In September 2021, a career employee at the National Marine Fisheries Service issued a sweeping regulation called the Approach Rule, banning anyone from swimming with or approaching Hawaii’s spinner dolphins within 50 yards. The rule effectively destroyed an entire industry and cut off access to dolphin-assisted therapy for people like Catherine Gatzimos, who traveled to Hawaii seeking treatment after a personal trauma.
Catherine did not expect to have such a profound reaction to swim-with-dolphin therapy, a tool designed to engage patients who haven’t found success in traditional talk-therapy settings. She describes the experience as “recalibrating” and would love to swim with the dolphins again. But what bothers her most about the Approach Rule is that others seeking the same healing are now shut out.
Her conviction ultimately led her to file a federal lawsuit, represented free of charge by Pacific Legal Foundation and attorney John I. Harris III, in the hopes of protecting a practice she believes fosters healing, connection, and better stewardship of the natural world.
The Approach Rule, in addition to having devastating consequences for clients like Catherine, was never lawfully issued in the first place.
As Catherine’s lawsuit explains, the Constitution’s Appointments Clause reserves the power to issue binding federal regulations for Senate-confirmed officers. That’s because issuing a rule that binds the public and reshapes industries is a significant exercise of government authority. The official who issued the Approach Rule, NMFS Deputy Assistant Administrator for Regulatory Programs Samuel Rauch, held no such appointment and was not accountable through the democratic process.
When PLF challenged the same rule on behalf of Eliza Wille, a Kona-based psychotherapist, the government tried to save it through ratification: After the lawsuit was filed, a Senate-confirmed administrator approved the rule retroactively. The government argued that the administrator’s approval was good enough for the rule to stand. The Fourth Circuit limited these kinds of ratifications: They only work if the ratifying official could have lawfully delegated the authority to begin with, and the administrator could not delegate rulemaking authority to a career bureaucrat like Rauch. That should have led the court to strike down the regulation, but it ultimately allowed the ban to stand.
Catherine’s lawsuit argues that ratification cannot cure an Appointments Clause violation, because the Constitution never permitted delegating rulemaking power to career officials in the first place. Ratification emboldens career employees to make major decisions, weakening the president’s accountability for misuses of public power.
A win for Catherine would vindicate the principle that unlawful rules do not become lawful through bureaucratic sleight of hand. It would vacate a rule that a career employee had no constitutional authority to sign—and reopen access to a therapy that has helped patients like Catherine to heal.
What’s At Stake?
- The Constitution’s Appointments Clause requires that officials who issue binding regulations be properly appointed and answerable to the people. A rule issued by a government employee who was never lawfully appointed does not become constitutional just because a superior approves it after the fact.
