November 3, 2025 • 31 mins
Environmental law expert Pat Parenteau, a professor at the Vermont Law & Graduate School, discusses a case challenging the president’s authority to protect or abolish national monuments. Constitutional law expert Harold Krent, a professor at the Chicago-Kent College of Law, discusses the Trump administation agreeing to partially fund SNAP benefits. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
It's been thirteen months in counting since the Tenth Circuit
heard oral arguments in a case over the president's executive
authority to protect or abolish US national monuments. This comes
as the White House is rolling back public lands protections.
The Tenth Circuit heard oral arguments in September of twenty
(00:30):
twenty four in Garfield County versus Biden, a case plaintiffs
are aiming at the Supreme Court as they challenge the
president's executive power to block mining, oil and gas drilling,
and other developments under the Antiquities Act. In May, the
Trump Justice Department outlined a rationale for abolishing national monuments,
(00:53):
many of which have been declared by presidents to protect
large swaths of public land from development. But President Donald
Trump has been largely hostile to large national monuments. The
Interior Department, which manages most of the one hundred and
thirty eight national monuments, has been cutting staff, expanding mining,
(01:14):
oil drilling, and logging on federal lands, and is also
reviewing whether it can open national monuments to mining. My
guest is environmental law expert Pat Parento, a professor at
the Vermont Law and Graduate School, Pat tell us about
this case, Garfield County versus Biden, which is before the
Tenth Circuit.
Speaker 3 (01:35):
So this is a challenge to President Biden's reinitiation of
a National monument designation for Bears Ears in Utah, Southern Utah.
It's over a million acres. It's one of the richest
archaeological and Native American cultural artifact pieces of property in
(01:57):
the entire United States. Are like five vibes who claimed
various you know, heritage and interests in this area. And
you know, it's another one of these designations under the
Antiquities Act, the nineteen six law. There have been one
hundred and fifty different designations by you know, Republican and
(02:19):
Democratic presidents over the years.
Speaker 1 (02:21):
So this one is.
Speaker 3 (02:23):
A challenge from the state of Utah challenging the Bears
Ears Monument. There's another related challenge to a monument in Colorado,
the Grand staircase Escalante National Monuments. So both of these
cases are working their way through the.
Speaker 2 (02:40):
Courts, and the lower court ruled that the Antiquities Act
doesn't allow judicial review for monument designations.
Speaker 1 (02:51):
Correct.
Speaker 3 (02:51):
Basically, the lower court judge Utah Federal judge ruled that
the Antiquities Act is a delegation of authority to the
president that gives him complete discretion and leaves no role
for the courts to review actions that the president takes
(03:15):
under the Antiquities Act. And as we may talk, that
was the focus of the argument in the Tenth Circuit
Court of Appeals in September.
Speaker 2 (03:26):
So are there other acts where it's been determined that
there can be no court review of what a president
or an agency does.
Speaker 3 (03:37):
No. This is a doctrine in administrative law known as
committed to agency discretion or in this case, committed to
the president's discretion. And the Overton Park case is is
the seminal case on this doctrine, and it basically says
there's a presumption that you can review actions that federal
(04:00):
agencies take, except where there's quote no law to apply.
So that's one of the questions here is does the
Antiquities Act give the courts standards that they can use
to judge whether or not a president has exceeded his authority.
That's the claim that Utah is making that Biden had
(04:23):
no authority to designate something this large under the Antiquities Act,
And from what I've read about the oral argument in
the Tenth Circuit, it seems to me that the Court
is likely to rule that there's at least some limited
ability of courts to review presidential declarations like this, designations
(04:48):
like this. Exactly how the Court's going to come down
on that, and what it says to the lower court
if it sends this case back to the lower court,
what kind of guidance it gives the lower courts?
Speaker 1 (05:01):
That I think is sort of where we are right now.
Speaker 2 (05:04):
So, the Trump Justice Department in May declared that presidential
authority to create or abolish monuments is one of the
White House's most sweeping unilateral powers, and that a US
president has the power to create and undo national monuments
under the Antiquities Act. So that is a reversal of
(05:26):
a nineteen thirty eight Justice Department opinion.
Speaker 1 (05:29):
Yes, that's true.
Speaker 3 (05:31):
There was an Attorney General opinion from nineteen thirty eight
which basically said that, you know, presidents have the authority
to designate national monuments and very very broad authority to
do so without any real significant limitations on the president's authority.
(05:52):
And also this opinion said once a monument has been designated,
it's up to Congress to decide whether to rescind the
designation or reduce it or do something with it. But
you know, the Act doesn't explicitly say that subsequent presidents
(06:12):
like Trump in this case, have the authority to either
rescind altogether a designation, which this latest Justice Department opinion
is saying he does have that authority, or substantially reduce it.
I mean, over the years, presidents have and Congress has
(06:33):
reduced to some extent designations, but only in a very
minor way, you know, a few thousand acres, not millions
of acres. Right, So we are in a grade zone.
Sounds familiar, right, where Yeah, always the statute is far
from crystal clear on both whether subsequent presidents can completely
(06:57):
rescind a designation or cut it back substantially the way
Trump did in these two monument cases we're talking about.
In his first term, he reduced the Grand Staircase monument
by eighty five percent, and he reduced the Bear's Ears.
Speaker 1 (07:13):
By forty five percent. So you know, we're in.
Speaker 3 (07:16):
This area where the courts really are going to struggle
with coming up with a rule that says what exactly
can subsequent presidents do about prior designations, and how much
of that authority is really left to Congress. I mean,
these are public lands, after all, they're subject to Congress's
(07:38):
property authority under the property clause of the Constitution. So
there's a separation of powers argument in all of this,
which is, you know, once a designation has been made,
maybe the best argument is it's really up to Congress
to decide what to do about that, if it wants
to do something about that. And instead of having this
(07:59):
flip flop between presidents, it's in, it's out, some of
it's in, some of it's out.
Speaker 1 (08:05):
I mean, that's really chaotic.
Speaker 3 (08:07):
Right, So, if this case gets to the Supreme Court
and in, it might maybe not right now because the
current posture of the cases is on this question of
do the courts.
Speaker 1 (08:17):
Have any authority at all to review it?
