Amicus Curiae Brief — American Forest Resource Council, et al., Petitioners v. United States, et al.

No. 23-524

In The

Supreme Court of the United States

____________________

AMERICAN FOREST RESOURCE COUNCIL, et al.,

Petitioners,

v.

UNITED STATES OF AMERICA, et al.,

Respondents.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

____________________

PACIFIC LEGAL FOUNDATION’S AMICUS

BRIEF IN SUPPORT OF PETITIONERS

____________________

FRANK D. GARRISON

Counsel of Record

PAIGE E. GILLIARD

Pacific Legal Foundation

3100 Clarendon Blvd., Suite 1000

Arlington, VA 22201

Telephone: (202) 888-6881

FGarrison@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

i

QUESTIONS PRESENTED

In 1937, Congress passed the Oregon and

California Railroad and Coos Bay Wagon Road Grant

Lands Act of 1937 (O&C Act), which set aside nearly

2.6 million acres of Oregon forestland as a permanent

trust for local governments to fund public services.

Congress mandated that these timberlands “shall” be

managed for “permanent forest production” and that

timber thereon be cut and sold under “the princip[le]

of sustained yield” to generate revenue for the affected

counties. 43 U.S.C. §§ 2601, 2605. Despite this clear

congressional mandate, the President used the

Antiquities Act of 1906 to add tens of thousands of

O&C timberland acres into a national monument

where sustained-yield timber harvest is prohibited.

Similarly, the Bureau of Land Management (BLM)

issued management plans for the entirety of the O&C

forestlands that dedicated 80% of the O&C lands to no

harvest “reserves” for conservation purposes.

The questions presented are:

Whether the President can use an Antiquities Act

Proclamation to override Congress’s plain text in the

O&C Act to repurpose vast swaths of O&C

timberlands as a national monument where

sustained-yield timber production is prohibited.

Whether the Secretary of the Interior can override

the O&C Act by designating 80% of the O&C

timberlands as conservation “reserves” where

sustained yield timber harvest is prohibited.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

TABLE OF AUTHORITIES ...................................... iii

AMICUS CURIAE’S INTEREST ............................... 1

INTRODUCTION ....................................................... 2

SUMMARY OF ARGUMENT .................................... 5

REASONS FOR GRANTING CERTIORARI............. 8

I.

Certiorari is warranted because the D.C.

Circuit’s

holding

raises

fundamental

separation-of-powers concerns .......................... 8

A. The decision below sanctions Executive

Branch lawmaking in violation of the

Constitution’s Separation of Powers ............ 8

B. The decision below implicates the major

questions doctrine ....................................... 10

C. If there is no meaningful limit on the

President’s power, then the Antiquities Act

violates the nondelegation doctrine ............ 12

II. Under Article III, federal courts have a judicial

duty to meaningfully review presidential

action ................................................................ 13

III. The D.C. Circuit’s opinion further perpetuates

presidential abuse of the Antiquities Act with

severe consequences for people who depend on

public lands ...................................................... 15

CONCLUSION ....................................................... 20

iii

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935) ............................................. 12

Am. Forest Res. Council v. Hammond,

422 F. Supp. 3d 184 (D.D.C. 2019) ....................... 9

Clinton v. City of New York,

524 U.S. 417 (1998) ............................................. 10

Dep’t of Transp. v. Ass’n of Am. Railroads,

575 U.S. 43 (2015) ................................................. 8

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ............................................. 10

Gundy v. United States,

139 S. Ct. 2116 (2019) ............................. 1, 8–9, 11

Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792)............... 4

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ................................. 6

Mass. Lobstermen’s Ass’n v. Raimondo,

141 S. Ct. 979 (2021) ..................................... 19–20

Mass. Lobstermen’s Ass’n v. Ross,

945 F.3d 535 (D.C. Cir. 2019) ......................... 1, 18

Mistretta v. United States,

488 U.S. 361 (1989) ............................................. 11

Mountain States Legal Found. v. Bush,

306 F.3d 1132 (D.C. Cir. 2002) ............................. 6

Murphy Co. v. Biden,

65 F.4th 1122 (9th Cir. 2023) ...3, 5, 7, 9–11, 14, 19

Myers v. United States,

272 U.S. 52 (1926) ................................................. 5

iv

NFIB v. DOL,

595 U.S. 109 (2022) ............................................... 3

NLRB v. Noel Canning,

573 U.S. 513 (2014) ............................................. 14

Panama Refin. Co. v. Ryan,

293 U.S. 388 (1935) ............................................... 9

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ......................................... 13–14

Sackett v. EPA,

566 U.S. 120 (2012) ............................................... 1

Sackett v. EPA,

598 U.S.651 (2023) ................................................ 1

Tulare Cnty. v. Bush,

306 F.3d 1138 (D.C. Cir. 2002) ........................... 16

U.S. Army Corps of Eng’rs v. Hawkes Co., Inc.,

578 U.S. 590 (2016) ............................................... 1

United States v. California,

436 U.S. 32 (1978) ............................................... 17

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) ....................................... 10, 14

