New AEI Study Says President Trump Can Revoke National Monuments

by Debra Tash

The American Enterprise Institute (AEI) today released a new paper, by two authors affiliated with Pacific Legal Foundation, explaining why presidential decrees are not “permanent” under our constitutional order, especially not pursuant to the Antiquities Act of 1906.

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President Obama broke the record with the number of national monument proclamations he issued and the millions of acres of public lands he locked up for such monuments.  A few weeks before he left office, President Obama used the Antiquities Act again to proclaim 1.35 million acres in Utah and 300,000 acres in Nevada to be new national monuments.  White House officials claimed that both monuments were “permanent” because there was no express authority to reverse them.[John] Yoo and [Todd] Gaziano previously argued in The Wall Street Journal that such claims of permanence were mistaken as a matter of law.  In their new AEI paper, they explain in detail why such extravagant assertions of unilateral power get the constitutional principles and legal presumptions exactly backwards.

“The text, history, and executive practice under the Antiquities Act, as well as foundational constitutional principles, provide for presidential discretion in the creation and revocation of national monuments,” said Gaziano.  “Moreover, the President’s discretion to significantly change monument boundaries, including substantial reductions in a monument’s size, is strongly supported by the text of the Act, its legislative history and purposes, and unbroken presidential practice going back to the early years of the act’s history.”

“A basic tenant of constitutional law is that no president can bind future presidents in the use of their constitutional authorities,” said Yoo.  “President Obama’s refusal to compromise with his political opponents will guarantee that his national monument proclamations are particularly vulnerable to reversal.  The coming fight over public lands shows, in microcosm, the constitutional dynamics that render Obama’s legacy so hollow.”

Read more at Citizens Journal

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CRA: The "Regulatory Game Changer" That Could Wipe Out 8 Years Of Obama Regs In An Hour

After a pompous, liberal agenda was crammed down the throats of the American people during his first two years in office, President Obama suffered staggering losses in Congress for the next six years that cost Democrats control of both houses.  But, heavy Democrat losses, courtesy of an electorate that vehemently rejected a far-left agenda, didn"t stop Obama from continuing to push through countless new rules and regulations from the White House all while pushing his authority to the brink of every Constitutional boundary known to man. 

Of course, the problem with "legislating from the White House" is that all those rules and regulations can be undone by the next administration.  And, as Kimberley Strassel points out in a Wall Street Journal Opinion piece today, a little know tool within the Congressional Review Act could allow Republicans to wipe out 8 full years of Obama"s liberal agenda, with a simple majority vote, all while preventing similar rules from every being recreated by future administrations.

Todd Gaziano on Wednesday stepped into a meeting of free-market attorneys, think tankers and Republican congressional staff to unveil a big idea. By the time he stepped out, he had reset Washington’s regulatory battle lines.

These days Mr. Gaziano is a senior fellow in constitutional law at the Pacific Legal Foundation. But in 1996 he was counsel to then-Republican Rep. David McIntosh. He was intimately involved in drafting and passing a bill Mr. McIntosh sponsored: the Congressional Review Act. No one knows the law better.

Everyone right now is talking about the CRA, which gives Congress the ability, with simple majorities, to overrule regulations from the executive branch. Republicans are eager to use the law, and House Majority Leader Kevin McCarthy this week unveiled the first five Obama rules that his chamber intends to nix.

So, here"s how it works:

But what Mr. Gaziano told Republicans on Wednesday was that the CRA grants them far greater powers, including the extraordinary ability to overrule regulations even back to the start of the Obama administration. The CRA also would allow the GOP to dismantle these regulations quickly, and to ensure those rules can’t come back, even under a future Democratic president. No kidding.

Here’s how it works: It turns out that the first line of the CRA requires any federal agency promulgating a rule to submit a “report” on it to the House and Senate. The 60-day clock starts either when the rule is published or when Congress receives the report—whichever comes later.

“There was always intended to be consequences if agencies didn’t deliver these reports,” Mr. Gaziano tells me. “And while some Obama agencies may have been better at sending reports, others, through incompetence or spite, likely didn’t.” Bottom line: There are rules for which there are no reports. And if the Trump administration were now to submit those reports—for rules implemented long ago—Congress would be free to vote the regulations down.

But, it gets even better:

There’s more. It turns out the CRA has a expansive definition of what counts as a “rule”—and it isn’t limited to those published in the Federal Register. The CRA also applies to “guidance” that agencies issue. Think the Obama administration’s controversial guidance on transgender bathrooms in schools or on Title IX and campus sexual assault. It is highly unlikely agencies submitted reports to lawmakers on these actions.

“If they haven’t reported it to Congress, it can now be challenged,” says Paul Larkin, a senior legal research fellow at the Heritage Foundation. Mr. Larkin, also at Wednesday’s meeting, told me challenges could be leveled against any rule or guidance back to 1996, when the CRA was passed.

The best part? Once Congress overrides a rule, agencies cannot reissue it in “substantially the same form” unless specifically authorized by future legislation. The CRA can keep bad regs and guidance off the books even in future Democratic administrations—a far safer approach than if the Mr. Trump simply rescinded them.

As Strassel points out: "The entire point of the CRA was to help legislators rein in administrations that ignored statutes and the will of Congress. Few White House occupants ever showed more contempt for the law and lawmakers than Mr. Obama. Republicans if anything should take pride in using a duly passed statue to dispose of his wayward regulatory regime. It’d be a fitting and just end to Mr. Obama’s abuse of authority—and one of the better investments of time this Congress could ever make."