size of the Olympic National Monument — mostly to increase lumber production for World War I. "Obviously, no similar need to reduce Bears Ears exists today, and to claim that the reductions of a century ago create a precedent today strains credibility."
Republicans say that former President Obama's designations were unilateral, without the approval of Congress, but Ruple thinks otherwise. "Congress expressly granted the President the power to designate national monuments, and efforts to protect the Bears Ears area date to at least the 1930s," he says. "So Utah’s politicians had decades to protect the Bears Ears area, yet they failed to advance any meaningful action during that time, and the President did exactly what Congress asked him to do: Protect national treasures when Congress fails to act."
Ruple says that when they designate a national monument, the President is acting as a vehicle of Congress. "When the president steps in and he acts, he is standing in the shoes of Congress," he says. "What comes out of that [AEI] paper is an argument that the president, when he's undoing a national monument, he's acting as the president. But we have to remember that when the president creates, he's acting as a vehicle of Congress." That sets up a structural problem within the government. So if Congress wants to undo the Bears Ears national monument, they have to do it themselves — and prepare for the backlash.
"In Utah, about two-thirds of the land in the state is controlled by the federal government," he says. "How those lands are used, that can impact a lot of communities. Where unemployment is high, where people feel disempowered, there is a lot of pain. In the case of national monuments, sometimes there's a disconnect between the pain people are feeling and what they're lashing out against."