Thread by @AMTAppeals

Two weeks from tomorrow, the US Supreme Court will hear consolidated arguments in 5 cases challenging #PROMESA, Congress's attempts to deal with Puerto Rico's fiscal crisis. The case implicates the reach of Article II's Appointment's Clause. I will be tweeting commentary. 1/X

First, I'll provide some background. Then I'll go through the briefs. I will try and tag all posts #PROMESA, so if you want to mute that term, you can still see my other tweets. 2/

A final note before I begin. I filed an amicus brief arguing the First Circuit's test under the Appointments Clause would do untold damage to territorial self-rule. However, I will do my best to provide even-handed commentary. 3/ #PROMESA

#PROMESA Background: Puerto Rico found itself in dire financial straights that were bankrupting the Island and its government. Puerto Rico attempted to solve the issue with a local law, but the USSC held it was pre-empted. scotusblog.com/case-files/cas… 4/

Congess responded by passing #PROMESA, the Puerto Rico Oversight, Management, and Economic Stability Act. This act, for relevant purposes, created the Financial Oversight and Management Board of Puerto Rico. This Board is the subject of the underlying dispute. 5/

The Board was given broad powers to oversee the financial restructuring of Puerto Rico's debt, including going to court to seek bankruptcy-like restructuring. It's also responsible for overseeing the budgeting process. 6/ #PROMESA

Pursuant to the budgeting power, PROMESA can overrule the decisions of the popularly elected Governor and Legislature of Puerto Rico and make reductions in expenditures, institute hiring freezes, and prohibit territorial instrumentalities from entering new contracts. #PROMESA 7/

Per the terms of Section 101 of #PROMESA, Congress created the Board pursuant to its powers under Art. IV, Sec. 3 of the Constitution. 101(c) states that the Board shall be created as an entity within the territorial government and shall not be considered part of the USFG. 8/

#PROMESA sets up a 7-member Board and it is the method of filling these seats that underlies the current dispute. The Board is made up of members from 6 categories, A-F. One member is appointed from each category, except C, from which 2 members must be appointed. 9/

Category A is a list from the Speaker of the House; B is a separate, non-overlapping list submitted by the Speaker; C is a list from the Senate Majority Leader; D is a list from the House Minority Leader; E is a list from the Senate Minority Leader; and F may be solely POTUS 10/

The Board was selected as required and began restructuring Puerto Rico's debts under Title III of #PROMESA, the bankruptcy-like proceeding. This led to several lawsuits by debt holders as well as those who felt the Board was running over the territorial government. 11/

The charge was that #PROMESA's method of appointment violated the Appointments Clause of Article II, which requires that all Officers of the United States (OotUS) be appointed by the President with the advice and consent of the Senate. 12/

Since the Board didn't follow that pattern, the argument is that the Board was unconstitutional and, moreover, all of its actions taken to deal with the debt were invalid and thus null and void. #PROMESA 13/

Importantly, the Appointments Clause only applies to OotUS. It has generally not been found to apply to territorial officers (the history here is a subject of dispute among the parties. We'll discuss it more later.). #PROMESA 14/

The District Court rejected two challenges brought by Aurelius Investments, a Title III debtor, and UTIER, a Puerto Rican labor organization representing employees of the government-owned power company. #PROMESA 15/

The District Court determined that the Board was a territorial instrumentality established pursuant to Congress' power under the Territorial Clause, which is plenary. Board members were not OotUS. Congress was thus free to provide for appointment as it wished. #PROMESA 16/

The District Court relied, in part, on several decisions holding that territorial courts are not bound by the "structural assurances" of Art. III, such as life tenure and protection against reduction in pay. #PROMESA 17/

Finally, the District Court held that Congress was free to provide staffing of territorial instrumentalities as it wished. While Congress had, in the past, expressed a preference for Senate confirmation, nothing in the Constitution mandated it. #PROMESA 18/

Aurelius and UTIER appealed to the First Circuit (which has oversight of the D. PR court), which affirmed in part and reversed in part. The CA1 opinion is available here: scotusblog.com/wp-content/upl…

(Thanks @SCOTUSblog for hosting) #PROMESA 19/

@SCOTUSblog CA1 determined that, while Art. IV may give Congress broad authority in overseeing territories, this authority did not trump the structural requirements of Art. II. It relied, in part, on the canon of construction that the specific controls the general. #PROMESA 20/

@SCOTUSblog CA1 determined that the Art IV power was general, while the Art II power is specific. Also, like the Presentment Clause, it regulates how Congress brings its power to bear. Acknowledging that nondelegation gives way to Art. IV, CA1 distinguised. #PROMESA 21/

@SCOTUSblog It argued that none of the justifications for delegating power to the territories, that would usually belong to Congress, controlled in the area of Appointments. It also argued the history of the founding era supported the application of Art. II to #PROMESA 22/

@SCOTUSblog CA1 then briefly noted that the Insular Cases, "discredited" line of cases, which "hovers like a dark cloud" over the case do nothing to affect its analysis. These cases held that only "fundamental" rights applied to territories of their own force. #PROMESA 23/

@SCOTUSblog CA1 "ha[d] no trouble in concluding that the Constitution's structural provisions are not limited by geography and follow the United States into its unincorporated territories." #PROMESA 24/

@SCOTUSblog The court then turned to the question of whether Board members were OotUS and concluded that they were. It relied on a three part test dervied from three Supreme Court cases: Lucia v. SEC, Freytag v. Commissioner, and Buckley v. Valeo #PROMESA 25/

@SCOTUSblog The test asks: 1) does the appointee occupy a "continuing" position established by federal law; 2) does s/he "exercise significant authority"; and 3) is that significant authority exercised "pursuant to the laws of the United States"?

#PROMESA 26/

@SCOTUSblog CA1 answered all 3 questions in the affirmative and thus determined that the Board members were OotUS and were therefore required to be appointed pursuant to Art. II.

#PROMESA 27/

@SCOTUSblog Board positions are "continuing." They serve an initial 3 year term and can be reappointed and serve until a successor takes office. Only the President can remove them and only for cause. The Board will exist until it certifies 4 consecutive years of stability. #PROMESA 28/

@SCOTUSblog CA1 held that Board members "plainly exercise" significant authority. They are prosecuting the largest bankruptcy in the history of the municipal bond market. They can veto, rescind, and revise territorial laws inconsistent with #PROMESA. It can reject budgets. 29/

@SCOTUSblog Furthermore, per CA1, the Board has investigatory and enforcement powers that "exceed or are at least erual to those of the judicial officers" at the heart of Lucia, which the USSC held were OotUS.

#PROMESA 30/

@SCOTUSblog Finally, the Board exercises its power pursuant to the laws of the US. They trace their authority exclusively to a federal law - #PROMESA. Their performance is subject to review by their "federal master," and that master sits in DC, not San Juan. 31/

@SCOTUSblog The US made 2 arguments in response: 1) the history of territorial administration shows that the Appointments Clause doesn't apply to territories; and 2) the Court's ruling would invalidate the democratic election of local governments. #PROMESA 32/

@SCOTUSblog (This latter argument is the subject of my amicus brief, which will be discussed further down the thread.)

#PROMESA 33/

@SCOTUSblog CA1 rejected both arguments. It finds that, except for a brief period when Puerto Rico was under military administration, major federal appointments in the civil government all complied with the Appointments Clause.

#PROMESA 33/

@SCOTUSblog As to the argument about territorial self-rule, the court disagreed. It determined that territorial officers, even at the highest levels, were not federal officers. Their authority is not "pursuant to the laws of the US." Instead, it comes from territorial laws.

#PROMESA 34/

@SCOTUSblog It acknowledges those laws are the product of authority Congress delegated by statute. But, it argues, this would mean every claim brought under Puerto Rico's laws raises a federal question. This would conflict with prior CA1 precedent and so must be incorrect.

#PROMESA 35/

@SCOTUSblog Having determined Board members are OotUS, the court next concludes that they are principal officers, and cannot be subjected to a lesser requirement than Senate confirmation. They satisfy the Edmond v. US test. They are not supervised by a presidential appointee.

#PROMESA 36/

@SCOTUSblog CA1 then turned to remedy. Aurelius and UTIER asked for dismissal of the Title III petitions. CA1 would not go that far. #PROMESA itself allows for severing unconstitutional provisions and provides that, for 6 board members, advice and consent is the preferred alternative. 37/

@SCOTUSblog As for the pending Title III petitions, the court applied the "de facto officer" doctrine. This doctrine confers validity on the acts performed by a person acting under color of official title even though it is later discovered that the appointment was invalid.

#PROMESA 38/

@SCOTUSblog Here, the Board was clearly acting with color of authority - #PROMESA itself. The court found they were acting in good faith in bringing the petitions. And there was no question of their title until CA1 ruled. There were also reliance interests to consider. 39/

@SCOTUSblog Thus, the court would not invalidate the actions. It further stayed its mandate 90 days, to allow Congress time to ratify the appointments of the Board members and reconstitute it consistent with the Appointments Clause.

Several petitions for cert followed.

#PROMESA 40/

@SCOTUSblog Gonna take a break before launching into the petitions. Will be back later with more. #PROMESA

@SCOTUSblog And we're back!

Five petitions for cert were filed by some of the leading lights of the SCOTUS bar. Three of the petitions challenged the CA1's ruling on the Appointments Clause question. The other two challenged the finding re: the de facto officer doctrine.

#PROMESA 41/

@SCOTUSblog Petitions on Art. II were filed by the Board, repped by former SG Don Verrilli; Unsecured Creditors other than COFINA, repped by Neal Mollen at Paul Hastings; and the SG's office.

supremecourt.gov/DocketPDF/18/1…

supremecourt.gov/DocketPDF/18/1…

supremecourt.gov/DocketPDF/18/1…

#PROMESA 42/

@SCOTUSblog Petitions challenging the de facto officer doctrine were filed by Aurelius Investments, repped by former SG Ted Olson; and UTIER, repped by Jessica Mendez-Colberg, of the Puerto Rican firm Bufete Emmanuelli.

supremecourt.gov/DocketPDF/18/1…

supremecourt.gov/DocketPDF/18/1…

#PROMESA 43/

@SCOTUSblog There's a combined 141 pages of arguments for granting cert. (Shout out to Neal Mollen who made his point in a svelte 7 pages). Needless to say, it worked. The Court granted cert in all five and consolidated them for a combined 80 minutes of argument.

#PROMESA 44/

@SCOTUSblog The Court decided to grant both questions and consolidated them under case 18-1334, Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC.

supremecourt.gov/search.aspx?fi…

The briefing schedule was somewhat unusual.

#PROMESA 45/

@SCOTUSblog Because the parties are playing the roles of both appellants and appellees, the Court divided briefing by subject, rather than role. Opening and amicus briefs on the Appointments Clause question were due first.

#PROMESA 46/

@SCOTUSblog Then, briefs from those supporting the Appointments Clause AND challenging the de facto officer clause (and their amici) were due next. Then briefs challenging the Art. II question AND supporting de facto officer had to file a consolidated opening and reply brief.

#PROMESA 47/

@SCOTUSblog Then briefs from parties only challenging the de facto officer doctrine were to file reply briefs. Amici were limited to a single brief, even if they wished to address both issues. Needless to say, there is a lot of back and forth in these briefs.

#PROMESA 48/

@SCOTUSblog In fact, the final reply briefs from the parties challenging the CA1 ruling on the de facto officer doctrine aren't due until October 8. So expect this thread to go for another week.

#PROMESA 49/

@SCOTUSblog Five parties filed briefs challenging the CA1 ruling related to the Appointments Clause. They were filed by the Board; the Official Committee of Retired Employees of the Commonwealth of PR; the PR Fiscal Agency and Financial Advisory Authority...

#PROMESA 50/

@SCOTUSblog ...the United States; and the Official Committee of Unsecured Creditors other than COFINA. The Retired Employees brief was filed by OSG alum Ian Gershengon, while the PR Fiscal Agency and Financial Advisory Authority is repped by the legendary Walter Dellinger.

