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Washington • If a president can declare a national monument, his successor can revoke it, a conservative think tank says in a new report that could provide cover for President Donald Trump to rescind the Bears Ears National Monument in southeastern Utah.
The new paper, by the American Enterprise Institute, says that when government power is granted to allow an action, the reverse is true as well, a point heralded by Utah Republicans in Congress who are advocating for Trump to jettison then-President Barack Obama's designation in December of 1.35 million acres of public land as Utah's newest national monument.
"It is a general principle of government that the authority to execute a discretionary power includes the authority to reverse the exercise of that power," write the authors, John Yoo, a University of California-Berkeley law professor, and Todd Gaziano, executive director of the property rights group Pacific Legal Foundation's D.C. Center. "This power is at its height when prior designations were made illegally or in contravention of the act's mandate that designations be reasonable in size."
The report, unveiled Wednesday by Sen. Mike Lee and Rep. Rob Bishop with the authors, argues that when Congress gives federal agencies the power to create regulations, it also allows them to toss out those regulations as well. They also say that a president may have a better case to throw out a monument designation if there were factual errors or changing circumstances.
Bishop, chairman of the House Natural Resources Committee, praised the report as long overdue and portrayed it as helping lay the legal groundwork for action.
"Before this paper, most arguments advocating against this authority were based on conjecture and agenda-driven hyperbole," he said. "This paper elevates that debate and provides a sound legal basis for the president's ability to reduce and rescind national monuments."
A harsh critic of the Antiquities Act that gives a president unilateral power to designate monuments, Bishop said the 111-year old law "has been abused by both parties for so long that the original intent of the law is distorted and long lost."
Lee, an attorney and former clerk to Supreme Court Justice Samuel Alito, expressed "dismay" that the courts have avoided wading into any presidential monument designation under the Antiquities Act. "But on the flip side of that, I now expect the courts' hands-off attitude to continue were the president to revoke a national monument."
Utah's federal delegation and statewide officeholders say that Obama overreached in designating Bears Ears while there was a grass-roots effort to find a common ground solution to protect the area in San Juan County. They also say the scope of the monument was overly large and the justifications weak.
Interior Secretary Ryan Zinke, who has promised to visit Utah as one of his first acts, told a Senate committee during his confirmation that there's "no doubt" a president can amend a monument, as several have done in the past.
"It will be interesting to see if a president can nullify a monument," he added. "Legally, it's untested."
The president's power to rescind or modify a prior president's national monument designation has never been tested in court.
President Franklin Delano Roosevelt's attorney general, Homer Cummings, said in a 1938 opinion that the power granted to the president under the Antiquities Act does not include the power to revoke a monument from a prior administration.
The AEI report's authors disagree.
"This opinion is poorly reasoned; misconstrued a prior opinion, which came to the opposite result; and is inconsistent with constitutional, statutory, and case law governing the president's exercise of analogous grants of power," Yoo and Gaziano wrote. "Based on a more careful legal analysis, we believe that a general discretionary revocation power exists."
Yoo, a former Justice Department lawyer in the George W. Bush administration, was mired in the controversy over writing a memo used to justify "enhanced interrogation techniques. Among other conclusions the memo said that "federal laws against torture, assault and maiming would not apply to the overseas interrogation of terror suspects."
John Ruple, a fellow at the University of Utah's Wallace Stegner Center and law professor at the S.J. Quinney College of Law, said no president has tried to eliminate a monument, "and President Trump's power to do so is suspect at best." The Constitution gave Congress the power over federal lands, and Congress delegated monument declarations to the president in 1906.
"In passing the Antiquities Act, Congress gave the president the power to create national monuments, but not to destroy them," Ruple said. " Congress could have given the president both the power to set aside lands and to undo those reservations, as it has done in other statutes, but Congress didn't do that, and effect must be given to the intent of Congress."
Robert Rosenbaum, a retired partner of the law firm of Arnold & Porter Kaye Scholer LLP and chairman of the Mid-Atlantic Regional Council of the National Parks Conservation Association, said in an op-ed in Wednesday's Washington Post that the president has no power to revoke a monument, and that Congress made that clear in 1976 when passing a massive land-management policy law.
The House committee report on the law said that Congress reserves the power to modify or revoke monuments created under the Antiquities Act.
"For more than 100 years, presidents of both parties have used their executive power to establish national monuments to preserve places of national historic significance and natural beauty for the enjoyment of all Americans and future generations," Rosenbaum said in The Post. "No president acting alone has the power to undo those protections."
Aaron Weiss, spokesman for the Center for Western Priorities environmental advocacy group, denounced the AEI paper as "very shoddy work."
It ignores "all of the contemporaneous statutes that give withdrawal power to the president they all give the president power to revoke a previous president's actions," Weiss said. By contrast, "the Antiquities Act conspicuously does not give revocation power to subsequent presidents, which is why it's clearly a 'one-way' statute."