Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC
Whether the Appointments Clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico (“the Board”), which Congress created through the Puerto Rico Oversight, Management and Economic Stability Act of 2016 (“PROMESA”).
Whether the de facto officer doctrine allows courts to deny meaningful relief to successful separation-of-powers challengers who are suffering ongoing injury at the hands of unconstitutionally appointed principal officers.Advocates
- Donald B. Verrilli, Jr., for the petitioner in No. 18-1334 and the respondent in No. 18-1521
- Jeffrey B. Wall, for the United States, the petitioner in No. 18-1514
- Theodore B. Olson, for the respondent in No. 18-1334, No. 18-1496, and No. 18-1514 and the petitioner in No. 18-1475
The Petitioner argued that the Appointments Clause does not apply to the Board’s members because the Board is a territorial agency that Congress created using its Article IV authority. The Respondent countered that the Appointments Clause applies to the Board’s members because the Board is a federal agency that Congress created using its Article I authority.
Below, I provide alternate answers for two questions: one for Petitioner and one for Respondent.
The Petitioner’s proposed test (the Palmore test) involves looking at whether an agency focuses on nationwide or territorial issues to see if the agency is federal or territorial. To challenge this test, Justice Kagan (at 5:11) gave the Petitioner a hypothetical about an agency Congress set up to deal with a state problem. The Petitioner conceded that such an agency would be federal, in spite of its focus on one state’s localized issues rather than nationwide issues. Justice Kagan then asked the Petitioner what makes that agency different from the Board. My answer points to the fact that Congress has dual powers with respect to territories but not states.
Multiple Justices, starting with Justice Kavanaugh (at 42:47), asked the Respondent whether PROMESA gives the Board duties that the territorial governor or legislature would otherwise perform. They asked this question to suggest that the Board’s duties are territorial in nature, making the Board a territorial agency. My answer explains why the Board’s duties are not territorial duties that the territorial government would perform in PROMESA’s absence.Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC on Oyez: https://www.oyez.org/cases/2019/18-1334