#PROMESA 51/

@SCOTUSblog Let's start with the Board's brief.

supremecourt.gov/DocketPDF/18/1…

#PROMESA 52/

@SCOTUSblog (Side note, I really like the way the brief handles the numerous statutes in the TOC. It's really elegant.)

#PROMESA 53/

@SCOTUSblog Even before the Summary of Argument, the brief comes out swinging, laying out what's at stake (over $100 billion in claims) and starting with a textual argument ("#PROMESA expressly states that the Board is a part of the territorial government of Puerto Rico..."). 54/

@SCOTUSblog It makes structural arguments that the Board is funded solely by PR and its authority is limited to PR's fiscal crisis. It then pivots to precedent, arguing that two centuries has taught that Congress is free to organize territorial governments any way it chooses.

#PROMESA 55/

@SCOTUSblog Once the introduction is done, it then enters a section called "Statement" which provides more background on PR's fiscal crisis as well as the makeup of the Board itself and its responsibilites before providing procedural history.

#PROMESA 56/

@SCOTUSblog It closes by noting that, in an abundance of caution, the President nominated the current board members to serve in their current positions, but that the Senate has not yet acted on those appointments.

Then we get to the goods.

#PROMESA 57/

@SCOTUSblog The primary argument the Board makes is that Board members are NOT OotUS. Instead, they are territorial officers. Thus, Art. II does not apply. Note, they did not argue that Art. II doesn't apply to territories. Instead, it doesn't apply to territorial officers.

#PROMESA 58/

@SCOTUSblog The brief then begins what will quickly become a battle of history (which started in the cert petitions), tracing what it calls "an unbroken line of authority" demonstrating that Congress is not constrained by the separation of powers when using Art. IV.

#PROMESA 59/

@SCOTUSblog Shoutout to @WilliamBaude who gets the first of several mentions for his excellent article "Adjudication Outside Article III," which is due out in the Harvard Law Review in the next year. I highly recommend the paper.

papers.ssrn.com/sol3/papers.cf…

#PROMESA 60/

@SCOTUSblog @WilliamBaude The brief traces the history of Congressional power over territories from Canter (Amer. Ins. Co. v. 356 Bales of Cotton) to 2016's Puerto Rico v. Sanchez-Valle to demonstrate Congress's "wide latitude" in developing innovative approaches to territorial government.

#PROMESA 61/

@SCOTUSblog @WilliamBaude The brief reiterates the arguments the Board made in CA1, showing how territorial government is exempt from the Art. III protections for judges and the nondelegation doctrine.

#PROMESA 62/

@SCOTUSblog @WilliamBaude The brief then turns to the Appointments Clause. It analogizes to Article III, which applies to Judges "of the United States." If those protections don't apply to territorial judges, it reasons, the Art. II protections wouldn't apply to territorial officers.

#PROMESA 63/

@SCOTUSblog @WilliamBaude The brief then argues that laws passed pursuant to Congress's municipal authority under the Territories Clause shouldn't be considered "laws of the United States.

#PROMESA 64/

@SCOTUSblog @WilliamBaude Structure makes a return in the argument that the separation of powers principles which animate the Appointments Clause are not implicated by Congress's use of Art. IV. There is no encroachment on the Exec b/c territorial officers only exercise local authority.

#PROMESA 65/

@SCOTUSblog @WilliamBaude The brief returns to history, this time focused specifically on appointments of territorial officers. It notes that since the Founding, Congress has structured territorial governments without regard to the Appointments Clause.

#PROMESA 66/

@SCOTUSblog @WilliamBaude And, importantly, for the last 70 years, Congress has allowed popular election for almost all territorial officials, which would violate the Appointments Clause if they are OotUS.

#PROMESA 67/

@SCOTUSblog @WilliamBaude In Part I(D), the brief addresses CA1's arguments. It argues the attempts to distinguish precedent are unconvincing; administering a federal statute does not make Board members OotUS; and, again, history is against CA1.

#PROMESA 68/

@SCOTUSblog @WilliamBaude The final argument in this part is that, if CA1 is correct, it would indicate that territorial self-rule, particularly in the unorganized territories of Guam and the US Virgin Islands, would be unconstitutional. This is an argument I expand upon in my amicus brief.

#PROMESA 69/

@SCOTUSblog @WilliamBaude Part II of the brief then takes this general argument that the Appointments Clause does not apply to territorial officials created under Art. IV and applies it to the Board specifically.

#PROMESA 70/

@SCOTUSblog @WilliamBaude Relying on Palmore v. US, it finds a 3 part test for determining if Congress created a territorial entity: 1) Whether Congress is acting pursuant to Art. IV; 2) whether Congress said it was territorial; and 3) whether the law deals with a matter of local concern.

#PROMESA 71/

@SCOTUSblog @WilliamBaude Here, the Board argues, Title I of #PROMESA explictly says Congress is using it's Art. IV powers and it's creating a territorial entity. Finally, the text of other titles makes it clear it is excercising only local authority. It can only act in respect of Puerto Rico.

72/

@SCOTUSblog @WilliamBaude As for its investigatory powers, they are also limited territorially. It's subpoena power must comply with PR law and lying to the Board is subject to prosecution under PR, not federal law. Also, it cannot bind the US in any way.

#PROMESA 73/

@SCOTUSblog @WilliamBaude Finally, the Board argues that its powers over the territorial government demonstrate it is independent, not federal. Because it could not operate if the territorial legislature could reverse its dictates, it needs to be able to override inconsistent laws.

#PROMESA 74/

@SCOTUSblog @WilliamBaude And that's it for the Board's brief. I'll be tackling the Gershengorn brief for Retired Employees next.

#PROMESA 75/

@SCOTUSblog @WilliamBaude The Gershengorn Brief makes 4 arguments: 1) That the early Congress determined it was not bound by structural constraints when legislating for territories; 2) the Court's have consistenly backed that play....

#PROMESA 76/

@SCOTUSblog @WilliamBaude ...3) The Executive Branch has consistently maintained that territorial officeals are not OotUS; and 4) exempting such officials from the Appointments Clause is consistent with the history and constitutional design.

#PROMESA 77/

@SCOTUSblog @WilliamBaude The intro makes clear that the brief is making a very focused argument, likely intended to appeal to the Originalists on the Court - history proves that CA1 is wrong. All three branches have consistently treated territorial officers as not covered by Art. II.

#PROMESA 78/

@SCOTUSblog @WilliamBaude Early on, Congress was recognized to stand in the shoes of state governments for U.S. territories. Thus, just as states can empower municipalities, Congress can empower territorial governments. This understanding has long been followed.

#PROMESA 79/

@SCOTUSblog @WilliamBaude Looking to the Louisana Purchase & the Northwest Territory, the brief walks through the early history of Congressional action re: territorial government. It also looks to early practice regarding DC. It notes that, for the most part, CA1 disregarded this history.

#PROMESA 80/

@SCOTUSblog @WilliamBaude In Part II, the brief looks to the Supreme Court's actions relating to territorial government and what sorts of arrangements the Court had previously approved. It begins with Cantor (1828) and runs to US v. Heinszen (1907).

#PROMESA 81/

@SCOTUSblog @WilliamBaude Heinszen, the brief argues, is particularly instructive. It allowed Congress to delegate tariff authority for the territories to the President. The Court held that, in the territories, Congress could give Art. I power to the President.

#PROMESA 82/

@SCOTUSblog @WilliamBaude The brief points out that CA1 had no good answer to Heinszen. In fact, it noted that Heinszen would be "difficult to explain" if Art. IV was constrained by the structure of the other Articles. But it dismissed it because it lacked progeny.

#PROMESA 83/

@SCOTUSblog @WilliamBaude Part III then examines Executive Branch history regarding territorial officers. Relying on an 1839 Attorney General Opinion, the brief notes that the Executive has long held that territorial officers are not civil officers of the United States.

#PROMESA 84/

@SCOTUSblog @WilliamBaude This understanding has remained consistent, as seen in the US's position in Howard v. US in 1887, and a 1907 AG Opinion arguing the President could appoint territorial officers even in the absence of a statute. The SG's office is pressing the same position here.

#PROMESA 85/

@SCOTUSblog @WilliamBaude The brief concludes this part by arguing that the CA1 opinion is "profoundly ahistorical," a position that is likely to find favor among the more Originalist justices. It also notes some of the practical difficulties of an unyielding position that Art. II applies.

#PROMESA 86/

@SCOTUSblog @WilliamBaude The brief concludes in Part IV, with an argument that exempting territorial officials from the Appointments Clause is consistent with both the above discussed history and the design of the Constitution.

#PROMESA 87/

@SCOTUSblog @WilliamBaude Based on disputes under the Articles of Confederation regarding the Northwest Territory, the framers crafted a power that was both broad and flexible.

#PROMESA 88/

@SCOTUSblog @WilliamBaude The Gershongorn brief comes closer than the Board's brief to relying on the Insular Cases, citing as it does Torres v. Puerto Rico for the proposition that constitutional constraints don't apply when they would be a bad fit.

#PROMESA 89/

@SCOTUSblog @WilliamBaude Torres noted that the right to a jury trial doesn't apply in the territories because requiring a jury for people "unaccustomed to common law traditions" may do more harm than good. Denial of the jury right was one of the core holdings of the Insular Cases.

#PROMESA 90/

@SCOTUSblog @WilliamBaude It's a solid brief, clearly aimed at Justices Thomas and Gorsuch, who pride themselves on using Originalism to help guide constitutional interpretation. I think the reference to Torres was a misstep, however, since it raises the spectre of the Insular Cases.

#PROMESA 91/

@SCOTUSblog @WilliamBaude Next up, the Dellinger Brief for the Puerto Rico Fiscal Agency and Financial Advisory Authority, noted in the brief as AAFAF. This group represents the elected government of PR on all matters related to #PROMESA

The brief is quite punchy and I recommend it for a good read. 92/

@SCOTUSblog @WilliamBaude The tone of the brief is one of the first things you notice, as it starts off by noting that the federal government can unilaterally alter its internal government structure, which it descibes as "among the chief indignities" of PR's status.

#PROMESA 93/

@SCOTUSblog @WilliamBaude The brief is clearly aggrieved by the creation of the Board, but notes that "this impingement and insult to the people of Puerto Rico is an affront that the Constitution of the United States permits by virtue of the Territorial Clause."

#PROMESA 94/

@SCOTUSblog @WilliamBaude The Introduction also refers to the relationship between PR & US as "a relic of colonial status," a "vestige of a long gone era," and notes that the "unequivocal position of the Government of PR is that PR should be admitted to the US as a state."

#PROMESA 95/

@SCOTUSblog @WilliamBaude But despite these indignities, the people of Puerto Rico are fully entitled to Constitutional protections not related to statehood, such as the Appointments Clause. However, this clause doesn't apply here, because the Board is made up of territorial officers.

#PROMESA 96/

@SCOTUSblog @WilliamBaude The argument starts with the seemingly counterintuitive position that of course the Appointments Clause applies to Puerto Rico. The Insular Cases, which might hold otherwise, were wrong when they were decided and they must be overruled.

#PROMESA 97/

@SCOTUSblog @WilliamBaude If Congress were to create a position in Puerto Rico to be filled by an Officer of the United States, then of course they must be subject to Presidential appointment and Senate confirmation. But that is not the case here.

#PROMESA 98/

@SCOTUSblog @WilliamBaude Much as the Gershongorn brief was aimed at Originalists, the opening of Part II of the Dellinger brief is aimed at Textualists. It notes that the plain language of Art. II only applies to OotUS.

#PROMESA 99/

@SCOTUSblog @WilliamBaude So does the structure of the Constitution. Early commentators all agreed that Art. IV provides a broad power to Congress to shape territorial governments.

#PROMESA 100/

@SCOTUSblog @WilliamBaude The brief then treads some of the same ground as the Gershengorn brief, looking to early practice in PR, the Northwest Territory, and other early territories. Congress never regarded these officials it created as OotUS.

#PROMESA 101/

@SCOTUSblog @WilliamBaude The brief notes that the theory pressed by Respondents is so novel that no case had ever before addressed whether the Appointments Clause applies to territorial officers. And that consistent practice by the Executive and lower courts shows it does not.

