A U.S. appeals court has ruled that regional fishery management councils can no longer exercise pocket vetoes, meaning that they cannot selectively enforce decisions made by NOAA Fisheries or the office of U.S. Secretary of Commerce Gina Raimondo.
The ruling is a partial victory for commercial fishers Raymond Lofstad and Gus Lovgren, who sued the Mid-Atlantic Fishery Management Council for how it divvied up catch allocations of summer flounder, scup, and black sea bass between commercial and recreational fishermen in 2022.
The fishers alleged that the regional fisheries management council system violated the Appointments Clause of the U.S. Constitution, which only bestows significant policymaking powers on positions appointed by the U.S. president.
Since members of the regional fishery management councils are not appointed by the president, the fishers claimed the bodies were acting unconstitutionally in crafting policies.
On 25 September, the Philadelphia, Pennsylvania, U.S.A.-based U.S. Court of Appeals for the Third Circuit issued a ruling agreeing with the fishers, limiting regional fishery management councils' “significant authority” they wielded in the form of pocket vetoes.
“The buck stops with the president – but not when unelected officials get a veto,” Judge Stephanos Bibas wrote in the court’s opinion. “Under a federal fishing law, a regional council can veto some actions taken by the secretary of commerce. That power is significant. But, the council members were never appointed by the president, as the Constitution requires. Two fishermen rightly challenged this scheme. The remedy, we hold, is to sever the pocket-veto powers so the council plays only an advisory role."
However, the court found that none of the other powers exercised by the councils constituted “significant authority.” With the pocket veto power eliminated, though, “council members are no longer officers but, rather, employees,” Bibas said.
U.S. public interest law firm Pacific Legal Foundation celebrated the victory for limiting the councils’ power but maintained that they retained unconstitutional rulemaking authority.
“The ruling, however, still leaves the councils with significant rulemaking authority that, as unaccountable officials, they may not hold under the Appointments Clause,” the Pacific Legal Foundation said of the case. “Nevertheless, the ruling is an important win for the separation of powers and the Appointments Clause. It makes the fishery management councils less powerful and more accountable. There is still a long way to go in ensuring that officials who wield government power are constitutionally appointed and accountable to the president and the people, but the Third Circuit ruling is a major step in the right direction.”
