The Beginning Of The End For National Monuments

DOJ declares Trump can abolish any monument

In 1906, the Antiquities Act gave presidents the authority to protect areas of land and sea, with broad discretion. It’s since been used by nine Democrats and nine Republicans to set aside what have become some of our nation’s most cherished places. But while there’s general agreement that the act gives presidents that authority, the question of whether or not it gives them the ability to retract monument designations has never been tested. Now, the Department of Justice has published an opinion stating that President Trump should have the authority to undo any monument he pleases. The move sets up a legal fight that, given stated intentions by the Supreme Court, will not go well.

It’s late (I’m writing this at 11PM, the 50-page opinion was published late this afternoon), so this isn’t going to be as thorough an article as you’re probably used to seeing from me. I wanted to tackle it tonight, before other outlets get their hands on the news, because there’s an important piece of context everyone else is going to miss.

What I think will go down here is that, armed with this opinion, Trump will shrink or eliminate one or both of the two new national monuments President Biden established shortly before leaving office: Chuckwalla and Sáttítla. There is, of course, no legitimate reason or even support for doing that. Trump just hates Biden, and anything he touched. Maybe he’ll go further, or maybe he’ll get distracted by efforts to turn the military against the American people, who knows.

Next, someone, likely multiple someones, will sue. Maybe that’s combined into a single case, maybe it’s multiple. Doesn’t matter. Nor does it matter on what basis the suit takes place. That suit or suits will quickly make their way to the Supreme Court, maybe as soon as October.

Remember here that legal challenges around Trump’s shrinking of Bears Ears and Grand Staircase-Escalante, during his first time in office, were left unresolved when he left office. Biden reversed that shrinkage before the cases could get that far. Likely, in part, because he knew what I’m about to talk about.

A few months before Biden restored those monuments in October, 2021, Chief Justice John Roberts wrote a rare public letter suggesting that the court was eager to find the right case that would allow it to rule on the outright constitutionality of the Antiquities Act. In that letter, Roberts expressed frustration that a good enough case had yet to reach his bench, and pointed out some examples of lower court cases that he felt could point the way to better challenges.

Now a suit challenging the legality of Trump reversing or shrinking a monument designation is not a suit about the outright constitutionality of the act itself. But depending on how whatever case eventually reaches SCOTUS is written, the justices could seize on it as such an opportunity. We have an activist court, eager to issue sweeping decisions that roll back decades of precedent in pursuit of the majority’s white Christian nationalist views. Yes, I know Clarence Thomas is an RV enthusiast, but I fail to see what that has to do with any of the above.

So there’s two possible outcomes to that case: 1) Shrinking or eliminating monument designations is ruled constitutional or 2) in addition to that, the Antiquities Act is ruled unconstitutional or severely restricted in some way. Either way, America as we understand it today loses unless 3) giant asteroid.

Even in the least bad scenario, option one, we get a situation where a ruler, untethered from judicial or congressional oversight as well as from reality just goes crazy eliminating anything he wants with “national monument” after its name. National parks should be protected, since they’re established by acts of Congress, but he’s trying to sell those to developers right now, so I wouldn’t bet the house.

Even after we eventually get rid of the guy, that ruling will create a chilling effect for future administrations, knowing that anything they declare a monument can simply be undeclared by any successor, at any time, for any reason. So why bother?

I often hear from readers that I’m too negative, and should focus more on stuff they can do to fight not-nice realities. My best advice this time would be that, if you have a favorite national monument or one you really want to see, make sure you visit before it’s gone.

Top photo: Joel Bedford / Creative Commons

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