Thread by @AMTAppeals

Yet none of the Petitioners address it. And this is an important brief, because while I believe the arguments in my brief are correct, it allows the Court away out of the trap, as least as far as PR is concerned.

#PROMESA 455/

On the flip side, as compelling as the brief is, it only answers the mail as far as PR is concerned. As I point out in my brief, neither Guam nor the Virgin Islands has had a successful constitutional plebescite.

#PROMESA 456/

Thus, even if 100% of the amicus brief is correct, it still doesn't shield these other unincorporated territories from the implications of the CA1 ruling. They would likely lose the right to popularly elect their government.

#PROMESA 457/

I'll be back later to start on the de facto officer doctrine. It attracted less amicus attention (only 5 briefs). It would also not be reached if the Court overturns CA1 on the Appointments Clause issue. So look to oral argument to get some clues on that.

#PROMESA 458/

Assuming that the Court sides with Respondents and holds that Board members are OotUS subject to the Appointments Clause, the question of remedy then comes into play.

#PROMESA 459/

CA1 determined that all of the actions taken by the Board up to that point should be upheld pursuant to the de facto officer doctrine. Basically, they thought they were legitimate holders of office, so we're not going to scrap all their work.

#PROMESA 460/

Because that outcome does not solve the problems for Respondents, they sought review of this decision and argue that the de facto officer doctrine does not apply to this case. We'll start with the Aurelius Brief by Ted Olson - supremecourt.gov/DocketPDF/18/1…

#PROMESA 461/

Aurelius argues that the doctrine has never been applied to a violation of the Appointments Clause and that applying it to future actions, as CA1 did here, is unprecedented. The Court should reject both holdings by CA1.

#PROMESA 462/

Interestingly, Aurelius then recommends the Court stay its order to allow the Board to be properly appointed and then determine if they wish to ratify the earlier actions of the unconstitutionally appointed Board.

#PROMESA 463/

Turning to the merits of its claim, the brief argues that the doctrine has only ever applied in two narrow circumstances: 1) "merely technical" statutory defects in an officer's appointment; and 2) defects raised in a collateral attack on a judgment.

#PROMESA 464/

An example of the first type of error is a deputy marshall who was duly appointed, but whose oath of office was administered by the wrong person. The second type is typified by a habeas petition that incidently raises an argument the judge was improperly appointed.

#PROMESA 465/

The Appointments Clause, however, is no mere technicality. The Court has not applied the doctrine when the defect implicates the separation of powers, which is the case here.

#PROMESA 466/

The main case relied upon for support of this claim is Ryder v. US, a unanimous decision from 1995, involving an appeal from a court-martial conviction. Two of the judges on the Coast Guard Court of Military Review had been improperly appointed under Art. II.

#PROMESA 467/

On appeal, the US Court of Military Appeals (currently known as CAAF) affirmed the conviction, applying the doctrine. SCOTUS reversed. This was not a collateral attack, but had been raised on direct review.

#PROMESA 468/

Applying the de facto officer doctrine in such a case, the Court reasoned, "would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments."

#PROMESA 469/

Appointments Clause errors, the brief argues, are structural errors and subject to automatic reversal. Thus, when a procedure is tainted with an improperly appointed official, the challenger is entitled to an entirely new proceeding.

#PROMESA 470/

Things would be different if the parties here, like in Buckley, had sought only prospective relief. Such a claim provides no reason to revisit past acts. But here, Aurelius challenged the Board's past actions, particularly the institution of Title III proceedings.

#PROMESA 471/

The brief then points to other bankruptcy cases in which SCOTUS declined to apply the doctrine when constitutional defects occurred. CA1 should have granted the same relief here, once it ruled for Aurelius on the constitutional issue.

#PROMESA 472/

The Board requires a quorum of 5 members to institute Title III proceedings. Here, they had a quorum of 0. Thus, the Court should not hesitate to treat this case like Noel Canning and void the actions of the quorum-less Board.

#PROMESA 473/

The fact that adjudicators were involved in some of these cases doesn't matter. The military judges in Ryder were exercising executive authority, like the Board. So were the ALJs in Lucia. This is not a distinction that matters.

#PROMESA 474/

The brief also argues that, even if the doctrine could apply when Art. II is violated, it should still not apply in this case, because it requires the underlying appointment to be regular on its face and only later discovered to be unlawful.

#PROMESA 475/

Here, however, several Senators publically acknowledged the Appointments Clause problems with #PROMESA's appointments scheme even before passage. And Aurelius raised the question prior to several of the actions at issue here.

#PROMESA 476/

The brief then offers four reasons to reject the Board's arguments for application of the doctrine here: 1) convenience and efficiency are not the primary objectives of democratic government; 2) the Board's claims of chaos are vastly overstated...

#PROMESA 477/

...Other challenges will not be timely (in a footnote, the brief attempts to answer the practical implications raised by @BobLoeb's brief); 3) it would create a disincentive to raise Art. II challenges; and 4) it will encourage further encroachments.

#PROMESA 478/

@BobLoeb The brief then turns to the prospective application of the doctrine sanctioned by CA1. The lower court held its mandate in abeyance pending appeal to SCOTUS and stated that, even when it issued, it would not cover actions prior to the date of the mandate.

#PROMESA 479/

@BobLoeb Because the validity of the Board was certainly "in question" after CA1 issued its ruling, there is no basis within the doctrine to allow it to continue validating acts that would be, admittedly, carried out by an unconstitutionally constituted Board.

#PROMESA 480/

@BobLoeb Even in the extremely rare cases where the Court has allowed an unconstitutionally constructed entity to operate, it has granted the relief sought by the successful challengers. Here, that means dismissing the Title III suit.

#PROMESA 481/

@BobLoeb This is particularly problematic here, as the Board has been rushing to complete as much restructuring of PR's debts as it can, essentially hoping to complete its work before SCOTUS can rule and the CA1 mandate goes into effect.

#PROMESA 482/

@BobLoeb CA1 was free to stay its mandate while Congress attempted to comply with Art. II. But it could not prospectively validate the actions of the improperly constituted Board. The actions must either be ratified by a constitutional Board, or declared null and void.

