Notice & Comment

Mexican Gulf Fishing v. Department of Commerce: Part II

Charter Fishing Trip
“To Have and Have Not”
(Warner Bros. 1944)

The National Marine Fisheries Service (“NMFS”) published a rule requiring owner and operators of for-hire vessel operating in the Gulf of Mexico to (1) install GPS devices that constantly archived the vessel’s locations, and (2) allow federal fisheries enforcement personnel access to the information.  A group of charter boat captains and owners challenged the regulation, Mexican Gulf Fishing v. Department of Commerce, Dkt. No. 20-2312, 2022 WL 594911 (E.D. La. Feb. 28, 2022), appeal filed, Dkt. No. 22-30105 (5th Cir. March 4, 2020).  The District Court held that the requirement did not violate the Fourth Amendment. The Court also concluded that even though NMFS itself had not explicitly discussed the applicable Fourth Amendment standard, it had adequately addressed commenters “Fourth Amendment” objection to the regulation.

Having summarized the District Court’s ruling in Part I of this two-part series, I now offer a few observations on that ruling.


The District Court opinion seems quite sound.  It quite properly cabins and Los Angeles v. Patel’s Fourth Amendment analysis.[1] The aspect of the opinion that merits discussion in this post is the NMFS’s treatment of the claim that the tracking rule violated the Fourth Amendment.

The Fourth Amendment was obviously intended to protect privacy interests, inter alia. In some ways, the Amendment’s text reflects the limited nature of the threats to privacy the framers of the Bill of Right’s could envision. [2]  U.S. Const., Amend IV (protecting “[t]he right of the people to be secure in their persons, houses, papers, and effects”).[3] The Supreme Court’s conception of privacy protections thus long focused on protecting places.  See, Carpenter v. United States, 585 U.S. —, 138 S.Ct. 2206, 2213 (2018);[4] see, Bernard W. Bell, Wiretapping’s Fruits, the First Amendment, and the Paradigms of Privacy 2-15 (2004)(unpublished paper).  The doctrine has expanded beyond merely a consideration of private spaces, with the Katz v. United States, 389 U.S. 347, 360-61 (1967)(Harlan, J., concurring)(“Katz”) “expectation of privacy test” now the reigning standard for determining when a “search” has occurred.  See, Kyllo v. United States, 533 U.S. 27, 32-33 (2001)(Scalia, J.).  Nevertheless, the Fourth Amendment itself, at least as interpreted by the courts, offers anemic privacy protections that do not even reflect societal norms and expectations of privacy.  See, Bernard W. Bell, Secrets and Lies: News Media and Law Enforcement Use of Deception as an Investigative Tool, 60 U. PITT. L. REV. 745, 798-800 (1999).[5]  As I have argued, this anemic state of privacy doctrine has, in part, been driven by the Court own institutional limitations.  Secrets & Lies, supra.[6] 

But constitutional rulings do not eliminate preservation of values enshrined in the Bill of Rights from furtherance by the political branches of government.  As Justice Scalia observed in Employment Division v. Smith, 494 U.S. 872, 890 (1990): “Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process.”[7]  Indeed, the privacy concerns that animate the Fourth Amendment can, and often are, protected in the political processes.  Bernard W. Bell, Marbury v. Madison and the Madisonian Vision,” 72 G. W. L. REV. 197, 205-206 (2003) (discussing statutory privacy protections that supplement privacy protections established through Supreme Court’s constitutional decisions).  

Thus, given the anemic state of Fourth Amendment jurisprudence, the interest in privacy and the government’s regulatory interests should be balanced by the political branches of government, even when an intrusion is permissible under judicial Fourth Amendment doctrine.  Secrets & Lies, supra, at 793-805; see generally, The Madisonian Vision, supra.[8]  The privacy impact statement requirement established by the E-Government Act of 2002, Pub. L. 107–347, §208(b), is one mechanism for ensuring, at least in certain contexts, that the U.S. Government balance it policy interests against intrusions into individual privacy.

