DOMINICK RUSSO

v.

SECRETARY, U.S. DEPARTMENT OF COMMERCE

FISHERIES SERVICE, NATIONAL MARINE FISHERIES SERVICE, Defendants-Appellees-Cross Appellants. ____________________ Appeals from the United States District Court for the Southern District of Alabama D.C. Docket No. 1:24-cv-00186-JB-M ____________________ USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page:² of 29

Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and BRASHER, Circuit Judges. BRASHER, Circuit Judge: This appeal concerns whether members of the Gulf of Mex- ico¹ Fishery Management Council are improperly appointed under the Appointments Clause. Congress created the Council under the Magnuson-Stevens Act to assist the Secretary of Commerce in managing our nation’s fisheries. Some Councilmembers are mem- bers of state or federal government; others are appointed by the Secretary after being nominated by a state’s governor. They are re- movable for cause. The Council’s primary duty is to propose Fish- ery Management Plans, which are comprehensive frameworks for regulating fisheries, together with implementing regulations. To become effective, a regulation must be adopted and promulgated by the Secretary. Dominick and James Russo, two commercial fishermen, challenged a rule promulgated by the Secretary through this two- step process. The rule reduced catch limits for gag grouper, a fish the Russos harvest. They contend that the Councilmembers are

Mexico” be renamed as the “Gulf of America.” Exec. Order No. 14172, 90 Fed. Reg. 8629 (Jan. 20, 2025). Because the statutes pertinent to this appeal refer to the “Gulf of Mexico,” 16 U.S.C. § 1852(a)(1)(E), we continue to use that name. See Daniels v. Exec. Dir. of Fla. Fish & Wildlife Conservation Comm’n, 127 F. 4th 1294, 1299 n.1 (11th Cir. 2025). USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page:³ of 29

improperly appointed officers wielding significant federal authority in violation of the Appointments Clause. They also argue that the Councilmembers are unconstitutionally shielded from removal. They request that we vacate the gag grouper rule as a result. The district court held that the Councilmembers are uncon- stitutionally appointed officers, citing three provisions of the Act that permit the Council to block secretarial action. The district court declined to vacate the rule, however, opting instead to sever these “veto” provisions and render the Councilmembers employ- ees. Doc. 51 at 13-14. Although it did not undo the gag grouper rule, the district court entered judgment for the Russos. We mostly agree with the district court’s opinion. Like the district court and two other circuits to have addressed this issue, we conclude that the Act delegates significant authority to the Council, which it cannot wield as it is currently constituted. See Arnesen v. Lutnick, 170 F. 4th 965, 975 (5th Cir. 2026); Lofstad v. Rai- mondo, 117 F. 4th 493, 499 (3d Cir. 2024). But the remedy for this constitutional infirmity is not to void the Councilmembers’ ap- pointments or undo all the Council’s actions. Instead, the remedy would be to declare invalid any action taken with the Council’s un- constitutionally delegated executive authority. Because the gag grouper rule—the only executive action the Russos challenge as having affected them—was not based on the Council’s unconstitu- tional authority, we will not vacate the rule as a remedy for the constitutional infirmity they have identified. Although the district court correctly denied the Russos relief, it entered judgment for the USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page:⁴ of 29

Russos. We therefore remand for the district court to enter judg- ment for the government.

I.

We begin by summarizing the Council’s mandate, appoint- ment process, and powers. We then address the background of the gag grouper rule. We conclude with this appeal’s procedural his- tory.

A.

Congress passed the Magnuson-Stevens Act to “conserve and manage the fishery resources” of the United States. 16 U.S.C. § 1801(b)(1). The Secretary of Commerce is tasked with carrying out the Act. Id. § 1855(d). The Act created eight Regional Fishery Management Councils to “exercise sound judgment in the stew- ardship of fishery resources.” Id. § 1801(b)(5); see id. § 1852(a)(1). The Gulf of Mexico Fishery Management Council, at issue here, covers the States of Texas, Louisiana, Mississippi, Alabama, and Florida. Id. § 1852(a)(1)(E). The Council has seventeen voting members. Id. Five Councilmembers (one for each state) are the principal state officials tasked with fishery management and are ap- pointed by the governor. Id. § 1852(b)(1)(A). The state official re- mains on the Council as long as he holds his position in state gov- ernment. Id. One Councilmember is the regional director of the National Marine Fisheries Service and is not appointed by the Pres- ident or Secretary. Id. § 1852(b)(1)(B). The NMFS is part of the De- USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page:⁵ of 29

