As Jack Goldsmith observed in February, one of the “innovations” of the second Trump presidency has been to “cut down or eliminate” the legal interpretive authority of the Office of Legal Counsel (OLC) and “center that authority firmly in the White House like never before.” OLC’s culture and tradition of independent thinking, once viewed as virtues, are now considered obstructions to President Trump’s agenda.

Perhaps rehabilitating itself with the White House to some extent, OLC popped into view in May to opine that the Antiquities Act of 1906 should be understood to provide the President with unlimited power to abolish national monuments, like Devils Tower in Wyoming, Muir Woods in California, and the Chiricahua Mountains in Arizona. That would enable mining and drilling to occur in these areas, permanently destroying the unique resources that have been conserved for decades or longer.

It’s a big change, because in 1938 the Attorney General of the United States opined that Congress reserved for itself the power to abolish national monuments. In other words, the United States government has long taken the firm view that presidents do not have the power to erase national monuments from the map. So, for nearly a century, eighteen presidents – both Democrats and Republicans – have designated national monuments (160 in all) with the understanding that they were permanently protecting these places for future generations of Americans to experience and enjoy them.

The current administration’s reversal of this position is, perhaps, unsurprising. After all, President Trump, presumably with OLC’s review and approval, has asserted unbridled authority to withhold funding obligated by his predecessor. Why wouldn’t he also want to have unbridled authority to abolish the national monuments they established?

Yet I nonetheless found myself surprised by aspects of the OLC opinion, five of which I will address here:

First, aspects of the opinion substitute assertions for facts. For example, the opinion suggests that the Antiquities Act must be read to permit the President to unilaterally abolish or modify national monuments because Congress cannot effectively do so and someone must be able to. Yet Congress has modified and abolished national monuments, and done so at an exceptionally granular level. For example, Congress removed lands from the Escalante-Grand Staircase National Monument (on two occasions), revised and adjusted the management of 13 national monuments in Alaska, and prohibited the establishment of any additional monuments in Wyoming.

Moreover, even if monument designations were effectively permanent, that would be in keeping with many aspects of public lands law. Decisions to lease, sell, and exchange lands and resources, and authorize drilling, mining, and other development, create property and contractual rights that permanently reshape public lands and transfer assets into private hands. These private rights in public lands endure.

Second, the opinion simply ignores some of the stronger counterarguments that scholars (and litigants) have made. For example, OLC contends that an extensive record exists of past presidents diminishing national monuments “in substantial amounts, either for unclear reasons or for reasons that are irreconcilable with the view that  . . . a national monument is irrevocable.” Yet even if the few presidential actions to modify monuments—all of which occurred decades ago—are informative of the Antiquities Act’s meaning, others have looked at them and explained how they can be reconciled with the view that the Antiquities Act does not provide a general authority to abolish monuments. For example, they can be understood as narrow assertions of authority related to special circumstances such as factual errors or war powers, or as an exercise of authority under the Supreme Court’s 1915 decision in United States v. Midwest Oil unrelated to the Antiquities Act and terminated when Congress expressly overruled that decision in 1976, after which no President (other than President Trump in his first term) has modified a national monument.

To illustrate with a bit more granularity, OLC singles out President Taft’s removal of 160 acres from the 639,200-acre Mount Olympus National Monument in 1912 because the proclamation did not provide reasoning. Therefore, presidents can revoke monuments as they like, OLC suggests. Except Professor John Ruple’s meticulous review of the historical record, published in 2019, reveals that these 160 acres contained a homestead that had been there when the monument had been established and therefore was a prior-existing right preserved by the Antiquities Act.

My purpose here is not to prove the better view of history—although I’m persuaded by Professor Ruple’s analysis—but only to suggest that OLC’s failure to even acknowledge contrary views grounded in the historical records should caution against accepting its rendition at face value.

Third, OLC contends that from “modest beginnings,” the Antiquities Act has swelled to an unrecognizably goliath power that must be restrained. This is simply not true because the breadth, size, and character of the ten new national monuments established by President Biden look a lot like the eighteen national monuments established by President Teddy Roosevelt in the years immediately following enactment of the Antiquities Act.

Let’s take a look at the kinds of objects President Roosevelt protected in national monuments: volcanos, canyons, caves, and ecosystems, as well as cliff dwellings and other evidence of our history. And in 1907 he established the Grand Canyon National Monument covering 800,000 acres of public lands. That’s larger than either the Chuckwalla or Sáttítla Highlands National Monuments—the two monuments that OLC specifically addressed in its opinion.

OLC refers to a 373-million-acre monument in the opening paragraph of its opinion to support its view of transformative change. The monument in question is a marine monument covering areas of the U.S. Exclusive Economic Zone in a remote area of the Pacific Ocean and is about 300 times larger than the largest land monument. It’s true that large marine monuments could not have been established in 1906, but that’s because they exist largely within the United States’s Exclusive Economic Zone, which wasn’t recognized until 1983. President George W. Bush established the first large marine monument in 2006.

Fourth, there’s a false equivalence drawn at times between the power to establish monuments, expressly provided by the statute, and the implied power to abolish them. For example, OLC finds “no reason” to suspect a court would not treat the two equal and opposite powers in the same way and relies on a general default rule that “the power to reconsider is inherent in the power to decide.” 

There’s an appealing simplicity to the logic. Yet it fails to recognize that the implied power to abolish would be more sweeping and more durable than the power to establish under OLC’s reading of the statute.

That’s because the statute provides specific statutory criteria for the President to apply in establishing monuments. They only enable the conservation of objects of historic and scientific interest, disallowing monuments grounded in outdoor recreation, tourism, or other values. But there are no criteria or guideposts for an implied power to abolish monuments.

Moreover, the destruction of the historic and scientific objects protected by a monument is irreparable and permanent. Ancient pueblos cannot be rebuilt, deposits of dinosaur bone reconstructed, or unique ecosystems restored. By reopening public lands to mining, drilling, solar and wind production, and other industrial activities, abolishing monuments will become permanent because there will be nothing left to conserve.

Fifth, OLC’s reference to White House Factsheets to impugn President Biden’s motivation for establishing national monuments is nothing short of shocking. Doing so countenances “judicial inquiries into legislative or executive motivation” of the sort that DOJ has long and vociferously resisted, including in briefing to the Supreme Court in the first Trump Administration. True, OLC is not a court, but the interpretative task to which OLC attends is the province of courts, and if motivation is relevant to interpreting statutes that would seem true regardless of who engages in the interpretation.

It’s also hard to understand the statement in the Biden Administration’s factsheet noting that the monuments “add to President Biden and Vice President Harris’s record-setting environmental legacy” as anything out of the ordinary or eye-catching. Can anyone credibly doubt that President Roosevelt—the same President who famously said “[t]here can be no greater issue than that of conservation in this country”—considered the monuments he established as part of his conservation legacy?

The OLC opinion will not be the last word and, indeed, it has no immediate legal effect. Now, it’s up to President Trump to decide whether to abolish one or more national monuments, even though most voters oppose him doing so (including a strong plurality of Republicans). If he does, litigation will surely follow, and courts will decide the meaning of the Antiquities Act without deference to the views of OLC.

Justin Pidot holds the Lohse Chair in Water & Natural Resources at the University of Arizona James E. Rogers College of Law, where he co-directs the environmental law program. He previously served as General Counsel at the White House Council on Environmental Quality, Deputy Solicitor for Land Resources at the U.S. Department of the Interior, and as an appellate lawyer at the Environment and Natural Resources Division of the U.S. Department of Justice.