Nevertheless, Fourth Amendment judicial doctrine, however anemic, does exist and is a controlling limitation on the government’s powers to engage in warrantless searches.  And there is binding Supreme Court precedent constraining the government’s power to engage in searches and seizures even in an administrative enforcement context.  See CHARLES H. KOCH, JR. & RICHARD MURPHY, 1 ADMINISTRATIVE LAW AND PRACTICE §3.13 (3d ed. Feb. 2022 Update)(available on westlaw).

Presumably, an agency is always bound to ensure that the rules it adopts are consistent with the Fourth Amendment constraints on searches and seizures.  5 U.S.C. §706(2)(B) (a court reviewing a challenge to agency action shall “hold unlawful and set aside agency action, findings, and conclusions found to be—contrary to constitutional right, power, privilege, or immunity”); see, Marbury v. Madison, 5 U.S. 137, 164-167, 176-180 (1803).

Of course, it is commonly asserted that “federal administration agencies have neither the power nor competence to pass on the constitutionality of statutes.” 3 KENNETH DAVIS, ADMINISTRATIVE LAW TREATISE, § 20.04 at 74 (1958); accord, Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 214 (1994); The Authority of Administrative Agencies to Consider the Constitutionality of Statutes, 90 HARV. L. REV. 1682, nn. 1-3 (1977); see, Harold J. Bruff, Specialized Courts in Administrative Law, 43 ADMIN. L. REV. 329, 361-62 (1991).  However, even if a statute generally authorizes some form of action, such as warrantless searches, an agency can and should consider it obligatory to assess the constitutionality of its decisions in giving precision to the broad contours of the statutory grant.  But see, Elgin v. Department of Treasury, 567 U.S. 1, 16 n.5 (2012).[9]    

Moreover, arguably Bivens liability could be imposed on an agency officials for authorizing agency personnel to violate “clearly established” Fourth Amendment constraints.  See, e.g., Wilson v. Layne, 526 U.S. 603, 614 (1999)(discussion of “qualified immunity”).[10]  Of course, the Supreme Court has suggested that Bivens is not really designed to address agencies’ considered judgments regarding the Fourth Amendment, but rather decisions made by individual officers that cannot be subjected to review before the official acts.  Ziglar v. Abbasi, 137 S.Ct. 1843, 1860 (2017); Correctional Services Corp. v.  Malesko, 534 U.S. 61, 70 (2001); FDIC v. Meyer, 510 U.S. 471, 485 (1994); see generally, Reexamining Bivens After Ziglar v. Abbasi, 9 ConLawNOW 77, 81, 85-87 (2017-2018).[11] Indeed, the procedures for notice and comment and the APA grant of authority to challenge rules as beyond the constitutional right are the most appropriate remedies for rules promulgated by agencies with Fourth Amendment implications.  Reexamining Bivens, supra, 9 ConLawNOW at 82-85.     

With those consideration in mind, let us return to Mexican Gulf Fishing v. Department of Commerce. The commenters quite clearly raised the argument that the NMFS had authorized violation of the charter boat industries’ Fourth Amendment rights by subjecting them to warrantless GPS monitoring.  Their comments could be viewed as addressing the first step of a Fourth Amendment analysis, whether a reasonable expectation of privacy existed. They sought to establish a “reasonable expectation of privacy” by citing NOAA’s conclusion that vessel locational information is confidential.  Assuredly, they failed to provide their full-scale legal analysis to the agency. But that should not be necessary for the agency to engage in its own legal analysis of the Fourth Amendment issue, even if it does not publish that analysis in a preamble to a final rule.[12]

And it may well be that the agency considered the Fourth Amendment arguments.  It may not have done so in the manner that a court would, with a detailed and nuanced exposition on the requirements for permitting warrantless searches and how it tracking regime is consistent with those requirements.  Did the agency consider the consistent precedent that interpreted the warrant requirement quite leniently when law enforcement is confronted with transitory vehicles, particularly sea vessels being used for commercial purposes?  The District Court appears to have so concluded, but the support it adduces for that conclusion seems thin. 

