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Article Excerpt
The creation of law involves the representation and participation of many actors with varied interests and resources. Unilateral lawmaking, however, is unique in its independence from the traditional legislative process because it does not require input from a variety of actors, most notably Congress (Howell 2003; Moe and Howell 1999). Instead, this tactic gives presidents an avenue to act when an issue is high on their agenda but Congress is not inclined to proceed because of gridlock or other concerns (Howell and Lewis 2002; Mayer 2001). Proclamations are one type of executive power that presidents have used in such areas as international law, foreign trade, public lands, and matters of entry into the United States (Rottinghaus and Maier 2007). Their degree of importance differs, with some being merely declaratory in nature, while others have a substantive effect (Fisher 2007, 103-5).
In the area of public lands, proclamations of national monuments are especially interesting because they are both declaratory (they proclaim the change in status of the public lands), and they have an impact on policy making (they preserve existing rights, restrict future ones, designate a managing authority, and provide implementation guidance). (1) Congress granted the president broad discretionary power to proclaim national monuments under the Antiquities Act of 1906 (16 U.S.C. [section] 431-433). The act provides for unilateral lawmaking because the president is not required to consult with Congress, the state in which the monument is located, or the public prior to designation. However, even though the proclamation is the result of independent executive action, it carries the force of Congress behind it because the president is acting pursuant to the authority vested in the act (Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 [1952]). (2)
The use of independent action by the president is best understood within the context of the conditions that fostered it, as well the long-term effect on public policy (Howell 2003, 177). This article, therefore, uses Presidential Proclamation 6920, which established the Grand Staircase-Escalante National Monument, as an opportunity to look closely at a unique example of unilateral lawmaking that will have a lasting influence on public lands policy (Mayer and Price 2002, 368-69). (3) The land that makes up the monument had served as a source of congressional debate for more than twenty years, and with what was considered by some to be an act of "stealth" policy making, President Bill Clinton decided the fate of the controversial lands by issuing Proclamation 6920, surprising both Congress and the state of Utah. An outraged Congress duly explored the implications of executive power under the act, but ultimately decided not to curtail presidential authority to proclaim national monuments.
With Proclamation 6920, President Clinton also succeeded in laying the groundwork for a change of direction for both national monuments and the Bureau of Land Management (BLM). Since 1933, the National Park Service (NPS) had been the agency responsible for managing national monuments, and had done so in a manner that preserved monuments by restricting land uses. (4) When President Clinton issued Proclamation 6920, he put express restrictions on future land uses that would impact nearly any type of resource development within the Grand Staircase-Escalante National Monument. However, instead of assigning management to the NPS, he gave responsibility to the BLM, an agency whose mission supports resource development and multiple resource (or use) management. This change would result in an expansion of permissible uses within monuments while restricting future uses as constrained by the language in the proclamation.
The Use of Presidential Proclamations in Public Land Law
Public lands are those owned by the U.S. government and held in trust for the public interest (U.S. v. Beebe, 127 U.S. 338 [1888]). Public lands may remain in the public domain or may be withdrawn and reserved for specific purposes, but the act of withdrawal and the specific purpose of the reservation must be considered to be in the public interest. Congress was given the authority under the Constitution to dispose of and to make all rules and regulations regarding property belonging to the United States (U.S. Const. Art. IV, [section] 3, cl. 2). Yet, since the late nineteenth century, Congress has chosen to delegate most of this authority to the executive branch (Leshy 2001b). The president's authority to reserve land within the public domain for exigent circumstances was recognized in Grisar v. McDowell (73 U.S. 363 [1869]). President William Howard Taft, in the absence of any specific statutory authority, withdrew 3 million acres in California and Wyoming from oil excavation. His action, despite concerns over the use of presidential power for this type of withdrawal (Taft 1916, 136), was validated when the U.S. Supreme Court upheld it on the basis of implied congressional acquiescence to such withdrawals (United States v. Midwest Oil Co., 236 U.S. 459 [1915]). The executive practice regarding public land withdrawals remained unbroken until 1976, with the enactment of the Federal Land Policy and Management Act (FLPMA, 43 U.S.C. [section] 1701-1785), which repealed the implied authority of the president to make withdrawals and reservations resulting from the acquiescence of Congress (Fisher 2007, 18). (5)
The repeal of implied authority, however, did not affect the executive's power to proclaim national monuments pursuant to statute. While not ceding its own power to designate national monuments, Congress gave the president broad discretionary authority under the Antiquities Act to "declare by proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest situated on lands owned or controlled by the United States government to be national monuments" (16 U.S.C. [section] 431-433). The general intent of the legislation was clear: Congress wanted to protect the nation's antiquities by delegating authority to the executive branch.
However, protracted debate was required to establish the extent of discretion delegated to the president. Opposition to the bill centered on the size, location, and objects to be preserved in an effort to prevent presidential abuse, which representatives from Western states believed had already occurred under the Forest Reserve Act. (6) Since 1900, Westerners on the Public Lands Committee of the U.S. House of Representatives had objected to any version of a bill that provided for a presidential reservation in excess of 320 acres, preferring to convey only as much land as may be absolutely necessary for the preservation of relics of prehistoric times (Norris 2006). (7) The sentiments, not the specific acreage, were reflected in the Antiquities Act with language restricting the size of national monuments to "the limits of which...
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