Antiquities Act: Legal Implications for Executive and Congressional Action

Abstract

Transcript of panel presentation by James McElfish, Brenda Mallory, Mark Squillace, and Jonathan Wood on whether the President can modify or revoke national monuments.

My view: Those denying the president’s authority have to convince a court that Congress withheld the power to reconsider a discretionary, unilateral executive action (1) contrary to the universal and long-established background rule; (2) that Congress did so silently or implicitly, which would be unprecedented; (3) that it took this unprecedented step without commenting on it at the time, even in legislative history; and (4) that no one noticed Congress had done so for decades. That strikes me as an extremely difficult list of obstacles to overcome.

Keywords: national monuments, Antiquities Act, President Trump, Bears Ears, Bear's Ears, Bears Ears National Monument, Grand Staircase, Grand Staircase Escalante, monument, environment, National Parks, presidential power, executive power, Congress, separation of powers, Constitutional law, delegation

JEL Classification: K32