#PROMESA 483/

@BobLoeb The Aurelius Brief closes with a request for the Court to direct the dismissal of the Title III proceedings, unless it wishes to stay its mandate to allow Congress to comply and for a new Board to decide whether to ratify the actions of the old Board.

#PROMESA 484/

@BobLoeb This measured path would not only avoid the potential problems from undoing the Board's actions wholesale, it is consistent with the remedy ordered in Noel Canning.

#PROMESA 485/

@BobLoeb Next up is the UTIER brief, available here - supremecourt.gov/DocketPDF/18/1…

It's arguments largely mirror those brought up by Aurelius. Namely that the de facto officer doctrine doesn't apply to Art. II violations and CA1 erred in giving prospective relief.

#PROMESA 486/

@BobLoeb The brief does go further in some respects. It points out that since Ryder, the Court has not mentioned the doctrine when addressing Art. II violations in Noel Canning and Lucia. It also notes that the judge in Lucia was banned from acting even after appointment.

#PROMESA 487/

@BobLoeb It does not appear to go so far as to claim none of the current Board members could serve after appointment and confirmation, but that seems to be the implication of the argument it makes in regards to Lucia.

#PROMESA 488/

@BobLoeb It also puts a bit of a spin on the "good faith" requirement for applying the doctrine, stating that the Board members themselves had reason to know they were improperly holding their offices. It argues that upon challenge, that good faith was vitiated.

#PROMESA 489/

@BobLoeb Another spin comes in UTIER's response to the CA1's lack of remedy. It argues that failure to provide a remedy for an acknowledged constitutional violation renders the opinion advisory in violation of Art. III's case or controversy requirement.

#PROMESA 490/

@BobLoeb UTIER also relies on an argument raised by Aurelius that I did not previously discuss - the Board is asking lower courts to exercise the doctrine of "equitable mootness" and dismiss appeals related to Title III.

#PROMESA 491/

@BobLoeb This appears to be based on the CA1 holding that its actions going forward will be valid, even if it turns out the Board was not constitutionally constituted. This would, the parties argue, allow the Board to succeed prior to a ruling from the Court.

#PROMESA 492/

@BobLoeb UTIER also argues that it is beyond the Court's powers to apply the de facto officer doctrine to the Board because it would raise a political question. Only the properly constituted Board can decide to ratify (or not) the actions of the earlier Board.

#PROMESA 493/

@BobLoeb For some reason, the de facto officer doctrine attracted less amicus interest than the Appointments Clause/Insular Cases issue. That being said, the amici who did participate on this question are first rate, with first rate counsel.

#PROMESA 494/

@BobLoeb In addition to the @WLF and Autonomous Municipality of San Juan, whose briefs address both issues, briefs filed by @IlyaSomin on behalf of @CatoInstitute, @RuthanneDeutsch for @USChamber, and @dortner1 for @PacificLegal were also filed.

#PROMESA 495/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The @WLF brief is available here - supremecourt.gov/DocketPDF/18/1…

In addition to arguing that the Board lacked Art. III standing, it also argues that CA1 provided an insufficient remedy for the constitutional violation.

#PROMESA 496/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It argues that the de facto officer doctrine protects third parties who rely on the apparent authority of the officer who takes the act. It has never been applied when the government is the one seeking to protect the actions of its improper office holder.

#PROMESA 497/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Importantly, the relief sought by Aurelius here will not upset the interests of third parties. Dismissal of the Title III suits will undoubtedly delay the Board's work, but since no final judgments have been entered, no one is relying on the steps so far taken.

#PROMESA 498/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then directly rebuts the concerns raised by @BobLoeb, arguing that any challenge to the Title VI proceedings would be untimely. Additionally, there third parties have relied on the Board's de facto authority to approve the restructuring.

#PROMESA 499/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Untimely challenges have been repeatedly barred, even when it is acknowledged that the actions were unauthorized. Therefore, there can be no buyer's remorse from the Title VI proceeding, because the time to object has passed.

#PROMESA 500/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then reiterates the parties' arguments that they are entitled to relief for the constitutional violation in their case, and thus it was improper to deny it to them here.

#PROMESA 501/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief argues that even if the Court were inclined to deny relief for equitable reasons, the balance of harm falls on Aurelius. Given that the Appointments Clause is at stake, its particularly inappropriate to remove incentives to file challenges in this case.

#PROMESA 502/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The Autonomous Municipality of San Juan brief is available here - supremecourt.gov/DocketPDF/18/1…

It makes a very short argument targeted entirely at CA1's decision to grant prospective protection to the Board's actions under the de facto officer doctrine.

#PROMESA 503/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief notes that following the CA1 decision, the Board declared that all 78 municipalities in PR are covered territorial entities under #PROMESA. This gives the Board authority over their finances, instead of locally elected leaders. 504/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Even if the doctrine could cover the Board's actions prior to the CA1 ruling, it cannot continue to do so, especially when it is designed to be a narrow remedy to deal with technical defects. They are no longer cloaked with the air of legitimacy.

#PROMESA 505/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal At this point, I owe an apology to @IlyaSomin and @CatoInstitute-their brief addresses both issues and I missed that in my discussion of the Appointment's clause. I will circle back to their arguments at the end of the thread.

Brief here - supremecourt.gov/DocketPDF/18/1…

#PROMESA 506/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal And on that note, I am going to take a break for the day. I will cover the rest of the amici tomorrow, as well as starting on the responses from Petitioners.

#PROMESA 507/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Picking up with the @IlyaSomin @CatoInstitute brief, it opens with the argument that Art. II is designed to protect individual liberty, and thus individuals are the intended beneficiaries of the Clause. Thus, private parties have the right to enforce the Clause.

#PROMESA 508/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Moreover, since the political branches often fail to sufficiently safeguard their own prerogatives, private parties are actually better guardians of the separation of powers than the Government.

#PROMESA 509/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Remedies are thus vital. Allowing suits is a hollow right if parties cannot expect to receive relief for being wronged. Thus, a timely challenge to an Appointments Clause error, such as here, requires relief.