Speaker 3 (08:20):
But assuming the case does get to the Supreme Court,
I would predict that separation of powers will be a
central focus for the court.
Speaker 2 (08:28):
In fact, Chief Justice John Roberts in twenty twenty one,
in a case called Massachusetts Lobsterman's Association versus Ramundo, sort
of issued an invite to challenge the scope of presidential
power under the Antiquities Act. He said, its use has
been transformed into a power without any discernible limit to
(08:50):
set aside vast and amorphous expanses of terrain.
Speaker 3 (08:54):
Yeah, that's got a lot of people worry. It was
what we call dictum, right, And in fact, in that
Lobsterman case, the court denied review and said we're not
going to review President Obama's designation of two monuments off
the Eastern United States Seamounts and Canyons Monument. So it
(09:16):
was dictum. It was not part of the holding. It
wasn't the ruling at all. But every time a justice
says something raises a question, that gets a lot of
people thinking, Okay, well, perhaps Chief Justice Roberts is concerned
about this expansive authority that the president is issuing. But
(09:36):
on the other hand, what we're seeing from this particular
Supreme Court, if anything, is allowing the president to assert
all kinds of executive authority under this unitary executive doctrine.
Speaker 1 (09:50):
Right.
Speaker 3 (09:51):
So this is going to be an interesting issue if
and when it does get to the Supreme Court. You know,
will Chief Justice Roberts believe that the enti equities act
is is too.
Speaker 1 (10:01):
Broad a delegation in some respect. We don't know.
Speaker 3 (10:05):
It's too early to say, but he certainly has flagged
the issue, and Utah is relying very heavily on that
statement from Chief Justice Roberts.
Speaker 2 (10:16):
But in March of last year, the Supreme Court had
a chance to diminish the president's power to establish new
national monuments right in a pair of cases, but they
didn't take it.
Speaker 1 (10:29):
That's right.
Speaker 3 (10:30):
That case is kind of unusual because it dealt with
another federal statute in Oregon. And if we can recall,
when the railroads were being built across the western United States,
the Congress said to you know, Union Pacific and other railroads,
if you build these these lines that we need, we're
going to give you every other section of public land
(10:52):
as an inducement to make the capital investment in these
rail lines.
Speaker 1 (10:57):
Right. So there was a.
Speaker 3 (10:58):
Statute in that actually said some of the lands that
were designated in the monument were actually authorized by Congress
to be logged timbered for timber companies. And it was
the timber companies who were arguing to the Supreme Court
the President is exceeding his authority to designate these lands
(11:20):
as a monument when Congress has.
Speaker 1 (11:22):
Already said they should be logged. Right.
Speaker 3 (11:25):
So the Court did not take that case. And certainly,
if Justice Roberts was keen on taking a case to
review the authority under the Antiquities Act, that might have
been a case to do that. It wasn't a clear
issue for the Antiquities Act though, because of the fact
that this other statute was involved, and it might have
(11:47):
been more a question of is there really a conflict
between the Antiquities Act and this other statute or not. Ultimately,
the Court declined to review it, and Roberts didn't file
any kind of dissent or opinion saying we should have
taken it. Both Gorsich and Kavanaugh did say that we
(12:09):
think the Court should take this case, but probably because
of this potential conflict between these statutes, not so much
the pure question of does the Antiquities Act give the
President broad authority to set aside literally millions of acres
of public land. That remains to be seen whether that
(12:29):
issue gets to the Supreme Court.
Speaker 2 (12:32):
Coming up next on the Bloomberg Law Show, I'll continue
this conversation with Professor Pat Parento of the Vermont Law
and Graduate School so what's taking the Tenth Circuit so long?
I'm June Grosso and you're listening to Bloomberg. The Antiquities
Act is a law passed in nineteen oh six that
(12:52):
authorizes the president to proclaim national monuments on federal lands
to protect significant natural history or scientific features. Presidents have
used the Act more than one hundred times to create
national monuments, from the Grand Canyon to the Statue of Liberty.
A case before the Tenth Circuit Court of Appeals is
(13:13):
challenging the president's executive authority to protect or abolish national
monuments under the Antiquities Act. The State of Utah is
challenging the legal basis for Utah's Grand Staircase, Escalante and
Bare Ears, national monuments created by former Presidents Bill Clinton
and Barack Obama under the Antiquities Act. President Trump shrank
(13:36):
both monuments in twenty seventeen, and then former President Joe
Biden expanded them to roughly their original boundaries. I've been
talking to environmental law professor Pat Parento of the Vermont
Law and Graduate School, So Pat. The Tenth Circuit heard
oral arguments in this case last year. In September twenty
(13:57):
twenty four, They apparently have the lowest number of pending
cases of all the US appeals courts and claims on
the website, it has one of the fastest turnaround times
of any federal circuit court. But in this case, it's
been thirteen months and still no opinion. Is that unheard of?
Speaker 3 (14:15):
Not unheard of, but very unusual for the Tenth Circuit. Yeah,
it's one of the more efficient courts. It's Justice Gorsuch's
former court where he was many years on the Tenth Circuit.
So yeah, there's a lot of speculation about why is
the court taking so long? As they say this was
a procedural question, I mean, an important one, but still
(14:37):
a technical question of you know, do the court have
any authority at all to review designations of national monuments?
And so some speculation is, well, there's probably a descent.
It's a three judge panel, I forget exactly the makeup
of who the appointees are.
Speaker 1 (14:53):
I think there may be a Trump appointee on the panel.
Speaker 3 (14:56):
And so one theory is, well, there's probably a descent,
that always a longer period of time. Another is that
the court is wrestling with should it just reman the
case to the district Court with some instructions that yeah,
you have a role to play, but it's limited in
some way. Or is the court thinking, you know what,
(15:18):
maybe we should tackle the real question, the substantive question
of what authority.
Speaker 1 (15:22):
The president has.
Speaker 3 (15:24):
It was clear from the oral argument that the court
that panel understands everybody in Utah in particular, wants this
case to go to the Supreme Court. They're counting, you know, again,
on what Justice Roberts has said as maybe an indication
they could win in the Supreme Court on the limitation
on the president's authority. So, I don't know, it's too
(15:46):
hard to predict what's taking them this long.
Speaker 1 (15:50):
I would guess that we're probably.
