The Appointments Clause Goes Fishing

Under the Magnuson-Stevens Act, Regional Fishery Management Councils are tasked with developing and revising fishery management plans to help ensure that offshore fisheries are utilized sustainably. A council's proposals are subject to approval and revision by the Secretary of Commerce, but councils retain the ability to block or veto certain actions by the Secretary. Council members are appointed by the Secretary of Commerce.

After the Mid-Atlantic Council adopted a plan lowing the catch limits for certain fish species, commercial fishermen sued. Among other things, they argued that council members are "officers of the United States" under Article II. And, since council members are not appointed by the President, the fishermen argued, they should not be able to adopt such regulations.

In Lofstad v. Raimondo , a divided panel of the U.S. Court of Appeals for the Third Circuit agreed with the fishermen that council members are officers, but not with regard to the remedy sought. Judge Stephanos Bibas wrote for the court, joined by Judge Freeman. Judge Rendell dissented.

Judge Bibas summarized his opinion:

The buck stops with the President—but not when unelected officials get a veto. 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 challenge this scheme. The remedy, we hold, is to sever the pocket-veto powers so the Council plays only an advisory role.

According to Judge Bibas, the council's ability to block regulatory actions by the Commerce Secretary represents the sort of significant authority that makes a government actor an "officer" for constitutional purposes.

The Council's pocket-veto power is especially significant because it undermines the democratic chain of command. The Constitution trusts the President with significant powers, like the veto, because he is elected and accountable to the voters. Executive officers below the President are not. So they must be "accountab[le] to the public through a clear and effective chain of command down from the President, on whom all people vote." Arthrex, 594 U.S. at 11 (internal quotation marks omitted).

The Council's pocket-veto powers thwart that chain of command. The Council need not reflect the President's views because it is an advisory body. But the Secretary of Commerce, who heads the Department of Commerce, answers to the President and the people. And Council members can refuse to let her set up limited-access fisheries, delegate to states, or repeal a plan. By blocking her actions, the Council wields significant authority. And no one can override the Council's pocket veto (unlike the President's limited veto). That is enough to make Council members officers, not employees.

The council members are also "principal officers" because their veto authority is final and unreviewable, and can countermand the decision of a cabinet secretary. The council's other powers, however, are not of constitutional significance.

Finding a constitutional problem with the structure of fishery regulation under the Magnuson-Stevenson Act, the next question for the court was the proper remedy—and here the court gave the petitioners less than they were hoping for.

The fishermen ask us to invalidate the amendment. But we need not go so far. When a statute is constitutionally flawed, "we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact." Free Enter. Fund v. Pub. Co. Acct. Oversight Bd ., 561 U.S. 477, 508 (2010) (internal quotation marks omitted). Even though this statute has no severability clause, we can sever an unconstitutional provision unless Congress evidently would not have passed the remaining parts without the invalid ones. Id . at 509. To figure this out, we look at the statute's text and historical context. Id .

Even if we knock out the pocket vetoes, the statute remains "fully operative." Id. (internal quotation marks omitted). The Council's "most significant responsibility" is drafting proposed plans; that duty remains untouched. NRDC v. Nat'l Marine Fisheries Serv ., 71 F. Supp. 3d 35, 40 (D.D.C. 2014) (K.B. Jackson, J.). What is more, the government conceded at argument that these pocket-veto provisions are rarely used and that severing them would not disrupt the statutory scheme. So we will sever the pocket-veto powers in Sections 1854(c)(3), 1854(h), and 1856(a)(3)(B). Those severances suffice to remove the Council's significant authority.

Without those powers, the Council members are mere employees who fall outside the  Appointments Clause. They did not use their unconstitutional powers to enact or tweak the amendment in this case. Their advisory role in proposing the amendment plus its implementing regulation was proper.

Judge Bibas' opinion concludes:

Executive officials who have significant authority must be properly appointed. Because the Council members were not, we sever the pocket-veto provisions that gave them significant authority. Without those powers, the Council members are no longer officers but rather employees. As employees, they need not be appointed by the President or Secretary. We will thus reverse the District Court's order granting summary judgment for the government and instead render judgment for the fishermen, relieving the  Council of its significant authority.

As noted, Judge Rendell dissented, rejecting the majority's conclusion that the councils exercise "significant authority" and lamenting the decision to "gut[] the powers given the Councils by Congress." In her view, the court should "avoid rewriting the legislative scheme," especially where (as here) binding precedent does not require it.

It will be interesting to see whether the Solicitor General seeks further review.

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