Call it government by whiplash.
During Donald Trump’s first hundred days in office, the president has issued over 60 executive orders, mostly reversing Obama-era rules on immigration, labor law, and the environment.
Tuesday, Trump issued yet another executive reversal, this time instructing the Department of the Interior to review President Obama’s designations of national monuments. The monuments in question aren’t historic plaques on forgotten battlefields, but over 553 million acres of natural areas that Obama had protected from development—plus 219 million more set aside by Presidents Clinton and Bush.
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The response from environmental groups was swift.
“Trump's executive order is an unprecedented attack on America's public lands, the diverse heritage our national monuments conserve, and the $887 billion recreation industry they sustain,” Ryan Bidwell, Senior Director of Conservation at the Conservation Lands Foundation, told The Daily Beast.
Bidwell called the step “a thinly veiled attempt to attempt turn these lands over to oil and gas drillers and sell them off to corporate interests.”
Indeed, the new order joins Trump’s rollback of Obama-era power plant regulations, automobile standards, EPA scientific studies, climate science, water pollution rules, mining restrictions, pesticide regulations, and fracking rules as part of the most anti-environmental first hundred days in U.S. presidential history. Trump may not have been able to repeal Obamacare or build a border wall, but he can be proud of being the brownest president ever to occupy the White House.
It’s clear who really benefits from this order: oil and gas companies, mining companies, and big agriculture. But since it might also create a few dozen mostly-temporary jobs in those industries, Trump can sell it as putting America back to work.
To anyone who learned in civics class that Congress makes laws, the past few months may seem confusing. How can Trump, with the stroke of the pen, undo eight years of government policy? (Overseas friends have asked me that exact question.)
The answer is that President Obama governed this way too, issuing executive orders from the White House and regulations from administrative agencies. That’s why conservatives decried his “imperial presidency” (oddly, they don’t seem to be complaining now that the emperor is a Republican).
But Obama’s government by fiat wasn’t a matter of choice; it was a matter of necessity, responding to congressional inaction and gridlock. On immigration, that meant the failure to pass even rudimentary reform—not conservative, not liberal, nothing. On the environment, it meant the failure to recognize the worldwide scientific consensus on climate change or to update 40-year-old environmental laws to account for contemporary problems. Obama rushed in where Congress was unable to tread.
“President Obama took major strides,” said Bidwell, “at a time when a historically gridlocked Congress was unable to pass even universally supported legislation that had been languishing for years.”
But because those strides were executive actions, not laws, it’s likely that Trump’s reversals will mostly prevail.
In the case of the monuments reversal, the Executive Order is carefully worded—unlike, for example, the immigration orders, which have thus far failed to withstand judicial review.
First, it orders the Interior Department to review all designations from the last 21 years. That accomplishes two goals: it reaches President Clinton’s designation of the Grand Staircase-Escalante National Monument in Utah, which Senator Orrin Hatch has obsessed over since 1996. And by including eight years of George W. Bush designations, it avoids the charge that this is mere partisan maneuvering.
Second, the order threads the needle on the 1906 Antiquities Act, which allows presidents to designate monuments but does not say whether they may un-designate them. Most likely, the Interior Department will recommend shrinking but not eliminating several monuments, an action that has some historical precedent.
Third, the fact is that Obama’s designations—which include a 4,913-square-mile ‘monument’ under the Atlantic Ocean—do seem to stretch the original intent of the Antiquities Act. That law was passed in the wake of robbers pillaging Native American ruins, and was intended to promote “the protection of objects of historic and scientific interest.” It’s understandable that Obama used it to compensate for congressional paralysis, but it’s not exactly the plain meaning of the law.
Which is what conservatives are arguing now.
“President Trump actually took the time to listen and understand the heavy toll of such overreaching actions,” Senator Hatch said at a press event staged at one of President Obama’s larger designations, the Bears Ears National Monument. “In President Trump, we have a leader who is committed to defending the Western way of life.”
On the other hand, Trump’s order merely directs the Interior Department to review these designations. When it comes to actually scaling back the monuments in question, they’re going to have a fight on their hands.
For example, Bidwell emphasized that “the Obama administration conducted public meetings and engaged stakeholders in every single designation, and carefully crafted designations to protect only the smallest area necessary, as required by the Antiquities Act.” To win in court, the Trump administration will have to either match that effort, or explain why it was inadequate.
And then there’s the political pressure. While it’s clear to see who wins when public lands are auctioned off, it’s also not hard to see who loses: ordinary people who, poll after poll indicates, think that public lands should be set aside for… the public. As the Trump administration’s environmental rollbacks are challenged in court, it may be the court of public opinion that matters the most.
Of course, one of the problems with Trump’s government by whiplash is that it’s hard to stay focused on anything for long.
