Statement of Administration Policy: H.R. 3358 - Atlantic Striped Bass Conservation Act Amendments

(House)
(Rep. Studds (D) Massachusetts and 17 others)

The Administration opposes H.R. 3358 unless amended to correct constitutional deficiencies in the Atlantic Striped Bass Conservation Act, and to make other changes in the bill discussed below.

The Department of Justice advises that the Act unconstitutionally requires the Executive Branch to impose a moratorium on fishing of striped bass if it agrees with a determination of the Atlantic States Fisheries Commission (members of which are chosen by State Governors) that the Commission's conservation plan is not being enforced. It would require Federal enforcement of a plan prepared by non-Federal officials, when Federal officials can enforce only laws of the United States enacted pursuant to the Constitution and regulations issued under such laws. Moreover, language in the Senate Committee report on this legislation and statements on the Senate floor by the bill's supporters indicate congressional intent that absent unusual circumstances, the Executive Branch would have essentially no discretion regarding whether or not to impose a moratorium if the Commission finds enforcement to be lacking. This would give the Commission a significant governmental duty that may be performed only by officers of the United States appointed in compliance with the Appointments Clause of the Constitution, and thus is unconstitutional.

The Administration urges that H.R. 3358 not be considered under suspension of the rules and recommends that the bill be considered under a rule that will allow amendments to (1) grant explicit congressional approval to the Commission's conservation plan, including amendments adopted to date; (2) grant the Executive Branch clear discretion to decide whether or not to impose a fishing moratorium in response to a finding by the Commission that the Plan is not being enforced; (3) retain current law's authority to declare a fishing moratorium under the Act solely with the Secretary of Commerce, instead of requiring such a moratorium to be declared jointly by the Secretaries of Commerce and the Interior; and (4) delete the reauthorization of the Federal striped bass study, which has been completed.

Unless the constitutional flaws are corrected, the Department of Justice has advised that it will recommend disapproval of H.R. 3358.