#PROMESA 510/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Where the error involves improperly appointed officers, their actions are void ab initio, because their actions taint the entire proceeding. But CA1 fashioned its own remedy, which denied Aurelius any relief at all.

#PROMESA 511/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Courts often fail to provide meaningful remedies to plaintiffs, even when the whole purpose of bringing suit is to remedy past actions taken by improperly appointed officials. This is what happened here.

#PROMESA 512/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then argues that the prudential concerns which motivated CA1 to rely on the de facto officer doctrine cannot overcome the need to respect the constitutional separation of powers. The Constitution demands more.

#PROMESA 513/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It notes that, while there may be some disruption from a finding the Board's actions are void, this is not new for the federal government. In 2014, the Court invalidated nearly 700 NLRB decisions due to Art. II violations.

#PROMESA 514/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It then repeats the parties arguments about discouraging lawsuits due to a lack of relief, as well as noting that, even when the de facto officer doctrine is applied, the suing parties get relief as to their claims.

#PROMESA 515/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The last section of the brief argues that the doctrine is inappropriate when constitutional violations have been found. It highlights lower courts cases that have split on the issue, and asks the Court to clarify that principal officers are not immune from Art. II.

#PROMESA 516/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It concludes by noting that CA1 erred by allowing prospective application of the doctrine and that even retrospective application is inapplicable for more than technical violations.

#PROMESA 517/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal I now turn to the brief filed by @RuthanneDeutsch on behalf of @USChamber available here - supremecourt.gov/DocketPDF/18/1…

The brief takes no position on the Appointments Clause issue. It merely argues that should a violation be found, a remedy must be available.

#PROMESA 518/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief makes two arguments: 1) that a successful challenger is entitled to relief; and 2) the doctrine does not allow courts to "paper over" structural constitutional errors.

#PROMESA 519/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It notes that so strong are the Constitutions structural protections that they initially convinced the Framers that a Bill of Rights was unnecessary. But this protection is meaningless if relief is unavailable.

#PROMESA 520/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then traces the history of the de facto officer doctrine from feudal England in the mid-1300s to its early applications here in the late 19th century, to its modern usage. This long history demonstrates that CA1 erred.

#PROMESA 521/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The good faith of the Board members in taking their actions is no defense. Where it has been recognized, it was only to validate minor, ministerial actions. Here, the actions taken were not minor.

#PROMESA 522/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief closes with a reiteration of the need to incentivize private parties to bring structural challenges under the Appointments Clause. This is especially important in cases where the political branches acquiesce in the violation.

#PROMESA 523/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The final amicus brief was written by @dortner1 for @PacificLegal - it is available here - supremecourt.gov/DocketPDF/18/1…

It attacks both the application of the doctrine as a whole as well as CA1's prospective application.

#PROMESA 524/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal While the brief covers much the same ground as the other amici and the parties, it does provide three unique arguments: 1) the doctrine applies to the appointment of a particular officer, not the validity of the office itself...

#PROMESA 525/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal ...2) CA1s ruling creates perverse incentives; and 3) there are alternative remedial remedies that protect reliance interests while still vindicating a plaintiff's right to a meaningful remedy.

#PROMESA 526/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief opens by noting the distinction in an error regarding who holds the office, where the doctrine applies, and the constitutional validity of the office, where it does not. The doctrine presupposes there is a valid office to hold.

#PROMESA 527/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal When, however, the challenge is to the creation of the office itself, the doctrine does not apply, because the invalidity of the office means that no action could properly be taken.

#PROMESA 528/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Here, the issue is not that the Board members weren't qualified. It was that the offices to which they were appointed were improper in the first instance. Therefore, CA1 erred when it applied the doctrine.

#PROMESA 529/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief's next unique argument is that the CA1 decision allowing prospective application of the doctrine creates perverse incentives. Plaintiffs may actually be worse off in that situation, as the Board rushes to complete its work while it still can.

#PROMESA 530/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It also sends the message to Congress that it can blatantly violate the Appointments Clause with an assurance that they will be given the chance at a "do over" without any negative consequences - not even having to start from scratch.

#PROMESA 531/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief's final argument is that there are available alternative remedies which would protect reliance interests without pre-validating all actions by the unconstitutional Board.

#PROMESA 532/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It points out that the Board itself sought narrower relief if CA1 ruled against it on the Art. II issue. It did not seek authority to continue operating. Instead, it merely asked for time to allow Congress to remedy the violation and allow the new Board to act.

#PROMESA 533/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The parties could then argue for stays or that ratification by the properly constituted Board was itself unlawful. Instead, CA1 short-circuited all that with its ruling allowing for prospective application of the doctrine.

#PROMESA 534/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal And that's it for the amici. After a break, I'll be back to breakdown the Petitioners' responses on the de facto officer doctrine.

#PROMESA 535/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal First up is the Board's response, available here - supremecourt.gov/DocketPDF/18/1…

It opens by arguing that, if the Court finds an Art. II violation, it should grant Aurelius prospective relief, but not retrospective relief. The Title III cases should not be dismissed.

#PROMESA 536/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal When a constitutional violation occurs, courts have broad authority to craft remedies. They must weigh the public interest in crafting those remedies. Here, that means applying the de facto officer doctrine to the Board.

#PROMESA 537/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief argues that Title III cases are not like prosecutorial actions against creditors. They are simple bankruptcy-like proceedings, modeled on the municipal bankruptcy statute. The Board's actions are thus focused, not on the creditors, but on the debtor.

#PROMESA 538/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The Board's action in filing Title III did not legally compel Aurelius to do anything. While it may have felt obliged to file to protect its interests, it was free not to. The Board, on the other hand, had to file to stave off creditor suits.

#PROMESA 539/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Once filed, the final adjudication of Aurelius's rights lay with an Art. III judge, although the Board does propose adjustment plans. But the Court must find those plans are in the best interests of the creditor to approve them.

