With his recent announcement in Utah that he intends to dramatically slash Bears Ears and Grand Staircase Escalante national monuments, President Trump has crossed the threshold from ill-advised rhetoric to illegality. While this is the clear consensus of legal minds from across the political spectrum, conservative lawyers and experts well steeped in the U.S. Constitution are sounding some of the loudest alarms.
A new legal paper from Bruce Fein, an associate deputy attorney general under President Reagan, and W Bruce DelValle—both partners at the firm Fein & DelValle PLLC—makes the case that Trump’s actions are not simply illegal, they are unconstitutional.
Fein and DelValle point out that in crafting the Antiquities Act, which grants presidents the authority to establish national monuments, Congress never “intended to crown the President with discretion to revoke or materially diminish or alter the management of an existing national monument.”
They go on to explain that Congress was careful to make sure that nothing in the language of the Antiquities Act delegates “legislative power to the President to revoke or to materially disturb prior presidential national monument declarations.”
In fact, the ability of Congress to delegate legislative authority to the president is limited under the constitution, which is why that authority must be explicit and provide “intelligible standards to restrain executive discretion.”
The implications of President Trump attempting to overstep the limits of his power by rolling back national monuments extend well beyond the harm caused to the monuments themselves—and our natural and cultural heritage that they protect. This move threatens to erode the separation of powers on which our democracy is founded. It represents an abuse of power.
It is also worth noting that the Trump Administration and its transition team were provided with this kind of sound legal analysis even before it began the effort to roll back national monuments, and it chose to ignore them.
This makes it important that Americans, not just hunters, anglers and other outdoor lovers who recognize the value of these monuments, but constitutional conservatives and all Americans who cherish our democracy stand against this ill-considered move by the president.
The entire legal paper by Fein and DelValle can be found via the link below.