At Volokh Conspiracy, Will Baude discusses the PROMESA case (Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC), in which the Supreme Court recently granted certiorari. From the introduction:
Last February I noted that the First Circuit had invalidated the appointments to the Financial Oversight Management Board created by a statute called PROMESA to oversee the Puerto Rico bankruptcy. …
The basic problem is that under the statute, most of the board members are appointed by the President from a series of lists given to him by the Speaker of the House, the Senate Majority Leader, and the House and Senate Minority Leaders. Article II, Section 2 of the Constitution, by contrast, says that "officers of the United States" must be appointed by the President with the advice and consent of the Senate, or if they are "inferior officers," they can be vested in the President alone. The statute doesn't do either one.
Former students from my Constitutional Law course may recognize one of the issues in the appointments/removals question on a recent final exam.
But this case has an additional wrinkle, as Professor Baude explains, due to the setting in Puerto Rico:
First, territorial officers are not governed by the Appointments Clause I quoted above. That Clause applies only to offices "of the United States," while the officers (such as judges) of a territory or the Commonwealth of Puerto Rico exercise a different kind of power. They are officers "of the Commonwealth of Puerto Rico," or a particular territory and can exercise the executive/legislative/judicial power of that territory rather than of the United States. (I talk about this at pp. 10-20 of my draft on Adjudication Outside Article III.)
Second, I am simply unsure whether PROMESA board members are territorial officers. This turns, I think, on the scope of Congress's power over territories and the proper legislative jurisdiction of territorial officers, which I just don't know enough about. But I am pretty confident that this is the right question to determine whether the Appointments Clause applies.
Third, but even if PROMESA board members are territorial officers, not governed by the Appointments Clause, their appointment might still be unconstitutional. In particular, the involvement of individual members of Congress as a formal part of the appointments process raises a serious constitutional question.
(Plus more at the link).
Posted at 6:23 AM