Presidential discretion under the Antiquities Act

Abstract

This paper analyses executive discretion under the Antiquities Act of 1906, which gives the President of the United States the unilateral authority to designate national monuments on federal lands. Designations are intended to protect objects of historic or scientific interest and must be confined to the smallest area compatible with their protection. Since 1906, presidents have interpreted the law broadly, designating over 150 monuments, many of which span large areas. Congress and the courts have done little to curb presidential discretion. Using public choice economics, this paper argues that presidents use monument designations to (1) improve electoral prospects for themselves and fellow party members, (2) engage in strategic political exchanges, and (3) enhance their presidential legacy. Several case studies provide evidence that recent presidents have rationally used their broad discretion under the Antiquities Act to improve electoral outcomes, exchange with strategic entities, and bolster their legacy.