Written on . Posted in Access Issues

Antiquities Act is a Menace to Constitutional Government

House Committee on Natural Resources

By: Rep. Rob Bishop (R-UT)
Chairman, House Committee on Natural Resources

You heard it in your high school civics class: America has "a government of laws and not of men." The rule of law is the basis of the constitutional order erected by the Founders. "A government with unpredictable and arbitrary laws poisons the blessings of liberty itself." The first axiom is from John Adams, the second is from James Madison. Their sentiments were universal in the founding generation and ought to continue today. Checks and balances have no teeth when our leaders can disregard the laws and rule according to their whims.  

I said that the rule of law should still be the foundation of our politics. Unfortunately, that certainly does not mean it is not threatened. There is no more flagrant violation of this principle of our government than the repeated abuse of the Antiquities Act in the designation of national monuments.  

Passed in 1906 authorizing the president to protect "antiquities," or objects of historic interest under imminent threat, the plain language of the law requires that all designations be "confined to the smallest area compatible with proper care and management of the objects to be protected."  

The act is not difficult to understand. It is not ambiguous. Any honest reading reveals that it was created to protect "landmarks," "structures," and "objects" – not vast swaths of land.  

Compare the language of the law and the historically obvious intent of the Congress that passed it – at the time it was even debated whether the law should limit designations to 320 or 640 acres – with its abuse over the last half-century. Presidents have repeatedly flouted the rule of law and usurped the powers of Congress to arbitrarily cordon off millions of acres of land. A few statistics can illustrate the scope of the overreach.  

Between 1906 and 1943, the law functioned basically as designed. Presidents respected the intent of the act. Most monuments were smaller and had clear boundaries with real antiquities inside them. By contrast, designations under the act last year averaged 739,645 acres, or more than 47 times the size of those created 110 years ago.  

President Teddy Roosevelt was the first president to use the act. He used it 18 times for a combined total of 1.5 million acres. President Barack Obama used it 37 times to designate 553.6 million acres of land and water.  

Let that sink in: 553.6 million acres (more than half a billion). That is an average of 189,000 acres designated with the stroke of a pen for every single day Obama was in office. It's 830 times the size of Rhode Island, and more than 5 times the size of California.  

Actions such as these are not the rule of law. It is arbitrary rule by one man.  

The argument that recent uses of the act have conformed to the law's legal limitations would be funny if it wasn't so damaging. The law has been distorted beyond recognition by presidents who have used it to circumvent Congress, impose pet policies of Washington elites and radical special interest groups on local communities, and, most significantly, chip away at the traditions of rule of law and checks and balances.  

To vest one man with the unfettered power to make these decisions with no congressional check or local input would have been repugnant to the Founders. It should also be repugnant to each and every member of Congress who has taken an oath to support and defend the Constitution and the impartial rule of law.  

Even with noble intent, a benevolent dictator is still a dictator. Our temporary reprieve under the current administration must not blind us to the threat of future overreach that still lurks on the horizon. As long as future presidents can shrug off requirements of the law and govern by fiat, we can be sure this will happen again.  

The public debate sparked by the monument review process is a good thing, and I am hopeful that President Trump will heed Secretary of the Interior Ryan Zinke's advice and ameliorate some of the damage done by previous administrations. However, it is at best only a first step, and, in the absence of additional congressional safeguards against executive overreach, merely a band-aid -- not a solution.  

The rule of law is not a matter of partisanship, but of principle. We can debate the appropriate balance between conservation and development, but political victories should not be won at the expense of the cornerstone of constitutional government. The time has come for Congress to reform the Antiquities Act and rein in the president.