partment of Commerce. The eleven remaining members are ap- pointed by the Secretary based on a list provided by the governor of each constituent state. Id. § 1852(b)(1)(C), (b)(2)(C). They may be removed if two-thirds of the Council recommend removal, or if the member has a financial conflict of interest. Id. §§ 1852(b)(6)(A)- (B), 1857(1)(O). The Council’s primary duty is to develop Fishery Manage- ment Plans and, as relevant here, prepare amendments to FMPs when a fishery requires conservation and management. Id. § 1852(h)(1). FMPs contain “conservation and management measures” necessary to prevent overfishing and ensure sustainabil- ity. Id. § 1853(a)(1). They include a wide variety of information: an- nual catch limits, measures to limit bycatch, criteria for assessing the condition of a fishery, scientific data and reports, a description of the fishery, and so on. Id. § 1853(a). The Council must also pre- pare regulations necessary to implement the FMP amendment. Id. § 1853(c). After the Council drafts an FMP amendment and an imple- menting regulation, it must transmit them to the Secretary for re- view. The Secretary (or his designee, see id. § 1802(39)) then solicits public comments on the FMP amendment and reviews it “to de- termine whether it is consistent with the national standards, the other provisions of this chapter, and any other applicable law.” Id. § 1854(a)(1)(A)-(B). The national standards are a list of ten princi- ples provided by the Act. They require conservation and manage- USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 6 of 29

ment measures to, among other things, balance the need to pre- vent overfishing with the need to ensure an “optimum yield,” be “based upon the best scientific information available,” be efficient, minimize costs, minimize bycatch, and promote safety. Id. § 1851(a)(1)-(10). The Secretary must also consider “information, views, and comments” received during notice and comment. Id. § 1854(a)(2)(A). The Secretary must approve, disapprove, or partially ap- prove an FMP amendment within thirty days of the end of notice and comment. Id. § 1854(a)(3). A notice of disapproval or partial approval “shall specify” the applicable law with which the FMP amendment is inconsistent, the nature of the inconsistency, and recommendations for how to “conform such . . . amendment to the requirements of applicable law.” Id. § 1854(a)(3)(A)-(C). The Council may submit a revised FMP amendment, restarting the pro- cess. Id. § 1854(a)(4). If the Secretary fails to notify the Council of his approval, disapproval, or partial approval, the FMP amendment “shall take effect as if approved.” Id. § 1854(a)(3). The Secretary also must review the Council’s proposed im- plementing regulations. The Secretary must determine whether the regulation is consistent with the Council’s FMP amendment, as well as “applicable law.” Id. § 1854(b)(1). If the Secretary approves the rule, he must publish it for notice and comment. Id. § 1854(b)(1)(A). Before promulgating the final rule, the Secretary may revise it if he first “consult[s]” with the Council. Id. § 1854(b)(3). If he disapproves, he “shall notify” the Council of how USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 7 of 29

it is inconsistent with the FMP amendment or applicable law. Id. § 1854(b)(1)(B). Unlike with FMP amendments, a regulation can take effect only with the Secretary’s approval. Under certain circumstances, the Secretary has the power to make his own FMP amendments and regulations. Under 16 U.S.C. § 1854(c), if the Council fails to develop an FMP amendment after a “reasonable period of time,” or if the Secretary disapproves the FMP amendment and the Council fails to submit a revision, the Secretary may prepare his own. The Secretary must submit his FMP amendment to the Council and consider its views before fi- nalizing the amendment and implementing regulations. Id. § 1854(c)(4)-(6). Similarly, the Secretary may notify the Council that a fishery is overfished, in which case the Council has two years to submit an FMP, an FMP amendment, or proposed regulations. Id. § 1854(e)(1)-(4). If the Council does not do so within two years, the Secretary may do it himself. Id. § 1854(e)(5). The Secretary may also implement temporary emergency regulations if he “finds that an emergency exists or that interim measures are needed to reduce overfishing.” Id. § 1855(c)(1). The Council also has the power to force the Secretary to implement emergency regulations through a unanimous vote. Id. § 1855(c)(2)(A). Any request for emergency measures made by less than a unanimous vote is precatory. Id. § 1855(c)(2)(B). Emergency regulations that change an existing FMP may remain in effect for no more than approximately one year. Id. § 1855(c)(3)(B). USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 8 of 29