#PROMESA 102/

@SCOTUSblog @WilliamBaude The brief then delves into some of the practical implications of the CA1 ruling, noting that a vast range of non-federal officers would be covered by CA1's test. No officer in PR is appointed consistent with Art. II; the entire PR Government would be threatened.

#PROMESA 103/

@SCOTUSblog @WilliamBaude The same is true in DC, Guam, the US Virgin Islands or any other US territory. The validity of every territorial government, and every action those governments had ever taken, would be open to question.

#PROMESA 104/

@SCOTUSblog @WilliamBaude Dellinger then attacks the CA1's attempts to distinguish between the Board members and the Governor, noting that under Buckley, the Governor exercises authority pursuant to the laws of the United States. And #PROMESA itself grants him powers and obligations.

105/

@SCOTUSblog @WilliamBaude Returning to the textual analysis, Part III of the brief argues that #PROMESA explicitly and specifically designates the Board as a part of the territorial government. The Board does not exercise significant federal powers - merely local ones.

106/

@SCOTUSblog @WilliamBaude Congress modelled #PROMESA and the Board on an earlier Control Board for DC, which went unchallenged under a similar grant of authority to make rules for the governing of the territory of the nation's capital.

107/

@SCOTUSblog @WilliamBaude Furthermore, the Board functions independently from the federal government and plays no role in federal-Puerto Rico relations, on either side. The budget, including Board member pay, comes from the PR fisc.

#PROMESA 108/

@SCOTUSblog @WilliamBaude #PROMESA also explicitly denies the Board the authority to implement federal programs. At most, it can recommend to Congress actions to take, but it cannot do anything to ensure those actions are taken.

#PROMESA 109/

@SCOTUSblog @WilliamBaude Furthermore, the Board is not subject to federal control. It files a report with the President, but also with the PR Governor and legislature. Also, the Governor, a recognized territorial official, was once required to report to Congress annually.

#PROMESA 110/

@SCOTUSblog @WilliamBaude While it is true that the President can remove Board members for cause, the brief notes that Court's typically view this as a sign of independence, not control.

#PROMESA 111/

@SCOTUSblog @WilliamBaude Finally, the brief argues that the Board's authority relates entirely to PR and does not extend beyond local matters. Its powers relate to PR, its functions are concerned with the internal management of PR, the debts it can sue to restructure belong to PR.

#PROMESA 112/

@SCOTUSblog @WilliamBaude The Board's authority is wholly centered on and around the territory of Puerto Rico, thus the members are territorial officers and not subject to the Appointments Clause.

#PROMESA 113/

@SCOTUSblog @WilliamBaude That wraps it up for the excellent Dellinger brief. Again, I recommend it, particularly the Introduction and Part I of the Argument.

I'm gonna take a break before tackling the last two Petitioner's briefs.

#PROMESA 114/

@SCOTUSblog @WilliamBaude Quickly gonna wrap up the Petitioners' briefs. The SG and Mollen briefs largely cover ground discussed above in the other briefs. But I did want to pull out a couple of things from each.

#PROMESA 115/

@SCOTUSblog @WilliamBaude First of all, special attention must always be paid to the SG's brief, because it is the SG's brief. The Court gives special weight to the considered judgment of the official voice of the Executive branch.

#PROMESA 116/

@SCOTUSblog @WilliamBaude Here, the SG largely mirrors the Board's arguments regarding the Appointments Clause's non-application to territorial officers. It relies on text, hisotry and structure to make its argument. And then it concludes that Board members are territorial officers.

#PROMESA 117/

@SCOTUSblog @WilliamBaude Two areas deserve closer attention. 1) The brief takes on CA1's argument about specific clauses controlling the general; and 2) it spends about 10 pages refuting arguments from Respondents.

#PROMESA 118/

@SCOTUSblog @WilliamBaude The SG argues that the canon of construction relied upon by CA1 is inapplicable. First, the document should be read to avoid a conflict when possible - and here that can be done by finding the Board members are territorial officers.

#PROMESA 119/

@SCOTUSblog @WilliamBaude Second, the rule "has no relevance where each provision 'is more specific with respect to' a different subject. The SG argues neither clause is more specific than the other - but they are specifically addressed to two different things.

#PROMESA 120/

@SCOTUSblog @WilliamBaude Shout out to @BryanAGarner, who's book with Justice Scalia, Reading Law, gets a cite for the discussion of the canon of construction.

#PROMESA 121/

@SCOTUSblog @WilliamBaude @BryanAGarner The SG concludes the brief by responding to arguments made by Aurelius and UTIER below and in their cert replies. He argues that Lucia et al are the wrong test, because they were comparing OotUS to employees, not territorial officers.

#PROMESA 122/

@SCOTUSblog @WilliamBaude @BryanAGarner The SG also presses the argument that ALL territorial officers act pursuant to federal law, so this test proves too much. They also focus too much on who passes a law and not enough on what the law allows.

#PROMESA 123/

@SCOTUSblog @WilliamBaude @BryanAGarner Finally, the SG argues that the CA1 approach would "threaten to upend the governments of all five major U.S. territories and the District of Columbia." In each, officers not appointed consistent with Art. II exercise significant authority pursuant to federal law.

#PROMESA 124/

@SCOTUSblog @WilliamBaude @BryanAGarner The SG notes that Aurellius attempts to save its construction by pursuing an "elections exception," that elected officials are exempt from the Clause. But the Clause makes no such exception and such an exception cannot make sense of historical practice.

#PROMESA 125/

@SCOTUSblog @WilliamBaude @BryanAGarner The SG then responds to Aurelius's arguments based on Lebron v. National R.R. Passenger Corp, about when a federally chartered corporation becomes governmental, rather than private.

#PROMESA 126/

@SCOTUSblog @WilliamBaude @BryanAGarner Under Lebron, a corp. becomes federal when: 1) the federal gov creates it; 2) its creation serves federal objectives; and 3) the fed. gov. retains power to appoint its members. The SG examines each factor.

#PROMESA 127/

@SCOTUSblog @WilliamBaude @BryanAGarner First, federal creation cannot work this way. The fed. gov. created territorial courts, but they are not Courts of the United States under Art. III. And Aurelius acknowledges the PR Governor is a territorial officer, but his position is based in federal law.

#PROMESA 128/

@SCOTUSblog @WilliamBaude @BryanAGarner Second, territorial status does not turn on the objectives the entity serves. Congress is presumed to take federal interests into account when creating the territory. Disentangling these interest would be impossible.

#PROMESA 129/

@SCOTUSblog @WilliamBaude @BryanAGarner Third, federal appointment cannot be enough. DC was determined not to be a federal department at a time when most of its officers were appointed by the President. Territorial court judges were appointed by the President and yet were not Art. III courts.

#PROMESA 130/

@SCOTUSblog @WilliamBaude @BryanAGarner Prior to the 17th Amendment, Senators were appointed by state legislatures. Yet they were always considered federal officers. This demonstrates that the appointing authority is not determinative of status.

#PROMESA 131/

@SCOTUSblog @WilliamBaude @BryanAGarner Overall, the SG concludes, the Lebron test is inapposite, and the test under Palmore is the appropriate one to use. Under that test, Board members are territorial officers.

#PROMESA 132/

@SCOTUSblog @WilliamBaude @BryanAGarner The Mollen brief makes three arguments, only the last of which is unique. First, it argues that separation of powers concerns do not apply when Congress legislates for territories.

#PROMESA 133/

@SCOTUSblog @WilliamBaude @BryanAGarner Second, it argues that when using its Art. IV powers, Congress may adopted whatever structures states can adopt for themselves and their localities.

#PROMESA 134/

@SCOTUSblog @WilliamBaude @BryanAGarner Finally, the brief argues that Senate confirmation is not a fundamental personal right inherent in free and fair government. Only rights meeting that definition, the brief argues, apply to the territories.

#PROMESA 135/

@SCOTUSblog @WilliamBaude @BryanAGarner Perhaps recognizing that this argument treads perilously close to the Insular Cases, the brief argues that this doctine "does not slight the citizens of those territories." Rather, it allows them to negotiate with Congress over the application of other rights.

#PROMESA 136/

@SCOTUSblog @WilliamBaude @BryanAGarner Simply put, the Appointments Clause simply does not impact the freedom or fairness of territorial government, therefore it does not necessarily apply, according to Mollen.

#PROMESA 137/

@SCOTUSblog @WilliamBaude @BryanAGarner This brief takes a different tack than the others in that it is the only one to argue that the Appointments Clause does not apply to Puerto Rico at all, at least by implication. Every other brief is careful to draw a distinction between OotUS and...

#PROMESA 138/

@SCOTUSblog @WilliamBaude @BryanAGarner ...territorial officers. Should the Board members be OotUS, the other briefs appear to concede that the Appointments Clause would apply. The Mollen brief appears to be the only one that challenges this underlying claim.

#PROMESA 139/

@SCOTUSblog @WilliamBaude @BryanAGarner While the Insular Cases have never been overruled, they have been limited and perhaps quietly abandoned. As the Chief Justice might say, there is an argument they have been overruled in the Court of History.

#PROMESA 140/

@SCOTUSblog @WilliamBaude @BryanAGarner Personally, this is not an argument I would have made, and I think it runs the risk of turning off some of the more liberal justices. Certainly, the Insular Cases take a beating in the amicus briefs.

#PROMESA 141/

@SCOTUSblog @WilliamBaude @BryanAGarner Overall, I would be surprised if this point comes up in either oral argument or in any of the decisions. It is not vital to ruling for the US and the other petitioners on the Art. II question. Much more likely that, if the Petitioners win...

#PROMESA 142/

@SCOTUSblog @WilliamBaude @BryanAGarner ...the Court will avoid the issue entirely by assuming that the Appointment Clause applies to Puerto Rico and holding that the Board members are territorial officers and not OotUS, thus the Clause is inapplicable.

#PROMESA 143/

@SCOTUSblog @WilliamBaude @BryanAGarner And that's it for the Petitioners' briefs. I will return to discuss the two amicus briefs in support of overturning CA1 on the Appointments Clause, my own and the brief by @BobLoeb of Orrick. That may be later tonight, or it might wait until tomorrow.

#PROMESA 144/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb This morning, we resume the #PROMESA superthread. The first brief we will discuss is mine, available here:

supremecourt.gov/DocketPDF/18/1…

145/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb My brief makes two major points: 1) the CA1 decision threatens the home rule of all territories; and 2) even if PR were shielded from the effects due to Commonwealth status, Guam and the US Virgin Islands can't claim that protection.

#PROMESA 146/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb The main thrust of the first argument is that CA1 provided no principled way to distinguish between Board members and other territorial officers as OotUS. It's 3 part test would apply to both, equally.

#PROMESA 147/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb I take issue with the brusque manner in which CA1 attempts to deal with this complaint. They conflate a statutory and constitutional question when they rely on the federal question argument and just don't ever look at the implications beyond this case.

#PROMESA 148/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb For example, both the Board and the Governor of PR serve fixed terms which are renewable and serve until replaced. Like the Board, the Governor has significant authority including executing laws, appointing officers, and even proclaiming martial law, if necessary.

#PROMESA 149/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb And this power comes from the Puerto Rico Constitution, which was promulgated pursuant to a federal statute and was not effective until ratified by Congress. Thus, the Governor meets the CA1's test for being an OotUS.

#PROMESA 150/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb After this example, the brief then identifies other territorial officers, all of whom are identified in the Puerto Rico Constitution, as falling under the CA1 test. And it notes that if they are subject to Art. II, all of their actions would be open to question.

#PROMESA 151/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb The brief then notes that both Guam and the US VI operate under organic acts, which also define a number of officers who would be subject to the CA1 test.

#PROMESA 152/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb Part 1 concludes with a brief argument that the Appointments Clause contains no "election exception." Yes, many (but not all) of the above-identified officers are subject to election. But there's nothing in Art. II that allows OotUS to be elected.

#PROMESA 153/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb If the CA1 test is correct, and if it applies to other territorial officers, then the fact that they are elected would itself be a violation of the Appointments Clause. The mere fact of election does not end the inquiry.

