President Donald Trump's recent national monument review, along with Secretary Ryan Zinke’s supposed recommendations for those monuments, have unleashed waves of public backlash these past few months. During the public comment period, the Department of the Interior received over 2.8 million comments. Many of these comments extolled the beauty of America's national monuments and argued that altering them is a desecration of our heritage.
National monuments are undoubtedly an integral part of our heritage, and many of them are unsurpassed in their beauty, history and scientific wonders. Despite this, and in light of potential upcoming announcements, Americans of all political persuasions should be reminded that national monuments, and the Antiquities Act itself, often serve as political tools for presidents to accomplish their selfish goals, and not as a mechanism to protect and conserve the land.
The Antiquities Act of 1906 grants the president wide discretion to declare national monuments. Congress passed the Antiquities Act in a time when there were virtually no other conservation laws, so the Antiquities Act allowed presidents to protect sites on federal land quickly. It is called the Antiquities Act precisely because it was meant to preserve antiquities — in particular, ancient Native American ruins that were being destroyed during the settlement of the West.
The wording of the Antiquities Act — all six sentences of it — includes three important but vague stipulations. First, a president can only declare a national monument on sites of historic or scientific interest. Second, presidents can only make national monuments on federal lands. Third, monuments cannot exceed the "smallest area compatible" with preserving a particular site.
Over the last century, the unchecked power to create national monuments has expanded far beyond any reasonable interpretation of the law's three stipulations. Now we have dozens of environmental laws and thousands of regulations to protect federal lands, making the Antiquities Act an antiquity itself. Although the Antiquities Act is less necessary than ever, recent presidents have created some of the largest and most controversial monuments.
Since the beginning of the environmental movement, the Antiquities Act has largely become a political tool for presidents to establish environmental legacies, and not to protect sites in imminent danger. Presidents, like all people, are rationally self-interested. One of a president's many interests is building and maintaining a legacy. Presidents of both parties have worked to build up environmental legacies, and one of the easiest, least expensive and most expedient ways to do that is through the Antiquities Act. With the stroke of a pen, a president can declare a national monument with essentially no regulatory pushback or oversight from either Congress or the courts.
Presidents often wait until the lame duck period at the end of their term to create the largest and most controversial monuments because political repercussions are minimal. This, of course, was the case with Bears Ears National Monument. The lame duck period is strategic timing for controversial actions because voters cannot punish the outgoing president and they have to wait until the next election to punish the president's party.
Since consequences are minimal, presidents can make monuments larger and give less consideration to the trade-offs and local impacts than they otherwise would have before an election. Large national monuments help build an environmental legacy because many people see the president as having "saved" a large amount of land.
These national monuments are controversial because they may harm the livelihoods of people in Western states, where the vast majority of federal land is located. Many people outside the West overlook the harms inflicted on local Westerners and ignore the sheer size of these monuments. Presidents can cash in on the environmental sentimentalities created by new national monuments, regardless of the actual impacts on people and local economies.
Trump's national monument review and the decisions that will come from it are excellent opportunities to evaluate how much power the president has under the Antiquities Act and analyze when and why he uses that power.15 comments on this story
When a presidential administration uses the Antiquities Act as a political tool for legacy building, it undermines the rule of law and the prudent use of presidential authority. It may be time to retire the Antiquities Act and allow Congress to fulfill its constitutional duty of managing federal lands.
As long as presidents can abuse their nearly absolute discretion under the Antiquities Act, we can expect to see more monuments created specifically to boost Oval Office egos and not protecting sites in danger of destruction.
Jordan K. Lofthouse is a Ph.D. fellow at Strata, a public policy research organization in Logan.