U.S. Fishery Management Council Power to Veto Severed

The Third Circuit Court of Appeal's recent decision in Lofstad v. Raimondo represents a significant shift in the legal framework governing U.S. Fishery Management Councils with broad implications. Lofstad, 117 F. 4th 493 (3rd Cir. 2024). The court held that the Fishery Management Councils wield significant authority and are unlawfully Officers of the United States. Because the councils are not appointed by the president, or confirmed by the Senate, the current structure is unconstitutional. Under the 1976 Magnuson-Stevens Fishery Act (“the Act”), U.S. Regional Fishery Management Councils (“councils”) were established to oversee fisheries across multiple states to prevent overfishing while minimizing economic and social harm to local communities. 16 U.S.C. §1801(a)(6). Although they mainly serve as advisors, councils can draft management plans and amendments for the U.S. Secretary of Commerce to review and implement. However, the council does hold other authority, notably the ability to block the Secretary of Commerce in three situations: (1) blocking limited-access fishing systems; (2) preventing state management delegation; and (3) stopping plan repeals without sufficient council approval. 16 U.S.C. §§ 1802(26)–(27), 1854(c)(3), 1854(h), 1856(a)(3)(B).

At the heart of Lofstad, was a disagreement between commercial fishermen and the Secretary of Commerce over whether the councils held too much authority as employees of the United States. An employee of the United States can become an officer if they hold significant authority. Lofstad, 117 F. 4th 493 at 499 (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976)). If the council's authority is deemed significant then they are unconstitutionally appointed officers of the United States. The U.S. Department of Commerce argued that the council's power is predominantly an advisory role with the power to propose amendments and plans, but no final authority in establishing regulations. Lofstad, 117 F. 4th 493 at 500. Despite being given the power to block—known as a pocket veto—the Secretary of Commerce in limited situations, the council does not have authority over what amendments and plans will be proposed by the Secretary. However, the commercial fishermen successfully argued that the power of a pocket veto is substantial, potentially influencing the amendments and plans the Secretary proposes, and is ultimately unconstitutional. Circuit Judge Stephanos Bibas, delivering the majority opinion, noted when the framers drafted the constitution they feared giving any government official an absolute veto, that cannot be overridden. For example, the president has a qualified veto that can be overridden by ⅔ vote from Congress. Id. at 499. The Council’s veto, on the other hand, can only be implemented in three situations but cannot be overridden.

Ultimately the Third Circuit’s decision underscores the constitutional limits on administrative agencies. While the Magnuson-Stevens Act envisioned the Regional Fishery Management Councils as key factors in balancing conservation efforts with economic sustainability, the court found that their ability to block federal actions went beyond their intended advisory role. To remedy this unconstitutional authority, the Third Circuit severed, or removed, the Council’s pocket veto. This allows for the broader framework of the Act to stay intact and preserves the council's authority as an advisory role.

The dissent, delivered by Circuit Judge Marjorie Rendell, argued this decision could undermine the intent of the Act, effectively changing legislation, and could lead to political interference in the council and other administrations. Id. at 502–503 (Rendell, J., dissenting). In practice, this could be unduly burdensome, while some view the council’s authority as minor to justify judicial interference. On February 21st, a request to the Supreme Court to review a lower court’s case, was due to the U.S. Supreme Court. The Solicitor General representing the United States decided not to appeal stating “review of the constitutional issue is not warranted at this time.”¹ As it stands the Third Circuit Court of Appeal’s decision remains final, reinforcing constitutional limits on the council while retaining the council's “most significant role” as an advisor. Lofstad, 117 F. 4th 493 at 501 (citing NRDC v. Nat’l Marine Fisheries Serv., 71 F. Supp. 3d 35, 40 (D.D.C. 2014)).

¹ Elizabeth B. Prelogar, Re: Lofstad v. Raimondo, No. 24-1420 (3d Cir. Sept. 25, 2024), Off. Solic. Gen. (Feb. 5, 2025), (Informing Speaker Johnson that they were not going to submit a writ of certiorari).