Constitutional concerns with President Barack Obama’s midnight monuments 

Just two weeks ago, Dec. 28, President Barack Obama created the Bears Ears National Monument in southeastern Utah and the Gold Butte National Monument in Nevada just northeast of the outskirts of Las Vegas.  He used the 1906 Antiquities Act to set aside 1.35 million acres surrounding San Juan County’s Cedar Mesa in Utah and 300,000 acres in southern Nevada.  Never mind that the Bears Ears designation was opposed by every elected official in Utah.

In eight years as president, Obama has “set aside,” code for human removal, more than 267 million acres of land and water – more than any other president. This recent acquisition alone is larger than the state of New Hampshire.

What does “set aside” actually mean when implemented?  It is the strictest classification of land use.  “These areas will be off-limits to mining and mineral exploration, oil and gas drilling, grazing, timber harvest, and even many of the current recreational uses of camping, hiking, hunting, fishing, horseback riding, and off-road vehicle usage that the public previously enjoyed,”  William F. Jasper, senior editor of The New American magazine, said recently in an article. All this new regulation and governance made with but a stroke of the pen by one man with no constitutional authority to make law— making law is the prerogative of Congress alone.

The Constitution limits federal ownership of land to 10 miles square for a capital. The only other land that they could acquire had to be for military purposes as specified in the common defense clause of the Constitution, Article I, Section 8, Clause 17 which reads, “and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.”

Any new acquisition, outside the capital, had to be purchased with the consent of the State Legislature where the land exists for military purposes. As all land acquisition powers are in Article I of the Constitution, with the legislative branch, the president was left out of the process. None of these constitutional requirements were met with respect to any of the national monuments designated by Obama. None were purchased, none received the consent of the State Legislature and none are used exclusively for military purposes. Nor have there been any additional amendments to the Constitution authorizing additional federal ownership of land as required for any additional federal power. Constitutionally, there exists no federal land outside territory awaiting statehood as per Article IV, Section 3, Clause 2.

One might argue that most, if not all, of the monuments were already on federal land having been acquired when the federal government refused to give new states all the land that went with statehood when they transitioned from territorial status. That is true. The federal government through this process came to own about a third of the United States. Just because late 19th century leaders fraudulently acquired the property in the first place, it does not follow that present leaders should expand the fraudulency. Constitutionally, all land within state boundaries, unless acquired through the three stipulations noted in the Constitution, belong to the states with no exceptions.

Presidents announcing new monuments normally cite the Antiquities Act of 1906 as the authority to do so, and President Theodore Roosevelt as the first to use it in his creation of the Devils Tower National Monument in Wyoming the same year. Although this act violated the above-cited constitutional land limitations, it was at least an act of Congress representing the will of Congress in 1906 to which the president responded.  As unconstitutional as this action was, Congress, reflecting the voice of many, still made the law and was in charge.

This action was not authority for succeeding presidents in the next 110 years to hang every federal land confiscation on an antiquated law not authorized in the Constitution without a new constitutional amendment. Thus, in 1906, only one part of the Constitution was violated, Article I, Section 8, Clause 17, with its three limitations on federal land ownership, and that by the 1906 Congress. Presidents now using this authority and claiming executive order are not doing it through the will of Congress or by their direction. They are essentially making law by themselves, which is a serious violation of the separation of powers doctrine from Article I, Sec. 1.

The executive branch has no authority to make law—any law. Executive orders are constitutional only when they cite a single, recently passed law of Congress, where the law needs a statement of implementation by the executive branch. Originally they were only interdepartmental directives.

Unfortunately all presidents since Roosevelt have used the 1906 law to trump the Constitution except Richard Nixon, Ronald Reagan, and George Bush. Sadly they were the only ones who followed the clarity of the Constitution with respect to federal ownership of property. That the federal government has created national monuments unconstitutionally on what are state lands or that both political parties have ignored this part of the Constitution for over a hundred years does not make federal confiscation now constitutional.  If this process continues, which has been accelerated under Obama, it is likely that the federal government may come to own far more than the third of the landmass that it now owns – perhaps all?

Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

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