#PROMESA 540/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief next argues that the interests firmly favor granting Aurelius only prospective relief. There is every reason to expect that if the bankruptcy stay was lifted, creditors would rush to Court, as they did when #PROMESA's automatic stay lifted. 541/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Title III cases are collective - it would be impossible to grant retrospective relief to Aurelius alone. Aurelius's proposed solution of staying the judgment pending confirmation of the Board is not adequate. The Senate can't be forced to act by a certain date.

#PROMESA 542/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal And even if the Board is confirmed and ratifies the Title III actions, there is nothing that would prevent Aurelius from challenging the ratification action. Separation of powers plaintiffs often do.

#PROMESA 543/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Aurelius's interests under the Appointments Clause are insubstantial, because Title III cases are the "polar opposite" of prosecutorial actions. Because an Art. III court intervenes in any decision, any separation of powers interests are protected.

#PROMESA 544/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The interests are especially ephemeral, because the Governor of PR asked that the Title III cases be instituted and Congress could have vested the Governor with this authority, while Aurelius concedes he would not need to be appointed consistent with Art. II.

#PROMESA 545/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The Board then argues that the Respondents' reading of Ryder is far too broad and unsupported by the case. It was limited to adjudicators of rights. There, the violation is complete when the judge rules. That is not the case here.

#PROMESA 546/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal As for the argument that Art. II violations are structural, the Board argues that such a finding is based not on the clause involved, but on the effect of the error on the proceeding. And the Court has never held that Art. II error is categorically structural.

#PROMESA 547/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief notes that Aurelius does not seriously press its void ab initio claim, because it doesn't ask for every Board action to be invalidated. Even in Title III cases, it only sought dismissal of some cases in which it was a party.

#PROMESA 548/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The Court has only ever invalidated the actions of an improperly constituted body when the error deprives the Court of subject matter jurisdiction. Art. II errors don't reach this level. The NLRB lacked a statutory quorum, thus it didn't have jurisdiction.

#PROMESA 549/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The Board's brief closes by defending the CA1 decision to allow prospective relief. It argues that Aurelius waived the argument by advocating for the remedy provided by the Court. It points to oral argument where counsel suggested the court stay its ruling.

#PROMESA 550/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal I turn now to the SG's reply on the de facto officer doctrine. It is available here - supremecourt.gov/DocketPDF/18/1…

The brief takes a firmer stance than the Board, refusing to concede that any relief beyond a declaratory judgment is appropriate.

#PROMESA 551/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It notes that the Constitution does not provide a remedy for its violations. Instead, it operates against a backdrop of rules that govern relief - statutory, procedural, common law, and equity. Here, the equitable de facto officer doctrine controls.

#PROMESA 552/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief traces the doctrine's history and discusses its rationale - protection of stability, to prevent the need of the public to investigate the officer's title before dealing with him, and to protect the innocent who deal with officers in good faith.

#PROMESA 553/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It argues that case law has applied the doctrine to offices found to be created by unconstitutional laws. It protects the acts engaged in prior to the finding of constitutionality. It cites Norton v. Shelby County (1886).

#PROMESA 554/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then offers examples of other constitutional violations where the courts have applied the doctrine. These violations include: the Recess Appointments Clause; the Oath Clause; the Equal Protection Clause; the Prohibition on Succession Clause....

#PROMESA 555/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal ...state sovereignty, Section 3 of the 14th Amendment; the Ineligibility Clause; and state constitutions. In each instance, the courts found some constitutional infirmity in the appointment, but refused to provide retrospective relief.

#PROMESA 556/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Furthermore, the courts of 48 of the 50 states (but not Iowa or Montana) have held that the de facto officer doctrine applies to unconstitutional appointments. So does the common law of England, and other commonwealth countries.

#PROMESA 557/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal There are also AG opinions and treatises from early in our history which found the doctrine could be applied even in face of an unconstitutional appointment. The purposes of the doctrine further support its application in a case like this.

#PROMESA 558/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Furthermore, it is not unusual to apply concerns about equity to the relief provided for constitutional violations. Here it points to qualified immunity, the exclusionary rule, and respect for finality in habeas corpus as areas where equity applies.

#PROMESA 559/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then offers counterarguments to the positions taken by the Respondents. Specifically it offers a different reading of Ryder, arguing, like the Board, that it focuses on adjudicators, not other officers.

#PROMESA 560/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The line between direct and collateral review only makes sense in the context of adjudicators and there are fewer consequences from invalidating their acts, since an arbitrator's decision only applies to the parties before them.

#PROMESA 561/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The other cases relied upon by Aurelius and UTIER also involve judges and other adjudicators, or fail to discuss the doctrine at all. Thus, they provide no support for Respondents' claims regarding the Board.

#PROMESA 562/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal No precedent requires the automatic exemption from the ordinary rules and restrictions governing the availability of remedies. To the contrary, the Court regularly applies the, albeit with some modifications in the constitutional context.

#PROMESA 563/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then defends CA1s application of the doctrine in this case, arguing that the facts "cry out" for the doctrine to apply. Here, five Title III petitions have been filed, and billions in debt has already been refinanced.

#PROMESA 564/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Thus, there would be major practical consequences to striking down the Board's Title III actions. Most importantly, it would lift the stay and could harm PR's ability to provide basic services to its people.

#PROMESA 565/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Respondents had also argued that the doctrine can't apply to flagrant violations of the Constitution. But that is not the case here. The Board members look like many other territorial officers, so any violation wasn't apparent until the CA1 ruling.

#PROMESA 566/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal CA1's stay of its decision was also proper. For one thing, it wasn't based on the doctrine, but on FRAP 41. SCOTUS has used this power itself on many occasions, even where it has found an entity improperly constituted.

#PROMESA 567/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Finally, even if the Court finds that the de facto officer doctrine doesn't apply here, it should merely vacate the CA1 remedy and remand for further considerations, not dismiss the Title III suits outright.

#PROMESA 568/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Next up is the Gershengorn brief, available here - supremecourt.gov/DocketPDF/18/1…

Again, he focuses on appealing to the Court's Originalists, focusing on the historical application of the de facto officer doctrine.