I agree that the more important analysis for the agency to conduct is not the analysis of constitutional doctrine. The federal courts both have an obligation to perform such an analysis and are best positioned to do so.  More important is the agency’s policy analysis assessing whether privacy concerns should lead the agency to reject a particular tracking approach because, in its view, the implications with respect to privacy are too great.  That is an analysis the courts are not entitled to perform, once they have satisfied themselves that the agency has complied with its Fourth Amendment obligations as construed by the courts. (And perhaps once they have concluded that the agency has reasonably exercised discretion on that score.) 

Agencies can also serve as an important bulwark to protect privacy in deciding whether contemplated intrusions are justified in terms of privacy interests that do not rise to the level of constitutional protection.  Indeed, such assessments are critically important given the anemic protections the Fourth Amendment, as interpreted by the Supreme Court, accords to privacy.  Secrets & Lies.  That is exactly what the agency focused upon here, and its judgment was exceedingly reasonable.


Devices that can constantly monitor a person’s or vehicle’s GPS position create Fourth Amendment challenges for courts, although presumably a bit less so when the person or vehicle, in this case a sea-going vessel, is engaged in a commercial enterprise.  The District Court’s opinion on this score and other issues raised by the for-hire boat captains and vessel owners will almost certainly not be the last word, as the case is now on appeal in the Fifth Circuit.

[1] In rejecting the captains’ and owner’s NFIB v. Sebelius-based Commerce Clause challenge, the District Court properly limited NFIB v. Sebelius’ scope.

[2] The Court has not recognized a right to “informational privacy” distinct from protections against unreasonable searches and seizures.  Indeed, the efforts to establish such a generalized right of “informational privacy,” that might limit government amassing of private information to which it is entitled or government demands for information as a condition of employment, seeks to ground the right in the Due Process Clauses, not the Fourth Amendment.  The Court has refused to find such a generalized right to informational privacy based on the Due Process Clauses, though, so far, it has avoided holding that no such right exists.  See, Whalen v. Roe, 429 U. S. 589, 599–600 (1977) and NASA v. Nelson, 562 U.S. 134 (2011).

[3] Thus, dissenting in Carpenter v. United States, 585 U.S. —, 138 S.Ct. 2206 (2018), Justice Kennedy noted that “[t]he customary beginning point in any Fourth Amendment search case is whether the Government’s actions constitute a ‘search’ of the defendant’s person, house, papers, or effects, within the meaning of the constitutional provision.” Id. at 2226 (Kennedy, J., dissenting).  And, he argued, “the Fourth Amendment’s protections must remain tethered to the text of that Amendment, which, again, protects only a person’s own ‘person[], houses, papers, and effects.’”  Id. at 2227 (Kennedy, J., dissenting).  Accord, id. at 2239, 2241 (Thomas, J., dissenting)(“[t]he word “privacy” does not appear in the Fourth Amendment (or anywhere else in the Constitution for that matter)” and the Katz test reads the words “persons, houses, papers, and effects” out of the Fourth Amendment’s text).

[4] Chief Justice Roberts observed: “For much of our history, Fourth Amendment search doctrine was “tied to common-law trespass” and focused on whether the Government “obtains information by physically intruding on a constitutionally protected area.” Id. (citing United States v. Jones, 565 U.S. 400, 405, 406, n. 3 (2012)).

[5] As Justice Gorsuch recently put it: “Katz has yielded an often unpredictable—and sometimes unbelievable—jurisprudence.” In particular, he noted, “judicial judgments often fail to reflect public views.” Carpenter, supra, 138 S. Ct. at 2265-66 (Gorsuch, J. dissenting).