Speaker 3 (15:51):
Going to see a decision certainly this year, in the
next month or so. Oh yeah, you'd like to think
so maybe a Christmas president of it might be a
lump of coal and somebody's stocking.
Speaker 2 (16:04):
The Justice Department outlined a rationale for abolishing national monuments.
I mean, is there any doubt that Trump is going
to try to maybe not abolish, but certainly cut back
on monuments, And I mean he wants to use the
land for what oil and gas drilling or something.
Speaker 3 (16:21):
Yeah, there's not a whole lot of oil and gas
in bears Ears, there is uranium, and he has made
us you know, resuscitating the nuclear industry as one of
his goals, and other minerals. You know, if once you
get in there and start poking around, you could probably
find other copper or other minerals.
Speaker 1 (16:39):
Right that have some value.
Speaker 3 (16:40):
So, yeah, Trump is not going to live with you know,
huge set asides of millions of acres of land that
has mineral value in it, that's for sure. So at
a minimum, he's going to look at these designations and
ask his friends in the industry, and of course Republican
governor of Utah, what do you want in these areas
(17:04):
and we will make sure that we don't set those aside.
That's probably what we could expect from this administration. Not
an outright repeal, although you know maybe I wouldn't think so.
Speaker 1 (17:16):
I would think it would be more of carve.
Speaker 3 (17:18):
Them down, way way down, and make sure that you've
excluded any mineral areas of the designations from being set aside.
Speaker 2 (17:28):
I mean, what do you think about the Antiquities Act?
Does it give too much power to presidents?
Speaker 3 (17:33):
Gives a lot of power for sure, you know, when
you think about it, some of the iconic national parks
in the United States. Grand Canyon was one of the
first areas to be designated a monument. There were plans
to build mines in the Grand Canyon at one point,
even a dam in the Grand Canyon. Zion, Teton Acadia.
(17:56):
You know, these are some of the most popular national
park in the country. They all began as national monuments.
So and again it's presidents of both political parties. Eisenhower
did it, George W.
Speaker 1 (18:09):
Bush did it. Even Herbert Hoover did it.
Speaker 3 (18:12):
Right, So a lot of our public lands heritage is
attributable to the Antiquities Act. It's been incredibly important for
preserving our natural heritage.
Speaker 1 (18:24):
So there's that.
Speaker 3 (18:25):
But then there's also the question of it's a very
short statute. I mean, it's like three sentences and there's
not a lot of you know, guidance I guess on
either what should be designated. You know, it refers to
things like objects of historic or scientific interest.
Speaker 1 (18:42):
Well, that's pretty darn broad.
Speaker 3 (18:45):
It also says that the designations quote shall be confined
to the smallest area compatible with proper care and management
of the objects to be protected. That's some of the
language that Utaw and others that oppose broad authority under
the Antiquities Actor citing to the courts and saying, look,
(19:05):
look here, you know, you don't get a million acre
designation when you're trying to protect the smallest area of
specific objects and so forth. So lots of room I
think to argue about should this statute be updated and
refined in certain ways? Again, Congress is perfectly capable of
(19:30):
doing whatever they want with public lands, and there would
be no ability of the courts to do anything else.
You know, Congress's power over public land is plenary. It's
unreviewable by the courts. The Supreme Court has said that
in Missouri versus Holland. So in lots of ways you
can argue what's good public policy with these lands? Should
(19:52):
there be a little bit more guidance from Congress, which
is the body that's responsible for stewardship of these lands. Ultimately, yeah,
there's good arguments, I'm sure both ways. But one thing
that's really clear is without the Antiquities Act, a lot
of really precious areas of the United States would have
(20:12):
been lost before now.
Speaker 2 (20:14):
And pat when I was researching this case, I found
something interesting a little off topic, but in the case
Utah versus United States, the State of Utah asserts that
the federal government, which owns nearly seventy percent of Utah,
lacks constitutional authority to retain much of that land. But
the Supreme Court denied a motion for leave to file
(20:37):
a bill of complaint under the court's original jurisdiction. Seventy
percent of Utah by the federal government.
Speaker 3 (20:44):
Yeah right, I mean, it's like, give us your money
and stay out of the way. Give us these lands
to use as we like, and don't put any restrictions
on them. You know, it's a challenge for sure when
seventy percent of your state is governed by the federal government.
But if you look at what's happening on the ground
(21:05):
in Utah, there's an enormous amount of public lands being
developed for oil and gas, for mineral development, for water
rights and water use. So, you know, is the fact
that there's a lot of federal land in Utah crippling
the Utah economy. You can't make that case. Really, these
(21:25):
national parks that began as national monuments again, just think
about it, Zion National Park, Arches, canyon lands, you know,
these national parks are huge economic.
Speaker 1 (21:39):
Assets for the state of Utah.
Speaker 3 (21:42):
Four of the five top national parks in Utah began
as national monuments. So it's really I think I'd have
to say hypocritical for Utah to say, you know, these
national monuments and national parks are a big drain on
our economy.
Speaker 1 (21:58):
It just isn't true.
Speaker 2 (22:00):
We'll keep watching to see when the decision finally comes down.
Thanks so much, Pat. That's professor Pat Parento of the
Vermont Law and Graduate School. Up to forty two million
Americans didn't receive their SNAP benefits on the first of
the month, but the Trump administration told a federal judge
(22:20):
today that it will comply with a court order to
fund US food aid benefits for November during the government shutdown,
but only at fifty percent of the amount that eligible
households normally receive. This follows back to back rulings from
judges in Boston and Rhode Island who found that the
Trump administration likely violated US law in suspending SNAP during
(22:44):
the government shutdown. Joining me is constitutional law professor Harold
Krant of the Chicago Kent College of Law, how to judges.
Judge John McConnell in Rhode Island and Judge Indira Talwani
in Boston, almost at the same time that Trump administration
officials likely violated the law when suspending SNAP during the
(23:08):
government shutdown. Tell us a little about those opinions.
Speaker 4 (23:13):
Rulings are relatively similar. They require, first of all, that
conditional funds supplemental funds be used to pay as much
of the benefits for the next month as possible. And indeed,
Congress set up a contingency fund and funded it two
years in a row, three billion dollars each year. So
(23:33):
there's six billion dollars in contingency funds that are ready
to be spent. And the Trump administration have said, we
have no legal authority to spend contingency funds because Congress
hasn't funded the program for the next fiscal year, which
is a non secutor. And the court said, what are
you talking about. That's why Congress created a contingency fund.
