Why It Matters

A new report by the Congressional Research Service (CRS) published July 30 takes a closer look at presidential authority under the Antiquities Act. The Tenth Circuit's June ruling in Garfield County v. Trump found that courts can evaluate whether designated sites qualify as legitimate "objects" under the Antiquities Act and whether monument sizes meet legal requirements.

The Big Picture

The Antiquities Act gives presidents sweeping power to designate national monuments by proclamation alone, without congressional approval. For more than a century, courts barely questioned how presidents wielded this authority. No court had ever struck down a monument designation on the grounds that the designated object was ineligible. Courts extended the law's reach far beyond its original intent, approving monuments protecting entire ecosystems and submerged lands beneath water and even the U.S. Exclusive Economic Zone extending 200 nautical miles offshore.

The Supreme Court signaled caution in 2021 when Chief Justice Roberts, in a statement accompanying the denial of a certiorari petition, suggested the court might eventually scrutinize the scope of monument designations. That warning became concrete when the Tenth Circuit ruled that courts can review whether designated objects fall within the Antiquities Act's categories and that the "smallest area compatible" requirement is not purely committed to presidential discretion. The court reversed a lower court dismissal and sent the case back for further proceedings.

The ruling emerged as litigation from President Trump's first-term monument reductions remained stalled. Two cases filed in December 2017 challenging monument authority remain stayed and have not yielded a final court decision. The Antiquities Act itself is silent on whether presidents possess authority to diminish or abolish designations made by their predecessors.

Political Stakes

Several legislative proposals would restrict the president's discretion. For example, H.R. 2645 would place a default time limit on monument designations. H.R. 521, the Ending Presidential Overreach on Public Lands Act, would remove the relevant section from the Antiquities Act entirely and give Congress sole power to modify or revoke designations. Neither of these bills have become law.

Congress possesses plenary power over federal lands pursuant to the Property Clause of the Constitution and has historically abolished, reduced, or expanded monuments on several occasions. Congress also has options for adjusting what types of objects qualify for protection, what quantity of land can be included, what land use restrictions can be imposed, and what scope of judicial review applies.

The current administration has reduced Bears Ears and Grand Staircase-Escalante monuments by a greater acreage than the reductions it made in 2017. The administration has also lifted commercial fishing bans in marine monuments through proclamations that now face active litigation.

The position of the Department of Justice's Office of Legal Counsel directly contradicts a longstanding 1938 Attorney General opinion. This shift in legal theory, combined with the Tenth Circuit's new openness to judicial review, creates an unpredictable legal environment for any future monument actions.

The Bottom Line

It is unclear whether the Trump administration will defend the Garfield County case at the district court level on remand. Courts can review whether designated objects fall within the Antiquities Act's categories and whether the 'smallest area compatible' requirement is satisfied.

Either way, Congress holds the ultimate card. It can legislatively rewrite the Antiquities Act's terms, restrict presidential discretion, or resolve the silence about monument revocation.

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