Executive Discretion and the Antiquities Act
Photo: Francisco Kjolseth/The Salt Lake Tribune via AP
May 29, 2019
The Antiquities Act of 1906 gives the president of the United States unilateral authority and broad discretion to designate national monuments on federal lands. Although the act has been crucial for preserving many of America’s most popular public lands, it has also been controversial, sparking an ongoing debate over presidential discretion in federal land management.
This policy paper reviews the relevant literature on the extent of executive discretion under the Antiquities Act. It begins by outlining the history of the Antiquities Act and its original intentions. The authors then examine Congress’s decision to leave many of the law’s key terms without clear definitions as well as the general deference that courts have afforded the president when declaring and modifying national monuments. They find that such deference, combined with the lack of clearly defined terms within the act, has allowed the chief executive to exercise wide discretion without clear checks and balances.
Legal scholars continue to debate the limits of presidential discretion under the Antiquities Act, and the authors of this paper provide a brief review of relevant legal analysis. They find that there is no clear consensus among legal scholars regarding a president’s ability to abolish an existing national monument or the extent to which a president can expand or reduce existing monuments.
Based on their literature review and analysis of the issue, the authors suggest three potential steps Congress could take to more clearly define the limits of executive discretion under the Antiquities Act. They include:
- Increase congressional oversight of monument designations and changes.
- Prevent presidents from unilaterally reducing the size of national monuments or rescinding them altogether.
- Require consultation with relevant stakeholders before a monument designation is made.
The authors argue that these policy changes would likely lead to more cooperative management of public lands by increasing predictability and providing clarity regarding the legal extent of executive discretion under the Antiquities Act.