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ......................................... 10

Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv.,

139 S. Ct. 361 (2018) ............................................. 1

Yakus v. United States,

321 U.S. 414 (1944) ....................................... 11–12

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ......................................... 9, 20

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) ............................................... 6

v

U.S. Constitution

U.S. Const. art. I ..................................................... 4, 8

U.S. Const. art. II........................................................ 4

U.S. Const. art. II, § 3 ................................................. 5

U.S. Const. art. III ........................................ 4, 6–7, 13

U.S. Const. art. IV, § 3, cl. 2 ....................... 4, 8, 10, 13

Statutes

54 U.S.C. § 320301 .............................................. 15, 17

54 U.S.C. §§ 320301–320303 .............................. 10–11

54 U.S.C. § 320301(a) ................................................. 9

54 U.S.C. § 320301(b) ........................................... 9, 18

Act of Aug. 28, 1937,

ch. 876, 50 Stat. 874 .......................................... 2–3

Antiquities Act of 1906,

54 U.S.C. § 320301, et seq. .................................... 1

Other Authorities

Babbitt, Bruce, Secretary,

Department of Interior, Address at the

Sturm College of Law of the University

of Denver, From Grand Staircase to

Grand Canyon Parashant: Is There a

Monumental Future for the BLM,

3 U. Denv. Water L. Rev. 223 (2000),

https://core.tdar.org/document/374192/fro

m-grand-staircase-to-grand-canyonparashant-is-there-a-monumentalfuture-for-the-blm ................................................ 16

vi

Cong. Rsch. Serv., R42346,

Federal Land Ownership: Overview

and Data (updated Feb. 21, 2020),

https://sgp.fas.org/crs/misc/R42346.pdf .............. 19

Cong. Rsch. Serv., RL30528,

National Monuments and the Antiquities

Act: President Clinton’s Designations and

Related Issues (June 28, 2001),

https://www.everycrsreport.com/files/2001

0628_RL30528_51e7ee36b7368d6934398c

5f4f14f92bb11a201a.pdf ...................................... 16

The Federalist No. 78 (Alexander Hamilton)

(J. Cooke ed., 1961)........................................ 13–14

Lawson, Gary & Seidman, Guy I.,

“A Great Power of Attorney:” Understanding

the Fiduciary Constitution (2017) ....................... 12

National Geographic, Ecosystem,

Resource Library: Encyclopedia,

https://education.nationalgeographic.

org/resource/ecosystem/ ....................................... 18

Prakash, Saikrishna Bangalore,

The Living Presidency:

An Originalist Argument Against Its

Ever-Expanding Powers (2020) ..................... 15, 19

Presidential Proclamation 9564,

82 Fed. Reg. 6145 (Jan. 12, 2017) ......................... 2

Proclamation No. 5030,

48 Fed. Reg. 10,605 (Mar. 10, 1983),

https://archives.federalregister.gov/issue_

slice/1983/3/14/10605-10606.pdf#page=1 ........... 17

vii

Proclamation No. 8031,

71 Fed. Reg. 36,443 (June 15, 2006),

https://www.federalregister.gov/documents/

2006/06/26/06-5725/establishment-of-thenorthwestern-hawaiian-islands-marinenational-monument ............................................. 17

2 PUBLIC PAPERS OF THE PRESIDENTS

(Oct 26, 2011) ......................................................... 2

Seamon, Richard H.,

Dismantling Monuments,

70 Fla. L. Rev. 553 (2018) ................................... 16

Vincent, Carol Hardy,

Cong. Rsch. Serv., National Monuments

and the Antiquities Act, R41330

(updated May 3, 2023),

https://sgp.fas.org/crs/misc/R41330.pdf .............. 18

Wilson, James, State House Yard Speech

(Oct. 6, 1787), reprinted in 1 Collected Works

of James Wilson 171 (Kermit L. Hall & Mark

David Hall eds., Liberty Fund 2011) .................... 4

1

AMICUS CURIAE’S INTEREST1

Founded in 1973, the Pacific Legal Foundation is

a nonprofit, tax-exempt California corporation

established to litigate matters affecting the public

interest and defend American’s liberties when

threatened by government overreach. PLF is the most

experienced public-interest legal nonprofit, both as

lead counsel and amicus curiae, in cases involving the

role of the Judicial Branch as an independent check

on the Executive and Legislative Branches under the

Constitution’s Separation of Powers.2

The issue here is whether the President has

unilateral authority under the Antiquities Act to

override Congress’s clear directives within the Oregon

and California Railroad and Coos Bay Wagon Road

Grant Lands Act of 1937 (O&C Act). PLF submits this

brief because this issue raises significant concerns

about the Constitution’s Separation of Powers and the

Rule 37 Statement: All parties received timely notice of

Amicus’s intent to file this brief. No party’s counsel authored any

part of this brief. No person or entity, other than Amicus Curiae

and its counsel, paid for the brief’s preparation or submission.

