By Harold Pease Ph. D

In a recent bid said to “support climate resiliency in the region” (code for removing human influence), President Barack Obama by executive decree has removed from general use another 1.8 million acres, this time in California. On February 12, with mostly no establishment media coverage and virtually no anger from Congress for his using their power, he created the following three new national monuments: Castle Mountains (21,000 acres), Mojave Trails (1.6 million acres), and Sand to Snow (154,000 acres). These three expand his total to 22 national monuments.

In seven years as president he has “set aside” (code for human removal) more than 265 million acres of land and water—more than any other president. This area is larger than most states in the Union.

What does “set aside” actually mean in implementation? It is the strictest classification of land use. “These areas will be off-limits to mining and mineral exploration, oil and gas drilling, grazing, timber harvest, and even many of the current recreational uses of camping, hiking, hunting, fishing, horseback riding, and off-road vehicle usage that the public previously enjoyed” (William F. Jasper, The Last Word, The New American, p. 44). All this new regulation and governance with but a stroke of the pen by one man with no constitutional authority to make law as it is the prerogative of Congress alone.

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 outside territory awaiting statehood as per Article IV, Section 3, Clause 2.

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 the fraudulency. Constitutionally all land within state boundaries, unless acquired through the three stipulations noted in the Constitution, belong to the states—no exceptions.

White House memos announcing the creation of new monuments normally cite 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. Although this Act violated the above-cited constitutional land limitations, it, at least was an act of Congress representing the will of Congress in 1906 to which the then president responded. As unconstitutional as this was, Congress, reflecting the voice of many, still made the law and was in charge.

This was not authority for succeeding presidents the next hundred years to hang every federal land confiscation on an antiquated law not authorized in the Constitution without a new constitutional amendment. Thus, in 1906, only one part of the Constitution was violated, Article I, Section 8, Clause 17, with its three limitations on federal land ownership, and that by the 1906 Congress. Presidents using this authority, thereafter by executive orders, are not now doing it as the will of Congress or by their direction. They are essentially making law by themselves—a serious violation of the separation of powers doctrine.

There is nothing more clear nor basic in the Constitution than the separation of federal power into three branches, one to legislate, another to execute that law, and a third to adjudicate possible violations, when contested, of that law—a division of power held “sacred” until the last few decades. The Constitution reads: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”(Article I, Sec. I).

The executive branch has NO authority to make law—any law!!!! Executive Orders are constitutional only when they cite a single, recently passed law of Congress, where that law needs a statement of implementation by the executive branch. Originally they were but interdepartmental directives.

Unfortunately all presidents since Roosevelt used the 1906 law that trumps the Constitution 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 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.   If this process continues, which has been accelerated under Obama, it is likely that the federal government may come to own far more than the third of the landmass that it now owns—perhaps all?