Preventing "Stroke of the Pen" Monument Designations

In recent years, a disturbing trend has emerged in land designations: the usual route through Congress has been circumvented as the Executive Branch has been allowed to designate national monuments without the consent of elected legislators or consultation with State and local governments.

Congress, by virtue of its power granted in the property clause in the U.S. Constitution, makes the bulk of public land designations by statute: additions to national forests or Bureau of Land Management lands, the designation of federal wilderness areas (undisturbed areas that are off limits to any mechanized use), and the establishment of national parks.

With regard to designation of national monuments, however, Congress has delegated almost complete authority to the President. Under the Antiquities Act of 1906, the President is authorized to designate national monuments by presidential proclamation, without Congressional input and with very limited judicial review from the federal courts. The Act lacks significant standards for size, creating a high potential for abuse.

Although Congress retains the ability to designate national monuments through statute, it principally relies on monument designations put forward by the Executive Branch by virtue of its delegation of power. Between 1906 and 1999, Presidents designated 118 national monuments, and only three Presidents (Nixon, Reagan, and George H.W. Bush) never used the power. Although Congress has limited the Act’s reach in some respects, the federal courts have expanded and upheld every exercise of the Antiquities Act that has been challenged.

President Clinton took the Antiquities Act to new heights with the designation and expansion of more than 20 national monuments, many of which were opposed by local landowners, residents and States. In order to prevent this abuse of power in the future, Congress should take steps to curb the President’s ability to arbitrarily designate national monuments, and create a mechanism for Congressional review of proclamations made pursuant to the Act. Congress should also provide for State and local input before the designation takes place.

We support legislation that would create accountability, congressional review, and to provide for state and local input in the presidential monument designation process.