Dave Cawley, Deseret News
SALT LAKE CITY — A new report published by a conservative policy think tank contends President Donald Trump has the constitutional authority to rescind the Bears Ears National Monument and other monuments designated by previous presidents.
The American Enterprise Institute published a 25-page report Wednesday afternoon, at which time its authors spoke at a panel in Washington, D.C. Utah’s Sen. Mike Lee and Rep. Rob Bishop, both Republicans, gave opening remarks.
“We believe a president’s discretion to change monument boundaries is without limit, but even if that is not so, his power to significantly change monument boundaries is at its height if the original designation was unreasonable large,” states the report.
The report’s authors are University of California-Berkeley law professor John Yoo and Todd Gaziano, a senior fellow in constitutional law and executive director at the Pacific Legal Foundation DC center. They wrote that courts have erred in the past by not recognizing the implicit authority of presidents to rescind monuments in addition to creating them.
“If large additions of land have been deemed necessary to protect certain objects, it is doubtful the president could not determine that some large reduction are reasonable or necessary to satisfy the ‘smallest area’ requirement of (the Antiquities Act of 1906),” the report notes.
Lee said Wednesday that he expects the judicial branch to view the rescinding of national monuments in the same light as the creation of such monuments.
“Courts, much to my dismay, have simply shown no interest in (confining) the Antiquities Act,” Lee said in a statement sent to the Deseret News. “But on the flip side of that, I now expect the courts’ hands-off attitude to continue if the president were to revoke a national monument.”
Lee also went on The Drew Steele Show on KSL NewsRadio to say he was trying to convince Trump to move to rescind the Bears Ears National Monument.
“What can be done with a stroke of the executive pen can also be undone with a stroke of the executive pen. … (rescinding the monument) is ultimately up to the president, but I’m making every case for it that I possibly can and I think we’ve got a good chance at succeeding,” Lee told Steele.
Lee also said the Antiquities Act will “need reform,” asserting that its initial purpose was protect areas of up to only a few hundred acres in size.
Bishop, chairman of the U.S. House Natural Resources Committee, could not immediately be reached for comment.
Matt Anderson, who heads the Coalition for Self Government in the West project for Utah-based think tank Sutherland Institute, said he hopes the administration will be spurred to action by the report and rescind the monument.
Previous presidents, including Harry Truman and Dwight Eisenhower, have made shrunk national monuments by thousands of acres, the report states.
The report says a 1938 “attorney general opinion,” stating presidents do not have power to rescind monument designations, is “poorly reasoned,” misunderstood the Antiquities Act and “misconstrued a prior opinion” issued in 1862. Both rulings are analyzed in the paper.
The Bears Ears Monument is also specifically mentioned in the report, whose authors criticize the designation as ineffective.
The 1.35 million-acre monument was created by then-President Barack Obama in December. The Utah Legislature passed a resolution in February urging Trump to rescind the monument designation.”The protective impact of the Bears Ears National Monument is particularly dubious since it is supposed to protect isolated Native American sites,” the report states.
In a show of disapproval of the resolution, Outdoor Retailer trade show said it would be leaving Utah when its contract in the state runs its course in 2018.