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Harold Pease, Ph. D

Last month President Barack Obama designated 646,000 acres within the San Gabriel Mountains northeast of Los Angeles, a national monument despite the lack of support for the move in the House of Representatives. Nor were the local communities surrounding the monument that would be impacted by the move consulted, outside environmental special interest groups. The decision impacts 70% of Los Angeles County and sizable parts of the Angeles and San Bernardino National Forests and one-third of the drinking water of Los Angeles. Obviously the change would affect the outlining cities.

According to an October 10, White House press Secretary news release, this is his 13th such designation in his nearing 6 years as president. In September he created “the Pacific Remote Islands Marine National Monument in the south-central Pacific Ocean—the largest marine reserve in the world,” that, as a result, is now “completely off limits to commercial resource extraction.” With this acquisition of 260 million acres of land and water, he is credited with having acquired more property, since presidents began doing so, than any other President in our history.

A big issue is the constitutionality of grabbing large sections of land by the signature of one man only. What does the Constitution say? The Founders understood that the size of land holding was proportionally related to the perceived size of the federal government and they intentionally wanted that perception small. The Federal government was permitted to have but 10 square miles for a federal capital. The only other land that they could acquire had to be for military purposes as specified in the common defense clause of the Constitution, Article I, Section 8, Clause 17 which reads: “and to exercise like Authority over all places purchased by the Consent of the Legislature of the State in which the same shall be for the Erection of Forts, Magazines, Arsenals, dock Yards, and other needful Buildings.”

Any new acquisition, outside the capital, had (1) to be purchased, (2) have the consent of the State Legislature where the land exists, (3) and be for military purposes. As all land acquisition powers are in Article I of the Constitution, with the legislative branch, the president was left out of the process. None of these constitutional requirements were met with respect to any of the national monuments acquired by President Barack Obama. None were purchased, none received the consent of the State Legislature, and none are used exclusively for military purposes. Nor have there been any additional amendments to the Constitution authorizing additional federal ownership of land as required for any additional federal power. Constitutionally there exists no federal land, or Bureau of Land Management, or even public land.

One might argue that most, if not all, of the monuments were already on federal land having been acquired when the federal government refused to give to new states all the land that went with statehood when they transitioned from territorial status. That is true. The federal government through this process came to own about a third of the United States. That late 19th Century leaders fraudulently acquired the property in the first place, it does not follow that present leaders should expand on the fraudulency. Constitutionally all land within state boundaries, unless acquired through the three stipulations noted in the Constitution, belong to the states—no exceptions.

The White House memo announcing the creation of the San Gabriel Monument cited the Antiquities Act of 1906 as the authority to do so and President Theodore Roosevelt as the first to use it in his creation of the Devils Tower National Monument in Wyoming the same year. It also noted that all previous presidents since 1906 used it except Richard Nixon, Ronald Reagan, and George Bush. Sadly they were the only ones who followed the clarity of the Constitution with respect to federal ownership of property. That the federal government has created national monuments unconstitutionally on what are to be state lands, or that both political parties have ignored this part of the Constitution for over a hundred years, does not make federal confiscation now constitutional.

Prior to Obama, George W. Bush acquired more property than previous presidents: 140,000 square miles of Hawaiian Ocean in 2006 followed thereafter by over 200,000 square miles in three new Marine National Monuments 1) Marianna Trench, near Guam 2) a string of islands far south and west of Hawaii, 3) and Rose Atoll, an island east of Samoa. These acquisitions and those of Obama are gigantic. If this process continues is it not likely that the federal government may come to own far more than the third of the landmass that it now owns—perhaps all?