Should a president have the power to declare, by fiat, that certain lands are henceforth to be considered national monuments off-limits to development, mining or any other private concern? Should a president have the power to declare anything by fiat without the consideration of Congress, the nation's lawmaking body?
That's a moot question. It has been for 105 years. Despite what the Constitution may say. Congress back in 1906 passed the Antiquities Act, giving President Theodore Roosevelt, and every chief executive since him, the power to wave a pen and create a monument.
But Wyoming got Congress to pass a law in 1950 requiring Congress to assent to any new monuments in its state. And now Utah wants the same.
The Utah Lands Sovereignty Act was introduced recently by Rep. Rob Bishop, R-Utah. It is co-sponsored by Rep. Jason Chaffetz, R-Utah, and a companion bill has been introduced in the Senate by Utah's two senators, Orrin Hatch and Mike Lee. It would do for Utah what the 1950 law did for Wyoming. (Click here to read a press release on Hatch's web site.)
I know all the arguments. Without the Antiquities Act, we wouldn't have a lot of the nation's most treasured monuments. But public lands disputes have become political footballs in recent years. President Bill Clinton used the Act as a political sledgehammer in 1996 when he declared the Grand Staircase-Escalante Monument in Southern Utah. He was pandering to environmentalists in advance of the '96 election and never once consulted Utah's elected leaders. Parts of that monument were indeed deserving of protection, but Clinton's decree went far beyond that.
The founders wanted an America where the people's representatives deliberated and passed laws, with the consent or veto of the executive. Lawmakers in Teddy's day felt that process didn't work when national monuments were concerned. Recent history has proven them wrong.