Notice & Comment

D.C. Circuit Review – Reviewed: Leftovers

My extended family enjoys large holiday meals. When lots of individual families bring food, the multi-family table fills up quickly. On Christmas Eve, for instance, we had both a turkey and a ham — and potatoes, stuffing, rolls, and pie(s). Then on Christmas, we rendezvoused again for two kinds of enchiladas, Spanish rice, watermelon,* crunchy tater tots (my favorite), and an apple crisp. The upshot? We all gained weight, plus we have leftovers aplenty.

Last week, the D.C. Circuit issued a relatively large number of opinions. Candidly, I thought the Court wasn’t going to issue any opinions this week — what with two days off and all in the middle of the week. But sure enough, this month’s supply of cases is not yet complete. The Court issued two opinions today. And these “leftover” opinions are well worth your time. The common denominator of both is that the Court flagged, but avoided, difficult questions that will eventually have to be resolved.

Let’s start with Massachusetts Lobstermen’s Association v. Ross. Using the Antiquities Act, “President Obama established the Northeast Canyons and Seamounts Marine National Monument to protect ‘distinct geological features’ and ‘unique ecological resources’ in the northern Atlantic Ocean.” Lawful? Yes, says Judge Tatel (joined by Judges Millett and Ginsburg). This opinion — which addresses a number of issues — includes an interesting discussion of “the U.S. Exclusive Economic Zone (‘EEZ’), the belt of ocean between 12 and 200 nautical miles off the nation’s coasts over which the United States exercises dominion under international law.”

I want to focus, however, on the odd review standard:

And then this:

This is a noteworthy standard — and part of the reason for it is because review of presidential action falls outside of the Administrative Procedure Act. At some point, this area of law will need to be fleshed out in full.

Next, consider Abou-Haidar v. Sanin Vazquez. This case concerns the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Judge Pillard — joined by Judges Millett and Wilkins — addressed the complicated question where custody adjudication should occur. Along the way, the Court included this paragraph:

If that paragraph whets your appetite, give the full opinion a read — including footnote 4 (which addresses a case currently before the Supreme Court).

And with that, I’m now going to see whether there is any apple crisp left.

* I didn’t know you get watermelon in December. What a remarkable age. Note to self: greater gratitude should be part of next week’s New Year’s resolutions.

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