Antiquities Act: Legal Implications for Executive and Congressional Action

14 Pages Posted: 9 Mar 2018 Last revised: 24 Apr 2018

See all articles by James McElfish

James McElfish

Environmental Law Institute

Brenda Mallory

Independent

Mark Stephen Squillace

University of Colorado Law School

Jonathan Wood

PERC

Date Written: December 7, 2017

Abstract

Transcript of panel presentation by James McElfish, Brenda Mallory, Mark Squillace, and Jonathan Wood on whether the President can modify or revoke national monuments.

My view: Those denying the president’s authority have to convince a court that Congress withheld the power to reconsider a discretionary, unilateral executive action (1) contrary to the universal and long-established background rule; (2) that Congress did so silently or implicitly, which would be unprecedented; (3) that it took this unprecedented step without commenting on it at the time, even in legislative history; and (4) that no one noticed Congress had done so for decades. That strikes me as an extremely difficult list of obstacles to overcome.

Keywords: national monuments, Antiquities Act, President Trump, Bears Ears, Bear's Ears, Bears Ears National Monument, Grand Staircase, Grand Staircase Escalante, monument, environment, National Parks, presidential power, executive power, Congress, separation of powers, Constitutional law, delegation

JEL Classification: K32

Suggested Citation

McElfish, James and Mallory, Brenda and Squillace, Mark Stephen and Wood, Jonathan, Antiquities Act: Legal Implications for Executive and Congressional Action (December 7, 2017). Environmental Law Reporter, Vol. 48, No. 3, 2018, U of Colorado Law Legal Studies Research Paper No. 18-18, Available at SSRN: https://ssrn.com/abstract=3134556

James McElfish

Environmental Law Institute

2000 L Street, NW, Suite 620
Washington, DC 20036
United States

Brenda Mallory

Independent

Mark Stephen Squillace

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

Jonathan Wood (Contact Author)

PERC ( email )

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

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