Trump Track: Be Careful What You Ask For

The Trump Administration has taken the position that the President not only has the power under the Antiquities Act of 1906 to unilaterally establish national monuments, but also the unfettered authority to reduce in size or eliminate national monuments established in earlier administrations. Accordingly, the Trump Administration has undertaken a review of every national monument established since 1996 that is over 100,000 acres, and in December 2017, issued two executive orders reducing the size of the Grand Staircase-Escalante National Monument by 700,000 acres and dividing it into three parts, and reducing the Bears Ears National Monument from 1.35 million acres to 200,000 acres.

It is expected that these decisions will be challenged in court by tribes and environmental groups. The supporting and opposing arguments: the unquestioned power of the President to establish monuments without congressional action necessarily includes the authority to modify or eliminate existing monuments; and the absence of any mention of such authority to modify or eliminate monuments in the Antiquities Act reflects a congressional decision to leave that power in Congress, not in the President.

What It Means

As with many of the actions of this Administration, it is writing on a largely blank slate in terms of legal authority on the specific questions raised. This is not to say the questions have not been raised in the political arena. The designation of monuments, like the scope of regulatory authority under the Clean Water Act and the Clean Air Act, to take just two prominent examples, has long been a bitterly contested political policy issue. But, the procedural path to reverse earlier decisions has not been clearly delineated by the courts.

The situations are legally different, with the President’s authority for his monument action turning on statutory intent, while the reversal of Obama Administration CWA and CAA decisions will turn on rulemaking requirements under the Administrative Procedures Act, but it is beyond doubt that the Administration’s decisions on the monuments, like its CWA and CAA decisions, will produce significant judicial rulings on these important procedural issues

Thus, whatever the outcome of the particular cases, those judicial decisions over the next two or three years on procedural questions may re-set the balance of power between the legislative branch (Congress), and the executive branch (both the President and the administrative agencies). These decisions will be a double-edged sword. The Trump Administration, which has appointed the most prominent skeptic on Chevron deference to the Supreme Court, may now rely on that same judicial deference to decisions of the executive branch, whether Presidential executive orders or regulations, to support its goal of unwinding past decisions.

If the Administration is successful, the outcomes it obtains will live on to enhance the administrative branch of government under future administrations seeking greater government involvement, not less. The Trump Administration, as it deals with the massive volume of litigation created by its actions, must tread carefully to avoid creating the very shift in balance of power between branches of governments it claims to abhor.