Preventing "Stroke of the Pen" Monument Designations
In recent years, a disturbing trend has emerged in land designations: the usual route through Congress has been circumvented as the Executive Branch has been allowed to designate national monuments without the consent of elected legislators or consultation with state and local governments. Congress, by virtue of its power granted in the property clause in the U.S. Constitution, makes the bulk of public land designations by statute: additions to national forests, the designation of federal wilderness areas, and the establishment of national parks.
However, Congress has delegated almost complete authority to designate national monuments to the President. Under the Antiquities Act of 1906, the President is authorized to designate national monuments without congressional input. The Act lacks significant standards for size, creating a high potential for abuse. Although Congress retains the ability to designate national monuments through statute, it principally relies on monument designations put forward by the Executive Branch. Between 1906 and 1999, Presidents designated 118 national monuments. Although Congress has limited the Act’s reach in some respects, the federal courts have expanded and upheld every exercise of the Antiquities Act.
President Clinton took the Antiquities Act to new heights with the designation and expansion of more than 20 national monuments, many of which were opposed by local residents and landowners. The current administration is continuing this trend with nearly 20 monument designations, closing off millions of acres of in the west. In order to prevent this abuse of power, Congress should take steps to curb the President’s ability to arbitrarily designate national monuments, and create a mechanism for congressional review of proclamations. Congress should also provide for state and local input before the designation takes place.