#PROMESA 154/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb Part II of the brief focuses on Guam and the US Virgin Islands. CA1 relied on the fact that the Governor of PR derives his power from the Puerto Rico Constitution. It serves as a mediating force which shields him from being an OotUS.

#PROMESA 155/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb But even if PR's Commonwealth status provided such protection, no other federal territory has that status. The Court has long recognized it as unique. Thus, Guam and the US Virgin Islands would not be protected from the implications of CA1's test.

#PROMESA 156/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb Finally, Part III argues that overruling CA1 on the Appointments Clause issue has the least far reaching implications. It acknowledges that the lack of sovereign control inherent in #PROMESA is bad. But #PROMESA has a built in time limit. 157/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb After 4 fiscally stable years, the Board dissolves and self-government returns to PR. If, however, the CA1 decision stands, and it applies to the duly elected members of the PR government, only a constitutional amendment could reverse that.

#PROMESA 158/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb The brief acknowledges that the Appointments Clause does and should apply to PR. But to hold that the Board is subject to it would wreak havoc on territorial self-determination.

#PROMESA 159/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb As a quick side note, a bit of sausage making: my original plan for the brief was to be in support of neither party. I merely wanted to lay out the implications for the Court, so it could reach its decision with its eyes open.

#PROMESA 160/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb However, after getting comments from friends who are excellent advocates, I received several comments asking what I thought the Court should do about it. So I added Sec. III and took a side.

#PROMESA 161/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb One final note - this was my first amicus brief at the Court, so I'd love any and all feedback, if you want to read it over and let me know what you think.

Okay - on to the next brief.

#PROMESA 162/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb The only other amicus brief to argue that the CA1 decision on the Appointments Clause was wrong was an excellent brief by @BobLoeb and his team on behalf of the Government Debt Bank Debt Recovery Authority (DRA), a Commonwealth instrumentality.

#PROMESA 163/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb The DRA brief focuses more on the practical implications of the CA1 ruling than on making an argument that CA1 was legally wrong.

Rather than the Title III bankruptcy proceedings, this brief focuses on #PROMESA Title VI. 164/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb Title III of #PROMESA is an adversarial proceeding, but Title VI allows for voluntary restructuring of debt. Following years of negotiations, a supermajority of DRA's creditors agreed to restructure nearly $5 billion in Commonwealth debt. 165/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb The Board approved the deal and new bonds were issued in November 2018. These bonds are traded on the open market. They also represent a 45% reduction in debt used to build infrastructure on the island.

#PROMESA 166/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb Not only would the CA1 decision potentially put a stop to restructuring the remaining debt, the current DRA deal would be almost impossible to unwind, due to the flow of DRA bonds on the open market. It would also bring PR's fiscal recovery to a sudden halt.

#PROMESA 167/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb The brief concludes by asking that, if the Court decides to uphold the CA1's decision on the Appointment Clause, it also uphold the decision regarding the de facto officer doctrine, so that the work done under Title VI remains intact.

#PROMESA 168/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb This is a really important brief, and is the sort of amicus brief the Court could use more of - one that examines the potential implications of the Court's prospective ruling. It's also the sort of thing the parties typically don't have time to get into.

#PROMESA 169/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb So kudos to @BobLoeb and his team at Orrick for providing valuable insight to the Court as it attempts to untangle an area of law that, all parties would concede, is complex. It seems almost impossible to get out of this without breaking something...

#PROMESA 170/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb So it's important to give the Court a full picture of the playing field, so it can fashion an outcome that breaks as little as possible, or at least does the least harm where breaks occur.

#PROMESA 171/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb It's now time to move on to reviewing Respondent's briefs and amici in support. Due to the consolidated nature of the cases, the Respondents' briefs address both issues, but many of the amici only address one.

#PROMESA 172/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb Therefore, to keep things as clean as possible, I will review the Respondents' briefs as to the Appointments Clause issues first, then do the amici in support of CA1 on Appointments, then reply briefs on Appointments.

#PROMESA 173/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb Once I've covered all of the Appointments clause arguments, I will return to the Respondents' briefs, which serve as opening briefs on the de facto officer doctrine, and then review that question on its own.

#PROMESA 174/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb First up is the Ted Olson brief for Aurelius. As a side note, Ted Olson is a great writer. When reading his cert reply on the Appointments Clause issue, he almost had me convinced, and I was starting from the position he was wrong. I highly recommend his briefs.

#PROMESA 175/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb The brief is available here:

supremecourt.gov/DocketPDF/18/1…

#PROMESA 176/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb The brief starts off strong. It frames the question as whether or not the people of PR are entitled to the protections of the Appointments Clause. It also describes the scheme under #PROMESA as an usurpation of the Executive's authority.

#PROMESA 177/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb It also frames the argument of the United States as seeking a "territories exception" to the Appointments Clause, setting the stage for the argument that of course Art. II controls.

#PROMESA 178/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb The Statement also opens strongly with a framing device - it describes #PROMESA as creating "a new federal entity," namely the Board. It notes that #PROMESA calls the Board a territorial entity, but creates "an independent federal oversee of the Commonwealth..." 179/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb The brief notes that Board members are ONLY removable by the President, subject only to federal ethics laws, and "enjoy numerous trappings of federal power, such as the use of federal facilities, federal information, and support from GSA.

#PROMESA 180/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb In an unsual move when appealing to this Court, the brief even quotes a portion of the floor debate, where @MariaCantwell argued the structure was unconstitutional. (Typically, legislative history does not appeal to a majority of the Court.)

#PROMESA 181/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell In Part I, the brief argues that Board members are OotUS. It accuses the Petitioners of spending the bulk of their briefs arguing a truism - that territorial officials are not subject to the Appointments Clause.

#PROMESA 182/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell Relying on @WilliamBaude, the brief argues that territorial officers not appointed via Art. II are only consistent with the Constitution if they exercise the executive power of the territory. Here, the Board is exercising the power of the US, so they are OotUS.

#PROMESA 183/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief then runs through the CA1 test, derived from Buckley, and argues that Board members meet the requirements. It relies on a quote from Buckley that only OotUS may have "primary responsibility" for executing federal law in federal courts.

#PROMESA 184/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell It then notes that the Board is the only authority which may enforce #PROMESA and it does so in federal court. It notes that the Board has in fact gone to federal court to enforce #PROMESA against both the Governor and President of the PR Senate. 185/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief also notes the other powers granted to the Board under #PROMESA, powers that look a lot like what the ALJs wielded in Lucia and Freytag, cases where the ALJs were found to be OotUS. 186/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell It then runs through other "badges of federal-officer status" that show the Board stands above, rather than within, the territorial government.

#PROMESA 187/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief then spends time showing that #PROMESA is a federal law, noting that it is located in the US Code, adopts massive portions of the Bankruptcy Code and amends other federal laws. /188

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief then responds to Petitioners' contention that Buckley was concerned about the distinction between officers and employees. Both SCOTUS, in Freytag, and lower courts, have used the Buckley test to determine if territorial officers were OotUS.

#PROMESA 189/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell In a devastating passage, the brief notes that Petitioners don't dispute that Board members are OotUS under the Buckley, Freytag, Lucia test. Instead, they argue the Board was set up as a territorial, rather than federal entity. The brief then attacks this claim.

#PROMESA 190/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief argues that Petitioners apply the wrong test (adapted from Palmore) to the wrong question. Art. II applies to Officers, not entities. The appropriate test for Officers is Buckley. It would be unconstitutional to grant the Governor of PR federal power.

#PROMESA 191/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief also argues that, if the status of the entity matters, the appropriate test is Lebron, a test which the Board meets, and which the Court of Federal Claims has already held. It then runs through the Lebron test.

#PROMESA 192/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell As to Petitioner's claim that #PROMESA was modeled after an earlier DC commission, the brief points to an OLC opinion that determined that commission to be a federal entity. Thus, even if the entity status mattered, Board members are OotUS. 193/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief then turns to the Petitioners' proposed test under Palmore. It argues the Palmore test doesn't apply to Art. II, and the first two prongs of the test call for the courts to abdicate their responsibility in favor of Congress's labels.

#PROMESA 194/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell Only the third prong, whether the entity's duties were "local" even approaches the question. This inquiry is flawed, because it would apply to US Attorneys, Marshals and Judges for Dist. of PR.

#PROMESA 195/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell Furthermore, Palmore was discussing Congress's role in passing local laws akin to a municipal government or state legislature. But #PROMESA is not akin to a law passed by a state or locality. PR's debt is held nationwide, so the Board necessarily impacts the whole nation. 196/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell As to the argument that the Board is paid out of the territorial fisc, it is only pursuant to a federal decree. Thus, just as the Federal Reserve and the PTO are funded outside the appropriations process, this is not dispositive to the question.

#PROMESA 197/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell This portion of the brief then closes with a bit of a backstop, arguing that even if the Board members are not principal OotUS, their appointments are still invalid under Art. II. It notes that Petitioners abandoned the arugment they are inferior officers...

#PROMESA 198/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell ...but argues that even if they were, they would violate the Appointments Clause because they were not appointed "by the President alone." The use of the lists would be unconstitutional.

#PROMESA 199/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief then shifts gears to argue there is no territorial exception to the Appointments Clause. By its terms, the Clause applies to "all" officers, regardless of the authority used to create them. And the Petitioners fail to address a major case that so holds.

#PROMESA 200/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell Here, the brief refers to MWAA v. Citizens for Abatement of Aircraft Noise, which dealt with the Metropolitan Washington Airport Authority. This case specifically held that, even when legislating under Art. IV, separation of powers concerns remained.

#PROMESA 201/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell Just as Art. IV does not allow Congress to avoid the Presentment Clause, it cannot allow Congress to avoid the Appointments Clause.

#PROMESA 202/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell As for the nondelegation doctrine, the only exception to this doctrine allowed by Art. IV is the Vesting Clauses, because here, Congress is acting like a state in delegating local control to a municipality.

#PROMESA 203/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell In addressing the argument about territorial judges being exempt from Art. III, the brief notes that many non-Art. III judges are OotUS, so the fact that territorial judges, weilding only territorial law, are not protected by Art. III does nothing for Petitioners.

#PROMESA 204/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell Part I(c) of the brief then delves into a lengthy examination of history to show that Board members are OotUS. For example, every territorial governor was appointed consistent with Art. II, and this is a weighty history that Petitioners do not dispute.

#PROMESA 205/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell Indeed, shortly after ratification, the Northwest Ordinance was amended to provide for nomination and confirmation of the territorial governor in compliance with Art. II. And that string remained unbroken.

#PROMESA 206/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The only exceptions were transitional governments in LA, FL, the Philippines and the Panama Canal Zone. But since they were not "continuing" offices, Art. II wouldn't apply. Thus, they do not serve as counterexamples.

#PROMESA 207/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell This section concludes by noting the long history of the President using the Recess Appointment power to fill territorial officers, and argues that the Recess Appointment power only applies to offices covered by the Appointments Clause.

#PROMESA 208/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell Finally, Part I of the brief closes by arguing that territorial home rule is fully compatible with the Appointments Clause. It argues that local officials, who enforce only local laws, are not subject to Art. II

#PROMESA 209/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell It points to the creation of the Coordinator of Federal Agencies who took on the Governor's federal responsibilities following his conversion to local election in 1947.

#PROMESA 210/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief then argues that it proves too much that territorial officers exercise their authority pursuant to federal law. Sanchez-Valle limited it's discussion of "the ultimate source" of PR's authority to the Double Jeopardy Clause.

#PROMESA 211/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell Because the most "immediate" source of Puerto Rican law is the sovereignty of the Puerto Rican people, they may maintain home rule while being protected by the Appointments Clause.

#PROMESA 212/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell I'm going to take a lunch break, then dive into UTIER's brief. In the meantime, have this dog.