The Council has the power to block the Secretary from tak- ing certain actions (the so-called “veto” power). First, the Secretary may repeal an FMP only if the Council approves the repeal by a three-fourths majority vote. Id. § 1854(h). Second, when the Secre- tary prepares an FMP amendment under section 1854(c), he cannot include a “limited access system” unless it is first approved by a ma- jority of the Council. Id. § 1854(c)(3). A limited access system “lim- its participation in a fishery to those satisfying certain eligibility cri- teria.” Id. § 1802(27). Third, the Secretary may delegate manage- ment of certain fisheries to a state only if the Council approves the delegation by a three-fourths vote. Id. § 1856(a)(3)(B). None of these powers were used to promulgate the gag grouper rule. Finally, the Act permits judicial review of “[r]egulations promulgated by the Secretary” and actions taken under imple- menting regulations. Id. § 1855(f). Regulations are subject to judi- cial review in accordance with the Administrative Procedure Act, except that they may be “set aside” only if they are arbitrary and capricious, procedurally improper, in excess of statutory authority, or “contrary to constitutional right, power, privilege, or immun- ity.” Id. § 1855(f)(1)(B);⁵ U.S.C. § 706(2)(A)-(D).

B.

Gag grouper is a fish that lives in the Gulf of Mexico. In 2022, the Secretary informed the Council that gag grouper was being overfished, thus triggering the Council’s two-year FMP drafting pe- riod. 16 U.S.C. § 1854(e)(3). The following year, the Council drafted Amendment 56 to the Fishery Management Plan for the USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 9 of 29

Reef Fish Resources of the Gulf of Mexico. Amendment 56 reduced catch limits for gag grouper to replenish the stock. The Council passed Amendment 56 by a vote of fourteen to one (two Coun- cilmembers were absent). While Amendment 56 was pending approval by the Secre- tary, the Council requested, and the Secretary implemented, a tem- porary rule reducing catch levels. Temporary Measures to Reduce Overfishing of Gag, 88 Fed. Reg. 7388 (proposed Feb.³, 2023) (to be codified at 50 C.F.R. pt. 622); 88 Fed. Reg. 27701 (May³, 2023) (to be codified at 50 C.F.R. pt. 622) (final temporary rule); 16 U.S.C. § 1855(c)(1). The Secretary approved a one-time extension of the final temporary rule later that year. Temporary Measures to Re- duce Overfishing of Gag, 88 Fed. Reg. 69553 (Oct. 6, 2023) (to be codified at 50 C.F.R. pt. 622); 16 U.S.C. § 1855(c)(3)(B). The Council then submitted, and the Secretary published, a proposed rule im- plementing Amendment 56. Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Resources of the Gulf of Mexico; Amendment 56, 88 Fed. Reg. 77246 (proposed Nov. 9, 2023) (to be codified at 50 C.F.R. pt. 622). Following the notice and comment period, the Secretary ap- proved Amendment 56 in early 2024, within the two-year deadline. The Council submitted, and the Secretary approved, the un- changed final rule shortly thereafter. The final rule cut annual catch limits by around eighty-six percent. See Amendment 56, 89 Fed. Reg. 40419, 40421 (May 10, 2024) (to be codified at 50 C.F.R. pt. 622). USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 10 of 29

C.

Dominick and James Russo are commercial fishermen who jointly own FFC Seafood, a family business. They have fished in the Gulf of Mexico for about thirty years. Gag grouper is their most profitable catch. According to their complaint, they have fished for gag grouper in the past, currently fish for gag grouper, and intend to fish for gag grouper in the future. Were they not prohibited from doing so, they would exceed the current catch limits. The Russos allege that they have “incurred significant financial losses” due to the rule’s catch restrictions. The Russos timely challenged the final rule under section 1855(f)(1). They brought two claims. First, they alleged that the Councilmembers are unlawfully appointed principal officers in vi- olation of the Appointments Clause. They argued that the veto provisions, in addition to other parts of the Act, gave the Council significant authority. Second, they argued that the Act’s removal restrictions violate the Vesting and Take Care Clauses. They re- quested a judgment declaring the rule void, as well as a permanent injunction against its enforcement. The Russos moved, and the government cross-moved, for summary judgment. The district court granted in part and denied in part the Russos’ motion and denied the government’s motion in full. First, the district court concluded that the Russos have stand- ing to sue because they suffered an injury traceable to the Secre- tary’s promulgation of the rule. Second, the district court reasoned that the “veto” powers under sections 1854(c)(3), 1854(h), and USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 11 of 29

1856(a)(3)(B) grant the Council significant authority, making the Councilmembers officers. The district court concluded that these were the Council’s only significant powers. The district court then held that, because none of the Councilmembers were appointed by the President and confirmed by the Senate, their appointments vi- olated the Appointments Clause. Third, the district court held that the appropriate remedy was to sever the three veto provisions and leave the rest of the Act intact. It rejected vacatur, however, as “un- necessarily broad and severe.” Doc. 51 at 13. Because severance “addresse[d] all [the] bases of [the] Plaintiffs’ claims,” the district court did not address the Vesting and Take Care Clauses argu- ments. Id. at 12 n.3. The Russos and the government cross appealed.