#PROMESA 569/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal For over 500 years, the doctrine has been used in English common law, and has even been expanded by American courts. Its primary purpose was to validate public reliance on apparent public authority.

#PROMESA 570/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The doctrine was well known in English courts and had been well established by the time of the Revolution as a basic tenet of English law. But it received its fullest development and acceptance here in the United States.

#PROMESA 571/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The doctrine was key to a young democracy that was quickly expanding and required public confidence in its acts. For this reason, it was often used as several early treatises demonstrate.

#PROMESA 572/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal And this doctrine was consistently held to apply in a variety of situations. Some of them were instances of technical errors in the assumption of office. But others were officers elected or appointed to offices later determined to be unconstitutional.

#PROMESA 573/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal There is an exception, the brief acknowledges, in cases in which the office itself was unconstitutional and could not have been legally created. But when the error is just in appointment to valid office, the doctrine applies.

#PROMESA 574/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The doctrine's history of application to wrongfully appointed officers actually runs to the first reported case in which it appeared, in 1431. There, an official lost an election, but assumed office anyway.

#PROMESA 575/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Despite this error, the validity of the deeds he took while in that office were upheld by the English courts. Thus, from its earliest days, the doctrine applied to situations like that faced by CA1.

#PROMESA 576/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Nor did the officer's rank matter. US state courts applied the doctrine to the highest ranking officials in all three branches of government. And in England, it had even been held to apply to the Lancaster Kings, as well as Oliver Cromwell.

#PROMESA 577/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then argues that the remedial role of the doctrine is, in fact, its primary rationale - to provide protection to those who relied on the actions of the improperly appointed official.

#PROMESA 578/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Because timely challenges to an officer's appointment can be brought even years later, as a defense to an enforcement action, failing to provide de facto acceptance of their previous acts puts the interests of countless parties at risk.

#PROMESA 579/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal These concerns are only heightened when the defect in title applies not to an individual, but to the entirety of a collective entity, such as the Board, especially when an adverse ruling would cause the Board to cease to function.

#PROMESA 580/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The fact that there was debate within the Senate about the constitutionality of the appointment scheme is also irrelevant according to the brief. It is the judicial determination of unconstitutionality which matters.

#PROMESA 581/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief concludes by noting that rejecting a half a millennium of precedent would also be destructive of the rule of law, the reliance interests of private business, and the legitimacy of free government.

#PROMESA 582/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Next let's turn to the Mollen brief, available here - supremecourt.gov/DocketPDF/18/1…

The brief makes two main arguments: 1) prospective application of the doctrine is appropriate; and 2) the Court should grant the district court flexibility to craft relief.

#PROMESA 583/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief opens by arguing that new constitutional rules are applied both prospectively and retroactively. When it undermines settled expectations by announcing an entirely new rule, an assertion of nonretroactivity is allowed.

#PROMESA 584/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal In that case, the rule operates solely prospectively. Here, the brief argues, CA1 properly determined that this case was one of the rare instances where only prospective relief was appropriate.

#PROMESA 585/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal This is consistent with the Court's precedents in both the constitutional and statutory contexts. Here, the brief cites Buckley, Northern Pipeline, and City of LA, Dep't of Water and Power v. Manhart.

#PROMESA 586/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then argues that Aurelius's proposed alternative remedies are not supported by precedent. Specifically, the Board's actions were not void ab initio, as demonstrated by the Court's rulings in Buckley and Northern Pipeline.

#PROMESA 587/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal In both cases, the Court found structural constitutional defects in the statutes at issue, yet in both the Court refused to undo the work done by the FEC on the one hand and bankruptcy courts on the other.

#PROMESA 588/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief argues that this case is distinguishable from Ryder, because unlike there, Aurelius can benefit from a prospective application of the ruling here. They are among the court's frequent fliers as far as Title III proceedings are concerned.

#PROMESA 589/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Therefore, they will be the beneficiaries of any prospective application of the CA1 Appointments Clause ruling and, unlike Ryder, are not denied relief and thus not disincentivized from pursuing the suit.

#PROMESA 590/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal On the other hand, the special status Aurelius seeks is not supported by case law. Their request for "gerrymandered special retroactivity" is impermissible.

#PROMESA 591/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal According to the brief, after announcing a new rule, a court has exactly 2 options: 1) pure prospectivity; or 2) total retroactivity. There is no room for a middle ground as Aurelius seeks here. Northern Pipeline's holding to the contrary is no longer good law.

#PROMESA 592/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then reiterates the practical problems with granting special relief to the Respondents, and argues the fundamental unfairness of it, given bankruptcy's goal of making all creditors share the sacrifice.

#PROMESA 593/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief also draws a distinction between de facto officer cases and de facto validity cases, arguing they are two lines of authority. Ryder merely found that de facto treatment was inappropriate it that case, not categorically.

#PROMESA 594/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal These differences are also analytically important. This case, in fact, does not address the common law de facto officer doctrine, but instead is a de facto validity case, like Buckley. And like Buckley, courts have broad remedial discretion to avoid calamity.

#PROMESA 595/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Because Ryder effected only a few cases, prospective relief was not necessary to avoid serious harm. But here, if two years of work and thousands of orders were undone, it would mean disaster for all the parties.

#PROMESA 596/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief makes a final argument that, if the Court overturns CA1 on the de facto officer doctrine, it should still respect the wide statutory discretion the courts have to craft relief.

#PROMESA 597/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Because the district court has not been given the opportunity to craft appropriate relief under the Bankruptcy code, the issue is not properly before the Court and it should remand the case to the District Court to do so in the first instance.

#PROMESA 598/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The final brief responding on the de facto officer doctrine is from a new player, the COFINA Senior Bond Holders, represented by Kathleen Sullivan. Their brief is available here - supremecourt.gov/DocketPDF/18/1…

The brief takes makes no argument on the Art. II issue.

#PROMESA 599/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The parties are holders of billions of debt issued by the PR Sales Tax Financing Corp., known as COFINA. After over a year of litigation and mediation, they received a plan of adjustment for COFINA's debt, dealing with $17 billion.

