Positive Law


February 19, 2015: President Obama signs Proclamation 9232 establishing Browns Canyon National Monument

Positive Law and the Antiquities Act

Since 1906, there has been a certain rhythm to national monument proclamation texts which persisted more or less unchanged until 2015. Given that presidential use of the Antiquities Act has lately experienced an increase in the amount of media, congressional, and general attention received, it seems appropriate to note this change.

With the passage of H.R. 1068, which became Public Law Number 113-287 on December 19, 2014, national monument proclamations via presidential use of the Antiquities Act will have a different look.

Here’s an example to illustrate one aspect of the change.

In September of 1906, Theodore Roosevelt’s inaugural national monument proclamation opened with the following text:

Whereas, It is provided by section two of the Act of Congress, approved June 8, 1906, entitled, ‘An Act for the preservation of American Antiquities. . . .‘”

The opening line was followed by this passage:

Now, therefore, I, THEODORE ROOSEVELT, President of the United States of America, by virtue of the power in me vested by section two of the aforesaid Act of Congress, do hereby set aside as the Devils Tower National Monument, the lofty and isolated rock situated in Crook County, Wyoming. . . .”

Nearly every single presidential national monument proclamation since Roosevelt’s designation of Devils Tower has included reliably similar content in these passages.

Fast-forward to February of 2015 and here’s what the passages look like:

WHEREAS section 320301 of title 54, United States Code (known as the “Antiquities Act”), authorizes the President. . . .

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by the authority vested in me by section 320301 of title 54, United States Code, hereby proclaim the objects identified above that are situated upon lands and interests in lands owned or controlled by the Federal Government to be the Browns Canyon National Monument. . . .”

In addition to this first post-H.R. 1068 proclamation (establishing Browns Canyon National Monument), Proclamation 9233 (establishing Pullman National Monument on February 19, 2015), and Proclamation 9234 (establishing Honouliuli National Monument on February 24, 2015) also include the new reference to “section 320301 of title 54, United States Code.”

For at least this researcher, “Section 2 of the Antiquities Act” and “section 2 of the Act of June 8, 1906” were benchmark phrases, easily recognized while scanning through piles of presidential documents, and critically important in tracking presidential- versus congressionally-designated monuments. The replacement—“section 320301 of title 54, United States Code”—has a different flow and obviously lacks that instant connection with the century’s worth of monument proclamation texts that preceded its introduction. Give “section 320301” a hundred years, though, and a new crop of scholars, and it will likely hold similar value.

Reminiscing aside, the next post will address follow-up questions including what H.R. 1068 is, why it was signed into law, and how it might affect future national monument proclamations. A consideration of positive law codification and some extremely helpful Office of the Law Revision Counsel sources will also be included.


Image credit: Mark Knoller, CBS News White House Correspondent, via @markknoller (Photographer confirmation and permission to use image requested 2-19-15)

The source for this image is here.


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