Attorney General Homer Cummings advised President Franklin Roosevelt in 1938 of the same. The attorney general’s opinion underscored that the Antiquities Act contained no clear textual presidential authority to “abolish” national monuments. Whether right or wrong, that nearly 80-year-old opinion has never been repudiated by any court, succeeding attorneys general or Congress. When Congress amended the Act in 1950 to forbid presidential designations to expand or establish national monuments in Wyoming without express congressional authorization, it did not overturn the Cummings opinion. And according to the Supreme Court’s “acquiescence rule,” if Congress does not overturn a judicial or administrative interpretation of a statute, it probably acquiesces in it.
Finally, interpreting the Antiquities Act according to its plain language to prohibit presidential revocations of national monument designations of predecessors raises no separation of powers concerns The prohibition does not interfere with the executive branch responsibility to take care that the laws be faithfully executed or otherwise. Indeed, it does not interfere with any executive branch function whatsoever. And only “where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department” is a separation of powers issue raised, as James Madison elaborated in Federalist 47.
If President Donald Trump or any successor desires the authority to revoke national monument designations, they should urge Congress to amend the Antiquities Act accordingly. They should not torture the plain language of the Act to advance a political agenda at the expense of regular constitutional order. Our salvation lies in process, not results.