#PROMESA 600/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Just 3 days after the court made the plan effective CA1 issued its decision. The COFINA Sr. Bond Holders write to defend the CA1 decision on the doctrine, arguing this is the paradigmatic case for its application.

#PROMESA 601/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Kiddo is up from his nap. Be back later!

#PROMESA 602/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief argues that any violation of Art. II is, at worst, formal rather than functional. The President selected the Board members and there was Congressional participation as well. And Art. IV's broad grant of power makes any violation de minimus.

#PROMESA 603/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief argues that CA1's stay was valid, especially since, until the mandate issues, the Board has not actually been found to be invalid. Issuing a stay of its mandate is entirely within CA1's discretion.

#PROMESA 604/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It identifies two key factors courts use to determine whether to use the doctrine: 1) the principal factor is the public interest, particularly harm to 3d parties; and 2) it applies with greatest force where the officer exercises legislative or executive authority.

#PROMESA 605/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief repeats arguments that the doctrine applies in constitutional cases. It also points out that, even if Ryder can be read to restrict Buckley to its facts, this case falls within that restriction. Indeed, the harm here would be worse.

#PROMESA 606/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It also argues that, contrary to Aurelius's contention, not every constitutional violation leads to a remedy - 4A exceptions, qualified immunity, and the political question doctrine all recognize violations without affording relief. The same goes here.

#PROMESA 607/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Courts retain discretion to fashion remedies for constitutional violations and the de facto officer doctrine is just one well established example of that discretion.

#PROMESA 608/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal As for Aurelius's arguments regarding structural error, the brief argues that this just goes to the need to show prejudice from the error. It says nothing about the appropriate remedies that a party is entitled to.

#PROMESA 609/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then turns to its second major argument, that CA1 properly applied the doctrine in this case. It focuses on the massive harm that would come from a failure to retroactively apply the doctrine here.

#PROMESA 610/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal In the two years since the Board was created, it has negotiated much needed debt relief, including of unfunded pensions for 300,000 in the public system, as well as new collective bargaining agreement with the public employee union.

#PROMESA 611/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The unfunded pensions represent $50 billion in debt. Another $35 billion has been negotiated with major bond holders. Overall, Title III actions will reduce PR's debt by $22 billion over 30 years. And that's just what has been accomplished so far.

#PROMESA 612/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The COFINA settlement itself, the legitimacy of which thousands of parties have an interest, will save PR approximately $17.5 billion. Since that settlement, $17 billion in bonds have been cancelled and another $12 billion have been issued.

#PROMESA 613/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Aurelius itself was a beneficiary of this last settlement, and even agreed not to challenge its validity. But its broad request for relief, a declaration that the Board's actions are void ab initio, would do just that.

#PROMESA 614/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Failure to protect the Board's actions would also end the Title III stays, opening up PR to massive amounts of litigation from debtors and throw out the certified fiscal plans the Board has imposed over the last two fiscal years. This could lead to clawback suits.

#PROMESA 615/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal In fact, Aurelius preserved in the District Court the right to challenge the fiscal plans imposed by the Board. Thus, the relief sought is far broader than two Title III suits, as Aurelius claims. This would be crippling for PR's recovery.

#PROMESA 616/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Aurelius's suggestion that the Court stay its ruling to allow confirmation & ratification demonstrates the need to give de facto validity to the Board's actions. And since the Senate still hasn't acted to confirm the Board, there is no evidence they would in time.

#PROMESA 617/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief argues that the Board members were acting in good faith, the objection of adverse parties and 2 senators notwithstanding. A strong basis existed to believe they were properly appointed. Even if they are wrong, that doesn't undercut their good faith.

#PROMESA 618/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Given the presumption of constitutionality of laws, the Board was not required to sit on its hands and do nothing while the Appointments Clause challenge worked its way through the courts.

#PROMESA 619/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief argues the CA1 stay was proper under FRAP 41(b), until such time as SCOTUS rules and the legal issue is conclusively decided. Aurelius is essentially asking for an injunction on Board action that it has no right to.

#PROMESA 620/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal At the very least, the Court should validate all Board actions up to the CA1 decision. The District Court ruled the Board was constitutional, so they were acting in good faith. And purely prospective relief would give Aurelius a substantial remedy.

#PROMESA 621/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal And that concludes the Sullivan brief on behalf of the COFINA creditors. While my tweets don't acknowledge it due to character limitations, the brief does better than most at responding to UTIER as well as Aurelius, which was nice to see.

#PROMESA 622/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal In a footnote, it also takes the time to respond to arguments by amici @PacificLegal and @WLF. Namely, it argues the office of Board member is proper and that the Board members have standing to defend their own appointments.

#PROMESA 623/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal And that's it for the Petitioners'/Cross-Respondents' briefs. Reply briefs on the de facto officer doctrine are due on Tuesday, 10/8. UTIER has filed theirs and I will summarize it tomorrow.

#PROMESA 624/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal That just leaves the Aurelius closing brief, and a quick swing around to address the @CatoInstitute brief's position on Art. II. Then the superthread will be done!

I'll start a separate thread to cover oral arguments on 10/15.

#PROMESA 625/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Although not due until October 8, UTIER filed its reply brief early. It is available here - supremecourt.gov/DocketPDF/18/1…

The brief argues that since the Board was unconstitutionally appointed, all of its actions are void ab initio.

#PROMESA 626/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It argues that, by allowing prospective action after the finding of unconstitutionality, UTIER is actually worse off than it was when it first sought relief, because the Board has continued its work despite being unconstitutionally appointed.

#PROMESA 627/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief first argues that UTIER is entitled to retroactive relief. It largely reiterates the arguments from the opening brief, relying on Ryder, and pressing that even in Buckley, the plaintiffs received individual relief.

#PROMESA 628/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It also stresses that Appointments Clause errors are structural and that challengers are entitled to an entirely new proceeding, relying on Lucia's holding that effect. It notes that in subsequent Art. II cases, the Court has not even mentioned the doctrine.

