Severing Magnuson-Stevens Council “Veto” Powers Eliminates Appointments Clause Defect and Limits Review to the Secretary’s Final Rule

I. Introduction

Bell v. Lutnick is one of several recent constitutional challenges to the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson-Stevens Act” or “Act”), a cooperative-federalism framework in which regional fishery management councils develop fishery management plans and amendments, and the Secretary of Commerce (through NMFS/NOAA) promulgates binding regulations.

The plaintiffs—commercial Greater Amberjack fishers (the “Commercial Fishers”)—challenged Amendment 54 (a council-approved plan amendment that drastically reduced annual catch limits) and NMFS’s unaltered Final Rule implementing it. Their core theory was structural: because members of the Gulf of Mexico Fishery Management Council (the “Council”) were allegedly appointed and insulated from removal in violation of Article II, the Council’s output (Amendment 54) and the Secretary’s implementing Final Rule were unlawful and should be enjoined or set aside.

The Fifth Circuit framed the “hybrid question” as (1) whether Council members are properly appointed under the Appointments Clause and, if not, (2) whether any defect infects Amendment 54 and the Final Rule.

II. Summary of the Opinion

III. Analysis

A. Precedents Cited

1. Defining “Officers” and “Significant Authority”

• Lucia v. Sec. & Exch. Comm'n, 585 U.S. 237 (2018): Provided the modern two-part inquiry—(1) a continuing office established by law, and (2) exercise of “significant authority.” The Fifth Circuit used Lucia both to structure the inquiry and to distinguish adjudicatory “record-shaping” power from the Council’s more advisory record-building.
• Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam): Supplied the idea that “broad administrative powers” can constitute significant authority, particularly when exercised without day-to-day supervision. The court invoked Buckley to treat an unreviewable veto as administratively significant.
• Freytag v. Commissioner, 501 U.S. 868 (1991): Held that officials can be officers even when their work product is subject to adoption by another authority, because conducting trials, taking testimony, ruling on evidence, and enforcing discovery are “important functions.” The Fifth Circuit drew from Freytag to compare what “important functions” look like, then explained why the Council’s record-assembly function is not analogous to adjudicatory evidentiary rulings.

2. Sister-circuit Magnuson-Stevens Appointments Litigation

• Lofstad v. Raimondo, 117 F.4th 493 (3d Cir. 2024): Central influence. The Fifth Circuit largely adopted Lofstad’s framework: most Council powers are not “significant” because the Secretary retains ultimate control; the “pocket veto” is the key constitutional trigger; and that veto is severable, leaving Council members as employees.
• Wille v. Lutnick, 158 F.4th 539 (4th Cir. 2025): Noted in connection with ratification doctrine (whether later approval can cure an Appointments defect). The Fifth Circuit declined to reach ratification given its severability resolution.
• New England Fishermen's Stewardship Ass'n v. Raimondo, 761 F. Supp. 3d 141 (D. Me. 2024): Cited to show that other courts have invalidated or treated the veto authority as unconstitutional; the government represented it would not defend those provisions to the extent they empower councils to block the Secretary.
• New England Fishermen's Stewardship Ass'n v. Raimondo, Nos. 25-1212, 25-1213 (1st Cir. argued Mar. 2, 2026): Identified as pending, situating the Fifth Circuit’s decision within an active inter-circuit dialogue.

3. Consent/Veto Analogies Outside Fisheries

• Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. United States, 367 F.3d 650 (7th Cir. 2004), and Confederated Tribes of Siletz Indians v. United States, 110 F.3d 688 (9th Cir. 1997): Raised by the government to analogize the Council’s role to episodic “concurrence” mechanisms. The Fifth Circuit distinguished these by emphasizing the Council’s unoverrideable veto as a structural “last word” over the Secretary in certain domains.

4. Statutory Interpretation and Avoiding Constitutional Problems

• Gomez v. United States, 490 U.S. 858 (1989): Used to justify reading the Act sensibly to avoid creating constitutional problems; applied to reject the fishers’ attempt to construe 16 U.S.C. § 1854(a)(3) as sharply constraining Secretarial discretion to disapprove plan amendments only for illegality.

