Administrative Law

Jonathan H. Adler | 10.11.2024 1:59 PM

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........

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