Two East Coast fishermen are suing the Biden administration, claiming that a federal body that plans to curb their ocean catch is illegally constituted and therefore has no authority to issue such restrictive regulations.
The lawsuit comes as legal challenges to the so-called administrative state, which is made up of officials who aren’t appointed by the president or subject to political accountability, become increasingly common.
The Supreme Court has taken an interest in the topic. In June 2021, the high court ruled in U.S. v. Arthrex Inc. that more than 200 Patent Trial and Appeal Board judges were unconstitutionally appointed, as The Epoch Times reported.
The legal complaint (pdf) in the new case, Lofstad v. Raimondo, court file 3:22-cv-07360, was filed on Dec. 16 in federal district court in New Jersey. U.S. Secretary of Commerce Gina Raimondo is named as a defendant in the lawsuit.
Raymond Lofstad of Hampton Bays, New York, and Gus Lovgren of Brick Township, New Jersey, are both fourth-generation commercial fishermen running small-scale operations in the Mid-Atlantic region. Lofstad has fished off Long Island for more than 45 years. Lovgren, who recently took over his father’s fishing boat, has operated out of New Jersey for more than 20 years. Both have the permits required to fish for flounder, scup, and black sea bass in federal waters in the Mid-Atlantic.
The two fishermen are being represented by the Pacific Legal Foundation (PLF), a national public interest law firm headquartered in Sacramento, California.
Small-boat commercial fishermen are an endangered species and both men have “invested countless hours and resources into their respective operations, only to see their catch and revenues decrease, due to increased government regulation,” the complaint states.
The federal waters of the Mid-Atlantic are managed by the Mid-Atlantic Fishery Management Council in conjunction with the secretary of commerce under the Magnuson–Stevens Fishery Conservation and Management Act. More precisely, states are responsible for regulating the shoreline, while federal officials govern waters from three to 200 nautical miles offshore.
But a regulation known as Amendment 22 that was adopted by the council earlier this year is slated to take effect on Jan. 1, 2023. It would reduce how much flounder, scup, and black sea bass commercial fishermen may catch every year, reallocating the harvest in favor of recreational fishermen. The government says the modified allocations will “better reflect the current understanding of the historic proportions” of fish caught in both commercial and recreational sectors.
According to PLF, Amendment 22 is constitutionally suspect because of the composition of the council.
The Appointments Clause in Article II of the U.S. Constitution provides that the president may appoint officers to assist him in carrying out his responsibilities. Principal officers must be appointed by the president and be confirmed by the Senate, while inferior officers may be appointed by the president alone, the head of an executive department, or a court.
But none of the bureaucrats on the Mid-Atlantic Fishery Management Council were nominated by the president or confirmed by the Senate, as the Appointments Clause mandates. The 21-member council is instead composed of 13 members nominated by the governors of New York, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, and North Carolina; seven state bureaucrats who are also designated by governors; and a low-level federal bureaucrat.
This setup gives the unauthorized bureaucrats enormous power over federal policy and individual livelihoods while skirting accountability. Because the council wasn’t constitutionally structured when its members approved Amendment 22, the regulation itself is unconstitutional, according to the PLF.
“Our concern is that this council is made up of individuals who are not appointed by the president subject to Senate confirmation,” Alexander Khoury, a constitutional law fellow and attorney at the Pacific Legal Foundation, told The Epoch Times in an interview.
“That is why they hold their seats in violation of the Constitution, and therefore, the issuance of this rule should be voided as a result of them not possessing the authority to issue it in the first place.”
U.S. Department of Commerce officials didn’t respond by press time to a request by The Epoch Times for comment.
This article by Matthew Vadum appeared Dec. 21, 2022, in The Epoch Times.
Photo: Alexander Khoury, a constitutional law fellow and attorney at the Pacific Legal Foundation (Courtesy Pacific Legal Foundation)