5. Deadlines, Default Effect, and Finality

• McIntosh v. United States, 601 U.S. 330 (2024), quoting Dolan v. United States, 560 U.S. 605 (2010): Cited for the principle that many statutory deadlines are “time-related directives” that promote speed but do not necessarily strip power when missed.
• Meliezer v. Resolution Tr. Co., 952 F.2d 879 (5th Cir. 1992): The Fifth Circuit’s own test for whether a statutory time period is mandatory (requires timely action and imposes a consequence). This supported rejecting the theory that deadlines transform Council proposals into binding law without Secretarial regulation.
• Alaska Factory Trawler Ass'n v. Baldridge, 831 F.2d 1456 (9th Cir. 1996), and N.C. Fisheries Ass'n v. Gutierrez, 550 F.3d 16 (D.C. Cir. 2008): Reinforced that fishery management plans/amendments are not self-executing; regulatory effect arrives via implementing regulations.
• Gulf Fishermens Ass'n v. Nat'l Marine Fisheries Serv., 968 F.3d 454 (5th Cir. 2020): Fifth Circuit authority that plans/amendments require implementing regulations—critical to rejecting “default approval” as conferring significant authority on Council members.

6. Severability Remedies for Structural Defects

• United States v. Arthrex, Inc., 594 U.S. 1 (2021): Emphasized tailoring remedies by severing the unconstitutional portion of a statutory scheme rather than invalidating the whole.
• Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197 (2020), and Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (2010): Provided the two-part severability analysis: can the statute function independently, and would Congress have preferred the remainder to no statute at all.
• NRDC v. Nat'l Marine Fisheries Serv., 71 F. Supp. 3d 35 (D.D.C. 2014): Quoted (via Lofstad) to characterize councils’ “most significant responsibility” as drafting proposed plans—supporting the conclusion that the Act remains functional without veto powers.

7. Jurisdiction and Reviewability Under the Act

• Anglers Conservation Network v. Pritzker, 809 F.3d 664 (D.C. Cir. 2016): Supported limiting judicial review to the Secretary’s final actions; council actions are “an intermediate step toward final agency action.” The Fifth Circuit relied on this logic to hold it lacked jurisdiction to review Amendment 54 itself once the Appointments issue was cured by severance.

8. Ratification Doctrine (Not Reached)

• Jooce v. Food & Drug Admin., 981 F.3d 26 (D.C. Cir. 2020); Kajmowicz v. Whitaker, 42 F.4th 138 (3d Cir. 2022); Wille v. Lutnick, 158 F.4th 539 (4th Cir. 2025): Cited as examples of ratification jurisprudence but not applied because severance resolved the structural problem.

9. Removal Restrictions and the Requirement of Harm

• Cmty. Fin. Servs. Ass'n of Am., Ltd. v. Consumer Fin. Prot. Bureau, 51 F.4th 616 (5th Cir. 2022), rev'd and remanded on other grounds, 601 U.S. 416 (2024), and reinstated in relevant part by 104 F.4th 930 (5th Cir. 2024): Supplied the Fifth Circuit’s three-part showing required for relief based on unconstitutional removal restrictions, which the plaintiffs failed to meet.

B. Legal Reasoning

1. The Fifth Circuit’s “Significant Authority” Sorting

The court accepted that Council positions are “continuing” offices established by law (the first Lucia element). The case turned on whether Council members exercise “significant authority.”

Power that does confer significant authority: the veto.

• Under 16 U.S.C. § 1854(h), the Secretary cannot repeal/revoke a plan without supermajority Council permission.
• Under 16 U.S.C. § 1854(c)(3), the Secretary cannot establish certain limited-access programs without Council approval.

The Fifth Circuit treated these provisions as a structural “last word” in the Council—an unoverrideable “pocket veto” that “thwart[s]” the chain of command described in Lofstad v. Raimondo (and even analogized in spirit to The Federalist No. 73). Because a veto changes what the Secretary may do (not merely what she must consider), it is “broad administrative power” under Buckley v. Valeo.

Powers that do not confer significant authority (given Secretarial control):

• Proposing plans/amendments: The court read 16 U.S.C. § 1854(a)(3) to preserve broad Secretarial discretion to disapprove for reasons beyond illegality, avoiding an interpretation that would create constitutional difficulties (invoking Gomez v. United States and tracking Lofstad).
• Default “take effect” language: Even if a plan “takes effect as if approved” after a deadline, binding obligations still require implementing regulations (citing Gulf Fishermens Ass'n v. Nat'l Marine Fisheries Serv., Alaska Factory Trawler Ass'n v. Baldridge, and N.C. Fisheries Ass'n v. Gutierrez). The court also relied on deadline cases (McIntosh v. United States, Dolan v. United States) and its own directive/consequence test (Meliezer v. Resolution Tr. Co.).
• Emergency regulations on unanimous request: Because the Secretary’s designee sits on the Council and can prevent unanimity, the Council cannot force action opposed by the Secretary (adopting Lofstad’s reasoning).
• Assembling the record: Unlike adjudicators in Lucia v. Sec. & Exch. Comm'n who make evidentiary rulings that shape the entire record for review, the Council’s record compilation does not bind the Secretary’s consideration or foreclose other information.

