More Monuments: Congressional Limits to Presidential Power under the Antiquities Act and the Role Courts Play

Abstract

The Antiquities Act of 1906 marked the beginning of a new era of land management and of executive power delegated from Congress to the president. The boundaries of that executive power, forcibly expanded almost immediately by the administration of Theodore Roosevelt, are unclear and still being litigated today. Also unclear is the role of the judiciary in resolving this litigation. This paper explores the role of the judiciary vis-à-vis Congress and the President when considering whether Antiquities Act designations are lawful. It addresses case law and argues that the fact that Congress imposed limits on the president makes judicial review not only possible but necessary.