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Presidential Authority to Revoke or Reduce National Monument Designations

31 Pages Posted: 22 Jul 2017 Last revised: 15 Aug 2017

Todd F. Gaziano

Pacific Legal Foundation

John Yoo

University of California at Berkeley School of Law; American Enterprise Institute

Date Written: July 18, 2017

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

Suggested Citation

Gaziano, Todd F. and Yoo, John, Presidential Authority to Revoke or Reduce National Monument Designations (July 18, 2017). Yale Journal on Regulation, Vol. 35, No. 2, 2018; UC Berkeley Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=3004821

Todd Gaziano

Pacific Legal Foundation ( email )

930 G Street
Sacramento, CA 95814
United States

John Yoo (Contact Author)

University of California at Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-5089 (Phone)
510-643-2673 (Fax)

American Enterprise Institute ( email )

1789 Massachusetts Ave., N.W.
Washington, DC 20036
United States

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