The Antiquities Act of 1906 (the Antiquities Act) grants a United States president the power to designate national monuments. This act was created to enable the quick protection of federal lands that included historic landmarks and structures or other objects of scientific interest (Klapperich 2018, 190). The act specifically grants a president the power to create national monuments with the caveat that it is limited “to the smallest area compatible with proper care and management of the objects to be protected” (Klapperich 2018, 191). However, since 1996 alone, the act has been used 26 times to create monuments that are over 100,000 or more in size and have included private property within the boundaries (Zinke 2020). Many of these monuments were created to address other weaknesses in environmental protection laws and focus more on biodiversity and habitat protection as well as the prevention of natural resource extraction and damages. This may not be the most appropriate use of the act; however, this use is necessary during a time when congressional actions on climate change and other environmental topics are weak or minimal.

As is stated in the Antiquities Act, only the smallest area required to preserve an object of interest should be listed as a national monument. Analyses, and challenges, of this act have shown that this power has been explicitly granted to a president and cannot easily be overridden (Klapperich 2018). Subsequent presidents may be able to change the boundaries to smaller or larger areas if the preservation of the monument is still effective in preserving the object of interest (Klapperich 2018, 2017-209). This means that the authority granted to the president to quickly create a national monument with no other approvals is one of the highest forms of authority and should not be undertaken lightly (Klapperich 2018, 206).

While there have been many controversies regarding national monuments, they have enabled presidents with the opportunity to protect some of the most important natural assets in the country. This maximal authority is tempered by the fact that Congress can both create their own national monuments, or abolish them, under the Property Clause of the United States Constitution (Klapperich 2018, 209). This effectively puts an additional checks and balance on the process even if the results will not be as quick as a presidential designation.

Many of the largest land areas established under the Antiquities Act were created to address congressional inaction on topics. More than any president in history, Obama designated twenty-six national monuments with many focused on environmental protection and preservation instead of simply being a historic landmark or containing historic of cultural objects of scientific interest (Klapperich 2018, 190-191). These actions have led to many controversies; however, they continue to protect land from industries like mining, drilling, and cattle grazing. As was seen with the Trump administration, several of the largest monuments were reduced, however, congressional action was still absent (Zinke 2020). If these national monument designations that were deemed so detrimental to industry and outside of the scope of the Act’s powers were as bad as they say, then congress could simply abolish the monuments. This highlights how important it is for the Antiquities Act that was created by congress to enable presidents to move quickly. Industry is always looking to make a profit in the short term, and congress has been in a gridlocked state for many years, so the ability for a president to take action on proactive preservation activities is important.

While the Antiquities Act may not be the best method for environmental conservation and preservation, it does act as a workaround to an outdated and piecemeal environmental protection law system. Without congressional action that updates environmental laws to be more comprehensive and effective, the Antiquities Act serves as an ancient champion from over a hundred years ago that enables a president to quickly protect our nation’s assets for the public good.

Author: Logan Callen

References

Klapperich, Christopher. 2018. “The New Frontier of Environmental Preservation: The Antiquities Act.” Santa Clara Law Review 58 (1): 189-212. Accessed August 8, 2022. https://digitalcommons.law.scu.edu/lawreview/vol58/iss1/6/.

Zinke, Ryan K. 2020. “Memorandum for the President: Final Report Summarizing Findings of the Review of Designations Under the Antiquities Act.” Department of the Interior. Accessed August 8, 2022. https://www.doi.gov/sites/doi.gov/files/uploads/revised_final_report.pdf.