2 See, e.g., Sackett v. EPA (Sackett II), 598 U.S.651 (2023); Gundy

v. United States, 139 S. Ct. 2116 (2019); Weyerhaeuser Co. v. U.S.

Fish and Wildlife Serv., 139 S. Ct. 361 (2018); U.S. Army Corps

of Eng’rs v. Hawkes Co., Inc., 578 U.S. 590 (2016); Sackett v. EPA

(Sackett I), 566 U.S. 120 (2012). PLF also has represented clients

in cases involving the Antiquities Act of 1906, 54 U.S.C.

§ 320301, et seq. See, e.g., Mass. Lobstermen’s Ass’n v. Ross, 945

F.3d 535 (D.C. Cir. 2019).

1

2

judiciary’s important role in providing a meaningful

check on abuses of executive power.3

INTRODUCTION4

President Obama quipped during his time in

office: “I intend to do everything in my power right

now to act on behalf of the American people, with or

without Congress. We can’t wait for Congress to do its

job. So where they won’t act, I will.”5 Staying true to

his word, he issued Presidential Proclamation 9564,

82 Fed. Reg. 6145 (Jan. 12, 2017). Relying on the

Antiquities Act, the Proclamation expanded the

Cascade-Siskiyou National Monument and withdrew

thousands of acres of public land that Congress

specifically reserved for timber production under the

O&C Act. In other words, the President used the

Antiquities Act to unilaterally nullify a direct

requirement from Congress that certain lands be

available for an explicit use.

Judicial review of the President’s Proclamation

should have been straightforward. Congress included

a non-obstante clause in the O&C Act: “All Acts or

parts of Acts in conflict with this Act are hereby

repealed to the extent necessary to give full force and

Amicus will only address in this brief the first question

presented: “Whether the President can use an Antiquities Act

Proclamation to override Congress’s plain text in the O&C Act to

repurpose vast swaths of O&C timberlands as a national

monument where sustained-yield timber production is

prohibited.” See supra, i.

4 While the arguments Amicus provides here are materially the

same as the arguments made in the amicus brief being filed

concurrently in Murphy Co. v. Biden, No. 23-525, this brief

focuses on the D.C. Circuit’s reasoning where appropriate.

5 2 PUBLIC PAPERS OF THE PRESIDENTS 1350 (Oct. 26, 2011).

3

3

effect to this Act.” Act of Aug. 28, 1937, ch. 876, 50

Stat. 874, 876. The critical question is thus whether

Proclamation 9564 “conflicts” with the O&C Act. If it

does, then the Proclamation cannot stand because the

President has no authority to nullify Congress’s

legislative directives. And “[e]ven a perfunctory

review of the plain text of the Proclamation and the

O & C Act reveals an obvious conflict.” Murphy Co. v.

Biden, 65 F.4th 1122, 1139 (9th Cir. 2023) (Tallman,

J., dissenting). On one hand, “[t]he O & C Act requires

sustained yield calculation for all O & C timberlands”;

on the other, “Proclamation 9564 removes O & C

timberlands from the sustained yield calculation.” Id.

Yet the decision below ignored this clear conflict.

Instead, it applied circular logic to find that the

President could—implicitly—reclassify public lands

under the Antiquities Act and thus those lands were

no longer “timberlands” under the O&C Act. Pet.App.

24a. In essence, the D.C. Circuit’s judicial sleight of

hand transforms the Antiquities Act from an ordinary

delegation of power to execute the law into a super

statute allowing Executive Branch amendment of all

land management statutes.

The President’s unilateral action and the D.C.

Circuit’s decision raise a fundamental and reoccurring

question under the Constitution: “Who decides?”

NFIB v. DOL, 595 U.S. 109, 121 (2022) (Gorsuch, J.,

concurring). Under the Constitution’s Separation of

Powers, does the President have the power to override

a congressionally prescribed law—a law passed

through the people’s representatives—with the flick of

a pen? And under the Constitution’s Separation of

Powers, should the judiciary review presidential

actions through the lens of boundless discretion

4

letting the President make rather than enforce the

law?

When the American people ratified the

Constitution, they answered no to both questions. The

people delegated some of their power—as described

and delimited in the Constitution’s text and

structure—to each federal branch, respectively. See

James Wilson, State House Yard Speech (Oct. 6,

1787), reprinted in 1 Collected Works of James Wilson

171, 172 (Kermit L. Hall & Mark David Hall eds.,

Liberty Fund 2011) (The federal government’s power

is “collected, not from tacit implication, but from the

positive grant expressed in the instrument of union.”).

“The legislative, executive and judicial departments

are each formed in a separate and independent

manner; and [] the ultimate basis of each is the

constitution only, within the limits of which each

department can alone justify any act of authority.”

Hayburn’s Case, 2 U.S. (2 Dall.) 408, 410 n.* (1792).

