Notice & Comment

Call for Papers: The Antiquities Act and Judicial Review of the President’s Statutory Powers 

How should courts review the president’s statutory powers? It’s one of the most vexing questions in administrative law. 

It’s easiest to state the problem by comparing the president and agencies as delegees of legislative authority. Usually, Congress delegates regulatory authority to administrative agencies. Sometimes, however, Congress delegates directly to the president. Here, each is an agent of Congress, and their powers are functionally equivalent. In certain areas, such as tariff-making and public lands management, the president or an agency can achieve identical policies under their respective enabling acts.  

Despite such similarities, judicial review proceeds on two disparate tracks. Whereas courts perform “hard look” review of agency action, judicial review of the president-as-delegee is “no look.”  

When agencies regulate, the Administrative Procedure Act (APA) “establishes a strong presumption in favor of reviewability.” Under APA § 706, courts must “set aside” agency action that is “arbitrary, capricious, [or] an abuse of discretion.” To survive judicial review, agencies must demonstrate the reasonableness of their action, per se, but also of their decision-making—that is, courts require agencies to take a “hard look” at material concerns and alternatives.  

Under a textualist reading, the APA seemingly reaches the President. The statute’s provisions extend to actions by any “agency,” defined as “each authority of the Government,” and the president is plainly a governmental authority. Further, the APA expressly excludes Congress and courts—but not the president—from the definition of an “agency,” which suggests by implication that presidential actions fall within the APA’s ambit.  

However, in Franklin v. Massachusetts (1992), the Supreme Court held that the president is not an “agency” under the APA. Before subjecting the president to judicial review under the APA, the Franklin Court would have required a clear statement from Congress “out of respect for the separation of powers.” According to Professor Kathryn Kovacs, who reviewed the FranklinCourt’s internal papers, this momentous interpretation of the APA followed “a truly remarkable lack of discussion” among the parties (based on incomplete briefing) and the Justices (“devoid of any deliberation”).  

Two years later, in Dalton v. Specter, the Supreme Court foreclosed meaningful judicial review of presidential action outside the APA framework, also known as ultra vires review. According to the Dalton Court, any claim about “a mere excess or abuse of discretion” by the president “involves considerations which are beyond the reach of the judicial power.”  

Because of Franklin, the APA doesn’t apply; because of Dalton, courts won’t scrutinize “mere” abuses of discretion outside the APA framework. Courts, therefore, don’t review the reasonableness of the statutory president’s decision-making, including any “mixed” question of law and fact. In the wake of Franklin/Dalton, the Court of International Trade has identified a “gray area,” where the president “could invoke the statute to act” ultra vires, but “the scope of review would preclude the uncovering of such a truth.”  

As a matter of first principles, how can there be a constitutional “gray area,” where Presidents may commit “mere” abuses of discretion, under the rule of law? As a practical matter, the courts’ permissive approach invites “adventurous assertions of statutory power by presidents,” in the words of Professor Kevin Stack. If courts don’t check for reasonableness, then ambitious presidents have greater leeway to be unreasonable. Thus we’ve seen presidents reach for their “pen and phone” to impose “national security” tariffs on NATO allies or declare dubious “emergencies.” 

Executive power run amok is perhaps nowhere as evident than with respect to the Antiquities Act of 1906. Under the Act, the president may designate “monuments” on public property and regulate “the smallest area compatible” with their preservation. Although Congress intended to protect archaeological artifacts from vandalism and looting, presidents quickly expanded the statute’s purpose to include the conservation of public spaces.  

Still, presidents did not act arbitrarily. Two years after signing the Antiquities Act, for example, President Theodore Roosevelt created the Grand Canyon National Monument. The monument exceeded 800,000 acres in size, but that’s because the Grand Canyon is about 800,000 acres in size. The key is that the Grand Canyon is a discrete object, and the boundaries of the monument hewed to this object. This is, at the very least, a reasonable interpretation of the statute (even if it is far afield from the original purpose of the Antiquities Act).  

The reason that presidents remained reasonable was the prospect of meaningful judicial review. Though courts were deferential, they also probed the president’s decision-making. In 1945, for example, a federal district court conducted a trial to ensure that a president’s designation under the Antiquities Act was supported by substantial evidence. See also Anaconda Copper Co. v. Andrus, 1980 U.S. Dist. LEXIS 17861 at *2 (D. Alaska 1980) (finding, in dicta, that the president’s discretion is reviewable). 

After Franklin/Dalton removed the prospect of meaningful review, presidents transformed their use of the Antiquities Act. Rather than protecting discrete objects, presidents started making monuments out of nebulous concepts without clear boundaries, such as “ecosystems” and “landscapes—even extending the Antiquities Act to the ocean. And the size of the monuments exploded—since Franklin/Dalton, presidents have regulated almost 10 times as much acreage as in the first 100 years of the Antiquities Act. 

The evolution of the Antiquities Act has not gone unnoticed at the Supreme Court. In a statement respecting the Court’s denial of certiorari in Massachusetts Lobstermen’s Association v. Ross, a PLF case, Chief Justice John Roberts observed that the act “has been transformed into a power without any discernible limit.” He called for “other and better opportunities” to address “what standard might guide our review of the president’s actions in this area.”  

Pacific Legal Foundation is holding a scholarship workshop this summer to answer the Chief Justice’s call to the bar. Specifically, we’re soliciting ideas for how courts might structure judicial review of the president’s statutory powers under the Antiquities Act. Between “hard look” and “no look” review, there must be something to check the statutory president, and this is the space we hope to explore. Details about the submission process are available here.  

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