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By Harold Pease, Ph. D

“Some people think that the natural resources of Utah should be controlled by a small handful of very distant bureaucrats located in Washington,” President Donald Trump said, speaking at Utah’s State Capitol Dec 3, 2017. “And guess what? They’re wrong.” He then reduced two national monuments in Utah, one the Grand Staircase-Escalante by 50%, created by Bill Clinton in 1996, the other, The Bears Ears by 85%, created by Barack Obama less than a year ago, both land grabs highly unpopular with Utah congressional delegates.

The cut of two million acres in Utah monuments alone is the largest in the nation’s history. These cuts may open a new era as 27 other monuments may be on the down size agenda in coming months or years reducing the trend of previous presidents to gobble up enormous tracts of largely western land. The Federal government already owns 63.6% of Utah and elected government officials want to manage their own land, like states east of the Mississippi. Indeed, the federal government claims to own a third of all the landmass in the United States (Inventory Report on Real Property Owned by the United States Throughout the World, published by the General Services Administration, page 10).

Presidents designating national monuments for the last 40 years ranked on number follow: Obama 26, Clinton 19, Carter 15, G. W. Bush 6, Reagan and George Bush 0 (Department of the Interior, Quartz). Those restricting land use the most in millions of acres were: Obama 553.5m, G. W. Bush 218.8m, Carter 56m and Clinton 5.7m. All presidents previous to Carter were 3 million or less. In other words, the top three land grabbers: Obama, G. W. Bush and Clinton each set aside more land than all previous presidents before them combined. At this rate of acceleration one can easily see that in a few short decades the president could own or control every acre in America (National Parks Conservation Association). At the very least one can say that Trump has potentially stopped the acceleration.

A big issue is the constitutionality of further restricting land use mostly of campers, bikers and hikers. It also restricts hunting, fishing, horseback riding and off-road vehicle usage, by the signature of one man only. Outside of managing land as a territory until statehood is obtained (Article 4, Section. 3, Clause 2), the Constitution gives little power to the federal government to do so.

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 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 and Teddy Roosevelt used a mere law, the Antiquities Act of 1903, to trump the Constitution, the supreme law of the land. None were purchased, none received the consent of the State Legislature, and none are used exclusively for military purposes. Nor has there been an additional amendment to the Constitution authorizing additional federal ownership of land as required by Article V 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. 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.

Although President Trump claimed no constitutional grounds for his downsizing precedent, he should. His cited reason, that the natural resources of Utah should not be “controlled by a small handful of very distant bureaucrats located in Washington” is basic to the collective view of the Founding Fathers that federal powers be limited and specifically listed in the Constitution or in an amendment to it, was supported by all signing it. And should be today by all swearing an oath to preserve it.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. Newspapers have permission to publish this column. To read more of his weekly articles, please visit