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President Trump announced Monday that he will shrink the Bears Ears National Monument in Utah, declared only a year ago by President Obama, by 1 million acres (an 85 percent reduction). He also declared that he would shrink the Grand Staircase-Escalante monument by 800,000 acres (a 46 percent reduction).
Trump told a rally in Salt Lake City that he came to “reverse federal overreach” and took dramatic action “because some people think that the natural resources of Utah should be controlled by a small handful of very distant bureaucrats located in Washington. And guess what? They’re wrong.”
Regardless of the merits of reduction, it should be clear that President Trump has the authority to shrink or totally reverse the declaration of a national monument by a previous President. Presidents can designate national monuments under a delegation by Congress in the Antiquities Act of 1906. The Act does not address the process for reversing the designation, but neither do most statutes. Instead, we assume that a lawmaker uses the same process to undo a legal act — Congress passes a new statute to repeal an earlier law.
When the Constitution recognizes deviations from this principle, it does so to favor presidential power. Thus, the President alone can fire officers who required presidential nomination and Senate approval; the President can unilaterally terminate a treaty, even though it requires a presidential signature and the advice and consent of two-thirds of the Senate.
In this case, the silence of Congress does not mean there is only a power to make permanent monuments with no process for repeal (other than an Act of Congress). Otherwise, Trump could designate all of his golf courses as national monuments, and future Presidents would be helpless. A future President’s power to reverse exercises a significant restraint on a current President’s power.Published in