As relevant here, the people vested Congress—

and Congress alone—with the power to make all rules

and regulations regarding public lands. U.S. Const.

art. IV, § 3, cl. 2. Those rules and regulations must go

through the democratic process outlined by Article I of

the Constitution before becoming law. U.S. Const.

art. I. By contrast, the people vested the President

with the executive power to enforce those laws if

properly enacted. U.S. Const. art. II. And the people

vested the judiciary with the judicial power—and the

judicial duty—to declare when the other two branches

venture outside their constitutional lanes. U.S. Const.

art. III.

The Constitution divided powers this way to

preserve the people’s freedom to exercise their rights

5

and liberties without arbitrary government

interference. Indeed, the “doctrine of the separation of

powers was adopted by the convention of 1787 not to

promote efficiency but to preclude the exercise of

arbitrary power.” Myers v. United States, 272 U.S. 52,

293 (1926) (Brandeis, J., dissenting).

The decision below flouts these first principles. It

sets a precedent giving presidents unilateral

authority to “suspend the operation of another act of

Congress.” Murphy, 65 F.4th at 1139 (Tallman, J.,

dissenting). And without this Court’s intervention,

this unbounded discretion to override laws regulating

public lands will continue to apply to millions of acres

of property—property that millions of people depend

on for their economic livelihoods. This Court should

step in now and provide meaningful limits on this

presidential abuse of power.

SUMMARY OF ARGUMENT

First, this Court should grant certiorari because

the D.C. Circuit’s decision sanctioned the President’s

violation of the Constitution’s Separation of Powers.

The President is not a king. He oversees the Executive

Branch and “take[s] Care that the Laws be faithfully

executed.” U.S. Const. art. II, § 3. But he lacks the

discretion to use old laws to thwart clear

congressional directives in later enacted statutes to

expand his power and instill his preferred policies—

policies that have not gone through the democratic

gauntlet outlined in the Constitution. Yet the

President has done just that by issuing Proclamation

9564 under the Antiquities Act. Indeed, the President

directly contradicted Congress’s clear directives by

withdrawing thousands of acres of public lands that

Congress mandated be available for timber

6

production. But nothing in the Antiquities Act nor the

Constitution gives the President this unbounded

lawmaking power.

Second, certiorari is warranted because the D.C.

Circuit applied a level of deference that cannot be

squared with the federal judiciary’s constitutional

duty to meaningfully check the Executive Branch.

Under Article III of the Constitution, the federal

judiciary must independently confront questions

involving the Constitution's government-structuring

provisions. Put another way, it is the solemn

responsibility of the Judicial Branch “to say what the

law is” under the Constitution’s Separation of Powers.

See Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S.

189, 196 (2012) (quoting Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 177 (1803)); see also Mountain States

Legal Found. v. Bush, 306 F.3d 1132, 1136 (D.C. Cir.

2002) (finding courts must ensure that presidential

proclamations follow constitutional principles and do

not exceed the President’s statutory authority under

the Antiquities Act). Yet the court below took great

pains to skirt its duty and sanction near absolute

presidential discretion to override a later enacted law

passed by Congress.

Third, this Court’s review is warranted because

the D.C. Circuit’s failure to meaningfully scrutinize

the President’s actions continues the troubling trend

of judicial abdication over the Executive Branch’s

abuse of the Antiquities Act. The President’s actions

here are not an isolated overreach. In recent years,

presidents have declared vast land and ocean areas as

“antiquities” to instill their preferred policies—

policies not passed through the Constitution’s

prescribed procedures. Proclamation 9564 is just the

7

latest example of the Executive Branch’s power grab.

What is more, the D.C. Circuit’s decision sets a

precedent that will have severe consequences for the

communities that depend on the surrounding O&C

lands and for anyone affected by the laws governing

public land use in the United States. If left intact, the

decision will allow the President to release a “timber

rattler poised to strike at any land management law”

he dislikes. Murphy Co., 65 F.4th at 1139, 1142

(Tallman, J., dissenting).

* * * * *

At bottom, the D.C. Circuit’s decision lets the

President become both a lawmaker and law executor

in violation of the Constitution. And the court’s lack of

meaningful judicial review over presidential actions

under the Antiquities Act fails to provide the essential

check on executive overreach demanded by Article

III—giving the President almost unfettered discretion

to change the laws governing public lands. The

consequences of this abdication of the Constitution’s

mandates for the millions of people who depend on

public lands cannot be overstated. This Court should

thus grant the petition and clarify that neither the

Antiquities Act nor the Constitution lets the

Executive Branch subject millions of acres of federal

property to the whims of the President’s pen.

8

REASONS FOR GRANTING CERTIORARI

I.

Certiorari is warranted because the D.C. Circuit’s

holding raises fundamental separation-of-powers

concerns.

A. The decision below sanctions Executive Branch

lawmaking in violation of the Constitution’s

Separation of Powers.

Under the Constitution’s Property Clause,

Congress, not the Executive Branch, is vested with the

power to make laws regulating federal lands. See U.S.

