For out look at executive powewr: This is the latest example of unilateral executive action. Congress does not weigh in on the decision largely because they approved such action when they passed the Antiquities Act of 1906, a law that had been controversial over its history.
It's story fits within the broader story told in the sections on executive power which argues that the roots of expanded executive powers lies in the powers Congress granted the president during the progressive era. The controversy stems from the desire of environmentalists to use the law to protect scenic and historical land from development, and the industries that seek to do the developing.
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Click here for the story.
With the new sites in Nevada, California and Texas, Obama will have used his power under the 1906 Antiquities Act to create 19 national monuments, angering congressional Republicans almost every time and adding to what environmentalists see as a strong legacy of land conservation.
Rather than look at the details of this particular decision, we should look at the bill that authorized the president's actions and also try to determine how that bill - constitutionally - can confer such a power on the president. Let's start with a few links with background on the 1906 Antiquities Act:
- Wikipedia:
Antiquities Act.
- TR Center:
Antiquities Act of 1906.
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The Highs and Lows of the Antiquities Act.
The Antiquities Act, passed in 1906, authorizes the president to single-handedly designate any federal public lands as national monuments.
Its creation was motivated by the looting of archaeological sites in the Southwest in the late 1800s. At that time, archaeologists realized that historical sites were being plundered and the artifacts disappearing into private collections or overseas museums.
The brief act — it's only four paragraphs long — was initially intended to protect just small archaeological sites, but it has since been interpreted to give presidents the power to set aside parcels of federal land of unlimited size and to restrict logging, hunting, grazing and mining on these sites.
Since 1906, 13 presidents, both Democratic and Republican, have used the authority of the Antiquities Act to proclaim 125 national monuments covering nearly 100 million acres of federal public lands. But such unilateral power has created fierce political brawls.
The specific law can be found in
16 U.S.C. 433.
Here's the relevant language:
The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected. When such objects are situated upon a tract covered by a bonafide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.
The president implements the law with the assistance of the Interior Department and the Bureau of Land Management. As far as I can see, there has been no judicial decision asserting that it is. I'll post separately on this subject because the court's have dismissed such cases, presumably affirming that it is constitutional.
Court challenges have stemmed from industries that have wanted access to the minerals on the land. Arguments have been made that president's have acted outside the bounds of what the law allows, but the courts have decided against industry. These are the two principal court cases on that point:
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Cameron v. United States (1920)
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Cappaert v. United States (1976)
It's worth pointing out - as an example of checks and balances - that Congress has twice responded to presidential use of the act to limit the scope of its powers:
The first time followed the unpopular proclamation of Jackson Hole National Monument in 1943. The 1950 law that incorporated Jackson Hole into an enlarged Grand Teton National Park also amended the Antiquities Act, requiring Congressional consent for any future creation or enlargement of National Monuments in Wyoming.[6]The second time followed Jimmy Carter's use of the Act to create fifty-six million acres (230,000 km²) of National Monuments in Alaska. The Alaska National Interest Lands Conservation Act requires Congressional ratification of the use of the Antiquities Act in Alaska for withdrawals of greater than 5,000 acres (20.2 km²)
If you are interested in this sort of thing, here's legal analysis of the case. This may be the most controversial laws you have never heard of.
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Preserving Monumental Landscapes Under the Antiquities Act.
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Environmental Law & Property Rights.
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Extending the Scope of the Antiquities Act.
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The Antiquities Actand How Theodore Roosevelt Shaped It.
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The Antiquated Act: Time to Repeal the Antiquities Act.
