We’ve written a lot lately about past Presidents’ abuse of the Antiquities Act and President Trump’s opportunity to reconsider some of those abuses. A few weeks ago, the President issued an executive order calling for a review of 21 years of monument designations, suggesting that he may use his power to revoke past designations.
Naturally, this has environmental groups and other supporters of huge monument designations looking for any argument that would deny the President this power. The latest contribution to that effort is an article by Professors Squillace, Biber, Bryner, and Hecht. That article has many flaws, including that it would mean that not even Congress could reverse a monument designation. A presidential power to make decisions that cannot be reversed by later Presidents or Congress would be unheard of.
Before diving too deep into the article, it’s helpful to know some background on the Antiquities Act. That statute allows the President, “in his discretion,” to designate national monuments on federal land to protect objects of scientific or historic significance, provided that the designation is the smallest area compatible with protecting those objects. Recent Presidents have stretched all of those terms beyond recognition. President Obama was the most notorious abuser of this statute, designating more than 530 million acres.
The Antiquities Act is silent on the President’s authority to revoke a prior monument designation. So the most important question is whether, from that silence, we presume that the President has this authority or presume that he doesn’t. Professor John Yoo and PLF’s Todd Gaziano published a paper earlier this year explaining that a strong presumption supports the authority to revoke an earlier decision.
That presumption holds in too many areas to mention all of them, but a few will demonstrate the point. The Constitution only explicitly authorizes Congress to enact laws—it’s silent on the power to repeal them. But, of course, that’s implied and a law can be repealed by the same procedure used to enact it. Similarly, the President’s authority to issue executive orders implies the authority to repeal them using the same procedure. Finally, Congress regularly authorizes agencies to issue regulations without expressly addressing the authority to repeal or modify them—but, of course, it is presumed that regulations can be repealed through the same procedure used to adopt them, unless Congress expressly indicates otherwise.
This means that the President presumptively has the power to revoke a monument designation with the same procedure used to establish them—by simply issuing a proclamation. In an attempt to overcome the presumption, the new article argues that three other statutes implicitly show that it does not apply to the Antiquities Act. But none of these statutes imply what the authors infer and the argument cannot withstand scrutiny.
The Pickett Act
First, the article argues that other federal land management statutes from the turn of the 19th century expressly granted the power to reverse a withdrawal decision, implying that the power is denied otherwise. The Pickett Act of 1910, the article notes, allowed the President to withdraw federal lands from settlement and reserve them for certain purposes. The statute also stated that that the withdrawal would remain in effect “until revoked by him [referring to the President] or an Act of Congress.” From this, the article’s authors imply that the President lacks revocation authority in any other circumstances where it is not granted explicitly.
There are numerous problems with this argument. First, the authors plainly misread the text, which doesn’t affirmatively authorize the President to revoke a withdrawal. Instead, it assumes the power otherwise exists and merely confirms that the withdrawal remains in effect until the President exercises it. Without explanation, the authors read the text as if it said something like “the President may revoke a withdrawal.”
Second, if the article’s Pickett Act argument were valid, the President wouldn’t be the only person unable to revoke a monument designation. The Pickett Act also specifically mentions Congress’ power to revoke a withdrawal (“until revoked by . . . an Act of Congress”). There’s no similar reference in the Antiquities Act. If silence is enough to bar the President from revoking a monument designation, wouldn’t it also mean that Congress couldn’t do it either? That unavoidable implication of the argument makes it a nonstarter legally.
The Forest Service Organic Administration Act
Next, the article cites the Forest Service Organic Administration Act’s language expressly authorizing the President “to modify any Executive order that has been or may hereafter be made establishing any forest reserve, and by such modification may reduce the area or change the boundary lines of such reserve, or may vacate altogether any order creating such reserve.”
The quoted language is not the smoking gun that it may, at first, appear to be. For whatever reason, Congress took a belt-and-suspenders approach in the FSOA to make abundantly clear that the President can revoke an executive order. This doesn’t imply that the President is otherwise unable to reverse other executive orders.
Presidents regularly revise or revoke executive orders. Do the authors of the article really believe that, because Congress expressly authorized this in one statute, the President’s authority to revoke an executive order is limited to that statute and others that expressly authorize him to? How many of President Trump’s executive orders would be permanent and binding on all future Democratic Presidents under this unprecedented theory?
The Federal Land Policy Management Act
Finally, the article appeals to the 1976 Federal Land Policy Management Act, which significantly revised most federal land laws, with the notable exception of the Antiquities Act. Yoo and Gaziano rebutted this argument in their paper (and received no response in the new article) but it bears further discussion. The statute generally gives the Secretary of Interior the power to make withdrawal decisions, including the power to “revoke withdrawals.” However, it limits the Secretary’s authority by forbidding him from making or revoking any withdrawals under the Antiquities Act.The statute is explicit that this is only a limit on the Secretary’s authority—the provision does not mention the President.
The article also cites the House Report for FLPMA, which states that the statute “would also specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.” This is a snippet of an otherwise ambiguous legislative history report of one House. But even if it was clear regarding the President’s continued authority to revoke national monuments and represented the actual view of Congress, it is not the law.
FLPMA does not say anything to change the President’s authority to revoke a national monument, so it remains subject to the strong presumption of revocability. Perhaps whoever wrote the House Report would have liked to deny the President this power, but it did not make it into the law that Congress actually enacted.
Courts have been clear and consistent that legislative history cannot change unambiguous statutory text. They’ve been similarly clear that legislative history from a later Congress is not a useful guide for legislation passed by an earlier one. Furthermore, an implied repeal of an existing statute or the President’s authority under it, which is all this argument could be, is strongly disfavored.
Combined, those principles sink the argument relying on the House Report. FLPMA is clear that the limitation only applies to the Secretary, not the President. Just as the House Report cannot change the text of FLPMA, it cannot change the meaning of the Antiquities Act. Simply put, the report—even if it accurately reflected the views of the entire House of Representatives in 1976—is of no help in interpreting a statute enacted 70 years earlier.
[Update: This post has been edited to remove a few sentences quoting and interpreting the wrong provision of FLPMA.]