#PROMESA 629/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal UTIER argues that the US's attempts to distinguish Ryder are unavailing. Not only do Ryder and Lucia not hinge on the appointees being adjudicators, it is almost more important to avoid the doctrine when executive officials are involved.

#PROMESA 630/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Ryder didn't excuse the Art. II violation, despite the fact it was reviewed by a properly constituted Art. III appeals court. Here, the Board gets to take actions at its sole discretion which are not subject to judicial review.

#PROMESA 631/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Next the brief argues that UTIER sought and is entitled to relief. Because they did not receive any, the CA1 decision is purely advisory. It accuses the Mollen brief of making up the distinction between de facto office and de facto validity.

#PROMESA 632/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal And it notes that the Mollen brief acknowledges that denying retroactive relief is rare. Far from being a request for special treatment, relief of some sort is an entitlement belonging to UTIER for prevailing on the Art. II challenge.

#PROMESA 633/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal There is simply no precedent, UTIER argues, for finding an Appointments Clause violation and failing to give relief to the successful challenger, even in the cases where the Court otherwise allowed the challenged officers to continue serving for a short time.

#PROMESA 634/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal In a brief paragraph, UTIER attempts to distinguish the cases cited by the United States to show that any applications of the doctrine to other constitutional provisions are different than applying it to the Appointments Clause.

#PROMESA 635/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief again argues that the prospective ratification of Board decisions has also harmed UTIER in that the Board is attempting to wield the doctrine of "equitable mootness" to dismiss challenges to ongoing Title III cases.

#PROMESA 636/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief closes with an argument that equity considerations do not outweigh separation of power concerns and liberty. Courts may not avoid their responsibilities just because there are political implications for their rulings.

#PROMESA 637/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Indeed, the Court has never hesitated to provide relief for separation of powers violations, even where it could be considered disruptive. It points to INS v. Chadha, overruling the legislative veto in hundreds of statutes...

#PROMESA 638/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal ...Northern Pipeline, where it struck down the entire bankruptcy court system, and New Process Steel, where it threw out almost 600 NLRB cases due to a statutory lack of quorum.

#PROMESA 639/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The separation of powers, UTIER argues, is fundamental to protecting liberty and our system of government. The economic consequences of any given case, therefore, cannot overcome an affront to the Constitution's system of checks and balances.

#PROMESA 640/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The appropriate relief here is to declare null and void all of the actions and determinations by the Board, including dismissal fo all Title III proceedings.

#PROMESA 641/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Failing that, the Court should vacate the CA1 decision on remedy and remand the cases for further proceedings. Even then, it should issue a declaratory ruling that the Board's actions are void ab initio.

#PROMESA 642/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Only after the Title III cases are dismissed could the district court look to 11 USC 349(b), as the Mollen brief suggests, to fashion an equitable remedy for all the parties, after showing cause that such is necessary.

#PROMESA 643/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal UTIER calls the suggestion from cross-respondents, that the Court stay its ruling for 60 days, unacceptable. Even the Board agreed in CA1 that the court should sever offending language and enjoin prospective action by the current Board.

#PROMESA 644/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Yet, the Board continued to act during the pendency of the CA1 stay and it will continue to do so during any stay issued by SCOTUS. While the hurricanes were bad, they should not have played a role in CA1's decision to stay its judgment and enforce the doctrine.

#PROMESA 645/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal UTIER argues that its proposed remedy does not invalidate #PROMESA in its entirety and that it gives the President and Senate a chance to comply with Art. II. Then, the newly constituted Board could determine whether to ratify previous actions.

#PROMESA 646/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It does note that the parties would then have the ability to argue as to the validity of those ratifications in future proceedings.

And that's the end of the brief.

#PROMESA 647/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal We come, finally, to the last of the reply briefs, filed this morning by Ted Olson on behalf of Aurelius. It is available here - supremecourt.gov/DocketPDF/18/1…

It starts by noting that on 9/27, the Board proposed a plan of adjustment for more than $129 billion of debt.

#PROMESA 648/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It also notes that the Board has not denied it will seek to defend any implemented plan of adjustment on the basis of "equitable mootness." This, Aurelius argues, shows the harm arising from the failure of CA1 to provide any relief to the challengers.

#PROMESA 649/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The Board's argument regarding the chaos that would follow from failure to apply the doctrine, the brief argues, is essentially an argument that the constitutional violation is simple "too blatant and too big to remedy."

#PROMESA 650/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Aurelius also argues that the relief it seeks (dismissal of the Title III actions involving it, appointment of the Board via Art. II, and then ratification (or not) of prior actions) can all take place without lifting the automatic stay, further preventing chaos.

#PROMESA 651/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The main body of the brief begins with an argument that Ryder controls this case, and under Ryder, the only remedy to an Art. II violation is to void the actions of the unconstitutionally appointed officers. The de facto officer doctrine does not play any role.

#PROMESA 652/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal In a footnote, the brief notes that, like in New Process Steel, the Board here also failed to have a statutory quorum (#PROMESA requires at least 5 Board members to conduct business). Therefore, this does not serve to distinguish the cases.

#PROMESA 653/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Applying the de facto officer doctrine here actually compounds the separation of powers violation, because it allows the judiciary to decide which Executive Branch appointments and actions should be retroactively authorized.

#PROMESA 654/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief reiterates the concerns about disincentivizing suits to enforce the Appointments Clause, especially because history shows that the coordinate branches often times acquiesce in the violation for political reasons.

#PROMESA 655/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then walks through the arguments of the opposing parties, arguing that none of them have merit for applying the de facto officer doctrine here.

#PROMESA 656/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Turning to the cases the Petitioners' cite to support application of the doctrine, they note that none deal with a challenge under Art. II to a specific officer's title - instead they dealt with challenges to the composition of an entire legislative body.

#PROMESA 657/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal To the contrary, the cases show that the Court has declined to extend the de facto officer doctrine to violations of the Constitution's structure. Since this is what happened here, the doctrine should not be applied.

#PROMESA 658/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The Board is wrong to rely on Buckley, because there the parties sought only prospective relief. The Court specifically noted that ratifying past actions was not before it. They would not know what they were ratifying. The issue had not even been briefed.