(23:55):
And so I think that the courts both are on
very strong ground and saying that contingency funds at the
minimum have to be expended against six billion dollars, not
everything for the first month, but three quarters roughly. And
so the Trump administration will use the six billion dollars
to at least pay part of next month's SNAP benefits,
(24:15):
which are due.
Speaker 2 (24:17):
Judge McConnell also said that government had to determine if
it can supplement that limited contingency pool of money with
another fund that includes customs receipts.
Speaker 4 (24:29):
Congress has created a kind of slush fund, if you will,
from tri fees that can be used in emergencies, and
the Department of Agriculture has used that sort of slush
fund in the past to pay for other food programs,
such as the Women's Infant and Children Program or the
Whig program.
Speaker 2 (24:47):
So the Trump administration has agreed to fund the benefits
in November up to the full amount of the SNAP
contingency funds. So that's fifty percent of the amount that
eligible households normally receive. Does that comply with the court's orders?
Speaker 4 (25:03):
They are complying with the judges order. That the Trump
administration is complying with the judge's order. The judgment discretionary
as to whether the federal government has to dip into
other discretionary pots of money to cover the shortfall in
the program. So the real only other issue that I
can think of is that claimants could say that they
have an entitlement under the due process clause to receive
(25:26):
the money because the government has committed themselves to paying
SNAP benefits.
Speaker 1 (25:31):
I don't think that.
Speaker 4 (25:33):
Entitlement argument would work because it's probably contingent upon there
being sufficient money, So I think that that would end
up being somewhat circular. So for now, the Trump administration
has declined to open up discretiony moneies to fill the
shortfall in the staff program. So people are going to
have to scramble and hope that money can come from
(25:55):
food banks from states and other places.
Speaker 2 (25:57):
Yes, so, according to what the administrations said, they thought
it was an unacceptable solution to use the child Nutrition Funds,
which provide free school meals to about twenty nine million
low income students, to shift that money to SNAP. Certainly
a hard decision to make.
Speaker 4 (26:16):
Yeah, I remember there's head Start, There's women, infants, and
children nutrition programs, lots of programs that say shortfalls now
because of the funding did and so the top administration
does have decide how to prioritize. But at least they'll
be helping this first trash, if you will, by helping
to pay what was in the contingency fund between five
(26:38):
and six billion dollars.
Speaker 2 (26:40):
So were the court cases basically over, then.
Speaker 4 (26:42):
Probably, I mean, the court may maintain jurisdiction of it
to make sure that Prisent Trump's follows through with respect
to the commitment to use a contingency fund. Also, plainists
may add different claims in an effort to try to
force the government to divert more money into the SNAP program,
But that remains to be seen, and.
Speaker 2 (27:02):
There's a question of when people are going to get
these benefits. The Department of Agriculture warned that it could
take some states anywhere from a few weeks up to
several months to recalculate household benefit amounts and implement the
partial payment, because states determine who's eligible for the program
and then facilitate making the federal funds available each month
(27:25):
on benefits cards that function like bank debit cards.
Speaker 4 (27:31):
I should know that the government faces a huge issue
of trying to decide how to allocate SNAP funding of
it's not one hundred percent funded because all the mechanisms
in terms of electronic transfers and so forth, are set
up and structured so that with a certain amount of
money in mind. So they would face a bureaucratic issue
(27:53):
about how to adjust for that. Yeah, and I think
now states are trying to react and dip into other
kind of fund to try to supplement whatever amounts of
money is missing or at least two covered in the
interim until these payments can.
Speaker 1 (28:08):
Be strained out.
Speaker 4 (28:09):
I mean, this whole thing is obviously part of the shutdown,
but the congressional enactment of the Contingency Fund should have
created this a much more smooth runway in order to
ensure that people were still funded pending the results of
the negotiation that we reopening the government.
Speaker 2 (28:27):
Is SNAP funding a political issue because President Trump, responding
to questions during one of his flights, said that it's
mostly Democrats who rely on SNAP.
Speaker 4 (28:38):
There are forty million people in this country who rely
upon SNAP funding.
Speaker 1 (28:44):
It's to find.
Speaker 4 (28:45):
I believe it's one hundred and thirty five percent of
the poverty line. And so this is the elderly veterans,
as well as people that have low paying jobs, as
well as people are unemployed, are all entitled to SNAP benefits.
So this cuts across a lowish segment of the population.
Speaker 1 (29:03):
And I think.
Speaker 4 (29:03):
Republican governors are quite worried about people in their own states.
Speaker 2 (29:07):
Talking about the government shutdown. Federal courts are scaling back
operations after exhausting reserve funds during the government's shutdown, but
dozens of fights over Trump's controversial policies are moving forward
after judges have denied the Justice Department's request to extend
(29:28):
deadlines in several cases. We can obviously see that in
the cases that we've been talking about involving snap benefits,
and it's not just the cases that involve the government shutdown.
For example, a Washington judge handling a suit challenging Trump's
plan to impose one hundred thousand dollars fee for foreign workers'
visas wrote that the government couldn't use the shutdown to
(29:52):
avoid meaningful judicial review of employer's time sensitive concerns. She
not only refused to pause the deadline, but she put
the case on an expedited track.
Speaker 4 (30:02):
Well, I mean the courts have a decision to make
about whether to shut down or not, or court which
cases are more important. Obviously, criminal cases are usually more
important than civil. But the courts are also determining that
these high stakes litigation with the Trump administration affects so
many people in so many ways, as our discussion of
the snap of benefits suggest that they're going to prioritize
(30:27):
the Trump administration litigation in addition to the criminal cases.
Speaker 1 (30:31):
The Department of Justice.
Speaker 4 (30:32):
Attorneys aren't getting paid, court personnel are not getting paid,
but the court's business continues.
Speaker 2 (30:41):
The judges get paid, don't they.
Speaker 1 (30:43):
Judges have to.
Speaker 4 (30:44):
Get paid because of the constitutional protection for compensation.
