In the recurring and contentious debates regarding the President’s authority to declare (and perhaps rescind) National Monuments, both those who argue for an expansive authority and those who favor restricted authority treat the Antiquities Act as a delegation of legislative power; they only disagree on whether the delegation is appropriate or, in the case of rescission, whether a delegation exists at all. However, this framework is wrong. The Property Clause is not strictly a legislative power. Rather, it is a hybrid; rulemaking power is interspersed with an administrative one—the power to manage property. The Supreme Court has recognized this distinction in the past, including in a case decided the same year Congress passed the Antiquities Act.
The distinction makes a difference because when Congress enlists the Executive in the management of public lands, as it did with the Antiquities Act, it is not delegating legislative power; rather, it is sharing its plenary powers of proprietorship. The principle that underlies the non-delegation doctrine—separation of powers—is not applicable when Congress delegates a non-legislative power. This has implications for the proper method of recourse for inappropriate presidential action made pursuant to delegated Property Clause power. Whereas recourse for an improper delegation of legislative authority lies with the courts, recourse for alleged inappropriate executive action under a delegated proprietor power lies with the entity that enlisted the Executive as its property manager in the first place—Congress. Indeed, Congress has often stepped in to correct presidential mismanagement of public lands, including the management of National Monuments. At other times, Congress has acquiesced in presidential action, a practice the Court has previously accepted as evidence of the constitutionality and legality of presidential action.
Courts have systematically refused to second-guess presidential actions pursued under the Property Clause, including the creation of National Monuments, even when those monuments arguably exceed the “smallest area compatible” with the protection and care of the objects to be protected as delineated in the statute. Courts should also refuse to second-guess the President’s decision to reduce National Monuments, leaving to Congress the important work of correcting the President’s missteps, as it has done in the past. Let Congress guard its own authority over land management.
The Hybrid Nature of the Property Clause: Implications For Judicial Review of National Monument Reductions,
U. Pa. J. Const. L.
Available at: https://scholarship.law.upenn.edu/jcl/vol21/iss3/3