Court finds constitutional violation in fishery council, lets rule stand anyway
A federal appeals court just handed the government a win in its fight to control how much fish American fishermen can catch—even after ruling that the officials who wrote the regulation were never lawfully appointed.
On September 3, the U.S. Court of Appeals for the Eleventh Circuit agreed that members of the Gulf of Mexico Fishery Management Council wield significant government power without facing any real accountability to the president or the voters who elected him, violating the Constitution’s Appointments Clause. But the court let stand Amendment 56, the Council’s rule that slashed the number of gag grouper fishermen can legally catch by over 80 percent.
The result is devastating for fishermen Dominick and James Russo, brothers who own a small commercial fishing operation in Sarasota, Florida. They own two boats and employ a small, rotating crew. The new rule means they have to catch more fish of other species and stay on the water longer to make up for losing the gag grouper, their most profitable catch.
The Russos’ lawsuit
The Russos filed a federal lawsuit challenging Amendment 56, represented free of charge by Pacific Legal Foundation. Their complaint argues that the Council that issued the rule is exercising real government power, despite the fact that Council members are not appointed by the president and confirmed by the Senate as the Constitution requires. The law also shields them from being fired by the president, cutting off this ability to oversee their decisions or hold them responsible for the rules they impose.
Although the Council is created by federal law to execute federal policy in federal waters, it doesn’t answer to the head of the federal government. Instead, a handful of state officials who represent a fraction of the country control its decisions.
In effect, the Council can defy the president, leaving fishermen like the Russos bound by regulations from officials not subject to democratic accountability. And because the officials who approved Amendment 56 hold their power unconstitutionally, the Russos argued, the rule itself is not valid.
The court’s ruling and a circuit split
The Eleventh Circuit ruled that the Council is unconstitutional as structured due to the “significant authority” the Council members hold in their veto powers. In doing so, it agreed with the Third and Fifth Circuits’ rulings in similar cases—but those courts issued orders that removed the Council’s veto powers, then claimed removing those powers rendered the Council constitutionally structured.
The Eleventh Circuit issued no such order, meaning it is allowing a council that the court itself found unconstitutionally structured to continue operating.
It also refused to strike down the gag grouper catch limit, reasoning that “the veto powers had nothing to do with the rule at issue.” In this judgment, the Eleventh Circuit contradicts itself: It admits it has to consider all powers—including the unused veto powers—when determining whether a body is constitutionally structured, but when it comes to granting relief, it would consider only the powers used to create the rule in question.
What this means for fishermen
The Russos are left with a rule that’s hurting their business and no real remedy, while the unconstitutional Council keeps operating.
“They don’t ask the fishermen that are out there every day of their life and know the water and know the fish and know everything about the industry,” says Dominick. “They don’t ask our input on anything when they make regulations and rules. … I’m out there, and it’s not just me. You could ask hundreds of other fishermen.”
But the Council does not answer to Dominick or the hundreds of other fishermen whose livelihoods are impacted by rules like Amendment 56. Its members are unelected, unsupervised by anyone accountable to the public, and further shielded from accountability through removal protections. Still, it wields the power to slash Dominick’s fishing quota by over 80 percent—and courts can’t seem to agree on what it will actually take to hold a body like this accountable.
The Russos and Pacific Legal Foundation are considering next steps in the case.