Speaker 2 (30:48):
Advantage the federal judiciary. There, thanks so much. How that's
Professor Harold Krant of the Chicago Kent College of Law.
And that's it for this edition of the Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast, Slash Law,
(31:12):
And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
It's been thirteen months in counting since the Tenth Circuit
heard oral arguments in a case over the president's executive
authority to protect or abolish US national monuments. This comes
as the White House is rolling back public lands protections.
The Tenth Circuit heard oral arguments in September of twenty
(00:30):
twenty four in Garfield County versus Biden, a case plaintiffs
are aiming at the Supreme Court as they challenge the
president's executive power to block mining, oil and gas drilling,
and other developments under the Antiquities Act. In May, the
Trump Justice Department outlined a rationale for abolishing national monuments,
(00:53):
many of which have been declared by presidents to protect
large swaths of public land from development. But President Donald
Trump has been largely hostile to large national monuments. The
Interior Department, which manages most of the one hundred and
thirty eight national monuments, has been cutting staff, expanding mining,
(01:14):
oil drilling, and logging on federal lands, and is also
reviewing whether it can open national monuments to mining. My
guest is environmental law expert Pat Parento, a professor at
the Vermont Law and Graduate School, Pat tell us about
this case, Garfield County versus Biden, which is before the
Tenth Circuit.
Speaker 3 (01:35):
So this is a challenge to President Biden's reinitiation of
a National monument designation for Bears Ears in Utah, Southern Utah.
It's over a million acres. It's one of the richest
archaeological and Native American cultural artifact pieces of property in
(01:57):
the entire United States. Are like five vibes who claimed
various you know, heritage and interests in this area. And
you know, it's another one of these designations under the
Antiquities Act, the nineteen six law. There have been one
hundred and fifty different designations by you know, Republican and
(02:19):
Democratic presidents over the years.
Speaker 1 (02:21):
So this one is.
Speaker 3 (02:23):
A challenge from the state of Utah challenging the Bears
Ears Monument. There's another related challenge to a monument in Colorado,
the Grand staircase Escalante National Monuments. So both of these
cases are working their way through the.
Speaker 2 (02:40):
Courts, and the lower court ruled that the Antiquities Act
doesn't allow judicial review for monument designations.
Speaker 1 (02:51):
Correct.
Speaker 3 (02:51):
Basically, the lower court judge Utah Federal judge ruled that
the Antiquities Act is a delegation of authority to the
president that gives him complete discretion and leaves no role
for the courts to review actions that the president takes
(03:15):
under the Antiquities Act. And as we may talk, that
was the focus of the argument in the Tenth Circuit
Court of Appeals in September.
Speaker 2 (03:26):
So are there other acts where it's been determined that
there can be no court review of what a president
or an agency does.
Speaker 3 (03:37):
No. This is a doctrine in administrative law known as
committed to agency discretion or in this case, committed to
the president's discretion. And the Overton Park case is is
the seminal case on this doctrine, and it basically says
there's a presumption that you can review actions that federal
(04:00):
agencies take, except where there's quote no law to apply.
So that's one of the questions here is does the
Antiquities Act give the courts standards that they can use
to judge whether or not a president has exceeded his authority.
That's the claim that Utah is making that Biden had
(04:23):
no authority to designate something this large under the Antiquities Act,
And from what I've read about the oral argument in
the Tenth Circuit, it seems to me that the Court
is likely to rule that there's at least some limited
ability of courts to review presidential declarations like this, designations
(04:48):
like this. Exactly how the Court's going to come down
on that, and what it says to the lower court
if it sends this case back to the lower court,
what kind of guidance it gives the lower courts?
Speaker 1 (05:01):
That I think is sort of where we are right now.
Speaker 2 (05:04):
So, the Trump Justice Department in May declared that presidential
authority to create or abolish monuments is one of the
White House's most sweeping unilateral powers, and that a US
president has the power to create and undo national monuments
under the Antiquities Act. So that is a reversal of
(05:26):
a nineteen thirty eight Justice Department opinion.
Speaker 1 (05:29):
Yes, that's true.
Speaker 3 (05:31):
There was an Attorney General opinion from nineteen thirty eight
which basically said that, you know, presidents have the authority
to designate national monuments and very very broad authority to
do so without any real significant limitations on the president's authority.
(05:52):
And also this opinion said once a monument has been designated,
it's up to Congress to decide whether to rescind the
designation or reduce it or do something with it. But
you know, the Act doesn't explicitly say that subsequent presidents
(06:12):
like Trump in this case, have the authority to either
rescind altogether a designation, which this latest Justice Department opinion
is saying he does have that authority, or substantially reduce it.
I mean, over the years, presidents have and Congress has
(06:33):
reduced to some extent designations, but only in a very
minor way, you know, a few thousand acres, not millions
of acres. Right, So we are in a grade zone.
Sounds familiar, right, where Yeah, always the statute is far
from crystal clear on both whether subsequent presidents can completely
(06:57):
rescind a designation or cut it back substantially the way
Trump did in these two monument cases we're talking about.
In his first term, he reduced the Grand Staircase monument
by eighty five percent, and he reduced the Bear's Ears.
Speaker 1 (07:13):
By forty five percent. So you know, we're in.
Speaker 3 (07:16):
This area where the courts really are going to struggle
with coming up with a rule that says what exactly
can subsequent presidents do about prior designations, and how much
of that authority is really left to Congress. I mean,
these are public lands, after all, they're subject to Congress's
(07:38):
property authority under the property clause of the Constitution. So
there's a separation of powers argument in all of this,
which is, you know, once a designation has been made,
maybe the best argument is it's really up to Congress
to decide what to do about that, if it wants
to do something about that. And instead of having this
(07:59):
flip flop between presidents, it's in, it's out, some of
it's in, some of it's out.
Speaker 1 (08:05):
I mean, that's really chaotic.
Speaker 3 (08:07):
Right, So, if this case gets to the Supreme Court
and in, it might maybe not right now because the
current posture of the cases is on this question of
do the courts.
Speaker 1 (08:17):
Have any authority at all to review it?
Speaker 3 (08:20):
But assuming the case does get to the Supreme Court,
I would predict that separation of powers will be a
central focus for the court.
