Presidential Authority to Revoke or Reduce National Monument Designations

Abstract

The Antiquities Act of 1906 grants the president the power to designate national monuments in order to protect historic landmarks and structures. Pursuant to this power, a president has the corresponding power to revoke prior national monument designations.

Many scholars, however, have taken a different view. They place central reliance on a 1938 opinion by U.S. Attorney General Homer Cummings, which concluded that the statutory power granted to the president to create national monuments does not include the power of revocation. We think this opinion (and the subsequent work which has relied upon it) is poorly reasoned; misconstrued a prior opinion, which came to the opposite result; and is inconsistent with constitutional, statutory, and case law governing the president’s exercise of analogous grants of power.

Our analysis shows that a general discretionary revocation power exists. We argue that under traditional principles of constitutional, legislative, and administrative law, the authority to execute a discretionary power includes the authority to reverse it. No President (nor any Congress or Supreme Court) can permanently bind his or her successors in their exercise of the executive power. Apart from a general discretionary power to revoke monuments that were lawfully designated, the president has the constitutional power to declare invalid prior monuments if they were illegal from their inception.

Keywords: National Monuments, Antiquities Act, Presidency, Executive Power