II.

We review summary judgment decisions de novo. Chappell v. Chao, 388 F. 3d 1373, 1376 (11th Cir. 2004). We also review consti- tutional questions de novo. United States v. Castillo, 899 F. 3d 1208, 1212 (11th Cir. 2018).

III.

There are three issues to address. First, whether the Russos have standing. Second, whether the Council wields significant au- thority. Third, if the Council wields significant authority, whether we should vacate the gag grouper rule even though the Council’s significant powers did not impact the rule’s development or prom- ulgation. We address each issue in turn. USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 12 of 29

A.

The government argues that the Russos lack standing to challenge the rule. It contends that the Russos may not rely on the veto provisions, which did not impact the rule, in advancing their Appointments Clause challenge. The First Circuit recently agreed with the government in a similar Appointments Clause lawsuit. See New England Fishermen’s Stewardship Ass’n v. Lutnick, 174 F. 4th 263, 281 (1st Cir. 2026). But we disagree with the First Circuit and join the two circuits that have reached the merits of similar challenges. See Lofstad, 117 F. 4th at 497, 500; Arnesen, 170 F. 4th at 975, 979 n.11. To have standing, a plaintiff must satisfy three elements. First, a plaintiff must have suffered an injury in fact that is both concrete and particularized, and actual or imminent, not hypothet- ical. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Second, there must be a causal connection between the injury and the defend- ant’s conduct. Id. The injury must be “fairly traceable” to the de- fendant’s conduct. Id. at 560-61 (citation modified). Third, the in- jury must be redressable by a favorable decision. Id. at 561. The Russos have suffered a cognizable injury. The Russos allege that the rule prevents them from catching and selling more fish—“a classic pocketbook injury.” See Tyler v. Hennepin County, 598 U.S. 631, 636 (2023). They also argue that the Secretary lacked the power to promulgate the rule because it was proposed by un- constitutionally appointed Councilmembers. When a statute “vio- lates the separation of powers it inflicts a ‘here-and-now’ injury on affected third parties that can be remedied by a court.” Seila Law USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 13 of 29

LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 212 (2020) (quoting Bowsher v. Synar, 478 U.S. 714, 727 n.5 (1986)); see also Axon Enter., Inc. v. Fed. Trade Comm’n, 598 U.S. 175, 191 (2023) (“being subjected to unconstitutional agency authority” inflicts a cognizable injury) (citation modified)). The Russos’ injury is fairly traceable to the Secretary’s con- duct. Fair traceability does not require a showing of proximate cause and may be met even where the plaintiff’s injury was “indi- rectly caused” by the defendant’s conduct. Resnick v. AvMed, Inc., 693 F. 3d 1317, 1324 (11th Cir. 2012); Lexmark Int’l, Inc. v. Static Con- trol Components, Inc., 572 U.S. 118, 134 n.6 (2014). Here, the Council proposed the rule, and the Secretary adopted it without any edits. The Russos’ injuries are thus traceable to the Secretary’s allegedly unlawful decision to promulgate the rule. Contrary to the government’s argument, the Russos do not need to prove that their injury is traceable to any particular provi- sion of the Act. See Collins v. Yellen, 594 U.S. 220, 243 (2021) (“[T]he relevant inquiry is whether the plaintiffs’ injury can be traced to allegedly unlawful conduct of the defendant, not to the provision of law that is challenged.” (citation modified)). The Supreme Court has rejected a similar argument before. See Freytag v. Comm’r, 501 U.S. 868, 882 (1991) (rejecting argument that petitioners lacked standing to bring appointments challenge based on significant pow- ers that were not used in their case). Because the Russos’ concrete injury flows from the Secretary’s adoption of the rule, the tracea- bility element is satisfied. USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 14 of 29

Finally, on the Russos’ theory, a favorable decision would redress the Russos’ injury. Vacating the rule would allow the Rus- sos to catch more fish. To be sure, to justify vacatur, the Russos must establish a constitutional infirmity that warrants vacating the gag grouper rule. But that is a question about remedies, not stand- ing. See Collins, 594 U.S. at 258 n.24 (having standing to challenge an executive officer’s actions “does not mean that actions taken by such an officer are void ab initio and must be undone”). Because all three elements of standing are satisfied, the Rus- sos have standing to bring their claims. See Lujan, 504 U.S. at 560-

61.