Const. art. IV, § 3, cl 2. Like any other law, laws

passed under the Property Clause must follow the

Constitution’s procedures outlined in Article I. See

Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S.

43, 68 (2015) (Thomas, J., concurring) (“Article I

requires . . . every Bill which shall have passed the

House of Representatives and the Senate, shall, before

it become a Law, be presented to the President of the

United States; If he approve he shall sign it, but if not

he shall return it . . . .”) (cleaned up).

This process is essential to uphold the

Constitution’s promise to preserve people’s freedom

and ensure overzealous officials do not change their

rights with impunity: The Framers “believed the new

federal government’s most dangerous power was the

power to enact laws restricting the people’s liberty.”

Gundy v. United States, 139 S. Ct. 2116, 2134 (2019)

(Gorsuch, J., dissenting). Excessive lawmaking was

“one of the diseases to which our governments are

most liable. To address that tendency, the framers

went to great lengths to make lawmaking difficult.”

Id. (cleaned up). And if Congress could delegate its

lawmaking power to the Executive Branch, the

9

“vesting clauses” and the “entire structure of the

Constitution would make no sense.” Id. at 2134–35

(cleaned up).

Executive Branch officials—including presidents

—may only act through a validly enacted delegation

from Congress prescribing the law’s execution. See

Panama Refin. Co. v. Ryan, 293 U.S. 388, 420–21

(1935). And actions by the Executive Branch—

including presidential actions—exceeding congressional delegations are lawmaking, are ultra vires, and

violate the Constitution’s Separation of Powers. See

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 637 (1952) (Jackson, J., concurring).

Here, the Antiquities Act allows the President

only “[to] declare by public proclamation historic

landmarks . . . situated on land owned or controlled by

the Federal Government to be national monuments.”

54 U.S.C. § 320301(a). The President may also reserve

land for a monument’s protection, but that land must

“be confined to the smallest area compatible with the

proper care and management of the objects to be

protected.” Id. § 320301(b).

But nowhere in this delegation does Congress

authorize the President to amend later enacted

statutes like the O&C Act. Indeed, “[t]he Antiquities

Act says nothing specific about managing O & C

timberland. As such, it cannot be understood to nullify

the timber harvest mandates imposed by Congress in

the O & C Act.” Murphy Co., 65 F.4th at 1140

(Tallman, J., dissenting) (quoting Am. Forest Res.

Council v. Hammond, 422 F. Supp. 3d 184, 193

(D.D.C. 2019)). Nor could “an affirmative act of

Congress . . . grant the President the power to

indefinitely modify or nullify duly enacted law.” Id. at

10

1141 (citing Clinton v. City of New York, 524 U.S. 417,

436–47 (1998)). Yet that is what the President sought

to accomplish here by withdrawing timber lands from

the O&C Act’s purview. This direct amendment of the

O&C Act violates the fundamental separation-ofpowers principles mandated by our Constitution.

B. The decision below implicates the major

questions doctrine.

This Court recently held that “both separation of

powers principles and a practical understanding of

legislative intent” should make courts “reluctant to

read into ambiguous statutory text the delegation

claimed to be lurking there.” West Virginia v. EPA,

142 S. Ct. 2587, 2609 (2022) (cleaned up). There must

be “something more than a merely plausible textual

basis”—there must be a “clear congressional

authorization” before courts presume a broad

congressional delegation. Id. And courts should be

skeptical when the Executive Branch tries to “bring

about an enormous and transformative expansion in

[its] regulatory authority without clear congressional

authorization.” Util. Air Regulatory Grp. v. EPA, 573

U.S. 302, 324 (2014); see also FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)

(rejecting an executive agency’s claim of “jurisdiction

to regulate an industry constituting a significant

portion of the American economy” without explicit

congressional authorization).

This principle applies here. The Constitution

delegates Congress the power to manage federal lands

under the Property Clause. See U.S. Const. art. IV,

§ 3, cl 2. Congress delegated limited authority to the

President to execute the law and establish national

monuments through the Antiquities Act. See 54

11

U.S.C. §§ 320301–320303. Properly understood, the

Act’s text cabins presidential power and provides

meaningful boundaries for courts to gauge whether a

president has exceeded his authority. But if

presidents can unilaterally nullify provisions of land

management statutes like the O&C Act, Congress will

have delegated a transformative—and near

limitless—power under the Antiquities Act.

Courts should not assume Congress would

delegate presidents an unbounded power to later

amend federal statutes. Congressional delegations of

power to the presidents must have some “boundaries”

to prevent them from seizing the legislative powers

reserved for Congress. See, e.g., Yakus v. United

States, 321 U.S. 414, 426 (1944); see also Mistretta v.

United States, 488 U.S. 361, 379 (1989); Gundy, 139

S. Ct. at 2136 (Gorsuch, J., dissenting). Yet under the

D.C. Circuit’s reasoning—that a president may

“reclassify” public land specifically reserved by

Congress for a different use in a later enacted

statute—there is no limiting principle on future

expansions of national monuments. And it will

effectively give presidents unlimited authority to

regulate federal land how they see fit—despite any

uses already designated for the land by statute. Cf.

