White House’s Scorn for Constitution Evident in Court

William Perry Pendley, President and Chief Operating Officer of Mountain States Legal Foundation

President Barack Obama once acknowledged, “I actually believe my own bullshit,” which must include statements that, with him, “the rise of the oceans [will] slow and our planet [will] heal,” that projects were “shovel-ready,” and that he is smarter than anyone working for him. To those add his observation that his policies—such as his decrees of national monuments off limits to the American public—are set in stone. Obviously from their comments among the 1.2 million filed last month on plans by President Trump to void Obama’s and Clinton’s illegal decrees, the Greens believe that baloney. They are wrong.

President Obama’s abuses of the Antiquities Act of 1906 are well known, including designation of a ocean monument off New England to killing fishing, an unauthorized park parading as a monument in rural Maine to killed logging and milling, and the 1.3 million acre Bear Ears in Utah to placate the Greens. Largely forgotten, everywhere but in the American West, was President Clinton’s designation of the 1.8 million acre Grand Staircase-Escalante National Monument. On behalf of the people of southern Utah, my organization sued Clinton. For years, a courageous federal judge resisted Clinton’s lawyers’ efforts to dismiss the case; however, when President Bush’s lawyers defended the decree, the judge figuratively threw up his hands. Our lawsuit was over and with it any hopes of limiting future presidents.

Unencumbered by a hoped-for legal precedent, Obama abused the Act as no president in history. Along with others, I condemned his actions as outrageously illegal and, on Fox News and in the Washington Examiner, called upon President Trump to vacate them. To his credit, President Trump directed Secretary of the Interior Zinke to begin the process.

The Act allows presidents to designate as national monuments “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest,” but requiring that the designations “shall be confined to the smallest area compatible with the proper care and management of the objects to be protected” on land “owned or controlled by the Federal government.” Passed for the exclusive purpose of “provid[ing] protection to the large Indian ruins of the southwest,” its lengthy legislative history demonstrates Congress was concerned singularly with “the preservation of the remains of the historic past[,]” and that its objective was “small reservations reserving only so much land as may be absolutely necessary for the preservation of these interesting relics of prehistoric times.” Congress “specifically rejected broader versions of the law that included protection of scenic areas within the Act.”

Although no president has ever revoked a national monument designation, the power to diminish or even revoke a national monument is inherent in the powers granted by the Act; in fact, many presidents have diminished the size of national monuments established by their predecessors. Moreover, the oft-cited, by the Greens at least, conclusion of the Attorney General of the United States in 1938 that the Act does not authorize a president to revoke a national monument completely was in error because of his misinterpretation of an Attorney General opinion issued in 1862. Nonetheless, the Attorney General did concede that “the president is free to revoke, modify, or supersede his own orders or those [of] a predecessor,” to ensure the designations are limited to “the smallest area compatible” with protection of the named objects. Obviously, in some cases, including monuments designated by Clinton and Obama, because the objects allegedly sought to be protected are not covered by the Act, “the smallest area compatible” with that protection is no area at all! Finally, each branch of the federal government can undo its earlier decisions; the Executive Branch is no different. Even the U.S. Constitution is not immune from its citizens’ decisions to amend it.

Notwithstanding Obama’s delusions of omnipotence, just as no Congress can bind a future Congress, so can no president bind the nation in perpetuity. It is as simple as that.