The law specifies that the creation of National Monuments should be for designating and protecting “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.” The language of the law further establishes the expectation that the designation of National Monuments “shall be confined to the smallest area compatible with proper care and management of the objects to be protected.” However, with no check or balance applied to this executive authority, the language of the law that seeks to limit its exercise is effectively a suggestion, one that Presidents all too often ignore. 

Under the original intent and understanding of the Antiquities Act, National Monuments were to be very small and limited designations reserved for the protection of unique areas. The designation of much larger areas was to undergo the National Park designation process, which required the advice and consent of Congress. 

We can observe such intent by comparing the stark difference in size between the first National Monument and the first National Park. Devils Tower National Monument, designated in 1906 by President Theodore Roosevelt, contains only 1,347 acres. This is a minuscule dot of landscape compared to Yellowstone National Park, created under President Grant, which composes a whopping 2.2 million acres. 

However, since its enactment, the Antiquities Act has been severely abused. The exercise of the powers it grants the Presidency has gone far afield of its intent. Since the act allows the President to circumvent Congress, very few presidents have resisted the urge to exercise this unilateral authority. Only four presidents since its enactment chose not to utilize the Antiquities Act to designate National Monuments. 

Many uses of the powers of the Antiquities Act are sweeping and shocking in the sheer size of land designated. Jimmy Carter designated 56 million acres of National Monuments in Alaska. George W. Bush designated 373 million acres in a single National Monument in the Hawaiian Islands (one of the largest protected areas in the world). Of interest to Utahns are the Grand Staircase and Bears Ears National Monuments, together composing 3.1 million acres. This is more land than all five of Utah’s National Parks put together (2 million acres). 

Of additional concern is that while the typical focus of National Parks is to showcase natural wonders to citizens and tourists, the management of National Monuments tends to make the land and its points of interest inaccessible. Especially in the largest of the National Monuments, access to the land’s natural splendor is often restricted to those willing and able to hike in or ride horseback. Since the designation of the Grand Staircase Monument, an entire generation of Utahns has grown up without knowing about or valuing many of the remote wonders of Southern and Central Utah … because they cannot access them (and it’s hard to get people to value what they can’t experience). 

And, lest we forget, it is all too obvious, as demonstrated by the sheer size of some of these designations, that Presidents are exploiting the need to protect certain special areas in order to cut off much larger swathes of federal land from development and use. The controversial nature of such land grabs is betrayed by the eleventh-hour timing of some of these designations. Bears Ears National Monument, for example, was designated by President Obama during the lame-duck period between the 2016 election and the end of his second term. 

But don’t get me wrong, many areas in our great country deserve to be protected. Utah especially has incredible sights and vistas. And we should be grateful for the federal government’s efforts to manage such lands so that generations of Utahns can enjoy and treasure them. But this important and noble duty to value our natural treasures doesn’t mean we should ignore the evident flaws in the Antiquities Act.  

The checks and balances in our form of government were designed to ensure that as many interests as possible are at the table of discussion as we craft our laws and establish governing policy. The Antiquities Act subverts this vital process of careful and considered deliberation and opened the door to abuse by unchecked executive authority.  

Twice in the last hundred years, Congress chose to limit the scope of the Antiquities Act. But Congress only succeeded in limiting the power of the President in certain states (Alaska and Wyoming). It’s high time that our representatives in Congress extend those limitations to the federal lands in all states. It’s time to reassert a Congressional role in a process that has clearly moved beyond the scope and intent of the law.  

It is self-evident and beyond dispute that President after President, from both parties, have failed to limit the designation of National Monuments to “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.” Nor has their size been “confined to the smallest area compatible with proper care and management of the objects to be protected.” 

Why? Because the language of the law puts no teeth into these provisions. There is no one to second-guess or question the actions of the President. There is no deliberative process. Local and state interests have no say whatsoever. And the only solution is clear: Congress must assert its proper role and update the Antiquities Act to require its advice and consent on such an important and consequential exercise of governing power.

Justin Stapley is an undergraduate research fellow at UVU where he studies political philosophy, public law, and constitutionalism. Follow him on Twitter @JustinWStapley