Murphy Co., 65 F.4th at 1141 (Tallman, J., dissenting)

(“The far-reaching implications of the majority’s

interpretative rule are sobering: every federal land

management law that does not expressly shield itself

from the Antiquities Act is now subject to executive

nullification by proclamation. I can find no limiting

principle within the majority opinion that counsels

otherwise.”).

12

C. If there is no meaningful limit on the

President’s power, then the Antiquities

Act violates the nondelegation doctrine.

A limitation on the President’s Antiquities Act

authority

that

forbids

unilaterally

altering

congressionally prescribed land uses would avoid the

constitutional problems outlined above. But if the

D.C. Circuit’s opinion stands, and the Antiquities Act

is read to create a sweeping delegation of power to

presidents to manage federal land under the Property

Clause, it will represent an improper delegation of

power. See, e.g., Yakus, 321 U.S. at 426.

Indeed, if Proclamation 9456 is lawful, Congress

effectively delegated its power to legislate federal land

use under the Property Clause to the President—

creating a “delegation running riot.” See A.L.A.

Schechter Poultry Corp. v. United States, 295 U.S. 495,

552–53 (1935) (Cardozo, J., concurring). Put

differently, under the D.C. Circuit’s reasoning, the

Antiquities Act is essentially a blank check through

which presidents may fill in their preferred policies

and Congress will have effectively enacted a law that

is “nothing except a raw delegation to enact rules.”6 It

will have “designated a lawmaker, not a law

interpreter.”7

In sum, courts should not interpret the

Antiquities Act to let presidents wield Congress’s

Property Clause power whenever they please.

Instead, it should be read with a clear limiting

principle—presidents act ultra vires and outside of

Gary Lawson & Guy I. Seidman, “A Great Power of Attorney:”

Understanding the Fiduciary Constitution 126 (2017).

6

7 Id.

13

their constitutional authority to enforce the law when

they seek to expand a national monument onto lands

already reserved for another purpose by Congress.

Under the Constitution, the people delegated

Congress the power to manage federal lands. U.S.

Const. art. IV, § 3, cl 2. No interpretation of the

Antiquities Act should obliterate that constitutional

mandate.

II. Under Article III, federal courts have a

judicial duty to meaningfully review

presidential action.

The D.C. Circuit correctly found that the federal

courts have jurisdiction to determine when presidents

exceed their statutory and constitutional authority

under the Antiquities Act. Pet.App. 16a–19a. That

ruling is not extraordinary—it is required by the

Constitution’s mandate that federal courts provide a

vital check on the political branches’ excesses of

power. Yet the decision quickly went off the rails by

interpreting the Antiquities Act to allow the President

to “implicitly” “reclassify” and withdraw public lands

from the purview of later congressionally prescribed

statutory commands. In other words, the decision

made judicial review of the President’s actions

toothless.

The Framers envisioned that the judiciary—not

the Executive Branch—would determine a law’s

meaning. Perez v. Mortg. Bankers Ass’n, 575 U.S. 92,

125 (2015) (“The Framers expected Article III judges

to engage . . . by applying the law as a ‘check’ on the

excesses of both the Legislative and Executive

Branches.”) (Thomas, J., concurring). Federal judges

are constitutionally charged with exercising

independent judgment under Article III. See The

14

Federalist No. 78 (Alexander Hamilton) (J. Cooke ed.,

1961) (The judicial duty entails the “interpretation of

the laws,” which is the “proper and peculiar province

of the courts.”).

This constitutional principle mandates that

courts not “defer to the other branches’ resolution” of

separation of powers issues. See NLRB v. Noel

Canning, 573 U.S. 513, 571–72 (2014) (Scalia, J.,

concurring). And the judiciary’s “role is in no way

lessened because it might be said that the two political

branches are adjusting their own powers between

themselves.” Id. at 571 (cleaned up). With executive

overreach, the federal courts must look to “the

compatibility of [executive] actions with enabling

statutes.” Perez, 575 U.S. at 1221 (Thomas, J.,

concurring) (citing Util. Air Regulatory Grp., 573 U.S.

at 313–16).

Yet here, the D. C. Circuit’s decision turned the

judiciary’s duty to check executive excesses on its

head. Rather than provide meaningful judicial review,

the decision “reconciled” the Antiquities and O&C

Acts through a judicial aggrandizement of the

President’s power to “reclassify” lands reserved for

another purpose by Congress. But “nowhere does [the

Antiquities Act] remotely purport to grant

[presidents] authority to suspend the operation of

another act of Congress.” Murphy Co., 65 F.4th at

1139 (Tallman, J., dissenting).