#PROMESA 213/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The UTIER brief covers a lot of the same ground as the Aurelius brief, but it comes from the perspective of someone living in PR. Much like the Dellinger brief, it takes time to talk about the indignity that #PROMESA foists on the Commonwealth. /214

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell It also notes that the residents of PR were given no input on the members, even indirectly, in that they had no vote in electing the officials who put the lists together, nor the President who selected from them.

#PROMESA 215/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief makessix arguments in support of the Appointments Clause ruling: 1) CA1 did not err; 2) Congress is bound by separation of powers even when using Art. IV; 3) Board members are OotUS; 4) the ruling doesn't imperil territorial governments....

#PROMESA 216/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell ... 5) Board members are not territorial officers; and 6) the Insular Cases should not be a basis for reversing CA1.

As noted, many of these arguments tread the same ground as the Aurelius brief, but a few things stand out.

#PROMESA 217/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell Continuing the theme of focusing on the people of PR, the brief argues that the Petitioners fail to "ascribe weight or significance to the existence of the People of Puerto Rico" when discussing the broad powers of the Board.

#PROMESA 218/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief also focuses on the Board's unilateral authority to take actions, and the inability of the Governor or territorial legislature to object. This makes it far more powerful than the board at issue in MWAA.

#PROMESA 219/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell UTIER strongly supports the right of the people to elect their own representatives and does not argue that territorial government officials are subject to Art. II. So long as their authority is limited and confined, they do not run afoul of the CA1 test.

#PROMESA 220/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief then takes time to explictly describe why the Board members cannot be territorial officers. It argues that the most appropriate conclusion is that the Board is "an entity which overpowers the territorial government."

#PROMESA 221/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief then argues that the Board's ability to impact interstate commerce shows it is federal, because that is a power reserved exclusively to Congress. Because many of the creditors are not local, the impact on interstate commerce is obvious.

#PROMESA 222/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief then takes a deeper dive into the legislative history to deomstrate it is a federal entity. It notes that the House Report specifically referred to the Board as a federal entity due to the extent of federal control involved.

#PROMESA 223/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell It then points to several statements in the record about avoiding a taxpayer bailout for Puerto Rico. It argues that these statements demonstrate that #PROMESA was not enacted for the sake of Puerto Rico, but to save taxpayer money. 224/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell I'll admit to not being sure exactly what the point of the legislative history is. As noted upthread, these types of arguments are not calculated to sway a majority of the Court, although some Justices do rely on legislative history.

#PROMESA 225/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The final argument, which also takes a central role in several amicus briefs, is that the Insular Cases should not be extended to find that Art. II doesn't apply to PR and the territories.

#PROMESA 226/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief accuses the Petitioners of relying on the Insular Cases without admitting it. To me, this seems like an unfair charge. As I noted, some of the rhetoric in one of the Petitioners' briefs does nod in that direction....

#PROMESA 227/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell ...but no one argues that the Appointments Clause doesn't apply in Puerto Rico. Rather, it only applies to OotUS, and the Board members are not.

That being said, the UTIER brief does an excellent job explaining why these cases should be rejected.

#PROMESA 228/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief explains the Insular Cases, their history, and rightly notes that the assumptions on which they were based are no longer true and have not been re-examined in the context of modern constitutional law.

#PROMESA 229/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief traces the colonial and racist themes underlying the cases and notes that the 3.2 million residents of PR are still disadvantaged because of them. And even relying on the cases, none of them undercut the structural protections of the Constitution.

#PROMESA 230/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell The brief than relies on the recent Janus decision to argue that stare decisis does not require retention of the Insular Cases. (Side note: an odd case for a public union to cite).

#PROMESA 231/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell Interestingly, the brief stops short of calling for the explicit overruling of the cases, though it strongly nods in that direction.

#PROMESA 232/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell One interesting side note - the brief also flirts with using citations in footnotes, a subject of interest to several members of #AppellateTwitter, such as @JudgeDillard - I say flirts with, because it is inconsistent. But I found it notable.

#PROMESA 233/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard Overall, I think the brief is a bit uncharitable to the Petitioners, but it does a great job of explaining the reasons that the Insular Cases should, at the very least, be restricted to their holdings, if not overruled.

#PROMESA 234/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard Ten amici filed briefs supporting the CA1 ruling (two of which also opposed the ruling on the de facto officer doctrine) and one brief supported neither party. That brief focused on the Insular Cases.

#PROMESA 235/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard Briefs in support of CA1 were filed by Prof. Anthony Sabino, former PR Governor Anibal Acevedo-Vila, Elected officers of PR, @WLF, the Autonomous Municipality of San Juan, 2 former Governors of PR, @ACLU & @ACLUPR, the Virgin Islands Bar Assn...

#PROMESA 236/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR ...Scholars of Constitutional Law and Legal History, and Former Federal and Local Judges.

#PROMESA 237/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR The amici are represented by some heavy hitters including @DavidColeACLU and David Rosen and firms like Winston & Strawn, as well as a variety of local PR counsel.

#PROMESA 238/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU The Sabino brief is perhaps the most straightforward defense of CA1's opinion regarding the Appointments Clause. It relies heavily on Lucia and Freytag to argue that Board members are OotUS.

#PROMESA 239/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU The brief does, however, raise two points that are worthy of mention. First, it discusses the implications for future cases of the decision here, and second it argues that the question of principal officers is not before the Court.

#PROMESA 240/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU The brief notes that questions under the Appointments Clause are constantly being raised, particularly with regards to agencies like the CFPB, and the decision here will undoubtedly impact them.

#PROMESA 241/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU The final section of the brief argues that the question of whether Board members are principal or inferior officers is not properly before the Court, since the only issue necessary for decision is whether they are covered by Art. II at all.

#PROMESA 242/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU However, after stating that in one paragraph, it then goes on to explain why CA1 was correct to conclude that Board members would be properly regarded as principal officers.

#PROMESA 243/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU The brief of San Juan follows a similar tack. It begins by noting that the Appointments Clause protects liberty by creating accountability. And it (in my opinion, rightfully) argues that the protections afforded by the Clause apply everywhere.

#PROMESA 244/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU It makes the point that ambassadors are covered by Art. II, and yet they serve almost exclusively outside the United States. Therefore, officers who serve in US territory must be covered, regardless of where they serve.

#PROMESA 245/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU The brief next argues that the Appointments Clause protects institutional interests as well. (Shout out to @joshchafetz, whose work gets a mention here). PROMESA denies Senators their rights under the Constitution by denying them the right to consent.

#PROMESA 246/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The fact that the Senate willingly gave up these rights by passing #PROMESA does not end the debate, however, for the Constitution does not allow such end runs around its strictures. 247/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief notes that even Petitioners agree that federal oversight of the Board could be dispositive. It then identifies several instances, uncovered in other cases, that demonstrate just such oversight.

#PROMESA 248/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Press accounts based on emails revealed in a lawsuit show substantial involvement by the Treasury Dept. in crafting budgets as well as internal operations of the Board. Congressman also direct Board members to take certain positions or actions.

#PROMESA 249/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief closes its discussion of the Appointments Clause issue by arguing that Palmore is an inappropriate basis for a test for determining if Officers are OotUS, relying on the history discussed by CA1.

#PROMESA 250/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Much like the @BobLoeb brief, this brief will be very useful to the Court, because it provides information not found in the briefs of other parties that sheds light on the underlying dispute. For that reason, this brief is definitely worth the read.

#PROMESA 251/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The next brief is on behalf of former Governor Acevedo-Vila, who is also Counsel of Record. It's a pithy brief, just 14 pages, and makes 2 points: Art. IV doesn't trump Art. II, and Art. II doesn't apply to territorial officers.

#PROMESA 252/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz What separates this brief from the others is its author, a former territorial official, who also served as PR's representative in Congress for two terms. He thus has a unique insight into the questions posed.

#PROMESA 253/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief argues that the Property Clause of Art. IV is of general application, while the Appointments Clause is specific. Thus, the former cannot avoid the strictures of the latter.

#PROMESA 254/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz It notes that the Congressional act granting PR the right to form its own government required that the government be republican in form, respecting the separation of powers. This has been trumped by #PROMESA. 255/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief also argues that while Congress has long been held to have "plenary powers" under Art. IV, that phrase is nowhere in the document. And in Buckley, the Court applied Art. II to the FEC, despite Congress's plenary authority to regulate federal elections.

#PROMESA 256/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief then turns to the argument about territorial officers. It states that there are no separation of powers concerns raised by allowing local officials to be elected by the people, which is the focus of Art. II.

#PROMESA 257/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Another short brief comes from currently elected officers of PR, which addresses elected vs. appointed officers and argues that elected officials could never be deemed OotUS.

#PROMESA 258/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief indicates its purpose is to "debunk[] the Government and Board's crass attempt to use Puerto Rico's elected government as a human shield against the application of a mandatory constitutional provision."

#PROMESA 259/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz It argues that the difference between an elected official and an appointed one is more than mere semantics. Once the franchise is granted, the people get to elect their territorial officers. Therefore, the balance struck by Art. II is no longer necessary.

#PROMESA 260/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Turning to Sanchez-Valle, the brief argues that the Appointments Clause concentrates on immediate, rather than ultimate authority, unlike the Double Jeopardy Clause. Because the Board gets its authority from #PROMESA directly, it exercises federal power. 261/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Local elected officials, on the other hand, draw their authority from the people and the Puerto Rico Constitution and the statutes enacted thereunder. Thus, they are not exercising federal authority and can never be OotUS.

#PROMESA 262/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief acknowledges that typically, the declaration that the Board is a territorial entity would be dispositive. But it argues, while #PROMESA used the label, it created something entirely different. And when resolving constitutional issues, labels aren't controlling. 263/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz It then notes that CA1 has repeatedly rejected attempts to clothe PR law as federal law and notes that 42 USC 1983 covers violations of PR law. If PR law were federal, Bivens would control those actions.

#PROMESA 264/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The next brief was filed by @WLF. They take an interesting tack on the Appointments Clause issue, arguing that, because the Board was improperly appointed, it lacked Art. III standing to bring suits under Title III of #PROMESA 265/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz In order to avail itself of the federal courts, the Board requires executive authority. Because it was improperly constituted, that authority was absent. Therefore, the Board lacked standing in the first instance.

#PROMESA 266/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz This defect is unrepairable even by Presidential appointment and Senate confirmation because standing must be measured at the time the suit is filed. Thus, if the CA1 decision stands, all of the Title III cases must be dismissed. #PROMESA 267/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz As will be discussed later, when we get to the de facto officer doctine, the brief argues that because of these requirements, the de facto officer doctrine can't save those earlier suits.

#PROMESA 268/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The next brief is on behalf of two other former Governors, Sila Calderon and Alejandro Garcia Padilla. It argues that the PR Constitution is not an act of Congress and that 19th and early 20th century caselaw does not apply to PR.

#PROMESA 269/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief runs through the history of the PR government, from conquest in 1898, through ratification of the Commonwealth Constitution, as well as aspects of the early relationship between PR and the federal government.

#PROMESA 270/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz It then gets to its main argument, which is that the PR Constitution is not an act of Congress. It relies on Sanchez Valle to argue that the act of constitutional creation changed the relationship between the US and PR.

#PROMESA 271/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief argues that PL 600 of 1950, which created the Commonwealth created an entirely new government as opposed to revising the previously instituted one. It offered a compact to the people of PR, which they accepted.

#PROMESA 272/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz PL 600 required PR to create a republican form of government, which it did. The cornerstone of such a form is that the people are the source of political power. Therefore, PR officials do not exercise power delegated by Congress.

#PROMESA 273/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief argues that Congress's authorization of the exercise of popular sovereignty doesn't make it any less of a sovereign act. While it is true Congress approved the PR Constitution, it, or the President, did the same for the 37 non-original states.

#PROMESA 274/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief then survey several post-1952 SCOTUS decisions which confirm that PR's laws derive from the sovereign authority of the people of PR, not from Congress.

#PROMESA 275/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz And that's it for today. I will be back to cover the second half of the Governors' brief, the remaining amici and the reply briefs tomorrow. Thanks for following along!

