Editor’s note: In honor of the National Park Service’s 100th anniversary, we are republishing this article from January 2015 about Theodore Roosevelt’s aggressive actions to protect American natural resources.
How far can a President go against the wishes of Congress by using an executive order? Back on January 12, 1908, President Theodore Roosevelt tested his constitutional powers by protecting the Grand Canyon using a legal loophole.Roosevelt was arguably the first modern President to use executive orders and presidential proclamations to set policies outside of the bounds of Congress, on a regular basis.
To be sure, prior Presidents used these presumed powers to make major policy decisions. Abraham Lincoln used his executive order powers to issue the Emancipation Proclamation, for example. Lincoln also suspended the right of habeas corpus during part of the Civil War.
But the ever-aggressive Roosevelt thought it was his destiny and right to provide leadership under the “stewardship theory” of presidential power. The theory remains controversial today, and it gives the President broad powers to take actions unless powers are specifically reserved to Congress and the states.
“My belief was that it was not only [the President’s] right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws…. I did not usurp power, but I did greatly broaden the use of executive power,” Roosevelt said in 1913, after his failed bid for a third term a year earlier.
“The course I followed [was] of regarding the Executive as subject only to the people, and, under the Constitution, bound to serve the people affirmatively in cases where the Constitution does not explicitly forbid him to render the service,” he said.
A test of Roosevelt’s expanded powers came in an area deeply personal to him: the conservation of lands. After his first wife’s death, Roosevelt spent extended time in the western part of the United States, and his love of nature was well-documented.
Upon succeeding William McKinley in the White House in 1901, conservation quickly became an important policy area for Roosevelt. But certain conservation powers resided with Congress and the residents of states (or states themselves) that owned land.
In May 1903, President Roosevelt made his first trip to the Grand Canyon and spoke at a public event.
“In the Grand Canyon, Arizona has a natural wonder which, so far as I know, is in kind absolutely unparalleled throughout the rest of the world. I want to ask you to do one thing in connection with it in your own interest and in the interest of the country to keep this great wonder of nature as it now is,” Roosevelt said, aware of efforts to build on the land and to mine the region for minerals.
At the time, Roosevelt had few tools available to him personally for conservationist efforts. He used the Forest Reserve Act of 1891 to greatly increase the number of National Forests, with the help of his ally, Gifford Pinchot. But the power to create National Parks, with extended protective and federal land ownership rights, resided with Congress.
By 1906, Congress grew concerned with archeological vandalism in the western states region and it considered a new act that would allow for the creation of National Monuments by the President.
Robert W. Righter, a professor at the University of Texas, El Paso, wrote about what happened in a 1987 research paper. “The majority of lawmakers agreed with the need for protection of Southwest prehistoric sites, but the idea of extending carte blanche to the executive branch worried some, particularly western congressmen,” Righter said.
The Antiquities Act of 1906 was passed by Congress and signed into law by President Roosevelt and it contained language that tried to limit National Monuments “to the smallest area compatible with proper care and management of the objects to be protected.”
It left the definition of the smallest area compatible to President Roosevelt and granted him the power to establish monuments by executive decree.
That was enough for Roosevelt to issue Presidential Proclamation 794 on January 11, 1908, establishing the Grand Canyon National Monument, in the Territory of Arizona. The order allowed for forestry protection in the monument area, and it barred settlement and the destruction of any feature of the “monument.”
Roosevelt’s order extended federal protection to the area, without involving Congress, but it also didn’t please pro-conservation forces, who wanted the extended protection that only Congress could provide. Congress also declined to pass a law overturning Roosevelt’s proclamation and the Grand Canyon debate continued for another decade in Washington
Finally, President Woodrow Wilson signed an act naming the Grand Canyon as a National Park in 1919, giving the National Park Service jurisdiction over the region, instead of the Forest Service.
Roosevelt’s action in 1908 also set an important precedent for future Presidents to use for conservation efforts when there wasn’t consensus within Congress to act.
“The realization that the creation of national parks had more to do with presidential rather than congressional action calls into question the democratic origins of the national parks,” Righter argued in his research.
In later years, Roosevelt’s fifth cousin, Franklin Roosevelt, fought a pitched battle with Congress over the Jackson Hole Monument approved by FDR. An outraged Congress fought back, and it passed a law overturning Roosevelt’s Jackson Hole executive order, but the President vetoed the bill.
A total of 177 National Monuments have been established since 1906, with President Barack Obama adding eight monuments in recent years.
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