[6] Granted, the Court itself is beginning to question whether its conception of reasonable expectations of privacy is too constrained.  Carpenter v. U.S., supra, 138 S. Ct. at 2216-20 (refusing to apply “third party doctrine”); id. at 2261-2266(Gorsuch, J., dissenting)(critiquing “third party doctrine” and the Court’s application of the Katz standard); United States v. Jones, 565 U.S. 400, 413-418 (2012)(Sotomayor, J., concurring), id. at 428-31 (Alito, J., concurring).

[7] Of course, Smith’s holding, allowing the government to enforce generally-applicable laws even as to people who engaged in the generally-proscribed conduct for religious purposes, is now under attack.  Fulton v. City of Philadelphia, 141 S.Ct. 1868, 1882 (2021)(Barrett, J., concurring)(“Petitioners, their amici , scholars, and Justices of this Court have made serious arguments that Smith ought to be overruled”); id. at 1883, 1887-89, 1924 (Alito, J., concurring)(noting that the Court granted certiorari in Fulton to revisit Smith, urging that Smith should be reconsidered “without further delay,” and excoriating majority for failing to do so); id. at 1926 (Gorsuch, J., dissenting).

[8] Indeed, some members of the Supreme Court have suggested that the Court defer to legislative judgments with regard to the impact of technology on privacy.  See, U.S. v. Carpenter, supra, 138 S. Ct. at 2233 (Kennedy, J., dissenting)(“where the governing legal standard is one of reasonableness, it is wise to defer to legislative judgments like the one embodied in § 2703(d) of the Stored Communications Act”); id. at 2270, 2272 (Gorsuch, J., concurring)(positive law, such as 47 U.S.C. § 222, which gives telecommunications users the right to control use and access to their customer proprietary network information held by telecommunications carriers, “may help provide detailed guidance on evolving technologies without resort to judicial intuition”); Jones, supra, 565 U.S., at 429-30 (ALITO, J., concurring)(“[a] legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way”).

[9] In Elgin, Justice Thomas, writing for the Court, appeared to reject that approach:

According to petitioners, the MSPB can decide claims that an agency violated an employee’s First or Fourth Amendment rights . . . , because such claims allege only that an agency “acted in an unconstitutional manner” and do not challenge the constitutionality of a federal statute either facially or as applied. That distinction is dubious at best. Agencies are created by and act pursuant to statutes. Thus, unless an action is beyond the scope of the agency’s statutory authority, an employee’s claim that the agency “acted in an unconstitutional manner” will generally be a claim that the statute authorizing the agency action was unconstitutionally applied to him.

Id. at 16, n.5.

[10] But the Court has held that federal agencies are not subject to Bivens liability.  FDIC v. Meyer, 510 U.S. 471 (1994).

[11] Of course, the Supreme Court now appears unwilling to affirm application of Bivens to abusive, retaliatory seizures and searches stemming from the decisions of a single field agent.  Egbert v. Boule, 2022 WL 2056291 (U.S. Sup. Ct. June 8, 2022). In Egbert v. Boule, Boule an owner of a bed and breakfast whose property straddled the Canadian border brought a Bivens claim against Erik Egbert, a border patrol agent. Egbert allegedly lifted Boule off the ground and threw him against Boule’s SUV, when Boule directed the agent to leave his property.  Boule had refused the agent’s demand to check the immigration papers of a Turkish guest in the SUV who Boule had picked up at the Seattle airport after a domestic flight.  (When Boule filed an administrative complaint against him, Egbert would go on to prompt the IRS to do an audit of Boule, which revealed nothing, allegedly in retaliation.)  In discussing the availability of a Bivens action, the Court asserted: “[w]hile our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Id. at *6. In discussing whether special circumstances would suggest refusing to recognize a Bivens action, the Court observed: “Even in a particular case, a court likely cannot predict the “systemwide” consequences of recognizing a cause of action under Bivens.”  Id.

[12] But why not explicate its analysis of the doctrinal constraint in response to the comments?

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