#PROMESA 276/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz We return to the #PROMESA superthread, continuing with the argument of two former PR Governors. Part II of their brief argues that older case law is inapplicable to PR. 277/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz They start this section by arguing that #PROMESA is a federal bankruptcy statute for territories, as opposed to a new organic act for PR. Bankruptcy is a quintessential federal subject matter, thus the Board is an independent federal overseer. 278/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief argues that Art. IV merely allows Congress to treat PR differently than a State in the application of a federal law. It grants no other powers.

#PROMESA 279/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief acknowledges that PR faced a humanitarian crisis brought on by its impending fiscal collapse. But #PROMESA did not reorganize PR's government - it intervenes with federal officers until fiscal stability is achieved. 280/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Turning to the subject of this part, the brief argues that earlier territorial case law is inapplicable to PR, because it was written against a background understanding that territorial status was temporary and transitory - a brief stop on the road to statehood.

#PROMESA 281/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Side note - the brief cites Dred Scott for the principle that territory is not meant to be held as a colony. Extraterritoriality was born from a dark place, a subject I may explore in a future law review article. Still, interesting to actually see it cited.

#PROMESA 282/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief notes that when the US began acquiring territory never destined for statehood, court doctrine changed. But this doctrine, cemented in the Insular cases, is abhorent to the foundational principles of this nation.

#PROMESA 283/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief puts an interesting spin on plenary power, noting that within this power is the ability of Congress to allow government by consent in territories. The Clause thus allows the partial relinquishment of the very power it grants.

#PROMESA 284/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The Court recognized this fact in Cincinnati Soap Co. v. US, when it recognized during the transition of the Philippines to independence that the power of the US "has been modifed, not abolished."

#PROMESA 285/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief than cites cases from CA1 and CA9 recognizing this fact as it relates to PR and the Commonwealth of the Northern Mariana Islands. It argues that if Congress can release the Philippines and the Canal Zone, certainly it can grant local self-government.

#PROMESA 286/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief concludes by stating the US is asking the Court to declare that the Commonwealth option was either illusory or unconstitutional and "thereby return the island to colonial status."

#PROMESA 287/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz This is a very powerful brief and well worth the read. I think it makes some very good points about PR's status that the Court will have to address. I feel it leaves open concerns about other territories, namely Guam and the USVI, that lack Commonwealth status.

#PROMESA 288/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The remaining four amicus briefs all focus on the evils of the Insular Cases, arguing that the cases should at the least be limited, if not outright overruled.

#PROMESA 289/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Each adds a slight twist on the argument, and so I will highlight the interesting differences between them. I'll start with the @aclu, @aclupr brief.

#PROMESA 290/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The @aclu brief notes that it takes no position on whether the Board violates Art. II. Rather, it writes that, regardless of how the Court rules, it should not rely on the Insular Cases in making its decision.

#PROMESA 291/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz It goes further and urges the Court to go out of its way to overrule them, just as it went out of its way to overrule Korematsu in Trump v. Hawaii.

#PROMESA 292/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief traces the history of territorial management under the Articles of Confederation & notes that the Constitution was meant to prevent those ills. The Insular Cases ignored these preventative steps giving Congress boundless power it was never meant to have.

#PROMESA 293/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief cites Boumediene to note that Congress has the power to govern the territories under Art. IV, not decide when and where the Constitution applies. Thus, the Insular Cases are a constitutional anomaly.

#PROMESA 294/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz They fit neither with the cases that came before, nor after. And properly limited to their holdings, as the Court has urged since at least 1957, they do not bar application of the Appointments Clause to the territories.

#PROMESA 295/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The Insular Cases dealt with a narrow and specific set of constitutional provisions. They should not be extended. Since the Appointments Clause was not one of the provisions discussed, they should not apply.

#PROMESA 296/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief also argues that explicitly limiting the cases to their facts would help lower courts, which currently struggle with applying the Territorial Incorporation Doctrine to new clauses which have never before been challenged.

#PROMESA 297/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz This brief also cites to Dred Scott and notes that even that deplorable decision "recognized the full force of the Constitution in the territories." It also cites the Slaughterhouse Cases for a similar proposition.

#PROMESA 298/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz It notes that efforts to find a general guiding principle for which rights apply have been unsuccessful, and that this failure has led to disturbing results. For example, one court has held that one person, one vote doesn't apply in territories.

#PROMESA 299/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz A District Court, relying on the doctrine, refused to recognize gay marriage in PR, even after Obergefell. CA1 granted mandamus and reversed that decision. These rights should not be different in PR or NY, the brief argues.

#PROMESA 300/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Limiting these cases to their precise facts would not be stretch, the brief argues, because the Court has never extended the cases beyond the four provisions it originally addressed.

#PROMESA 301/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief then forcefully argues that the Insular Cases should be overruled. The Territorial Incorporation Doctrine was intended to be temporary and was racist in origin. Because territorial status has not been temporary, it is time to abandon the doctrine.

#PROMESA 302/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Even these cases noted that Congress could only hold territory in that status for a limited time. Justice White, who created the doctrine, stated that it would violate constitutional duty to permanently hold territory in an unincorporated status.

#PROMESA 303/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief then traces the exceedingly racist undertones (and overtones) of the territorial incorporation doctrine and the cases that propounded it. It argues that these assumptions demonstrate that the Insular Cases belong in the dustbin of history.

#PROMESA 304/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz It notes that the territorial incorporation doctrine "ratified a discriminatory framework no less offensive to the Constitution than Plessy's 'separate but equal' structure. Both endorse racially segregated systems of civil membership.

#PROMESA 305/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The territorial incorporation doctrine should meet the same fate.

#PROMESA 306/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Turning to the brief of the Virgin Islands Bar Association, it adds two arguments to the mix: 1) that the Insular Cases have no basis in text; and 2) stare decisis does not require saving them.

#PROMESA 307/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz This brief makes the interesting argument that Art. IV is actually more narrowly drawn than Art. I's language giving Congress power to exercise exclusive legislation "in all Cases whatsovever," over D.C.

#PROMESA 308/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Despite this clear grant of authority, the Court has held that Congress can't actually legislate "in all Cases whatsoever," but is restricted by the Bill of Rights and other restrictions over Congress's authority.

#PROMESA 309/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Because the language of the two clauses is similar (and arguably narrower in Art. IV) there's no textual basis for treating territorial residents differently than residents of DC. Yet, DC has the jury trial right &-as a constitutional matter-territories do not.

#PROMESA 310/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz As a result of this lack of textual support, the Insular Cases are "'[f]rom the standpoint of an originalist..."a strict constructionist's worst nightmare,"'" a critique already laid out by a plurality of the Court in Reid v. Covert.

#PROMESA 311/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz As for stare decisis, the brief notes that there has been "a sea change in constitutional law since the Insular Cases were decided." Plessy, decided by 7 of the same justices as the early Insular Cases, was overruled in 1954.

#PROMESA 312/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Other changes have undermined the entire framework of the Insular Cases. At the time they were decided, the Bill of Rights did not apply to states, so denying them to territories may not have seemed strange. But today, nearly all have been incorporated.

#PROMESA 313/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Thus, even if Congress were acting in the role of a state government when legislating for the territories, today they would be bound by nearly every provision of the Bill of Rights, which wasn't the case in 1901.

#PROMESA 314/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz One final argument I want to note from this brief: the courts have long held that laws passed using Congress's Art. IV powers are not held to be "laws of the United States." Rather, they are considered laws of the territory.

#PROMESA 315/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The authors of the brief use this argument to state that the Insular Cases don't grant Congress the power to pass a law of the United States that would otherwise violate the Constitution, even though they may allow a territorial law to do so.

#PROMESA 316/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz But this argument would also mitigate in favor of finding Board members are not OotUS. If PROMESA, which was enacted using Art. IV, is not a law of the US, then, by definition, Board members aren't exercising authority pursuant to such a law.

#PROMESA 317/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz I guess there's an open question as to whether Lucia's reference to a "federal law" means a law of the United States. If not, this could be a point in favor of Petitioners.

#PROMESA 318/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The David Rosen brief on behalf of legal scholars argues that the Insular Cases provide no guidance on the question here. None of them dealt with the Appointments Clause, and the Uniformity Clause that they did deal with defines its own georgraphic scope.

#PROMESA 319/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Under its terms, the Uniformity Clause applies "throughout the United States." Art. II, however, speaks of the status of the officers as OotUS, not where they serve. Otherwise, foreign ambassadors might not be covered, which is absurd.

#PROMESA 320/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The rest of the brief deals with the constitutional infirmity of the territorial incorporation doctrine (the single clause draws no such distinction) and the racist underpinnings of the Insular Cases. For these reasons, no current scholar defends these decisions.

#PROMESA 321/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Finally, the brief of former federal and local judges from the territories argue that the territorial incorporation doctrine has proven unworkable and that any practical problems from the turn of the 20th Century have long since been overcome.

#PROMESA 322/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz This brief takes specific aim at the Mollen brief's claims about the Appointments Clause not protecting fundamental personal rights.

#PROMESA 323/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz The brief takes no position on whether the Board members are OotUS, but instead argues that, if they are, the Insular Cases do not provide an avenue for avoiding the requirements of the Appointments Clause.

#PROMESA 324/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz It notes that the Insular Cases do not draw a blanket distinction between universally fundamental person rights and other constitutional provisions, and that any such distinction is unworkable in practice.

#PROMESA 325/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz It's not clear, the brief argues, that you can decouple a so-called "procedural protection" from the substantive right it protects, nor that a judge can objectively separate the keys to a free and fair society from the idiosyncracis of the Anglo-American tradition.

#PROMESA 326/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz In this very case, the question is unclear - after all, there are several SCOTUS cases holding that the separation of powers are fundamental to a free and fair society. And the Appointments Clause is part of that separation. Structure protects individual liberty.

#PROMESA 327/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz In calling for the overruling of the Insular Cases, the brief adds one new wrinkle that others did not: to the extent that practical concerns justified treating territories separately, those concerns have abated with time.

#PROMESA 328/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz While PR may have had "wholly dissimilar traditions and institutions" in 1901 as it transitioned from Spanish to American rule, after more than 120 years, those traditons and institutions are entirely American.

#PROMESA 329/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz One final brief was filed in support of neither party, questioning the validity of the Insular Cases, by the Equally American Legal Defense and Education Fund.

#PROMESA 330/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz This brief largely covers the same ground as other briefs previously discussed. It's main contribution is to point out that silence here will ensure lower courts continue to rely on the Insular Cases with bad results.

#PROMESA 331/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz In support of this argument, the brief points to the CADC's 2015 opinion in Tuaua v. US, which denied birthright citizenship to residents born in American Samoa, based on the Insular Cases.

#PROMESA 332/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Tuaua was the source of the "fundamental personal rights" argument made in the Mollen brief, which was attacked by the territorial judges as well as Equally American here.

#PROMESA 333/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Dismissing concerns about the racist underpinnings of the cases with a note that some aspects of the analysis may now be deemed politically incorrect, the DC Circuit held the cases still provide a useful and applicable framework,

#PROMESA 334/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz This narrow and crabbed reading, which focuses on whether claimed rights are fundamental to a free people ignores SCOTUS precedent that the question is whether the rights are fundamental from an American perspective.

#PROMESA 335/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz After all, the brief argues, plenty of free societies have established churches, restrict handgun ownership, and do not respect the right to counsel or against self incrimination to the same extent as America.

#PROMESA 336/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Pointing to other lower court decisions since 2015 that rely on the Insular Cases to restrict rights to same sex marriage and voting, the brief argues that the Court must take this opportunity to overrule, or at least clearly limit, those cases.

#PROMESA 337/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz And that's it for amici on the Appointments Clause question. I'm going to take a break, then come back to cover the Petitioners' reply briefs. Then on to the de facto officer question.

