The Antiquities Act of 1906 was passed in order to protect threatened historic ruins, structures and landmarks, and accordingly, it grantsthe President the power to designate such features as national monuments. Despite this goal, several Presidents have used this authority to unilaterally withdraw hundreds of thousands of acres of federal land from public use.
Moreover, many scholars now claim that while the Act gives a President the power to designate a national monument, it does not allow for significant presidential reductions or revocation. They argue that the absence of an explicit grant of revocation power in the Act as well as the language of contemporaneous statutes mean that once a monument is created by a President, only Congress can alter or revoke it.
Our analysis shows that a general discretionary revocation power does exist for the President. We argue that under traditional principles of constitutional, legislative, and administrative law, the authority to execute a discretionary power includes the authority to reverse it. Arguments that treat national monuments as a special case rely on a 1938 opinion by U.S. Attorney General Homer Cummings, which concluded that the Act did not grant the power of revocation. We argue that this opinion is poorly reasoned; misconstrued a prior opinion, which came to the opposite result; and is inconsistent with constitutional, statutory, and case law governing the President’s exercise of analogous grants of power.