At bottom, Congress could not have intended the

President to have a veto power over later enacted

statutes under such a cryptic delegation as that found

in the sparse language of the Antiquities Act. And

there is no basis for courts assuming Congress would

do so. The Court should grant certiorari and ensure

15

that judicial review by lower courts reflects the

foundational constitutional principle that the

judiciary is bound to provide a meaningful check on

the Executive Branch.

III. The

D.C.

Circuit’s

opinion

further

perpetuates presidential abuse of the

Antiquities Act with severe consequences

for people who depend on public lands.

The D.C. Circuit’s lack of meaningful judicial

review flouts basic constitutional principles and

expands an already profoundly troubling trend of

Antiquities Act abuses. It is thus vital that this Court

grant certiorari and clarify the limits of presidential

authority under the Antiquities Act.

Presidents rarely gain power through grand

usurpations. Presidents usually engage in “creative

destruction”—unchecked violations of the law that

expand their power over time. See Saikrishna

Bangalore Prakash, The Living Presidency: An

Originalist Argument Against Its Ever-Expanding

Powers 8 (2020). This is essentially a “practice-makesperfect” form of executive lawmaking in which

Presidents “claim to have the authority to change

federal law via repeated violations.” Id. at 9. This

abuse is partly enabled by “a judicial system that acts

as only a partial, fitful check on the executive, and the

weakness of the check has consequences for the

actions the executive is willing to take.” Id. at 73.

The Antiquities Act and judicial review of

presidential actions provide a perfect example. Under

the Act, presidents may designate “National

Monuments” on certain public lands. 54 U.S.C.

§ 320301. Congress intended the Act to be a quick way

16

to protect archaeological artifacts from vandalism and

looting. See Richard H. Seamon, Dismantling

Monuments, 70 Fla. L. Rev. 553, 561–67 (2018)

(discussing the Antiquities Act’s legislative purpose).

Yet since at least the 1990s, presidents have slowly

swallowed more power through the Antiquities Act’s

implementation with little to no judicial check.

For example, during President Clinton’s tenure,

the statute’s scope broadened from protecting specific

“objects” to regulating nebulous “ecosystems.”8

According to the Clinton administration, these

unnamed ecosystems were themselves “objects”

presidents could designate as a “monument.” See

Tulare Cnty. v. Bush, 306 F.3d 1138, 1142 (D.C. Cir.

2002) (explaining the President’s reasoning). All told,

President Clinton established 19 monuments and

expanded three others, totaling 5.9 million acres.9

8 Bruce Babbitt, Secretary, Department of Interior, Address at

the Sturm College of Law of the University of Denver, From

Grand Staircase to Grand Canyon Parashant: Is There a

Monumental Future for the BLM, 3 U. Denv. Water L. Rev. 223,

229 (2000) (describing the evolution of presidential regulation

under the Antiquities Act, starting with the designation of

“curiosit[ies]” and, during the Clinton administration, expanding

to the protection of entire ecosystem), https://core.tdar.org/docu

ment/374192/from-grand-staircase-to-grand-canyon-parashantis-there-a-monumental-future-for-the-blm.

9 Cong. Rsch. Serv., RL30528, National Monuments and the

Antiquities Act: President Clinton’s Designations and Related

Issues 4 (June 28, 2001), https://www.everycrsreport.com/files/2

0010628_RL30528_51e7ee36b7368d6934398c5f4f14f92bb11a20

1a.pdf.

17

And the expansion of presidential power under

the Act is not a partisan affair. President George W.

Bush expanded on his predecessor’s innovation in

executive authority by taking ecosystem monuments

to new domains. A president’s regulatory reach is

textually limited to property on “land” “owned or

controlled” by the federal government. 54 U.S.C.

§ 320301. And during the law’s first 100 years, courts

understood that limitation meant only those land

areas subject to U.S. sovereignty, such as public lands

or the “land” within the territorial seas. See United

States v. California, 436 U.S. 32, 35–36 (1978)

(recognizing that presidents only designated

monuments in areas where the federal government

exercised “full dominion and power”). But in 2006,

President Bush adopted a broader reading of Act’s

reach.

He

established

the

89-million-acre

Northwestern Hawaiian Islands Marine National

Monument in the Pacific Ocean.10 Under President

Bush’s interpretation of “land” that is “owned or

controlled” by the federal government, a president’s

authority extends to the Oceans’ seabed in the

“exclusive economic zone”—an area between the

territorial sea and 200 miles from the Nation’s coast,

over which nations exercise concurrent authority that

falls far short of sovereign dominion.11

Proclamation No. 8031, 71 Fed. Reg. 36,443 (June 15,

2006), https://www.federalregister.gov/documents/2006/06/26/06

-5725/establishment-of-the-northwestern-hawaiian-islandsmarine-national-monument.

11 See

Proclamation No. 5030, 48 Fed. Reg. 10,605

(Mar. 10, 1983) (establishing the EEZ), https://archives.federalr

egister.gov/issue_slice/1983/3/14/10605-10606.pdf#page=1.

