Document Type

Article

Publication Date

2018

Abstract

Presidents cancel or modify executive orders and proclamations issued by prior Presidents all the time. What is not so clear is whether this presidential discretion applies to orders or proclamations issued at the direction of Congress, as is the case with national monuments designated by presidential proclamation under the authority of the Antiquities Act. Section 431 of that Act authorizes the President to declare by public proclamation “historic landmarks, historic and prehistoric structures and other object of historic or scientific interest” on public land and to reserve sufficient public land to properly care for and manage the protected objects. While over the law’s 111 years, disgruntled states, interest groups, and individuals have challenged some of these proclamations, no President has ever rescinded a designation made by a prior President, let alone even threatened it, until President Trump proposed doing so this year.

This Article suggest that the fact that Congress has placed its imprimatur on the designation process shields it from whimsical actions by later Presidents seeking to rescind or shrink the size of previously designated national monuments. To conclude otherwise would contradict the plain language of the statute, which would give Congress plenary power over the designation process and would aggregate to the President powers he does not have, thus creating separation of powers concerns. Nor can Presidents simply elect not to enforce a law because it is not to their liking. Allowing Presidents to revoke prior monument designations would create substantial uncertainty about the legal force and effects of such proclamations once made. This uncertainty, in turn, would affect expectations about how the designated land should be managed and inhibit future designations. It would also adversely affect local economic growth and regional adjustments in response to designations.

Publication Citation

Hope M. Babcock, Rescission of a Previously Designated National Monument: A Bad Idea Whose Time has Not Come, 37 Stan. Envtl. L.J. (forthcoming)

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