11.19.18

Durbin, Duckworth Sign Bicameral Amicus Brief To Protect National Monuments Against Unconstitutional Attacks By Trump Administration

Amicus makes case for Congress’s authority as a steward of our public lands, checks Trump Administration’s executive overreach in violation of Antiquities Act

WASHINGTON – Today, U.S. Senators Dick Durbin (D-IL) and Tammy Duckworth (D-IL), along with Senator Tom Udall (D-NM), U.S. Representative Raúl M. Grijalva (D-AZ), 25 Senators, and 92 House members, submitted an amicus brief in support of plaintiffs in five cases before the U.S. District Court for the District of Columbia that challenge the Trump Administration’s decision to significantly diminish the Bears Ears and Grand Staircase-Escalante National Monuments in southern Utah.  In the brief, the lawmakers primarily argue that under the Constitution, no president has the power to shrink or reduce national monuments since that power resides with Congress alone — a case that members of Congress are uniquely positioned to make.

At issue in these cases is whether any president, including President Donald Trump, has the legal authority to reduce or abolish national monuments. According to the plaintiffs, which include Native American Tribes, scientific groups, businesses, and conservation organizations, the Trump Administration’s actions violate both the Constitution and the Antiquities Act of 1906.  If upheld, President Trump’s order would slash more than two million acres of protected land — reducing the size of Bears Ears from 1.35 million acres to approximately 200,000 acres and Grand Staircase-Escalante from 1.9 million acres to approximately one million acres — the largest ever elimination of public land protection in the country’s history.

“Simply put, the President’s attempt to shrink Bears Ears and Grand Escalante far exceeds his authority.  The Constitution gives Congress important powers over federal lands, and we must protect these national treasures from ruin so they can be enjoyed by future generations of Americans,” Durbin said.

“Our national monuments and public lands are essential for wildlife preservation, environmental protection and outdoor enjoyment,” said Duckworth. “I’m proud to join Congressman Grijalva, Senator Udall and, of course, Senator Durbin in this effort to defend our national parks and hold the Trump Administration accountable for overstepping their legal authority.”

The amicus brief makes the following arguments:

  • First, under the Constitution, Congress has absolute control over federal lands. The Constitution grants broad authority to Congress alone over any public lands owned by the federal government. In the Antiquities Act, Congress delegates to the president the limited power to establish national monuments – but not to abolish or diminish existing monuments. The Trump administration’s actions are a clear overreach of the executive branch’s powers that cut against the intent of the law as well as the text of the Constitution.
  • Second, interpreting the Antiquities Act to prohibit presidents from reducing the size of national monuments serves the Act’s purpose, which is to safeguard vulnerable national treasures. With the Antiquities Act, Congress gives the president a limited delegation of its power to protect places at risk. Giving presidents a discretionary power to prevent these national treasures from being damaged, without waiting for the passage of legislation, helps ensure that important landmarks and objects will not be destroyed before Congress has an opportunity to act. By contrast, the decision to reduce or eliminate an existing monument does not involve the same urgency, so it was equally sensible for Congress to reserve that power to the slower and more deliberative legislative process. This interpretation is supported by the circumstances that led to the Act’s passage—a concern that newly discovered American archeological sites and artifacts were being looted.
  • Third, Congress has not implicitly granted presidents the power to diminish national monuments simply because it did not object to previous reductions to monuments made by presidents in the twentieth century. Congress’s lack of objection in these instances does not mean that it has relinquished its Constitutional duties to the executive branch. The brief makes a clear distinction between where there is legislative granting of authority versus where the court must interpret constitutional authority. In the Antiquities Act, Congress has spoken precisely to the president’s power regarding national monuments – and limited that power to the designation of new monuments.

It is also supported by a wide coalition of Native American Tribes, environmental groups, conservation organizations, businesses, scientific organizations, and outdoor recreation interests.

The full text of the amicus brief is available here. A summary is available here. 

In February, Durbin led 12 Democratic senators in pressing the Bureau of Land Management (BLM) to postpone the development of management plans for the Bears Ears and Grand Staircase Escalante National Monument areas in Utah until legal challenges regarding the President’s authority to reduce the size of the monuments have been resolved.  The Senators also requested that the Grand Staircase Escalante National Monument management plan remain in effect for all lands within the original monument boundary until resolution of the legal challenges.  

In January, Durbin and 18 Democratic senators introduced the America’s Natural Treasures of Immeasurable Quality Unite, Inspire, and Together Improve the Economies of States (ANTIQUITIES) Act of 2018, legislation that reinforces Congress’ intent in the Antiquities Act of 1906: only Congress has the authority to modify a national monument designation.

In October 2017, Durbin led 13 of his Senate colleagues in a letter to President Trump urging him to maintain the original boundaries and management plans for Bears Ears and Grand Staircase Escalante.  In April 2017, Durbin introduced legislation – America’s Red Rock Wilderness Act – to protect 9.2 million acres of public land in Utah that is rich in archaeological resources and home to numerous rare plant and animal species. 

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