10

18

Not to be outdone, President Obama expanded

three of President Bush’s marine monuments and

created the Northeast Canyons and Seamounts

National Monument—which designated millions of

acres of the Atlantic Ocean as a national monument

and banned commercial fishing within the area. See

Mass. Lobstermen’s Ass’n, 945 F.3d at 538–39.12 These

two Ocean monuments now encompass almost 750

million acres of seabed. That is nearly ten times the

area of total acreage regulated during the first 100

years of the Antiquities Act.13 And these monuments

have severely limited the people’s ability to ply their

trade and earn a living within the designations.

Of course, the inherent problem with ecosystem

monuments is that there’s no limiting principle. This

is so because every square inch of the earth has or is

part of an ecosystem—all public “lands” or Oceans’

seabed are designable “monuments” under this

reading of the law.14 In this way, ecosystem

monuments obviate the Antiquity Act’s primary

constraint on executive authority—that a designation

must be limited to the “smallest area compatible” with

a monument’s preservation. 54 U.S.C. § 320301(b).

Indeed, this limitation becomes meaningless when

12 President Obama also expanded the Pacific Remote Islands

Marine National Monument by 261.3 million acres and the

Papahanaumokuakea Marine National Monument by 283.4

million acres.

Carol Hardy Vincent, Cong. Rsch. Serv., National Monuments

and the Antiquities Act, R41330, Appendix B (updated May 3,

2023), https://sgp.fas.org/crs/misc/R41330.pdf.

13

See National Geographic, Ecosystem, Resource Library:

Encyclopedia (“The whole surface of Earth is a series of

connected ecosystems.”), https://education.nationalgeographic.or

g/resource/ecosystem/.

14

19

courts let presidents merely draw shapes on a map

and designate an entire ecosystem as a “national

monument.”

In essence, these continual transgressions of

power through several presidential proclamations—

with little to no judicial scrutiny of presidential

authority when they happen—have let presidents

become a constitutional “pickpocket” of Congress’s

power under the Property Clause. See Prakash, The

Living Presidency 9. It should thus be no surprise that

the President is now seeking to expand his power even

further by claiming the authority to override clear

statutory mandates. But that extraordinary power

must be checked. As Judge Tallman explained

dissenting in Murphy, the President’s actions not only

contribute to the “economic impact” on local

communities that depend on the O&C Act for part of

their economic livelihood, but also extends to “every

federal land management law” that does not explicitly

forbid the President’s use of the Antiquities Act.

Murphy Co., 65 F.4th at 1141 (Tallman, J.,

dissenting). Indeed, the D.C. Circuit’s opinion and the

precedent it sets may affect a significant intrusion by

presidents into millions of acres of federal land.15

Now is the time for this Court to step in and put a

stop to this troubling trend. As the Chief Justice of

this Court observed, the Antiquities Act’s limited

delegation has not yet been meaningfully delineated

by courts, resulting in increasingly absurd

interpretations of the Act. Mass. Lobstermen’s Ass’n v.

See Cong. Rsch. Serv., R42346, Federal Land Ownership:

Overview and Data 8 (updated Feb. 21, 2020),

https://sgp.fas.org/crs/misc/R42346.pdf.

15

20

Raimondo, 141 S. Ct. 979, 980–81 (2021) (Mem)

(noting that past presidents’ interpretations of the

Antiquities Act strain the bounds of “ordinary

English”). And as the Chief Justice tacitly

acknowledged, the Antiquities Act has morphed into

limitless power never envisioned by Congress when it

passed the statute over 100 years ago. See id. at 981.

This case is the latest example of the pathology

that has allowed these constitutional transgressions

to fester for decades. But this Court now has a chance

to once and for all provide a meaningful limiting

principle on presidential power under the Antiquities

Act. And in doing so, the Court can provide the lower

courts with guidance to ensure they act as the judicial

check the Constitution requires. The Court should

thus grant the petition and clarify that the Antiquities

Act is not, and constitutionally cannot be, a delegation

of power that allows presidents to ignore Congress’s

clear legal directives.

CONCLUSION

Since the birth of the Republic, courts have

engaged in judicial review and provided a “check” on

executive officials’—including presidents’—ultra vires

and unconstitutional actions. As Justice Jackson

eloquently explained: “With all its defects, delays and

inconveniences, men have discovered no technique for

long preserving free government except that the

Executive be under the law, and that the law be made

by parliamentary deliberations.” Youngstown Sheet &

Tube Co., 343 U.S. at 655 (Jackson, J., concurring). To

date, this first principle has not been applied to

presidential actions under the Antiquities Act. This

Court should thus grant the petition for writ of

certiorari and make clear that presidents are not

21

above the law and cannot amend congressional

statutes.

DATED: December 2023.

Respectfully submitted,

FRANK D. GARRISON

Counsel of Record

PAIGE E. GILLIARD

Pacific Legal Foundation

3100 Clarendon Blvd., Suite 1000

Arlington, VA 22201

Telephone: (202) 888-6881

FGarrison@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation