When Will Trump Try to Change "New Mexico" to "New America?"

Residents of Albuquerque, Sante Fe, and other parts of New Mexico should count themselves lucky that Donald Trump is so ignorant that he is probably unaware of the existence of their state. Should he learn of it, then the next time that the Mexican government takes some action (or inaction) that displeases him, he would likely order the Secretary of the Interior and the Board on Geographic Names (BGN) to begin referring to the Land of Enchantment as "New America." After renaming things for himself (the Kennedy Center, the U.S. Institute of Peace, Palm Beach International Airport, dozens of Trump Towers, etc.), Trump's signature naming moves involve problematic throwbacks (Fort Bragg, Mt. McKinley), bombastic ones (Department of War), or a lazy default to "America"--as with the erstwhile Gulf of Mexico and Lake Ontario.

Or maybe not so erstwhile. In my latest Verdict column, I discuss Trump's executive order involving Lake Ontario. I explain that: (1) the renaming of Lake Ontario is not official yet, despite the fact that the cartographers at the world's third largest company have already adjusted Google Maps (as seen in the U.S.) so that the easternmost and smallest of the Great Lakes is now labeled "Lake America;" and (2) when the renaming becomes official, i.e., after the Secretary of the Interior and the BGN do Trump's bidding, it will be illegal. My column argues that New York State and/or businesses in New York that have "Lake Ontario" as part of their name (and will thus suffer economic harm from the name change) can and should sue under the Administrative Procedure Act (APA) to have the renaming blocked.

I hope my column speaks for itself. Here I want to anticipate and respond to three arguments that I imagine the Department of Justice might make to defend the renaming if and when New York or a Lake Ontario-themed business sues. (By the way, it's not too late for an APA suit by one of the states that borders the Gulf of Mexico, although those are all red states, so that seems unlikely. Perhaps a business in one of those states that has "Gulf of Mexico" in its name--and whose owners are not cowed by threats from their MAGA neighbors--might have the courage to sue.)

(1) In my column, I explain that New York has both substantive and procedural claims rooted in the compulsory language of 43 U.S.C. §§ 364–364f. On the substantive side, the Secretary of the Interior and the BGN are, by statute, supposed to be promoting "uniformity in geographic nomenclature." Creating confusion by abandoning a centuries-old name--but only on one side of the border and only for the federal government and those businesses (such as Google) sufficiently fearful of the impetuous President to obey in advance--hardly serves that purpose.

On the procedural side, I note that under §364b, the Interior Secretary and the BGN are supposed to give "full consideration to the specific interests of particular Federal and State agencies" in "formulat[ing] principles, policies, and procedures to be followed with reference to both domestic and foreign geographic names." I suppose that a bold DOJ lawyer could say that this language obligates the Secretary and the BGN to give state agencies consideration in the formulation of principles, policies, and procedures, but not to take account of the interests of state agencies in any given case.

That strikes me as a very bad argument on its face. Presumably the reason Congress instructed the Secretary and the BGN to formulate "principles, policies, and procedures to be followed" was so that they would, in fact, follow them. Moreover, as I explain in the column, things are even worse here because the BGN has another policy (Policy I.1 here) that purports to excuse itself from its statutory obligations whenever the President chooses a name. In other words, the BGN has formulated a policy that most certainly does not give full or even any consideration to the needs of state agencies whenever the President capriciously decides to change a geographic name. That is quite clearly contrary to the statutory framework.

(2) Might the DOJ argue that the President has inherent power to designate geographic names? This strikes me as plausible only to the extent that it concerns internal executive branch purposes. So, if Trump instructed all executive branch personnel in their intra-executive communications to refer to Lake Ontario as "Lake America," I acknowledge that would be permissible, albeit stupid. However, the executive order does not apply only to internal executive branch matters. Among other things, the name change it orders the Interior Secretary and the BGN to adopt applies to "contracts" that the federal government makes with private actors. Those are, by definition, not purely internal to the executive branch.

Does the President have any inherent power to create or change geographic names that apply outside the government, as in contracts with private parties? I don't see where that would come from, but even assuming there is some such power, it is surely defeasible by Congress, acting pursuant to its powers to regulate interstate and foreign commerce, to make rules governing public property (Article IV, § 3, cl. 2), and arguably more. Put in terms of Justice Robert Jackson's influential Steel Seizure concurrence, this is a category 3 case in which the President's already dubious inherent power to assign geographic names is at its "lowest ebb" in the teeth of Congress's directions to foster uniformity and account for state interests.

(3) The DOJ might say that President Trump is simply doing what his predecessors did, perhaps pointing to the change from Mt. McKinley to Denali during the Obama administration (which Trump sought to change back in an executive order he signed on the first day of his current term, the same one that directed the renaming of the Gulf of Mexico). But the change to Denali is entirely different. It began with a request from Alaska itself in 1975 and didn't become official for another 40 years when it was accomplished by the Secretary of the Interior and the BGN after years of study and consideration of the statutory factors. No one could plausibly argue that the change to Denali set any kind of precedent for ignoring state interests or for rushing through a name change to please a President who is acting in a fit of pique.

I'm sure the DOJ lawyers will come up with other equally bad arguments to contest an APA case by New York State or an impacted private business. I'm also pretty confident that anything the DOJ throws at the wall will get at least two and possibly as many as six votes from the Supreme Court. But that's true of just about everything. There's an opportunity here to undo one small but symbolically important bit of petty stupidity by the Trump administration. I urge the relevant lawyers to seize it.

-- Michael C. Dorf