Massachusetts Lobstermen’s Association v. Ross

August 31, 2020 • Legal Briefs

Only months before leaving office, President Obama exercised the Antiquities Act to create the Northeast Canyons and Seamounts Marine National Monument. Thus, with the stroke of a pen, the president banned fishing in an area the size of Connecticut more than 100 miles outside of U.S. territorial seas in the Atlantic Ocean.

Although it’s called the “Northeast Canyons and Seamounts Marine National Monument,” its seven marquee objects—three underwater canyons and four seamounts—occupy only a small part of the whole. To justify this expanse, President Obama explained that the area contains ill‐​defined “ecosystems,” which are themselves “monuments.” The problem, of course, is that every square inch of the ocean contains or is part of a marine ecosystem. By drawing lines in the open ocean, and then declaring all “ecosystems” therein to be a composite monument, President Obama obviated the Antiquities Act’s restrictions on the president’s regulatory power.

In 2017, commercial fishing groups sued in a federal district court. After losing, they appealed to the D.C Circuit, where they lost again. In both cases, the courts felt powerless to review the president’s regulation, under prevailing Supreme Court doctrine. Now, the lobstermen seek Supreme Court review.

Today, Cato filed a brief in support of their petition. We argue that this case is as much about judicial review as it is about monuments. If judicial review of the president’s statutory powers were less in doubt, then recent presidents wouldn’t have been emboldened to adopt self‐​serving interpretations of the Antiquities Act, and there would be no case or controversy. Accordingly, we urge the Court to use this case to establish a viable framework of judicial review for the president’s statutory authority. Otherwise, presidents will continue to push the boundaries of their power through interpretation.

SCOTUS link:–97.html

About the Authors
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute