The Hybrid Nature of the Property Clause: Implications For Judicial Review of National Monument Reductions

In the recurring and contentious debates regarding the President’s authority to declare (and perhaps rescind) National Monuments, both those who argue for an expansive authority and those who favor restricted authority treat the Antiquities Act as a delegation of legislative power; they only disagree on whether the delegation is appropriate or, in the case of rescission, whether a delegation exists at all. However, this framework is wrong. The Property Clause is not strictly a legislative power. Rather, it is a hybrid; rulemaking power is interspersed with an administrative one—the power to manage property. The Supreme Court has recognized this distinction in the past, including in a case decided the same year Congress passed the Antiquities Act. The distinction makes a difference because when Congress enlists the Executive in the management of public lands, as it did with the Antiquities Act, it is not delegating legislative power; rather, it is sharing its plenary powers of proprietorship. The principle that underlies the non-delegation doctrine—separation of powers—is not applicable when Congress delegates a non-legislative power. This has implications for the proper method of recourse for inappropriate presidential action made pursuant to delegated Property Clause power. Whereas recourse for an improper delegation of legislative authority lies with the courts, recourse for alleged inappropriate executive action under a delegated proprietor power lies with the entity that enlisted the Executive as its property manager in the first place—Congress. Indeed, Congress has often stepped in to correct presidential mismanagement of public lands, including the management of National Monuments. At other times, Congress has acquiesced in presidential action, a practice the Court has previously accepted as evidence of the constitutionality and legality of presidential action. Courts have systematically refused to second-guess presidential actions pursued under the Property Clause, including the creation of National Monuments, even when those monuments arguably exceed the “smallest area compatible” with the protection and care of the objects to be protected as delineated in the statute. Courts should also refuse to second-guess the President’s decision to reduce National Monuments, leaving to Congress the important work of correcting the President’s missteps, as it has done in the past. Let Congress guard its own authority over land management

Phase 3, Randomized, 20-Month Study of the Efficacy and Safety of Bimatoprost Implant in Patients with Open-Angle Glaucoma and Ocular Hypertension (ARTEMIS 2)

Objective- To evaluate the intraocular pressure (IOP)-lowering efficacy and safety of 10 and 15 µg bimatoprost implant in patients with open-angle glaucoma (OAG) or ocular hypertension (OHT). Methods- This randomized, 20-month, multicenter, masked, parallel-group, phase 3 trial enrolled 528 patients with OAG or OHT and an open iridocorneal angle inferiorly in the study eye. Study eyes were administered 10 or 15 µg bimatoprost implant on day 1, week 16, and week 32, or twice-daily topical timolol maleate 0.5%. Primary endpoints were IOP and IOP change from baseline through week 12. Safety measures included treatment-emergent adverse events (TEAEs) and corneal endothelial cell density (CECD). Results- Both 10 and 15 µg bimatoprost implant met the primary endpoint of noninferiority to timolol in IOP lowering through 12 weeks. Mean IOP reductions from baseline ranged from 6.2–7.4, 6.5–7.8, and 6.1–6.7 mmHg through week 12 in the 10 µg implant, 15 µg implant, and timolol groups, respectively. IOP lowering was similar after the second and third implant administrations. Probabilities of requiring no IOP-lowering treatment for 1 year after the third administration were 77.5% (10 µg implant) and 79.0% (15 µg implant). The most common TEAE was conjunctival hyperemia, typically temporally associated with the administration procedure. Corneal TEAEs of interest (primarily corneal endothelial cell loss, corneal edema, and corneal touch) were more frequent with the 15 than the 10 µg implant and generally were reported after repeated administrations. Loss in mean CECD from baseline to month 20 was ~ 5% in 10 µg implant-treated eyes and ~ 1% in topical timolol-treated eyes. Visual field progression (change in the mean deviation from baseline) was reduced in the 10 µg implant group compared with the timolol group. Conclusions- The results corroborated the previous phase 3 study of the bimatoprost implant. The bimatoprost implant met the primary endpoint and effectively lowered IOP. The majority of patients required no additional treatment for 12 months after the third administration. The benefit-risk assessment favored the 10 over the 15 µg implant. Studies evaluating other administration regimens with reduced risk of corneal events are ongoing. The bimatoprost implant has the potential to improve adherence and reduce treatment burden in glaucoma

The Hybrid Nature of the Property Clause: Implications For Judicial Review of National Monument Reductions

In the recurring and contentious debates regarding the President’s authority to declare (and perhaps rescind) National Monuments, both those who argue for an expansive authority and those who favor restricted authority treat the Antiquities Act as a delegation of legislative power; they only disagree on whether the delegation is appropriate or, in the case of rescission, whether a delegation exists at all. However, this framework is wrong. The Property Clause is not strictly a legislative power. Rather, it is a hybrid; rulemaking power is interspersed with an administrative one—the power to manage property. The Supreme Court has recognized this distinction in the past, including in a case decided the same year Congress passed the Antiquities Act. The distinction makes a difference because when Congress enlists the Executive in the management of public lands, as it did with the Antiquities Act, it is not delegating legislative power; rather, it is sharing its plenary powers of proprietorship. The principle that underlies the non-delegation doctrine—separation of powers—is not applicable when Congress delegates a non-legislative power. This has implications for the proper method of recourse for inappropriate presidential action made pursuant to delegated Property Clause power. Whereas recourse for an improper delegation of legislative authority lies with the courts, recourse for alleged inappropriate executive action under a delegated proprietor power lies with the entity that enlisted the Executive as its property manager in the first place—Congress. Indeed, Congress has often stepped in to correct presidential mismanagement of public lands, including the management of National Monuments. At other times, Congress has acquiesced in presidential action, a practice the Court has previously accepted as evidence of the constitutionality and legality of presidential action. Courts have systematically refused to second-guess presidential actions pursued under the Property Clause, including the creation of National Monuments, even when those monuments arguably exceed the “smallest area compatible” with the protection and care of the objects to be protected as delineated in the statute. Courts should also refuse to second-guess the President’s decision to reduce National Monuments, leaving to Congress the important work of correcting the President’s missteps, as it has done in the past. Let Congress guard its own authority over land management