I have a column up today at the Federalist, “No, Patagonia, President Trump is Not ‘Stealing Our Land’,” about the lawsuit the retailer has threatened (or similar lawsuits) over Trump’s decision to reduce the size of the Bears Ears and Grand Staircase-Escalante national monuments in Utah.
For those who want a deeper dive into the issues raised by the Antiquities Act of 1906, which also more broadly addresses some of the legal questions raised by the aggressive monument designations made by Presidents Carter, Clinton and Obama, the AEI analysis by John Yoo and Todd Graziano linked in the column may be your cup of tea. I am not as persuaded as they seem to be by analogies that arise from the executive’s exercise of his or her own power, as opposed to power delegated by Congress.
That said, Yoo and Graziano have a point that discretion Congress delegates to the President is not supposed to be micro-managed. And I do tend to think that the theory that the presidential discretion here is only “one way,” while finding some support in Congressional intent, does tend to run contrary to the general idea that delegated authority can be used to revisit the work of prior administrations (which is how past administrations have tended to view it).
Moreover, even if you view AEI’s analysis as advocacy (and you probably should, tbh), the effort and breadth is superior to the recent report issued by the Congressional Research Service, which is both brief and bland. Nevertheless, if you’re further interested in the issue you may want to read the CRS report, which will likely be cited in the upcoming public debate over this issue.
As I’ve suggested — and similarly noted in prior liner notes posts — the column format inevitably means making choices about what to omit. Here, I’ve focused on President Trump’s authority and ignored ancillary issues, e.g., the scope of authority granted to the Secretary of the Interior under the Federal Land Policy and Management Act of 1976.
Also, I mention the irony that the left here is arguing for a narrow interpretation of a Congressional delegation of power, while the right is pushing the broader interpretation. This is not really a problem for Trump and I should add that even GOP administrations tend to favor positions that maximize their authority. Trump has been rolling back regulations. But his administration and the GOP, for all of the rhetoric about dismantling the administrative state, have not been pursuing the legislative structural reforms that might tame it.
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