Lofstad v. Raimondo, 2024 U.S App. LEXIS 24317(U.S. 3d. Cir, September 25, 2024)(Bibas, J.)
BIBAS, Circuit Judge.
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 Council members were never appointed by the President, as the Constitution requires. Two fishermen rightly challenge this scheme. The remedy we hold is to sever the pocket-veto powers so the Council plays only an advisory role.
In 2022, the Mid-Atlantic Council approved an amendment to its fishery-management plan, lowering the amount of scup, summer flounder, and black sea bass that commercial fishermen could catch in that region. The Council sent that amendment plus a rule to implement it to the Secretary. After the notice-and-comment period, the Secretary approved the amendment and promulgated the rule. Amendment 22 to Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, 87 Fed. Reg. 68,925 (Nov. 17, 2022) (codified at 50 C.F.R. pt. 648).
Raymond Lofstad and Gus Lovgren are commercial fishermen who fish in those waters. Fewer fish to catch means lower profits, so they sued the government. They claim that, by proposing the amendment and its implementing rule, the Council’s members acted as “Officers of the United States.” U.S. Const. art. II, § 2, cl. 2. And because the members were not properly appointed by the President or the head of a department, they claim, the rule should be set aside.
When a statute is constitutionally flawed, “we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.” Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 508, 130 S. Ct. 3138, 177 L. Ed. 2d 706 (2010) (internal quotation marks omitted). Even though this statute has no severability clause, we can sever an unconstitutional provision unless Congress evidently would not have passed the remaining parts without the invalid ones. To figure this out, we look at the statute’s text and historical context. Even if we knock out the pocket vetoes, the statute remains “fully operative.” Id. (internal quotation marks omitted). The Council’s “most significant responsibility” is drafting proposed plans; that duty remains untouched. NRDC v. Nat’l Marine Fisheries Serv., 71 F. Supp. 3d 35, 40 (D.D.C. 2014) (K.B. Jackson, J.). What is more, the government conceded at argument that these pocket-veto provisions are rarely used and that severing them would not disrupt the statutory scheme. So we will sever the pocket-veto powers in Sections 1854(c)(3), 1854(h), and 1856(a)(3)(B). Those severances suffice to remove the Council’s significant authority.
