If only the people who write laws would be more specific.
For instance, did those who drafted the Antiquities Act of 1906 mean for it to allow presidents to “un-declare” national monuments a predecessor had declared?
I mean, they didn’t say so, but … they also didn’t say a president couldn’t do such a thing.
Or maybe it just never occurred to them that it might happen.
You knew this was coming, right?
Shrink and expand
When President Trump served his first term in the White House, he decided to shrink two monuments in Utah — Bears Ears and the Grand Staircase-Escalante. That resulted in a lawsuit, but before the courts could settle anything, Joe Biden became president and expanded them again.
So, naturally, Trump’s next move, in his second term, might be to un-declare monuments altogether. Whether that includes the ones in Utah remains to be seen.
Frankly, if you’re an environmentalist, you should be loving this. No oil well driller or miner would want to come near investing money in a project on land that will probably be declared a monument again the next time a Democrat takes office.
The extraction business, like any other business, thrives on certainty. The never-ending Hatfield-McCoy-like feud over public lands and monuments in the West has been anything but certain in recent years.
Even if this shrink-and-expand yo-yo never happened in the past, does anyone believe it won’t go on in the future?
Controversial from the start
Controversy is pretty much all that is certain in the Antiquities Act. Even the much-cited part that requires those monuments to “be confined to the smallest area compatible with proper care and management of the objects to be protected” means nothing. It all depends on the definition of “smallest,” which is up to the president.
At the start, President Theodore Roosevelt used the act to declare Wyoming’s Devils Tower as a monument, which was relatively small. But not long after, he made a monument of the Grand Canyon, which, other than the Titanic, may be the most often-used metaphor for large things.
I doubt anyone would suggest doing away with either of those (the Grand Canyon has since been made a national park, which did require Congress to act). But not all large monuments are created equal.
Justice Department opinion
Earlier this week, Donald Trump’s Justice Department released a 50-page opinion that determined presidents do indeed retain the power to dissolve monuments into thin air. That supersedes a 1938 Justice Department opinion that said the opposite.
If one part of the newer opinion rings true, it is the section, near the top, that explains how the act has “stirred controversy from the start.”
“In total, three different Congresses considered 14 separate versions of the Antiquities Act,” it says, later adding, “Western lawmakers were particularly vocal critics. For example, in 1905, (territorial) Rep. (Bernard Shandon) Rodey of New Mexico complained that ‘if all the ruins in northern New Mexico were withdrawn from entry there would be a tract of country withdrawn as big as the State of New York.’”
The opinion then cites several instances in which it says previous presidents have diminished monuments. None, however, has tried to make one disappear. Stay tuned.
If nothing else, this illustrates what happens when you don’t require a democratic, public process; in other words, when a big decision doesn’t have to pass through the people’s representatives in Congress.
Early Utah artifacts
Maybe, as some would argue, the preservation of cultural artifacts, precious landscapes, sacred Native American sites and more can’t wait for hearings and a compromise solution. That was certainly the case in 1906, only a few years after many ancient artifacts from ruins in Utah turned up at the World’s Fair, to later end up in curio shops around Chicago.
But we don’t really know because, as with so many other things, the act has become a divider, not a uniter.
All Congress has really done to the act since its passage is to exempt Wyoming and Alaska, in various ways, because they were angered by monuments declared in their states.
Congress could do much more, of course. It could expressly forbid presidents to do away with monuments. More realistically, it could require Congress to ratify any declaration of a monument within a certain period — say, three years. That would give people enough time to decide if they like what was done.
Or it could support Utah Rep. Celeste Maloy’s bill that would take away the power of presidents to declare monuments altogether.
You can decide which of these has the best chance of passing today’s House and Senate. My guess is that now, as in 1906, lawmakers are likely to avoid being too specific. Which means this will be punted to the courts.