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President Expands Federal Monuments with his pen

By Harold Pease, Ph. D

On March 11, 2014, President Barack Obama, designated the Point Arena-Stornetta Public Lands a national monument, setting aside 1,665 acres of a pristine Northern California coastline for future generations, thereby keeping a promise made in his 2014 Cabinet meeting and Inaugural Address. “We are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help that they need. I’ve got a pen, and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward….” Some have dubbed this his nullification of Congress speech.

But where in the Constitution is authority for him to take land from a state and claim it for a national monument or park? A look at Article II, wherein his powers are listed, identifies no such power. He has but eleven powers: 1) “Commander in chief of the army and navy of the United States” including the militia when called into actual service of the United States; 2) supervise departments (cabinet), each presumably established by the Congress (George Washington had but four); 3) grant reprieves and pardons; 4) make treaties with the help of the Senate; 5) with Senate help appoint positions established by law such as ambassadors, ministers and judges; 6) fill vacancies “during recess of the Senate;” 7) make recommendations to Congress on the state of the union; 8) convene both houses on special occasions and handle disputes with respect to convening; 9) receive ambassadors and other public ministers; 10) make certain that “laws be faithfully executed;” and, 11) “commission all the officers of the United States.”

Simply stated the president has two supervisory powers over existing organizations and two shared powers with the Senate, otherwise he pardons, recommends, appoints and entertains. That is it! Notice the absence of the words executive order, or anything like unto it. He has no law-making or land acquisition powers.

Constitutionally land acquisition is left only to Congress as per Article I, Section 8, Clause 17 that leaves the federal government propertyless with but two exceptions, 1) ten miles square for a capital, and 2) for common defense. Clause 17 is the last of eight qualifiers defining common defense and allows the federal government additional land acquisition provided three stipulations are met. Those are: such land had to be purchased by the federal government (not just confiscated), receive the consent of the state legislature where located, and had to be for military purposes. President Theodore Roosevelt, who first violated this part of the Constitution by creating Yosemite National Park, should have been impeached for four reasons. The power to acquire land did not belong to the executive branch, the federal government did not purchase it, the California State Legislature did not give consent, and it was not for military purposes. Likewise President Barack Obama had no authority to acquire land, did not purchase the pristine California coastline, did not obtain the consent of the California Legislature and it was not acquired for military purposes. That presidents have followed Roosevelt’s clearly unconstitutional practice does not make it constitutional.

This is not an argument that governments should not set aside our most pristine portions for the enjoyment of those not yet born, but only that they do so constitutionally. One departure from the Constitution invites yet another until the document is not “sacredly obligatory on all” as warned George Washington in his famous Farewell Address. At any time a state, county, or city may create a park or monument or, we could have properly amended the Constitution through Article V to enlarge the land acquisition powers of the federal government but, my point, we did not. The Constitution is designed to harness the federal government from doing whatever it pleases, in this case, confiscation of property.

Presidents, in law-making through executive orders, have empowered themselves to the point of “kingship” with their worshipful, unchallenging, party followers (whether Democrat or Republican) quite willing to look the other way as this office grows beyond its ability to be efficient. At any time a president could remind the people of his real constitutional powers but he will not as that would drastically reduce his power that is beginning to look limitless. We must return to the constitutional powers of the President as outlined in Article II, only adding to them by way of amendment as described in Article V—no exceptions! In the case of land acquisition there is no place for his pen.