Barack Obama has put the Antiquities Act to good use, especially over these past few weeks. The Act allows the President to unilaterally designate national monuments, and only a concerted effort by Congress can overturn that decision. In late December, Obama protected Bears Ears in Utah and Gold Butte in Nevada despite some amount of state and Congressional resistance. Just last week, he protected three sites honoring the civil rights movement, and enlarged two existing monuments for good measure.
Even before his most recent spree, Obama had invoked the Antiquities Act more than any other President since the law was passed in 1906. So naturally, just hours before he steps down, I have one last proposal for him: President Obama must use the Antiquities Act one last time, to declare a National Monument on all federal land not already so designated.* If he doesn’t, there may not be much of it left by the time this Congress gives way to the next.
You see, Republicans in Congress have been busy these past few weeks too. And while it’s difficult to keep track of all the terrible things they’ve been scrambling to accomplish, one decision in particular has laid the groundwork for some truly harmful and irreversible changes. Specifically, by changing a single rule for the House of Representatives [see (q)(1) on page 35 of this pdf], Republicans redefined federal land as effectively worthless, thereby sidestepping the requirement that giveaways of federal land not decrease federal revenue or contribute to the federal debt.
The necessary accounting is a transparent fiction that the new rules don’t even attempt to justify numerically. Congress would rather ignore that the federal government is paid billions in royalties for extractive activity, and collects many billions more in taxes for recreational activity, on federal land. The obvious monetary value of federal land is what makes it attractive to the private interests that stand to gain from Congress’ nonsensical declaration that it is valueless. But in the post-fact world of today, we’re stuck with such obvious fictions for no better reason than Congress declared them reality.
For a few more hours, Barack Obama also has the ability to shape reality with his words — and he should use all his remaining authority to do so. The Antiquities Act authorizes the President “in his discretion, to declare [with no more than a] public proclamation” National Monuments on federal land. Admittedly, the Antiquities Act was written to apply to “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest”. But these are extremely broad categories that could easily describe any and every parcel of currently-unprotected federal land.
You want historic landmarks? The very idea of publicly-owned land is a historic landmark. Not that he’s in any way authoritative, but Nick Kristof has expressed this very idea nicely and succinctly: “America was the first country in the world to take its most stunning scenic places and turn them into a shared space belonging to all — an element of what Wallace Stegner called America’s ‘best idea.'”
Prefer “historic and prehistoric structures”? Given the 12,000-year history of settlement on his continent, it stands to reason that there might be something or someone buried just about anywhere:
You’d rather rely on “other objects of historic or scientific interest”? Why, that’s the broadest category imaginable! I challenge you to find something some historian or scientist wouldn’t find interesting. Who are we to decide? How can we know what new techniques will help us unlock mysteries of the past in some uncertain future? I, for one, sure am interested — and, like Marco Rubio, I’m not even a scientist!
Before you object that my proposed definitions are collectively something of a minor stretch, remember: the Antiquities Act lets the President act “in his discretion” while making these determinations. The Supreme Court has repeatedly upheld that broad grant of discretion, ruling that “the law gives the president exclusive discretion over the determination of the size and nature of the objects protected” (full disclosure: that’s a quote from Wikipedia, not the Court) — so why not use it?
Of course, National Monuments designated under the Antiquities Act “shall be confined to the smallest area compatible with proper care and management of the objects to be protected”, and designating an all-encompassing National Monument is unlikely to constitute the smallest area compatible with proper care and management. But consider that lands ceded by the federal government would find themselves under new management unburdened by any mandate to promote mixed use or in any way strike a balance between competing visions for its future. These new owners could limit public access, destroy archaeological remains, extract resources for purely private profit, and promote sprawling development — all on lands that should rightly be managed for the benefit of all! Sure doesn’t sound like proper care and management to me. And that means complete and total protection may truly be the “smallest area compatible with proper care and management of” the public’s land, which in this case constitutes the whole of “the objects to be protected”. In a way, this argument is deliciously tautological: the only way to protect all the land is, well, to protect all the land.
Speaking of tautology, the haters and losers will hate it and lose it. They’ll kick and scream about government overreach, claim this is one final power grab by a lame-duck administration. Heck, Trump and his transition team are reportedly “aggravated” that Barack had the nerve to stay on as President at all after election day. But before you feel too bad for them, please consider that even under a tyrannical National Monument designation, objectively speaking, those haters don’t have to lose all that much.
You see, the Antiquities Act is largely silent on what rules apply within the boundaries of the “National Monument”. And that reticence has given rise to a simple rule of thumb: he who makes the monument makes the rules. Every time any President designates a National Monument, he also decides its management structure. When President Clinton set aside Grand Staircase-Escalante National Monument, he tasked BLM with setting the appropriate regulations. When President Obama designated Bears National Monument, he implemented an innovative plan that empowered representatives from five Native American tribes to participate in its management alongside federal agencies.
And in my proposed “All-America National Monument” (what patriot could argue with that name!?!), President Obama could easily decide that the agencies currently managing these lands should simply keep doing what they’ve been doing. Of course, this doesn’t mean they should permit extraction where it’s currently disallowed. The plan is simpler than that: There should be no change at all in the day-to-day management of the sites in question, or to the uses permitted on them.** The only difference stemming from the proposed designation: declaring lands part of a national monument would limit the government’s ability to dispose of them in the future, as Republicans currently appear intent on doing. And if it turns out they have no such plans, then no harm done.
No harm done, that is, except all sorts of harm. The limited form of protection I propose means that terrible things are sure to happen all over public lands during the next four years. Republicans would surely seek to expand drilling for fossil fuels on federal land, and their interpretation of “multiple use” is sure to be creatively vile. But all that’s just an unfortunate part of politics as usual in this country. Environmental groups can do their best to resist these changes all the way to the courts and until the next election, and the next Democrat to win one of those can restore sensible policies on public land.
The plotted giveaway of public lands, on the other hand, is definitively not politics as usual. A fire sale would inflict damage that may prove irreversible (thanks to the Takings Clause of the Fifth Amendment). If he wants to ensure there are public lands for the next Democrats in power, Obama needs to take action — and fast.
Sure, my plan is big and crazy and unlikely to transpire at any point over the next few hours — for any number of reasons. But even if it’s unrealistic, big and crazy is exactly how Democrats need to think right now. Republicans want to take away health care from millions of people? Bust out the proposals for single-payer you shelved back in 2009 and don’t stop talking about them for anything. Republicans want to treat corporations like people? Then hold them responsible for the same crimes people can be guilty of, like murder. And if Republicans insist on declaring public lands valueless, Democrats need to do everything they can to affirm they are, in fact, invaluable. Democrats need to use every tool at their disposal to back up their values with action. Because if they don’t do every last thing in their power to push back on the crazy, it’s going to be a long, long four years.
*And eligible for such designation. There are restrictions on using the Antiquities Act in both Wyoming and Alaska. Because I don’t want to riddle this post with caveats, let this footnote serve notice that my plan applies only to federal lands in every state aside from those two.
**A BLM/Forest Service FAQ on Bears Ears National Monument notes: “Monuments generally preserve current uses of the land, including tribal access for traditional plant and firewood gathering and for ceremonial purposes, off-highway recreation on existing routes, grazing, hunting and fishing and water and utility infrastructure.”