Speaker 2 (08:28):
In fact, Chief Justice John Roberts in twenty twenty one,
in a case called Massachusetts Lobsterman's Association versus Ramundo, sort
of issued an invite to challenge the scope of presidential
power under the Antiquities Act. He said, its use has
been transformed into a power without any discernible limit to
(08:50):
set aside vast and amorphous expanses of terrain.
Speaker 3 (08:54):
Yeah, that's got a lot of people worry. It was
what we call dictum, right, And in fact, in that
Lobsterman case, the court denied review and said we're not
going to review President Obama's designation of two monuments off
the Eastern United States Seamounts and Canyons Monument. So it
(09:16):
was dictum. It was not part of the holding. It
wasn't the ruling at all. But every time a justice
says something raises a question, that gets a lot of
people thinking, Okay, well, perhaps Chief Justice Roberts is concerned
about this expansive authority that the president is issuing. But
(09:36):
on the other hand, what we're seeing from this particular
Supreme Court, if anything, is allowing the president to assert
all kinds of executive authority under this unitary executive doctrine.
Speaker 1 (09:50):
Right.
Speaker 3 (09:51):
So this is going to be an interesting issue if
and when it does get to the Supreme Court. You know,
will Chief Justice Roberts believe that the enti equities act
is is too.
Speaker 1 (10:01):
Broad a delegation in some respect. We don't know.
Speaker 3 (10:05):
It's too early to say, but he certainly has flagged
the issue, and Utah is relying very heavily on that
statement from Chief Justice Roberts.
Speaker 2 (10:16):
But in March of last year, the Supreme Court had
a chance to diminish the president's power to establish new
national monuments right in a pair of cases, but they
didn't take it.
Speaker 1 (10:29):
That's right.
Speaker 3 (10:30):
That case is kind of unusual because it dealt with
another federal statute in Oregon. And if we can recall,
when the railroads were being built across the western United States,
the Congress said to you know, Union Pacific and other railroads,
if you build these these lines that we need, we're
going to give you every other section of public land
(10:52):
as an inducement to make the capital investment in these
rail lines.
Speaker 1 (10:57):
Right. So there was a.
Speaker 3 (10:58):
Statute in that actually said some of the lands that
were designated in the monument were actually authorized by Congress
to be logged timbered for timber companies. And it was
the timber companies who were arguing to the Supreme Court
the President is exceeding his authority to designate these lands
(11:20):
as a monument when Congress has.
Speaker 1 (11:22):
Already said they should be logged. Right.
Speaker 3 (11:25):
So the Court did not take that case. And certainly,
if Justice Roberts was keen on taking a case to
review the authority under the Antiquities Act, that might have
been a case to do that. It wasn't a clear
issue for the Antiquities Act though, because of the fact
that this other statute was involved, and it might have
(11:47):
been more a question of is there really a conflict
between the Antiquities Act and this other statute or not. Ultimately,
the Court declined to review it, and Roberts didn't file
any kind of dissent or opinion saying we should have
taken it. Both Gorsich and Kavanaugh did say that we
(12:09):
think the Court should take this case, but probably because
of this potential conflict between these statutes, not so much
the pure question of does the Antiquities Act give the
President broad authority to set aside literally millions of acres
of public land. That remains to be seen whether that
(12:29):
issue gets to the Supreme Court.
Speaker 2 (12:32):
Coming up next on the Bloomberg Law Show, I'll continue
this conversation with Professor Pat Parento of the Vermont Law
and Graduate School so what's taking the Tenth Circuit so long?
I'm June Grosso and you're listening to Bloomberg. The Antiquities
Act is a law passed in nineteen oh six that
(12:52):
authorizes the president to proclaim national monuments on federal lands
to protect significant natural history or scientific features. Presidents have
used the Act more than one hundred times to create
national monuments, from the Grand Canyon to the Statue of Liberty.
A case before the Tenth Circuit Court of Appeals is
(13:13):
challenging the president's executive authority to protect or abolish national
monuments under the Antiquities Act. The State of Utah is
challenging the legal basis for Utah's Grand Staircase, Escalante and
Bare Ears, national monuments created by former Presidents Bill Clinton
and Barack Obama under the Antiquities Act. President Trump shrank
(13:36):
both monuments in twenty seventeen, and then former President Joe
Biden expanded them to roughly their original boundaries. I've been
talking to environmental law professor Pat Parento of the Vermont
Law and Graduate School, So Pat. The Tenth Circuit heard
oral arguments in this case last year. In September twenty
(13:57):
twenty four, They apparently have the lowest number of pending
cases of all the US appeals courts and claims on
the website, it has one of the fastest turnaround times
of any federal circuit court. But in this case, it's
been thirteen months and still no opinion. Is that unheard of?
Speaker 3 (14:15):
Not unheard of, but very unusual for the Tenth Circuit. Yeah,
it's one of the more efficient courts. It's Justice Gorsuch's
former court where he was many years on the Tenth Circuit.
So yeah, there's a lot of speculation about why is
the court taking so long? As they say this was
a procedural question, I mean, an important one, but still
(14:37):
a technical question of you know, do the court have
any authority at all to review designations of national monuments?
And so some speculation is, well, there's probably a descent.
It's a three judge panel, I forget exactly the makeup
of who the appointees are.
Speaker 1 (14:53):
I think there may be a Trump appointee on the panel.
Speaker 3 (14:56):
And so one theory is, well, there's probably a descent,
that always a longer period of time. Another is that
the court is wrestling with should it just reman the
case to the district Court with some instructions that yeah,
you have a role to play, but it's limited in
some way. Or is the court thinking, you know what,
(15:18):
maybe we should tackle the real question, the substantive question
of what authority.
Speaker 1 (15:22):
The president has.
Speaker 3 (15:24):
It was clear from the oral argument that the court
that panel understands everybody in Utah in particular, wants this
case to go to the Supreme Court. They're counting, you know, again,
on what Justice Roberts has said as maybe an indication
they could win in the Supreme Court on the limitation
on the president's authority. So, I don't know, it's too
(15:46):
hard to predict what's taking them this long.
Speaker 1 (15:50):
I would guess that we're probably.
Speaker 3 (15:51):
Going to see a decision certainly this year, in the
next month or so. Oh yeah, you'd like to think
so maybe a Christmas president of it might be a
lump of coal and somebody's stocking.