B.

With the Russos’ standing established, we now reach the merits. The Russos argue that the Councilmembers must be ap- pointed by the President or Secretary and be removable at will. The Appointments Clause provides that “Officers of the United States” must be nominated by the President and confirmed by the Senate. There is an exception for inferior officers, whose appointment Congress may “by Law vest” in the President, courts of law, or the “Heads of Departments.” U.S. CONST. art. II, § 2, cl. 2. The Su- preme Court has also explained that, at least in some cases, the Vesting and Take Care Clauses grant the President power to re- move executive officers. Trump v. Slaughter, 146 S. Ct. 2283, 2292- 93, 2310 (2026). Both of the Russos’ claims—improper appointment and re- movability—therefore turn on whether the Councilmembers USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 15 of 29

(1) “occupy a continuing position established by law” and (2) “ex- ercise[] significant authority pursuant to the laws of the United States.” Lucia v. Sec. & Exch. Comm’n, 585 U.S. 237, 245 (2018) (cita- tion modified). No one disputes that the first element—occupying a continuing position established by law—is satisfied here. See 16 U.S.C. § 1852(b), (d), (h). Our focus is therefore on the second ele- ment: whether the Act grants Councilmembers “significant author- ity.” Lucia, 585 U.S. at 245. Although the Supreme Court has not defined “significant authority,” id. at 246, it “evaluates a range of factors, including the scope and breadth of the individual’s author- ity, the degree of discretion afforded, and the individual’s proce- dural powers, among other things,” United States v. Avalos, 162 F. 4th 948, 957-58 (9th Cir. 2025) (collecting decisions). Focusing on the element of significant authority, the Russos identify four parts of the Act that they say grant the Council signif- icant authority: the Council’s power to propose FMP amendments and regulations; its ability to assemble an administrative record; its emergency powers; and the three veto provisions. Of these pow- ers, only the first two were used in proposing the rule. The Russos also cite several non-Act statutes they believe confer significant au- thority on the Council. We address each argument in turn.

1.

We will start with whether the Council’s power to propose FMP amendments and regulations is significant. The Russos argue that the Secretary cannot reject the Council’s proposals at will, and USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 16 of 29

that “his review is limited to a lawfulness determination.” Appel- lants’ Br. at 36. They point out that FMP amendments become binding upon secretarial inaction, and that the Secretary must “consult with the Council” before he may revise proposed regula- tions. 16 U.S.C. § 1854(b)(3). We disagree. Because these provisions are properly read to allow the Secretary to reject or amend the Council’s proposals before they have the force of law, the Council’s proposal authority is not significant. An advisory body’s power to make “non-binding recom- mendations” is not significant. See Kennedy v. Braidwood Mgmt., Inc., 606 U.S. 748, 761 (2025). In fact, it is not executive authority at all. Executive power includes the power to issue generally applicable decisions like rules and advisory opinions, see Buckley v. Valeo, 424 U.S.¹, 140-41 (1976), or adjudicate public rights by conducting tri- als, taking testimony, ruling on admissibility of evidence, or enforc- ing compliance with orders, see Freytag, 501 U.S. at 881-82; Lucia, 585 U.S. at 248. The authority to advise is a far cry from these kinds of “executive decision-making power[s].” Florida v. Sec’y, U.S. Dep’t of Educ., 180 F. 4th 1340, 1346 (11th Cir. 2026). Because the Secretary may decide whether to adopt or reject the Council’s proposals, we think the Council’s proposal power is best understood as advisory. Although the Council may “[p]ropose[]” regulations, 16 U.S.C. §§ 1853(c), 1854(a), its pro- posals have no binding effect on third parties without the Secre- tary’s approval. A proposed FMP amendment “take[s] effect as if approved” upon secretarial inaction, id. § 1854(a)(3), but approval USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 17 of 29

