New Wine in Old Bottles: Distorting the Antiquities Act to Aggrandize Executive Power

摘要

Separation of powers is the crown jewel of the Constitution. It is a structural bill of rights that protects the American people from oppressive government. Article I of the Constitution, supplemented by Article IV, entrusts all legislative power created by the Constitution to Congress, including the creation of national monuments of historic or scientific interest on lands owned or controlled by the United States and their abolition or reduction. While Congress may delegate some of its legislative power to the executive, it may do so only if it concurrently provides intelligible standards to restrain executive discretion. The Antiquities Act of 1906 delegates the legislative power of Congress to the president to create national monuments pursuant to intelligible standards (i.e., the objects protected must be of historic or scientific interest, and the boundaries of the monument must be no larger than necessary for their proper care and maintenance). But the plain meaning of the statute refrains from delegating legislative power to abolish or materially shrink the boundaries of national monuments or alter their management. That conclusion is fortified by the absence of intelligible standards for presidential exercise of such discretion. Every canon of statutory construction compels the conclusion that the president lacks authority under the Antiquities Act to either abolish national monuments or to materially alter their boundaries or management plans in ways that would compromise protection of their historic or scientific objects.