#PROMESA 338/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Before we get back into it, I realized I forgot to provide links to the amici - so there they are:

Brief of Elected Officers - supremecourt.gov/DocketPDF/18/1…

@WLF Brief - supremecourt.gov/DocketPDF/18/1…

Brief of San Juan - supremecourt.gov/DocketPDF/18/1…

#PROMESA 339/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Sabino Brief - supremecourt.gov/DocketPDF/18/1…

Acevedo-Vila Brief - supremecourt.gov/DocketPDF/18/1…

Former Governors Brief -
supremecourt.gov/DocketPDF/18/1…

@aclu & @aclupr Brief - supremecourt.gov/DocketPDF/18/1…

VI Bar Assn Brief - supremecourt.gov/DocketPDF/18/1…

#PROMESA 340/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz Law Scholars Brief - supremecourt.gov/DocketPDF/18/1…

Former Judges Brief - supremecourt.gov/DocketPDF/18/1…

and finally, @EquallyAmerican (who I just realized is on Twitter - hi guys!) Brief - supremecourt.gov/DocketPDF/18/1…

#PROMESA 341/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Once more unto the breach! We now turn to the reply briefs from the Petitioners as to the Appointments Clause question. All five petitioners filed briefs. We'll start again with the Board's brief, which is available here: supremecourt.gov/DocketPDF/18/1…

#PROMESA 342/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief starts right off declaring that text, 2 centuries of precedent, historical practice, and basic constitutional principles show that the nature and scope of the officer's authority is key for determining who is an OotUS.

#PROMESA 343/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican It states that Respondents "refuse to come to grips with a basic premise of our Constitutional system" - when acting under Art. IV, there are different constraints imposed then when acting under Art. I.

#PROMESA 344/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The Board does not depend on an exception to Art. IV. Rather, by its terms, it only applies to OotUS, not territorial officers. As for MWAA, the Court reached the separation of powers question only after determining the MWAA was exercising federal authority.

#PROMESA 345/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief then reiterates the Palmore test and argues that, far from relying on labels, the placement of the Board within the territorial government has substantive effect - to make Board members territorial officers not subject to Art. II.

#PROMESA 346/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Furthermore, the Board is not subject to federal laws that federal instrumentalities are; it has no power to enforce any federal law of nationwide application; and it does not exercise its authority on behalf of the US. #PROMESA focuses solely on territories. 347/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican #PROMESA charges the Board with one goal: to acheive fiscal stability in PR. Given that, it is impossible to claim that the Board acts on anything other than territorial matters. While it has broad powers, they are all granted to one end: serving territorial interests. 348/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Addressing counter-arguments, the Board states that all exercises of Art. IV power are, broadly speaking, of national concern. That's the only reason Congress acts - it has determined that effective governance in the territories is in the nation's best interest.

#PROMESA 349/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican To hold that this makes the Board members OotUS would be to find that ALL territorial officers are OotUS. Aurelius argued that the debt limits placed on Guam protect national interests. But Guam officals responsible for those limits have never been deemed OotUS.

#PROMESA 350/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The Board does not have authority to bind parties throughout the U.S. Any Title III restructuring is binding on creditors nationwide by virtue of an Art. III court. The Board merely litigates these cases on behalf of PR.

#PROMESA 351/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief uses the example of Detroit to disprove Aurelius's claim. Detroit, it notes, filed its bankruptcy proceedings in federal court. Yet no one would think they were acting as OotUS on that basis. Moreover, the Board files on behalf of PR, not the US.

#PROMESA 352/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican As for the Board's investigative powers, they are no greater than any territorial official's. They are subject to the reach of the PR long-arm statute and its subpoena authority is subject to the limits of PR law and must be enforced by PR courts.

#PROMESA 353/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief turns to the Board's relationship to the rest of the PR government. It believes Aurelius mistakes independence for federal status. PR itself has set up an independent agency, AAFAF, which can impose budget reductions on parts of the PR government.

#PROMESA 354/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican As for the argument that Board members are only removable by the President, Congress is the ultimate source of sovereignty in territories and territorial officials were long subject to federal appointment and removal without being found to be OotUS.

#PROMESA 355/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican In a footnote, the brief responds to the San Juan amicus arguing that inaccurate press reports of nonpublic communications fail to demonstrate federal control of the Board. They were merely requests for information so Congress could coordinate its response.

#PROMESA 356/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief then argues that the "significant authority" test is counter to precedent, fails to distinguish between territorial and federal officials in any sensible way, is ahistorical, and lacks grounding in constitutional principle.

#PROMESA 357/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The Board reiterates that Buckley and progeny were distinguishing between officers and employees, not federal and territorial officers. The Buckley test is inapt because every territorial official exercising significant authority does so pursuant to a federal law.

#PROMESA 358/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican It recognizes that some officers do so indirectly, such as PR, but that all of them eventually come back to federal law because territories, unlike states, lack independent sovereignty that predates the formation of the Constitution.

#PROMESA 359/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The Board argues that territorial legislatures have authority to enact local laws only due to Congressional largesse. Congress may limit, or even revoke, the delegation of legislative authority at any time.

#PROMESA 360/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Thus, the proper focus is not the source of the authority to act, but rather its scope and nature. This is the only appropriate way to determine who is an OotUS, lest all territorial officers be swept up by Art. II's requirements.

#PROMESA 361/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Throughout history, territorial officers exercised significant authority as identified by the Respondents, yet many failed to comply with Art. II. Today, the Governors of Guam and the USVI hold their offices by virtue of the Organic Acts, yet they are elected.

#PROMESA 362/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The Northwest Ordinance proves the point. Even after the Governor's office was brought in line with Art. II, several territorial officers exercised significant authority pursuant to that act, yet they weren't appointed by the President and confirmed by the Senate.

#PROMESA 363/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican This 200 year history demonstrates that it is the nature of the authority, and not its source, which is the dispositive factor here. (Again, @WilliamBaude's excellent forthcoming article gets a shoutout).

#PROMESA 364/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The choice to use Advice & Consent prior to home rule doesn't help, because it could be a legislative choice vice a requirement. Furthermore, they didn't apply it to inferior officers. Finally, the recess appointments don't help because...

#PROMESA 365/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican ...many of them were performed pursuant to a statute authorizing such appointments during the recess. Additionally, the President used recess appointments on positions even Aurelius agrees were territorial officers, not OotUS.

#PROMESA 366/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Separation of powers concerns protected by Art. II arn't implicated by territorial officers. That's why Congress can provide for election of territorial officers, but not the Secretary of the Treasury. Territorial officers do not exercise federal authority.

#PROMESA 367/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Finally, the brief notes that the Appointments Clause absolutely applies in PR. Federal officials with responsibilities there must comply with the Clause. But the Board members simply do not qualify.

#PROMESA 368/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief then moves on to criticize the test proposed by Respondents, noting that they have made several contradictory adjustments to try and make it work, which just proves it is ill-conceived.

#PROMESA 369/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican At various times, the Board claims, Respondents focus on who makes the appointment, where the authority derives, or whether it is purely local. When it is pointed out that many statutes, including #PROMESA, assign tasks to elected officials, such as the PR Governor... 370/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican ...the test shifts to argue that those federally mandated duties are not the officers' "primary" responsibilities. But they provide no test for determining what percentage of a territorial officers' work can be dictated by Congress before being subject to Art. II.

#PROMESA 371/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Nor do they explain how it would be constitutionally appropriate to vest any "significant authority" pursuant to a federal law and not comply with Art. II. If separation of powers restrict such authority, it should restrict it in any amount.

#PROMESA 372/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The Board argues that Guam and the USVI give Respondents the most trouble, because they operate pursuant to Organic Acts, as did the Governor of Puerto Rico in 1947. Here, they argue the statutes confer only local authority.

#PROMESA 373/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican This, the Board argues, proves that it is the scope, and not the source of the authority, that matters. Which is precisely the test the Board and the other Petitioners are advocating for. Thus, the only dispute is whether that should apply here. It must.

#PROMESA 374/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The Board's brief closes its discussion of the Appointments Clause issue with a response to the Respondents' test under Lebron. It argues that this test is equally inapt.

#PROMESA 375/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican It argues that Lebron is inappropriate to answer whether a governmental entity is federal or territorial, since it was concerned with determining whether it was governmental in the first place.

#PROMESA 376/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The first prong of the test, whether the law was a special law to further government interests, provides no guidance. All organic acts are special - they set up territorial governments. And they all further government interests, whether federal or territorial.

#PROMESA 377/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Thus the second prong - whether the government retains authority to appoint - becomes dispositive. But this would allow Congress to end run the Clause by allowing for election or local appointment, regardless of the type of authority wielded.

#PROMESA 378/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Next up the SG's brief - supremecourt.gov/DocketPDF/18/1…

It notes that, at this point, all parties agree that federal officers must be appointed consistent with Art. II and territorial officers do not. The only question is: which are the Board members?

#PROMESA 379/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The way to answer THAT question is to look to the test in Palmore, asking what was Congress's intent in creating the Board and then to determine the constitutionality of its choice by examinign the scope of the officer's powers and duties.

#PROMESA 380/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican First, the brief notes that the Respondents concede that Congress may create territorial officers not subject to the Appointments Clause. It then argues that they failed to respond to the SG's arguments that the Clause itself draws the distinction.

#PROMESA 381/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The Respondents also appear to have abandoned CA1's reasoning that the specific (Art. II) governs the general (Art. IV). Therefore, the Court must do what CA1 did not - ask whether Congress utilized its powers under Art. I or Art. IV to create the Board.

#PROMESA 382/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The test that CA1 used, and that Respondents defend, the one articulated under Buckley, can provide no guidance to answering that question.

#PROMESA 383/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican As for MWAA, that case holds that Congress may not delegate operational control of federal property to its own members. The Court did not express an opinion as to the applicability of the Appointments Clause. #PROMESA 384/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The SG then turns to Palmore - the first two factors help determine, as a matter of statutory interpretation, whether Congress created a territorial office. The third step focuses, as a constitutional matter, on whether that choice was permissible.

#PROMESA 385/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican UTIER, the SG argues, concedes that, under Palmore, if the territorial official has powers focused exclusively on the territory, they are not federal officials. Aurelius does not so concede, but its objections lack merit.

#PROMESA 386/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican As to Aurelius's objections that Palmore calls for deferring to Congress's labels, the SG argues that any inquiry into an officer's status must begin by asking how Congress classified it.

#PROMESA 387/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Congress can create territorial judges, and Art. III judges for territories. We must look to Congress's intent to help determine which is which. The first two Palmore factors do just that.

#PROMESA 388/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Contra Aurelius, the focus of the Board's powers is centrally relevant to the inquiry whether they are acting as OotUS. Since Art. IV only grants Congress the power to legislate for territories, geography is quite critical to determining if it used that power.

#PROMESA 389/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Focus on specific geography is not enough to turn a federal officer into a territorial one. But power to enforce a nationwide statute would transform a territorial officer into a federal one.

#PROMESA 390/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Under the Palmore test, the Board members are territorial officers. Congress invoked Art. IV, placed the Board within the territorial government and limited the Board's powers and duties to primarily local matters.

#PROMESA 391/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Respondents do not contest the that the Board meets the first two factors. Thus, the whole question of the case boils down to the third. Here, the Board meets the test because the focus of its work is primarily upon the local affairs of PR.

#PROMESA 392/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican While it's true that the Board's actions have collateral effects outside of PR, that does not transform them into OotUS. If it did, every local territorial judge would be an OotUS, because their judgments are entitled to full faith and credit throughout the US.

#PROMESA 393/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican It's also true that the Board may sue in federal court to enforce a federal law. But that law, #PROMESA, applies only to the territories. Anyone can sue in federal court to enforce federal law. That does not transform every plaintiff into an OotUS.

#PROMESA 394/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Had Congress vested the authority to bring Title III suits in the popularly elected Governor of PR, this would not have made him an OotUS. (If it did, that would have fightening implications for home rule).

#PROMESA 395/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Finally, while the Board may open offices outside PR, investigate outside PR, and bring suit outside PR, all of those activities must be focused on solving the fiscal crisis in PR. Thus, the Board members are officers of PR, not OotUS.