of an FMP amendment “does not adversely affect anyone” because FMPs cannot bind third parties absent implementing regulations. Alaska Factory Trawler Ass’n v. Baldridge, 831 F. 2d 1456, 1464 (9th Cir. 1987); N.C. Fisheries Ass’n, Inc. v. Gutierrez, 550 F. 3d 16, 17 (D.C. Cir. 2008). FMPs may affect state regulation in international wa- ters, see 16 U.S.C. § 1856(a)(3), but this power is nonetheless de- pendent on the Secretary allowing the FMP to become effective in the first place. And even if the FMP takes effect without the Secre- tary’s explicit approval, “it is still at the discretion of the Secretary.” Arnesen, 170 F. 4th at 977. In addition to retaining final decision-making authority, the Secretary has broad discretion to reject the Council’s proposed FMP amendments. For instance, the Secretary may reject FMP amendments if they are inconsistent with “the national standards, the other provisions of [the Act], and any other applicable law.” 16 U.S.C. § 1854(a)(1)(A). As our sister circuits have recognized, the national standards are policy-laden and require significant inde- pendent judgment by the Secretary. NEFSA, 174 F. 4th at 277; All. Against IFQs v. Brown, 84 F. 3d 343, 350 (9th Cir. 1996). Additionally, nothing in the Act prohibits the Secretary from rejecting proposals on policy grounds. See Lofstad, 117 F. 4th at 500 (holding that the Act “does not expressly condition disapproval on a conflict with law”). The Secretary also has broad discretion to reject proposed regulations. In this case, the Secretary considered the National En- USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 18 of 29

vironmental Policy Act, Coastal Zone Management Act, Endan- gered Species Act, Marine Mammal Protection Act, and several ex- ecutive orders before deciding to promulgate the rule. This process required the Secretary to exercise discretion and independent judg- ment. Our interpretation of the Act is consistent with longstanding Executive Branch practice. The Executive Branch has consistently treated the Council’s proposals as “advisory only.” See Presidential Statement on Signing the Modernizing Recreational Fisheries Man- agement Act of 2018, 2018 DAILY COMP. PRES. DOC. 00877 (Dec. 31, 2018); Presidential Statement on Signing the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, 43 WEEKLY COMP. PRES. DOC. 31-32 (Jan. 12, 2007); Presiden- tial Statement on Signing the Sustainable Fisheries Act, 32 WEEKLY COMP. PRES. DOC. 2040-41 (Oct. 11, 1996). We have previously re- lied on signing statements as a permissible tool of statutory inter- pretation. See United States v. Fisher, 22 F. 3d 262, 268 (11th Cir. 1994). “[C]onstruction by the Chief Executive, being both contem- poraneous and consistent, is entitled to great weight,” Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116 (1947), especially where, as here, it concerns relationships between officials within the Executive Branch. After all, the Council cannot “wield” signifi- cant authority as a practical matter if the executive treats it as purely advisory. Lucia, 585 U.S. at 245. The Russos argue that section 1854(b)(3)’s consultation re- quirement permits the Council to block the Secretary from revising USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 19 of 29

its proposals by refusing to meet with him. We reject this argu- ment, as has every circuit to consider it. See Lofstad, 117 F. 4th at 500; Arnesen, 170 F. 4th at 977; NEFSA, 174 F. 4th at 277. The plain text of section 1854(b)(3) simply requires the Secretary to seek the Council’s advice before revising a proposed rule. Consult, WEBSTER’S SEVENTH NEW COLLEGIATE DICTIONARY 179 (1963) (“to ask the advice or opinion of”). This procedural requirement is sat- isfied if the Secretary solicits the Council’s input, even if the Coun- cil refuses to provide it. See Fishing Co. of Alaska, Inc. v. Gutierrez, 510 F. 3d 328, 333 (D.C. Cir. 2007) (the “power to alter the rule before it becomes final rests only with the Secretary”). In short, the Council’s proposals are purely precatory, can- not bind third parties, and may be rejected or revised by the Secre- tary. We therefore conclude that its power to propose is not signif- icant. See Kennedy, 606 U.S. at 761. But were there any doubt, we would be obliged to choose a plausible interpretation that avoids placing the Act’s constitutionality in question. See Club Madonna Inc. v. City of Miami Beach, 42 F. 4th 1231, 1252 (11th Cir. 2022) (cit- ing ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 247 (2012)). Because we may plausibly interpret the Council’s proposal power as purely advi- sory, we do so. Id.; see Lofstad, 117 F. 4th at 500 (same); Arnesen, 170 F. 4th at 976 (same). USCA11 Case: 26-10171 Document: 45-1 Date Filed: 09/03/2026 Page: 20 of 29