#PROMESA 659/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The other cases in which the Court limited its relief solely to the litigants at bar has been rejected by both Harper v. Virginia Dep't of Taxation and Ryder. Ryder specifically held the doctrine could not be used to deny relief to the party before the Court.

#PROMESA 660/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The argument that Ryder only applies to "judicial" officers is misplaced. Ryder itself dealt with non-Art. III officers, but military officials in the Executive Branch. Same for Lucia. And courts have not narrowed Ryder to adjudicative officers.

#PROMESA 661/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Further, the proposed distinction b/t adjudicative and executive officers is untenable. Agencies exercise their power both ways. Even if it's less costly to overturn adjudicative acts, the Court hasn't looked to costs of requiring compliance with the Constitution.

#PROMESA 662/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Moreover, #PROMESA itself allows the Board to act through adjudications. If the Board had hcosed to exercise their discretion whether to file the Title III actions using that process, the costs would be just as high to undue them. 663/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal COFINA is wrong to argue the Art. II violation is "merely formal" the brief argues. It is a structural component meant to safeguard individual liberty. Nor is the violation here trivial. If the doctrine applies here, what violation could it not "paper over"?

#PROMESA 664/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal As for the good faith arguement, challengers need not show "constitutional malice aforethought." And the fact remains 2 Senators did question the validity of the Act. And the CBO found the Board was a federal entity, thus subject to Art. II.

#PROMESA 665/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal This portion of the brief closes by arguing that the arguments made by the Petitioners are a veiled attempt to overturn Ryder. But that was a unanimous decision and it was correct. The doctrine doesn't apply and Respondents are entitled to relief.

#PROMESA 666/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Next, the brief argues that the fear of disruption has been greatly exaggerated by Petitioners and also unsupported. The same claims were made in Ryder. The Court can address them the same way. By limiting relief to the challengers.

#PROMESA 667/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Aurelius has outlined a path that would vindicate its interests without causing disruption - dismiss the Title III actions, but stay the ruling pending the appointment of a valid Board, which can then revisit its actions and decide whether to ratify them.

#PROMESA 668/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal There is no reason to remand, as the US has asked. The US has had 2 years to argue against dismissal. The CA1 judgment to affirm the denial of any dismissal, is squarely before the Court.

#PROMESA 669/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then argues that the only proceedings subject to dismissal are the two Title III actions it has challenged. The COFINA Title III proceeding is not at risk. Indeed, #PROMESA itself requires all the Title III proceedings to be independent of each other. 670/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal It is true that a duly appointed Board may not quickly ratify all the actions of the old Board, as COFINA has argued. But that is the beauty of the system, the brief argues. There would be little point in enforcing Art. II if there were no change in the outcome.

#PROMESA 671/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The fact that Aurelius and UTIER may challenge ratification is not a reason to ignore Art. II and allow the Board to make those decisions in the first instance. Government actors should expect judicial review of their decisions.

#PROMESA 672/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The automatic stays would not lift if the Court stayed its mandate to allow appointment and confirmation. If the political branches fail to meet the judicial deadline, that is their constitutional prerogative.

#PROMESA 673/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal The brief then closes with a short argument that the de facto officer doctrine cannot validate future actions, taken after the CA1 ruling. Because the Board was no longer acting under color of valid title, the doctrine does not apply by its own terms.

#PROMESA 674/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Aurelius has never argued that the Board cannot continue to act pending appeal. Rather, it has argued that any actions taken are subject to ratification by a duly appointed and confirmed Board. But that is not what CA1 held.

#PROMESA 675/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal If nothing else, the brief argues, the Court should make clear that the invalid Board's actions must be ratified by a constitutional Board and that its actions cannot be shielded by equitable mootness.

And that's it for the Aurelius brief.

#PROMESA 676/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal I will be the first to admit that the de facto officer doctrine is not something I have a lot of familiarity with, outside the context of this case. That being said, after reading all the briefs, I have some thoughts.

#PROMESA 677/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal First, I think the Respondents are being a bit disingenous as to the relief they are seeking. Aurelius says it just wants to dismiss 2 Title III proceedings. But their argument is that ALL of the Board's actions were void ab initio. I don't see how you cabin that.

#PROMESA 678/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal UTIER, on the other hand, goes much farther in what it is asking for: the complete reversal of every action the Board has taken for the last 3 years. That is clearly far more sweeping than Aurelius claims.

#PROMESA 679/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Further, Aurelius argues on the one hand how important it is to have a duly appointed Board, while arguing on the other than the new Board can simply ratify all of the actions of the current Board. So it's not clear to me what relief they actually get.

#PROMESA 680/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal This is especially true if the Court grants a stay of its mandate. Because the President appointed the 7 current members, and those members already have Congressional support, it's unclear to me why they would fail to ratify ANY of their decisions.

#PROMESA 681/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal For this reason, I find the Sullivan brief on behalf of the COFINA creditors especially compelling.

On the other hand, I do think that CA1 erred in agreeing to ratify all future actions taken by the Board after its initial ruling.

#PROMESA 682/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal While CA1 stayed its ruling, there's now a suggestion of unconstitutionality that would seem to undercut the rationale behind the de facto officer doctrine. While I am not an expert, it appeals to my sense of the law to disallow prospective ratification.

#PROMESA 683/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal Circling back briefly to the @CatoInstitute brief by @ishapiro, the Appointments Clause argument it makes is fairly straightforward and largely tracks the other briefs.

It adds two twists.

#PROMESA 684/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal @ishapiro First, it argues that, like in Lucia, the Board has the authority not just to bring Title III suits, but to rule on them, pointing to 48 USC 2175(b).

Second, it argues that the Board are principal officers, not inferior ones.

#PROMESA 685/

@BobLoeb @WLF @IlyaSomin @CatoInstitute @RuthanneDeutsch @USChamber @dortner1 @PacificLegal @ishapiro And even if they were inferior, their appointment still violates the Appointments Clause because they are not vested "in the President" alone. Therefore, under any scheme, the Board members were unconsitutionally appointed.

#PROMESA 686/