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Wednesday, March 29, 2017

National Monuments and Revocation

At AEI, John Yoo writes of the designation of national monuments under the Antiquities Act:
The president has the general discretionary power to revoke monument designations of his predecessors. Although a 1938 attorney general opinion reached the opposite conclusion, that poorly reasoned opinion was inconsistent with law governing the president’s exercise of analogous powers. It is an accepted principle of government that the authority to execute a discretionary power includes the authority to revoke such exercise. Thus, the president’s authority to designate a monument includes the authority to revoke a designation. A second principle, established by both constitutional jurisprudence and governmental practice, dictates that a branch of government can reverse its earlier actions using the same process originally used. Therefore, a past president exercising his authority to designate a monument could not bind a future president’s authority to revoke it.

The president’s power of revocation is at its height when a new factual circumstance or legal determination requires a response to comport with the law. The president has the constitutional duty to ensure that laws are faithfully executed. A change in factual circumstance could mean that a prior designation is no longer statutorily appropriate. For example, if artifacts in a monument had been excavated and safeguarded, he could determine that revocation is necessary to comply with the “smallest area” requirement of the Act. He could also make the legal determination that a prior designation was illegal under the Act and therefore void. For example, designations of vast acreage may violate the “smallest area” requirement, or marine designations may violate the requirement that the United States “control” the designated area. At least some of the millions and millions of acres of land and sea designated by Presidents F. Roosevelt, Carter, Clinton, and Obama should accordingly be reviewed for their factual and legal fitness.
Executive authority is fleeting by Constitutional design. If a president does not protect his policies through the bicameral legislative processes, he leaves those policies vulnerable to his successors.