Sleeping with the fishes: It’s time to resurrect accountability in U.S. fishery regulation
If you’re expected to comply with hundreds of federal rules and regulations that affect your livelihood, wouldn’t you like to know that those rules come from people accountable to you in some way? That’s how our laws are made, after all. They come from Congress, which is accountable to the people through the democratic process.
Yet much of what we call federal law comes in the form of rules that are not written by Congress but by unelected bureaucrats in hundreds of federal agencies. To make sure even bureaucrats are accountable, the Constitution usually requires them to be appointed by the president, with Senate confirmation if they have significant authority, like the power to issue rules with the force of law.
Unfortunately, Congress often side-steps the Constitution by giving the job of appointing certain officers to someone else. A good example is the regulation of marine fisheries.
Those charged with regulating marine fisheries—what you can catch, how much you can catch, and who’s allowed to catch anything in the first place—were never constitutionally given the power to make such rules. Our research at Pacific Legal Foundation uncovers how this plays out.
Eight regional fishery management councils hold the keys to federal fishery regulation. One for each coastal region, these councils—New England, Mid-Atlantic, South Atlantic, Caribbean, Gulf of Mexico, Pacific, North Pacific, and Western Pacific—were created by a law known as the Magnuson-Stevens Act and each consists of member states. For example, the New England Council includes members from Connecticut, Maine, Massachusetts, New Hampshire, and Rhode Island.
This is where the rulemaking happens, rules that ultimately control the ins and outs of what fishermen are allowed to do. These rules affect recreational fishermen, commercial fishery businesses—both large and small—the supply and price of seafood in grocery stores and restaurants, and the economies of coastal communities that rely on fisheries. And these councils have created hundreds, even thousands, of rules and regulations, all with the threat of penalty if they’re disobeyed.
So, who are the members of these councils? They include bureaucrats and appointees. Among the bureaucrats are state fishery management officials chosen by member states’ governors and a federal bureaucrat from the Department of Commerce. The majority, though, are members nominated by each member state’s governor and appointed by the Secretary of Commerce for three-year terms.
These councils are largely unchecked by those in the executive branch who are accountable to the people, namely the president through his Secretary of Commerce. In the promulgation of regulations and the appointment of council members, the Secretary’s role is limited to saying “Yes” or “No,” the latter of which can happen only for a few very narrowly defined reasons.
As a result, the Secretary acts as a rubber stamp for the councils’ regulations. In response to a Freedom of Information Act request that we submitted, we learned that the Secretary has disapproved or partially approved only six proposed rules submitted by the New England and Mid-Atlantic councils combined. And the Secretary has never rejected or partially approved a proposed rule from the North Pacific or Western Pacific councils (we didn’t receive a response for the other four councils). Basically, if there aren’t any legal issues with a rule, then the Secretary has to approve it.
What’s more, the Secretary has a very limited ability to reject nominations submitted by the governors. She can do so only if she believes any of the candidates are unqualified, prompting the governor to revise and resubmit a new list of nominees. The Secretary has seldom asked for revisions and resubmissions. From 2015 to 2024, the Secretary of Commerce was able to refuse a governor’s slate of nominees just 3 percent of the time. And when governors indicated their preferred choice for the job among their three nominees, the Secretary picked their top choice 82 percent of the time.
Is this what you’d expect from someone who’s in control? The truth is that state governors, who don’t have any appointment authority under the Constitution, exercise almost total control in appointing these powerful federal officers who operate without much in the way of direction or supervision. And if their appointments are unconstitutional, then the often-stringent rules these officers create are unconstitutional too.
This is what the separation of powers requires. The president, vested with the executive power, must be able to control who fills the executive branch and enforces the laws. Moreover, the Constitution’s appointments provisions add a necessary layer of democratic accountability to the rulemaking process. Those regulators writing and enforcing rules ought to be accountable in some way to the people through the president, a nationally elected official.
PLF has brought several cases challenging these councils’ rules on behalf of people who found themselves tangled in their nets.
People like Karen Bell, who is forced to catch 80 percent fewer amberjack for her business, thanks to a Gulf of Mexico Council rule; Gary Burke and Wes Humbyrd, who had their entire careers as commercial fishermen threatened by Pacific Council and North Pacific Council rules, respectively, ending fishing seasons and shutting down fisheries; and Raymond Lofstad and Gus Lovgren, who stand to lose tens of thousands of dollars because of a Mid-Atlantic Council rule that significantly cuts the number of fish they can catch.
When executive branch officers aren’t appointed according to the Constitution, they become unaccountable. That’s the case with the members of the regional fishery councils, wielding vast authority over the nation’s fisheries they were never constitutionally given.
Following the Constitution will ensure that fishermen across the United States are no longer subject to legally binding rules created by unconstitutionally appointed bureaucrats
