Faced with a Congress that would not endorse his expansive regulatory agenda, President Obama famously remarked, “I’ve got a pen and I’ve got a phone.” Almost 10 years later, governing by executive fiat continues.
The latest round of policymaking by pen and phone came when President Biden designated 53,804 acres of land in north-central Colorado as the Camp Hale-Continental Divide National Monument. That designation will have significant consequences, because the entire area is now withdrawn from a host of future resource extraction and other productive land use activities.
This is not the first attempt to reserve the area. It was one of the central objectives of the Colorado Outdoor Recreation and Economy (CORE) Act. Yet the CORE Act failed several times to secure the necessary votes in the Senate to become law.
A casual observer might wonder how Biden could unilaterally set aside tens of thousands of acres of land with the stroke of a pen, even after Congress made clear that it will not endorse such a policy. The answer lies in presidential abuse of power under the Antiquities Act.
Congress passed the Antiquities Act in 1906 with a narrow focus in mind: to protect Native American archeological sites from looting and destruction. To accomplish this goal, the law permits the president to designate landmarks, structures and objects of historic or scientific interest situated on lands owned or controlled by the federal government as “national monuments.” It also permits the president to reserve surrounding public lands. But such lands must be confined to the smallest area compatible with the protection of the object. Presidents typically designate monuments under the act through “presidential proclamations,” which do not require public notice or an opportunity for the public to comment on the designations.