2. Severability as the Constitutional Fix

Having found the veto power is what makes Council members “officers,” the court used severability doctrine to remove that power rather than invalidate the Council system:

• Under United States v. Arthrex, Inc., courts should “limit the solution to the problem” by severing problematic portions.
• Under Seila L. LLC v. Consumer Fin. Prot. Bureau and Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., the remainder must (a) function independently, and (b) plausibly reflect what Congress would have enacted.

The Fifth Circuit found both satisfied: the councils’ core co-management and proposal-drafting functions remain; and Congress’s overarching purpose (stakeholder-informed fishery management) does not depend on councils being able to block the Secretary.

3. Remedies and Jurisdiction: Review is of the Final Rule, not the Amendment

A notable remedial move followed from the merits holding. Once the veto provisions are severed, Council members are treated as advisors/employees; therefore Amendment 54 was not “unlawfully proposed” due to an Appointments Clause defect. That, in turn, narrowed what a court may review under 16 U.S.C. § 1855(f)(1)-(2).

The Fifth Circuit held it need not (and could not) reach the Arnesen plaintiffs’ bid to declare Amendment 54 void because the Act’s review provision covers only:

• “Regulations promulgated by the Secretary,” and
• “actions that are taken by the Secretary under regulations which implement a fishery management plan.”

Drawing support from Anglers Conservation Network v. Pritzker, the court characterized council conduct as an intermediate step, not reviewable “final” action once the structural Appointments theory is removed.

4. Removal Claim Fails for Lack of Showing of Harm

Applying Cmty. Fin. Servs. Ass'n of Am., Ltd. v. Consumer Fin. Prot. Bureau, the Fifth Circuit affirmed denial of relief because plaintiffs did not even argue (much less prove) the first necessary element: a “substantiated desire by the President” to remove the allegedly insulated official. Without that showing, the removal-restriction theory could not support vacatur or injunction.

C. Impact

• For Magnuson-Stevens governance: The decision preserves the Act’s cooperative-federalism architecture while stripping councils of any constitutionally problematic “blocking” power over the Secretary. That is a significant structural clarification for agency practice in the Fifth Circuit.
• For Appointments Clause litigation strategy: The opinion signals that challengers may succeed in identifying “significant authority” in discrete council powers, yet still lose meaningful relief if courts deem those powers severable and unused in the challenged action.
• For judicial review: By tying its jurisdictional holding to its severability-based merits resolution, the Fifth Circuit makes it harder (at least within this reasoning) to directly attack plan amendments as such; challenges will likely focus on the Secretary’s implementing regulations and the administrative record supporting the Final Rule.
• Potential inter-circuit convergence: The Fifth Circuit’s adoption of the Third Circuit’s logic in Lofstad v. Raimondo increases the likelihood of a harmonized approach across circuits (though pending cases, including the First Circuit matter, may still generate divergence).

IV. Complex Concepts Simplified

• Appointments Clause: The Constitution requires that “officers of the United States” be appointed in specified ways (typically by the President with Senate confirmation, or as “inferior Officers” by a department head, courts, or the President if Congress authorizes). If an official is merely an employee/advisor, these requirements do not apply.
• “Significant authority”: The practical power that matters is the ability to make binding governmental decisions. Advising, recommending, compiling information, and drafting proposals often is not enough if a properly appointed official has the final say.
• Pocket veto (in this context): A statutory power to stop an action (here, certain Secretarial actions) in a way that cannot be overridden—functionally giving the veto-holder “last-word” control.
• Severability: When a part of a statute is unconstitutional, a court may “cut out” the offending provision and leave the rest standing if the remainder can still work and is consistent with legislative intent.
• Final agency action / reviewability: Courts usually review final, binding agency actions. Under the Magnuson-Stevens Act, the Secretary’s implementing regulation (Final Rule) is typically the legally operative act, while a council amendment is a step on the way.
• Removal harm requirement: Even if a removal protection is unconstitutional, a plaintiff often must show that the restriction actually caused harm (e.g., that the President wanted to remove the official but believed he could not, and that this connects to the challenged action).

V. Conclusion

Bell v. Lutnick establishes a targeted rule for Magnuson-Stevens councils in the Fifth Circuit: Council members’ “significant authority” arises from statutory veto powers over the Secretary, but those veto provisions are severable. Once severed, Council members are treated as advisors/employees, insulating plan drafting and consultation from Appointments Clause attack and preserving the Secretary’s Final Rule.

The opinion also tightens remedial pathways by limiting judicial review to the Secretary’s implementing regulations under 16 U.S.C. § 1855(f), and it reinforces that removal-based challenges require a concrete, causally connected showing of harm under Cmty. Fin. Servs. Ass'n of Am., Ltd. v. Consumer Fin. Prot. Bureau.