The Court of Appeals for the Fifth Circuit has ruled that the Gulf Council’s ability to exercise pocket vetoes is unconstitutional, though it upheld regulations enacted by the council.
The ruling was in response to two lawsuits.
Cortez, Florida, U.S.A. resident Karen Bell and Port Richey, Florida, U.S.A. resident William Copeland sued the U.S. Department of Commerce in 2023, arguing that the Gulf Council structure was unconstitutional and asking the court to vacate Amendment 54, which cut the commercial fishing sector’s share of the Gulf of Mexico amberjack fishery and allocated more quota to recreational fishers.
The Pacific Legal Foundation, which represented the Florida fishers in court, claimed the Gulf Council structure violated the Appointments Clause of the U.S. Constitution, and therefore Amendment 54 was not approved in a legal process. Therefore, it should be vacated, they argued.
A second lawsuit filed by George D. Arnesen and Jeffrey Ryan Bradley similarly challenged the constitutionality of the Gulf Council, arguing that they were improperly insulated from removal.
The two cases were combined by the U.S. District Court for the Southern District of Mississippi, which did acknowledge the unconstitutionality of the council makeup. The district court found that the five state officials and the regional director of the Gulf Council were serving as inferior officers and were therefore appointed unconstitutionally; it also ruled that the secretary of commerce’s inability to remove councilmembers at will was unconstitutional.
However, the district court did keep Amendment 54 in place, finding that it was approved by the NOAA Fisheries assistant administrator and a quorum of constitutionally appointed officers. The district court also noted that the commercial fishers were unable to demonstrate any harm done to them by Amendment 54.
The case was appealed to the Court of Appeals for the Fifth Circuit, which came to a similar conclusion, though with very different reasoning.
In a 27 March ruling, the appeals court determined that the Gulf Council’s veto power was unconstitutional, and that severing it from the council resolved the issues of constitutionality and the Appointments Clause. The court also ruled that because the council’s veto power didn’t come into play in the approval of Amendment 54, the rule should stay in place.
“Because we conclude that these unconstitutional powers were not used in ultimately recommending Amendment 54, the Final Rule implementing the Amendment need not be vacated either,” the court ruled.
The Pacific Legal Foundation, which represented the fishers before the appeals court, said the court acted wrongly in eliminating the veto power but keeping the council structure, and Amendment 54, intact.
“The Fifth Circuit confirmed that the Gulf of Mexico Fishery Management Council, which cut our clients’ fishing quota by nearly 80 percent, is an unconstitutional and unaccountable federal agency,” said Michael Poon, an attorney with Pacific Legal Foundation. “But the panel denied relief to our clients by rewriting the law, which only Congress may do. We are considering our next steps.”
The lawsuit is one of several recent challenges to the constitutionality of the fishery management councils, arguing that its members have rulemaking power and therefore fall under the Appointments Clause of the U.S. Constitution. The Fifth Circuit’s ruling mirrors a ruling by the U.S. Court of Appeals for the Third Circuit, which also severed the councils’ pocket veto.
“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."
The Pacific Legal Foundation also represented the plaintiffs in that case.
