Biden reaches for his pen — and undermines separation of powers

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 That designation will have significant consequences, because the entire area is now withdrawn from a host of future resource extraction and other productive land use activities.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.   

In the modern era, successive presidents have illegally expanded the scope and size of monuments under the act. Recent presidents have decided that the law not only protects “objects” in ordinary parlance but also entire ecosystems. In doing so, they jettisoned the act’s limits. For example, in 2016, Obama set aside almost 1.35 million acres in Utah as the Bears Ears National Monument, vastly more than needed to protect specific antiquities.

Even the requirement that areas set aside be “lands” has fallen away. In 2009, President Bush established the Pacific Remote Islands Marine National Monument, designating roughly 86,000 square miles of open ocean and island habitat. In 2014, Obama drastically expanded the monument to 495,189 square miles — an area nearly five times the size of all the United States national parks combined and nearly twice the size of Texas. Commercial fishing was banned within the monument. And in 2021, identifying “ecosystems” and “biodiversity” as protectable “objects” under the act, Biden reinstated a ban on commercial fishing in the Northeast Canyons and Seamounts Marine National Monument — an area spanning roughly 5,000 square miles. 

If an ecosystem can be an “object,” if open ocean can be “lands,” and if an area twice the size of Texas can be the “smallest area compatible” with the protection of an object, then the act is merely a mechanism for the president to unilaterally make significant policy decisions affecting the federal estate.

This trend continues at Camp Hale. Biden’s latest action was taken in part to protect several archaeological sites and World War II-era structures. But by concluding that the ecosystem surrounding these objects is itself an object, Biden has swept in tens of thousands of acres of adjacent undeveloped land.

This is one example of the broader subversion of checks and balances that has occurred as the unconstitutional administrative state has grown. Frustrated by Congress, the standard presidential procedure is to bypass the legislative process altogether and enact significant policies via executive fiat.  

But under our system of government, significant policy decisions must be made by Congress. The president and executive branch are limited to the execution and enforcement of laws. This separation of powers is fundamental. Elected representatives in Congress are directly accountable to the people they represent and are best situated to deliberate upon and assess the tradeoffs of any given policy. At times the legislative process may seem cumbersome. But this is a feature, not a bug — it is not supposed to be easy to impose significant policies upon the American public.

Last term, the Supreme Court reaffirmed this constitutional first principle. In West Virginia v. Environmental Protection Agency, the court struck down an agency regulation that codified a failed legislative proposal to enact a cap-and-trade scheme that would have fundamentally altered the nation’s power grid.

As relevant to the Camp Hale-Continental Divide National Monument: The Senate deliberated upon the CORE Act and, perhaps recognizing the tradeoffs of a decision to stymie productive activity at Camp Hale, decided that protection of the area was unwise. Dissatisfied with that outcome, Biden reached for his pen. Americans should be concerned with the continuing derogation of the separation of powers that Biden’s designation of the Camp Hale-Continental Divide National Monument represents.

Charles Yates and Paige Gilliard are attorneys with Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. Ms. Gilliard is an attorney on Pacific Legal Foundation’s lawsuit challenging the Northeast Canyons and Seamounts Marine National Monument.