Curbing the Imperial Presidency

Published October 1, 1999

Amid persistent rumors that the Clinton-Gore administration plans to declare millions of acres of land in the “four corners” area of Colorado, Utah, Arizona, and New Mexico off-limits to most human activity by naming the area a National Monument, Congress is set to consider measures to limit the President’s authority to unilaterally name monuments under the Antiquities Act of 1906.

During its term in office, the Clinton-Gore administration has issued a record number of executive orders, standing the legislative process on its head and raising concern in Congress over a growing “Imperial Presidency.” Rather than merely veto or approve laws passed by Congress, the administration has increasingly made law by executive decree. Congress–which is charged by the Constitution with making laws–has been left to play the veto-or-approve role. A majority vote of Congress is required to overturn a Presidential executive order.

The role reversal became readily apparent when President Clinton named the Grand Staircase-Escalante National Monument. Acting on authority granted under the Antiquities Act, Clinton declared off-limits to virtually all human use some 1.7 million acres of Utah, a state already 70 percent owned by the federal government. In doing so, the President prohibited access to one of the world’s two sources of extra-low-sulphur coal. Indonesia is the only other source of the sought-after low-polluting fuel.

In an effort to curb the administration’s wielding of Antiquities Act authority, Senator Larry Craig (R-Idaho) has introduced the National Monument Public Participation Act of 1999, which would prohibit the President from unilaterally naming national monuments.

“Fearing the same type of unilateral land grab in Idaho [as occurred in Utah],” Craig said, “I introduced the Idaho Protection Act of 1996, which would have required that the public and Congress be included before a National Monument could be established in Idaho. Afterwards, I was immediately approached by other senators who wanted the same protection for their states.”

Essentially, Craig’s bill requires that the naming of National Monuments be governed by the same set of rules that govern other federal decisions concerning the environment: the National Environmental Policy Act of 1969 (NEPA). Craig noted that presidents have named National Monuments 66 times, but only two have been named since the passage of NEPA. In neither case was public or Congressional input into the designation permitted.

Under Craig’s bill, the secretaries of Agriculture and Interior would be required to provide an opportunity for public involvement before a National Monument is named. Craig’s proposal establishes guidelines for that involvement, and also provides for input from local and state governments. All National Monument designations would require the approval of Congress.

“This Act provides an important level of protection for public involvement in land use issues,” said Senator Mike Crapo (R-Idaho), one of the bill’s co-sponsors. “By providing guidelines to ensure public participation, all parties will benefit. The Act recognizes that public involvement in federal land management decisions is both proper and beneficial.”

Competing legislation, introduced in the House by Representative Bruce Vento (D-Minnesota), would seem to leave presidential power virtually unchecked.

Under the Vento proposal, the President would be required to seek the input of the public, state and local governments, or Congress only “to the extent practicable” and “to the extent consistent with the protection of the historic landmarks.” Those determinations would be made solely by the President.