Speaker 2 (16:04):
The Justice Department outlined a rationale for abolishing national monuments.
I mean, is there any doubt that Trump is going
to try to maybe not abolish, but certainly cut back
on monuments, And I mean he wants to use the
land for what oil and gas drilling or something.
Speaker 3 (16:21):
Yeah, there's not a whole lot of oil and gas
in bears Ears, there is uranium, and he has made
us you know, resuscitating the nuclear industry as one of
his goals, and other minerals. You know, if once you
get in there and start poking around, you could probably
find other copper or other minerals.
Speaker 1 (16:39):
Right that have some value.
Speaker 3 (16:40):
So, yeah, Trump is not going to live with you know,
huge set asides of millions of acres of land that
has mineral value in it, that's for sure. So at
a minimum, he's going to look at these designations and
ask his friends in the industry, and of course Republican
governor of Utah, what do you want in these areas
(17:04):
and we will make sure that we don't set those aside.
That's probably what we could expect from this administration. Not
an outright repeal, although you know maybe I wouldn't think so.
Speaker 1 (17:16):
I would think it would be more of carve.
Speaker 3 (17:18):
Them down, way way down, and make sure that you've
excluded any mineral areas of the designations from being set aside.
Speaker 2 (17:28):
I mean, what do you think about the Antiquities Act?
Does it give too much power to presidents?
Speaker 3 (17:33):
Gives a lot of power for sure, you know, when
you think about it, some of the iconic national parks
in the United States. Grand Canyon was one of the
first areas to be designated a monument. There were plans
to build mines in the Grand Canyon at one point,
even a dam in the Grand Canyon. Zion, Teton Acadia.
(17:56):
You know, these are some of the most popular national
park in the country. They all began as national monuments.
So and again it's presidents of both political parties. Eisenhower
did it, George W.
Speaker 1 (18:09):
Bush did it. Even Herbert Hoover did it.
Speaker 3 (18:12):
Right, So a lot of our public lands heritage is
attributable to the Antiquities Act. It's been incredibly important for
preserving our natural heritage.
Speaker 1 (18:24):
So there's that.
Speaker 3 (18:25):
But then there's also the question of it's a very
short statute. I mean, it's like three sentences and there's
not a lot of you know, guidance I guess on
either what should be designated. You know, it refers to
things like objects of historic or scientific interest.
Speaker 1 (18:42):
Well, that's pretty darn broad.
Speaker 3 (18:45):
It also says that the designations quote shall be confined
to the smallest area compatible with proper care and management
of the objects to be protected. That's some of the
language that Utaw and others that oppose broad authority under
the Antiquities Actor citing to the courts and saying, look,
(19:05):
look here, you know, you don't get a million acre
designation when you're trying to protect the smallest area of
specific objects and so forth. So lots of room I
think to argue about should this statute be updated and
refined in certain ways? Again, Congress is perfectly capable of
(19:30):
doing whatever they want with public lands, and there would
be no ability of the courts to do anything else.
You know, Congress's power over public land is plenary. It's
unreviewable by the courts. The Supreme Court has said that
in Missouri versus Holland. So in lots of ways you
can argue what's good public policy with these lands? Should
(19:52):
there be a little bit more guidance from Congress, which
is the body that's responsible for stewardship of these lands. Ultimately, yeah,
there's good arguments, I'm sure both ways. But one thing
that's really clear is without the Antiquities Act, a lot
of really precious areas of the United States would have
(20:12):
been lost before now.
Speaker 2 (20:14):
And pat when I was researching this case, I found
something interesting a little off topic, but in the case
Utah versus United States, the State of Utah asserts that
the federal government, which owns nearly seventy percent of Utah,
lacks constitutional authority to retain much of that land. But
the Supreme Court denied a motion for leave to file
(20:37):
a bill of complaint under the court's original jurisdiction. Seventy
percent of Utah by the federal government.
Speaker 3 (20:44):
Yeah right, I mean, it's like, give us your money
and stay out of the way. Give us these lands
to use as we like, and don't put any restrictions
on them. You know, it's a challenge for sure when
seventy percent of your state is governed by the federal government.
But if you look at what's happening on the ground
(21:05):
in Utah, there's an enormous amount of public lands being
developed for oil and gas, for mineral development, for water
rights and water use. So, you know, is the fact
that there's a lot of federal land in Utah crippling
the Utah economy. You can't make that case. Really, these
(21:25):
national parks that began as national monuments again, just think
about it, Zion National Park, Arches, canyon lands, you know,
these national parks are huge economic.
Speaker 1 (21:39):
Assets for the state of Utah.
Speaker 3 (21:42):
Four of the five top national parks in Utah began
as national monuments. So it's really I think I'd have
to say hypocritical for Utah to say, you know, these
national monuments and national parks are a big drain on
our economy.
Speaker 1 (21:58):
It just isn't true.
Speaker 2 (22:00):
We'll keep watching to see when the decision finally comes down.
Thanks so much, Pat. That's professor Pat Parento of the
Vermont Law and Graduate School. Up to forty two million
Americans didn't receive their SNAP benefits on the first of
the month, but the Trump administration told a federal judge
(22:20):
today that it will comply with a court order to
fund US food aid benefits for November during the government shutdown,
but only at fifty percent of the amount that eligible
households normally receive. This follows back to back rulings from
judges in Boston and Rhode Island who found that the
Trump administration likely violated US law in suspending SNAP during
(22:44):
the government shutdown. Joining me is constitutional law professor Harold
Krant of the Chicago Kent College of Law, how to judges.
Judge John McConnell in Rhode Island and Judge Indira Talwani
in Boston, almost at the same time that Trump administration
officials likely violated the law when suspending SNAP during the
(23:08):
government shutdown. Tell us a little about those opinions.
Speaker 4 (23:13):
Rulings are relatively similar. They require, first of all, that
conditional funds supplemental funds be used to pay as much
of the benefits for the next month as possible. And indeed,
Congress set up a contingency fund and funded it two
years in a row, three billion dollars each year. So
(23:33):
there's six billion dollars in contingency funds that are ready
to be spent. And the Trump administration have said, we
have no legal authority to spend contingency funds because Congress
hasn't funded the program for the next fiscal year, which
is a non secutor. And the court said, what are
you talking about. That's why Congress created a contingency fund.
