Last week, I filed an amicus brief in the PROMESA case that the Supreme Court will be hearing on October 12. A summary of the brief’s arguments follows:

Taken to its logical conclusion, the First Circuit’s holding below would imperil self-rule in unincorporated territories. While the court tries to cabin its holding to members of the Financial Oversight and Management Board for Puerto Rico, the court’s logic sweeps far more broadly and would encompass many territorial officials, including those currently subject to popular election.

The First Circuit held that the members of the Oversight Board are “Officers of the United States” subject to the Appointments Clause of Article II, Section 2 of the U.S. Constitution. That status, the Court determined, stems from the fact that the members of the Oversight Board held continuing offices and exercised “significant authority” pursuant to the laws of the United States. Aurelius Investment, LLC, et al. v. Commonwealth of Puerto Rico, et al., 915 F.3d 838 at 856-57 (1st Cir. 2019). In making that determination, however, the Court failed to distinguish between members of the Oversight Board and many other territorial office-holders whose selection or appointment does not comport with the requirements of the Appointments Clause. This omission places territorial self-governance in doubt.

Even if one can distinguish between members of the Oversight Board and other members of the Puerto Rican government because of the island’s Commonwealth status, the First Circuit’s test also implicates the home rule of Guam and the United States Virgin Islands, which cannot claim the protection of that status for themselves. In light of these implications, the Court should carefully consider the results of the First Circuit’s reasoning so as not to strip U.S. territories of their longstanding self-governance.

The full brief can be found here.