#PROMESA 396/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The SG then makes similar arguments as the Board about the inappropriateness of Buckley and its progeny for determining whether an office is federal or territorial. But it makes some unique points.

#PROMESA 397/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Respondents argue that the Court must look to the most immediate source of an officer's authority, not its ultimate source. But they never explain why that would be the case, especially when the Court has already looked to the ultimate source in another case.

#PROMESA 398/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Additionally, the Buckley test fails to account for the fact that, in the absence of a territorial legislature, Congress fills that role. Why could a territorial officer not act in that situation, but could when a local legislature exists?

#PROMESA 399/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican As for territorial legislatures, the fact that they enact local law is meaningless. Under the Buckley test, the question is from whence does the officer draw HIS authority - not the nature of the law it enacts or enforces.

#PROMESA 400/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The SG then reiterates the argument that Respondents' test would apply to the Governors of Guam and the USVI, as well as the Mayor of Washington, DC. All of their power derives from acts of Congress.

#PROMESA 401/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican As for the claim that Congress wouldn't have required Senate confirmation of territorial governors if the Constitution didn't require it, the SG argues that this enhances Congress's power, & is demonstrated when Congress requires confirmation of inferior officers.

#PROMESA 402/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Additionally, this focus on appointed governors ignores the fact that Congress allowed for the election of territorial governors without changing the nature of their authority. Why were they OotUS when appointed, but not when they were elected?

#PROMESA 403/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican As a final point here, the SG points out that the focus on Governors ignores myriad other territorial officials who were not subject to Art. II, despite exercising significant authority pursuant to a federal law.

#PROMESA 404/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief then takes issue with Respondents' historical examples, such as the Northwest Ordinance, a list of civil officers prepared by Alexander Hamilton, and previous statements by the Executive. It argues each is mistaken.

#PROMESA 405/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Like the Board, the SG closes its reply with a discussion of Lebron. For many of the same reasons as the Board, the SG argues that the Lebron test is inappropriate and unhelpful in this case.

#PROMESA 406/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican And that's it for today. Tomorrow, I'll wrap up the Appointments Clause issue, looking at the Reply Briefs from Gershengorn, Dellinger, and Mollen, and offering some final thoughts of my own before turning to the de facto officer doctrine, probably on Friday.

#PROMESA 407/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican We pick up the #PROMESA Superthread with the Gershengorn reply brief. supremecourt.gov/DocketPDF/18/1…

It spends a spare 15 pages responding to the arguments supporting CA1's decision re: the Appointments Clause. 408/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief accuses Respondents of relying on "legal acrobatics that would make Cirque de Soleil proud." It bases this on Aurelius's view that Art. II applies to the Governors of territories, except when it doesn't. It characterizes this as an a la carte approach.

#PROMESA 409/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican It argues that rather than saving the test, the exceptions and distinctions pushed by Aurelius place the flaws of its "bespoke theory" in sharp relief. The better understanding is that Congress may act free of Art. II's constraints.

#PROMESA 410/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief reiterates the history of early territorial acquisitions, such as the Louisiana Purchase, where Congress debated the form of government & its powers related thereto. The length of service mattered not - Art. IV relieved Congress of complying w/ Art. II.

#PROMESA 411/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican It also points out that, even after territorial governors were appointed using the Advice and Consent procedure, they continued to retain legislative power with no intelligent principle, thus violating nondelegation requirements.

#PROMESA 412/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Aurelius fails to explain why the structural constraints of Art. II would apply, but the structural constraint of the nondelegation doctrine would not. The answer is that neither applies.

#PROMESA 413/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Furthermore, even assuming Aurelius were correct and Art. II applied to the territories, but not to temporary officers, the Board would meet that test. Congress clearly intended it to operate only temporarily.

#PROMESA 414/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief then addresses Respondents' arguments about the PR Governor and how Congress created a Coordinator for Federal Offices to take over his federal responsibilities once he became elected in 1947. It argues this misstates the history.

#PROMESA 415/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Relying on the legislative history, it notes that the Senate Report talks about the need to eliminate waste related to 58 federal agencies in PR - not to deal with an Appointments Clause issue. More tellingly, the position was never filled.

#PROMESA 416/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The position was eliminated after Puerto Rico adopted its Constitution. And Aurelius never explains how allowing popular election would not also violate Art. II under its proposed test.

#PROMESA 417/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief points to Canter, which held that territorial judges were not entitled to Art. III protections, even though they could enforce federal law. Aurelius, it states, never even discusses Canter and can't explain why Art. II would apply, but Art. III wouldn't.

#PROMESA 418/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican This is especially damning considering Aurelius's argument in its brief that some territorial judges ARE OotUS and should be appointed in conformance with the Appointments Clause.

#PROMESA 419/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Finally, the brief notes that the Executive has long held that territorial officers, such as judges, are not liable to impeachment. But the class of officers covered by the Appointments Clause and the Impeachment Clause are the same. Thus, they can't be OotUS.

#PROMESA 420/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican In closing, the brief notes that Aurelius's test is not textual, is not manageable, and it is at odds with over 200 years of historical practice. Therefore it must be rejected and the Court must find the Board members were constitutionally appointed.

#PROMESA 421/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The Dellinger brief on behalf of AAFAF is even shorter at 7 pages. It opens by reiterating AAFAF's role as the sole official representative of the Government of PR in all matters related to #PROMESA. Any others claiming to speak for PR are, in fact, not. 422/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican It states the Respondents cloud the issue by paraphrasing the question presented as whether the Appointments Clause applies to PR. That is the wrong question, because of course it does. The whole Constitution does.

#PROMESA 423/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The actual question is whether the Appointments Clause applies to the Board members. The answer to this question is no, because they are territorial officers within the territorial government, not OotUS.

#PROMESA 424/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The Board exercises purely local authority and its core duties are all accomplished in coordination with PR's Government. It does not appropriate or administer any federal funds, only local ones. And PR pays all costs for the Board.

#PROMESA 425/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief (available here - supremecourt.gov/DocketPDF/18/1…) argues that while #PROMESA is a federal statute, the territorial status of PR means that the source of ALL territorial authority is Congress. Yet the Governor's power under #PROMESA is territorial in nature. 426/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican While the Board has restructuring authority outside the control of the popularly elected representatives, this is no different than a municipality filing Chapter 9 bankruptcy under the Code. Filing in federal court does not transform the Board members into OotUS.

#PROMESA 427/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief disagrees with UTIER's argument that overruling CA1 requires extending the Insular Cases. On the contrary, AAFAF believes the cases must be overruled. But that doesn't mean that CA1 must be upheld.

#PROMESA 428/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican On the contrary, it is affirming CA1 which risks territorial home rule by calling into question the legitimacy of the elected government of PR. It is the fact that Art. II doesn't apply to territorial officers that allows for popular election.

#PROMESA 429/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Yes, #PROMESA is an affront to the people of Puerto Rico. But that is due to PR's territorial status, not because the Board was appointed outside the strictures of Art. II. Because those strictures apply to the territory, but not to territorial officers. 430/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Finally, we come to the Mollen Reply Brief, and the end of the Appointments Clause issue. This brief is available here: supremecourt.gov/DocketPDF/18/1…

#PROMESA 431/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Unlike the other briefs, the Mollen brief opens with the de facto officer doctrine, and places its reply on the Appointments Clause issue at the end. I find that interesting.

#PROMESA 432/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief argues that, to be covered by Art. II, a position must be 1) an office; and 2) of the United States. It states that Aurelius focuses only on the first question and ignores the second. And the cases it relies on provide no guidance as to that question.

#PROMESA 433/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican In the three cases Aurelius relies on (Buckley, Lucia, and Freytag) everyone conceeded that the officers, if that's what they were, would be OotUS. The question was whether they were officers or employees.

#PROMESA 434/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Here, on the other hand, one can find that Board members are Officers, but are still not OotUS. And for that, you have to look to Palmore. When Congress passed #PROMESA it did not act for the nation as "a political body of states in Union." It acted on behalf of PR. 435/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican We know this, because Congress told us so in the text of #PROMESA, when it said that it was exercising its Art. IV power. Far from being an ipse dixit, the Court has held that when Congress invokes a specific power when it acts, that judgment is entitled to respect. 436/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Evidence of subterfuge, of course, could overcome this labelling. But here, no such evidence exists. Thus the Court should give great deference to the elected Houses of Congress in its judgment that it acted within the permissible scope of its powers.

#PROMESA 437/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief then runs through the Court's decisions noting that the separation of powers do not apply when Congress acts as a territorial legislature and notes that the Respondents barely deal with these cases.

#PROMESA 438/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Even assuming Respondents are correct that Congress may only delegate to territories the sort of power a state would delegate to municipalities, #PROMESA meets this test. States have often created fiscal control boards to help struggling cities. See Detroit. 439/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Congress did the same thing for DC in the early 90s. That Board was challenged, but the DDC and CADC upheld it as a valid exercise of local control under Congress's power to legislate for the District. The Court has long held that Art. IV has the same reach.

#PROMESA 440/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief then reiterates the argument that Respondents' test would deny Guam and the US Virgin Islands of their locally elected government. While they would like a vox populi exception to Art. II, this does not fit within the constitutional scheme.

#PROMESA 441/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican If such an exception existed, if popular election were an alternative to the Appointments Clause, Congress could provide for the election of the Secretary of State, or of Justices of the Supreme Court. Such an exception is nowhere in the Constitution.

#PROMESA 442/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican As for MWAA, that case dealt with wresting control of federal property from the Secretary of Transportation and arrogating it to a Board made up of members of Congress. Even in striking it down, the Court did not argue that the members were appointed improperly.

#PROMESA 443/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Here, the power Congress is dealing with is territorial, not federal, as in MWAA. The Board is a territorial instrumentality and the financial well-being of the people of PR is a territorial concern.

#PROMESA 444/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican The brief then argues that, contra UTIER and its amici, violation of the Appointments Clause does not deny a fundamental "human right." Because Art. II only applies to federal, not territorial, officers.

#PROMESA 445/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican It then offers several state-level laws that allow for high-level officials in state government to be appointed in a manner that, if federal, would violate Art. II. It does this to show that Art. II is not the only method of appointment that protects liberty.

#PROMESA 446/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican And that is it for the Appointments Clause issue. Before moving on to the de facto officer doctrine, I want to pause and give some thoughts as to the arguments made on Art. II. Again, I filed an amicus saying CA1 was wrong, so my thoughts may not be unbiased.

#PROMESA 447/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican Overall, I think that the parties are doing a lot of talking past each other. No one really seems to disagree with the substance of the tests being offered. Rather, the debate is over which test is the correct one.

#PROMESA 448/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican It seems fairly clear to me that if the Court applies the Palmore test, as urged by the Petitioners, it will find that the Board members are territorial officers. Neither Respondent really makes a strong showing that under Palmore, they win.

#PROMESA 449/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican On the flip side, if the Court applies the Lucia, Freytag, and Buckley tests, the Court is much more likely to find, as CA1 did, that the Board members are subject to appointment under Art. II. It's not clear that Petitioners dispute this.

#PROMESA 450/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican I also think both sides are assuming a more intentional approach to the appointment of territorial officers than the history supports. I think the reason both sides have historical examples to point to is that Congress was largely making it up as it went along.

#PROMESA 451/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican To assume that multiple Congresses, over the course of 200+ years, had some grand and consistent notion of what Art. IV meant strikes me as unrealistic. There was some question, for example, whether the Lousiana Purchase was constitutional.

#PROMESA 452/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican So color me skeptical that the actions taken in forming governments for that territory was the result of a constitutional consensus about what Congress could and couldn't do as far as territorial governance.

#PROMESA 453/

@SCOTUSblog @WilliamBaude @BryanAGarner @BobLoeb @MariaCantwell @JudgeDillard @WLF @ACLU @ACLUPR @DavidColeACLU @joshchafetz @EquallyAmerican I also wish both sides had engaged more with the amici. Some of the briefs raise really important points that neither party responds to. I found the brief about PR's political status following the plebescite particularly compelling.

#PROMESA 454/