(23:55):
And so I think that the courts both are on
very strong ground and saying that contingency funds at the
minimum have to be expended against six billion dollars, not
everything for the first month, but three quarters roughly. And
so the Trump administration will use the six billion dollars
to at least pay part of next month's SNAP benefits,
(24:15):
which are due.
Speaker 2 (24:17):
Judge McConnell also said that government had to determine if
it can supplement that limited contingency pool of money with
another fund that includes customs receipts.
Speaker 4 (24:29):
Congress has created a kind of slush fund, if you will,
from tri fees that can be used in emergencies, and
the Department of Agriculture has used that sort of slush
fund in the past to pay for other food programs,
such as the Women's Infant and Children Program or the
Whig program.
Speaker 2 (24:47):
So the Trump administration has agreed to fund the benefits
in November up to the full amount of the SNAP
contingency funds. So that's fifty percent of the amount that
eligible households normally receive. Does that comply with the court's orders?
Speaker 4 (25:03):
They are complying with the judges order. That the Trump
administration is complying with the judge's order. The judgment discretionary
as to whether the federal government has to dip into
other discretionary pots of money to cover the shortfall in
the program. So the real only other issue that I
can think of is that claimants could say that they
have an entitlement under the due process clause to receive
(25:26):
the money because the government has committed themselves to paying
SNAP benefits.
Speaker 1 (25:31):
I don't think that.
Speaker 4 (25:33):
Entitlement argument would work because it's probably contingent upon there
being sufficient money, So I think that that would end
up being somewhat circular. So for now, the Trump administration
has declined to open up discretiony moneies to fill the
shortfall in the staff program. So people are going to
have to scramble and hope that money can come from
(25:55):
food banks from states and other places.
Speaker 2 (25:57):
Yes, so, according to what the administrations said, they thought
it was an unacceptable solution to use the child Nutrition Funds,
which provide free school meals to about twenty nine million
low income students, to shift that money to SNAP. Certainly
a hard decision to make.
Speaker 4 (26:16):
Yeah, I remember there's head Start, There's women, infants, and
children nutrition programs, lots of programs that say shortfalls now
because of the funding did and so the top administration
does have decide how to prioritize. But at least they'll
be helping this first trash, if you will, by helping
to pay what was in the contingency fund between five
(26:38):
and six billion dollars.
Speaker 2 (26:40):
So were the court cases basically over, then.
Speaker 4 (26:42):
Probably, I mean, the court may maintain jurisdiction of it
to make sure that Prisent Trump's follows through with respect
to the commitment to use a contingency fund. Also, plainists
may add different claims in an effort to try to
force the government to divert more money into the SNAP program,
But that remains to be seen, and.
Speaker 2 (27:02):
There's a question of when people are going to get
these benefits. The Department of Agriculture warned that it could
take some states anywhere from a few weeks up to
several months to recalculate household benefit amounts and implement the
partial payment, because states determine who's eligible for the program
and then facilitate making the federal funds available each month
(27:25):
on benefits cards that function like bank debit cards.
Speaker 4 (27:31):
I should know that the government faces a huge issue
of trying to decide how to allocate SNAP funding of
it's not one hundred percent funded because all the mechanisms
in terms of electronic transfers and so forth, are set
up and structured so that with a certain amount of
money in mind. So they would face a bureaucratic issue
(27:53):
about how to adjust for that. Yeah, and I think
now states are trying to react and dip into other
kind of fund to try to supplement whatever amounts of
money is missing or at least two covered in the
interim until these payments can.
Speaker 1 (28:08):
Be strained out.
Speaker 4 (28:09):
I mean, this whole thing is obviously part of the shutdown,
but the congressional enactment of the Contingency Fund should have
created this a much more smooth runway in order to
ensure that people were still funded pending the results of
the negotiation that we reopening the government.
Speaker 2 (28:27):
Is SNAP funding a political issue because President Trump, responding
to questions during one of his flights, said that it's
mostly Democrats who rely on SNAP.
Speaker 4 (28:38):
There are forty million people in this country who rely
upon SNAP funding.
Speaker 1 (28:44):
It's to find.
Speaker 4 (28:45):
I believe it's one hundred and thirty five percent of
the poverty line. And so this is the elderly veterans,
as well as people that have low paying jobs, as
well as people are unemployed, are all entitled to SNAP benefits.
So this cuts across a lowish segment of the population.
Speaker 1 (29:03):
And I think.
Speaker 4 (29:03):
Republican governors are quite worried about people in their own states.
Speaker 2 (29:07):
Talking about the government shutdown. Federal courts are scaling back
operations after exhausting reserve funds during the government's shutdown, but
dozens of fights over Trump's controversial policies are moving forward
after judges have denied the Justice Department's request to extend
(29:28):
deadlines in several cases. We can obviously see that in
the cases that we've been talking about involving snap benefits,
and it's not just the cases that involve the government shutdown.
For example, a Washington judge handling a suit challenging Trump's
plan to impose one hundred thousand dollars fee for foreign workers'
visas wrote that the government couldn't use the shutdown to
(29:52):
avoid meaningful judicial review of employer's time sensitive concerns. She
not only refused to pause the deadline, but she put
the case on an expedited track.
Speaker 4 (30:02):
Well, I mean the courts have a decision to make
about whether to shut down or not, or court which
cases are more important. Obviously, criminal cases are usually more
important than civil. But the courts are also determining that
these high stakes litigation with the Trump administration affects so
many people in so many ways, as our discussion of
the snap of benefits suggest that they're going to prioritize
(30:27):
the Trump administration litigation in addition to the criminal cases.
Speaker 1 (30:31):
The Department of Justice.
Speaker 4 (30:32):
Attorneys aren't getting paid, court personnel are not getting paid,
but the court's business continues.
Speaker 2 (30:41):
The judges get paid, don't they.
Speaker 1 (30:43):
Judges have to.
Speaker 4 (30:44):
Get paid because of the constitutional protection for compensation.
Speaker 2 (30:48):
Advantage the federal judiciary. There, thanks so much. How that's
Professor Harold Krant of the Chicago Kent College of Law.
And that's it for this edition of the Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast, Slash Law,
(31:12):
And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
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