Antiquities Act is a Menace to Constitutional Government
Rep. Rob Bishop, Chairman, U.S. House of Representatives Resources Committee
October 10, 2017
Please see our related commentary, below, following Bishop’s column. -dh
Representative Rob Bishop, courtesy Civil Services.
You heard it in your high school civics class: America has “a government of laws and not of men.” The rule of law is the basis of the constitutional order erected by the Founders. “A government with unpredictable and arbitrary laws poisons the blessings of liberty itself.” The first axiom is from John Adams, the second is from James Madison. Their sentiments were universal in the founding generation and ought to continue today. Checks and balances have no teeth when our leaders can disregard the laws and rule according to their whims.
I said that the rule of law should still be the foundation of our politics. Unfortunately, that certainly does not mean it is not threatened. There is no more flagrant violation of this principle of our government than the repeated abuse of the Antiquities Act in the designation of national monuments.
Passed in 1906 authorizing the president to protect “antiquities,” or objects of historic interest under imminent threat, the plain language of the law requires that all designations be “confined to the smallest area compatible with proper care and management of the objects to be protected.”
The act is not difficult to understand. It is not ambiguous. Any honest reading reveals that it was created to protect “landmarks,” “structures,” and “objects” – not vast swaths of land.
Compare the language of the law and the historically obvious intent of the Congress that passed it – at the time it was even debated whether the law should limit designations to 320 or 640 acres – with its abuse over the last half-century. Presidents have repeatedly flouted the rule of law and usurped the powers of Congress to arbitrarily cordon off millions of acres of land. A few statistics can illustrate the scope of the overreach.
Between 1906 and 1943, the law functioned basically as designed. Presidents respected the intent of the act. Most monuments were smaller and had clear boundaries with real antiquities inside them. By contrast, designations under the act last year averaged 739,645 acres, or more than 47 times the size of those created 110 years ago.
President Teddy Roosevelt was the first president to use the act. He used it 18 times for a combined total of 1.5 million acres. President Barack Obama used it 37 times to designate 553.6 million acres of land and water.
Let that sink in: 553.6 million acres (more than half a billion). That is an average of 189,000 acres designated with the stroke of a pen for every single day Obama was in office. It’s 830 times the size of Rhode Island, and more than 5 times the size of California.
Actions such as these are not the rule of law. It is arbitrary rule by one man.
The argument that recent uses of the act have conformed to the law’s legal limitations would be funny if it wasn’t so damaging. The law has been distorted beyond recognition by presidents who have used it to circumvent Congress, impose pet policies of Washington elites and radical special interest groups on local communities, and, most significantly, chip away at the traditions of rule of law and checks and balances.
To vest one man with the unfettered power to make these decisions with no congressional check or local input would have been repugnant to the Founders. It should also be repugnant to each and every member of Congress who has taken an oath to support and defend the Constitution and the impartial rule of law.
Even with noble intent, a benevolent dictator is still a dictator. Our temporary reprieve under the current administration must not blind us to the threat of future overreach that still lurks on the horizon. As long as future presidents can shrug off requirements of the law and govern by fiat, we can be sure this will happen again.
Ryan Zinke. Northern Gas Pipelines file photo by Dave Harbour
The public debate sparked by the monument review process is a good thing, and I am hopeful that President Trump will heed Secretary of the Interior Ryan Zinke’s advice and ameliorate some of the damage done by previous administrations. However, it is at best only a first step, and, in the absence of additional congressional safeguards against executive overreach, merely a band-aid — not a solution.
The rule of law is not a matter of partisanship, but of principle. We can debate the appropriate balance between conservation and development, but political victories should not be won at the expense of the cornerstone of constitutional government. The time has come for Congress to reform the Antiquities Act and rein in the president.
Rep. Rob Bishop is chairman of the House Committee on Natural Resources. Check back on Wednesday for part two of Bishop’s two-part series
* * *
Representative Doc Hastings. Northern Gas Pipelines Photo by Dave Harbour
We are honored to run Chairman Bishop’s editorial which also appeared this morning in The Washington Examiner. Bishop, and his predecessor, Chairman Doc Hastings, have done as much or more than any of their contemporaries to contain the excess of federal government regulation and overreach. We hope lawmakers terminate “sue and settle” incentives for enviro-activists to sue the federal government as a major fundraising component of their budgets while causing harmful, agency procedures to be implemented.
More importantly, we would urge Congress to study Antiquities Act abuses going back to the Carter administration and Interior Secretary Cecil Andrus, whose federal land grab/overreach policies in Alaska particularly beg review.
Antiquities Act abuses are not the end of federal overreach. Congress should review Obama administration excesses that include but are not limited to the National Ocean Policy Council, ESA, CWA and CAA attacks on the rule of law.
We also draw attention so-called hearings conducted by the BLM, EPA, USA Corps of Engineers, USF&WS and others during the unrule-of-law years of the Obama administration. These hearings appeared to flout the intent of public hearings. That is, hearings were held but in virtually every case the agency involved chose among the most anti-development, anti-job, anti-national defence, pro-environmental activist positions established at those hearings.
Our searchable archives herein (upper left search) document many of those abusive, faux-public input hearings. (Examples, USFWS, BOEM, and a partial history of overreach.) -dh