Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC ( 2020 )

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(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD
FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 18–1334. Argued October 15, 2019—Decided June 1, 2020*
In 2016, in response to a fiscal crisis in Puerto Rico, Congress invoked its
Article IV power to “make all needful Rules and Regulations respecting
the Territory . . . belonging to the United States,” §3, cl. 2, to enact the
Puerto Rico Oversight, Management, and Economic Stability Act
(PROMESA). PROMESA created a Financial Oversight and Manage-
ment Board, whose seven voting members are to be appointed by the
President without the Senate’s advice and consent. Congress author-
ized the Board to file for bankruptcy on behalf of Puerto Rico or its
instrumentalities, to supervise and modify Puerto Rico’s laws and
budget, and to gather evidence and conduct investigations in support
of these efforts.
After President Obama selected the Board’s members, the Board
filed bankruptcy petitions on behalf of the Commonwealth and five of
its entities. Both court and Board had decided a number of matters
when several creditors moved to dismiss the proceedings on the ground
that the Board members’ selection violated the Constitution’s Appoint-
ments Clause, which says that the President “shall nominate, and by
——————
* Together with No. 18–1475, Aurelius Investment, LLC, et al. v. Com-
monwealth of Puerto Rico et al., No. 18–1496, Official Committee of Un-
secured Creditors of All Title III Debtors Other Than COFINA v. Aurelius
Investment, LLC, et al., No. 18–1514, United States v. Aurelius Invest-
ment, LLC, et al., and No. 18–1521, Unión de Trabajadores de la Indus-
tria Elećtrica y Riego, Inc. v. Financial Oversight and Management
Board for Puerto Rico et al., also on certiorari to the same court.
2 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
PUERTO RICO v. AURELIUS INVESTMENT, LLC
Syllabus
and with the Advice and Consent of the Senate, shall appoint . . . all
. . . Officers of the United States . . . .” Art. II, §2, cl. 2. The court de-
nied the motions, but the First Circuit reversed. It held that the Board
members’ selection violated the Appointments Clause but also con-
cluded that any Board actions taken prior to its decision were valid
under the “de facto officer” doctrine.
Held:
1. The Appointments Clause constrains the appointments power as
to all officers of the United States, even those who exercise power in or
in relation to Puerto Rico. The Constitution’s structure provides
strong reason to believe that this is so. The Appointments Clause re-
flects an allocation of responsibility, between President and Senate, in
cases involving appointment to high federal office. Concerned about
possible manipulation of appointments, the Founders both concen-
trated the appointment power and distributed it, ensuring that pri-
mary responsibility for important nominations would fall on the Pres-
ident while also ensuring that the Senate’s advice and consent power
would provide a check on that power. Other, similar structural con-
straints in the Constitution apply to all exercises of federal power, in-
cluding those related to Article IV entities. Cf., e.g., Metropolitan
Washington Airports Authority v. Citizens for Abatement of Aircraft
Noise, Inc., 501 U.S. 252, 270–271 (MWAA). The objectives advanced
by the Appointments Clause counsel strongly in favor of applying that
Clause to all officers of the United States, even those with powers and
duties related to Puerto Rico. Indeed, the Clause’s text firmly indicates
that it applies to the appointment of all “Officers of the United States.”
And history confirms this reading. Congress’ longstanding practice of
requiring the Senate’s advice and consent for territorial Governors
with important federal duties supports the inference that Congress ex-
pected the Appointments Clause to apply to at least some officials with
supervisory authority over the Territories. Pp. 5–9.
2. The Appointments Clause does not restrict the appointment or
selection of the Board members. Pp. 9–21.
(a) The Appointments Clause does not restrict the appointment of
local officers that Congress vests with primarily local duties. The
Clause’s language suggests a distinction between federal officers—who
exercise power of the National Government—and nonfederal officers—
who exercise power of some other government. Pursuant to Article I,
§8, cl. 17, and Article IV, §3, Congress has long legislated for entities
that are not States—the District of Columbia and the Territories. In
so doing, Congress has both made local law directly and also created
local government structures, staffed by local officials, who themselves
have made and enforced local law. This suggests that when Congress
Cite as: 590 U. S. ____ (2020) 3
Syllabus
creates local offices using these two unique powers, the officers exer-
cise power of the local government, not the Federal Government. His-
torical practice indicates that a federal law’s creation of an office does
not automatically make its holder an officer of the United States. Con-
gress has for more than two centuries created local offices for the Ter-
ritories and District of Columbia that are filled through election or
local executive appointment. And the history of Puerto Rico—whose
public officials with important local responsibilities have been selected
in ways that the Appointments Clause does not describe—is consistent
with the history of other entities that fall within Article IV’s scope and
with the history of the District of Columbia. This historical practice
indicates that when an officer of one of these local governments has
primarily local duties, he is not an officer of the United States within
the meaning of the Appointments Clause. Pp. 9–14.
(b) The Board members here have primarily local powers and du-
ties. PROMESA says that the Board is “an entity within the territorial
government” that “shall not be considered a department, agency, es-
tablishment, or instrumentality of the Federal Government,” §101(c),
130 Stat. 553, and Congress gave the Board a structure, duties, and
related powers that are consistent with this statement. The Board’s
broad investigatory powers—administering oaths, issuing subpoenas,
taking evidence, and demanding data from governments and creditors
alike—are backed by Puerto Rican, not federal, law. Its powers to
oversee the development of Puerto Rico’s fiscal and budgetary plans
are also quintessentially local. And in exercising its power to initiate
bankruptcy proceedings, the Board acts on behalf of, and in the inter-
ests of, Puerto Rico. Pp. 14–17.
(c) Buckley v. Valeo, 424 U.S. 1, Freytag v. Commissioner, 501
U.S. 868, and Lucia v. SEC, 585 U. S. ___, do not provide the relevant
legal test here, for each considered an Appointments Clause problem
concerning the importance or significance of duties that were indisput-
ably federal or national in nature. Nor do Lebron v. National Railroad
Passenger Corporation, 513 U.S. 374, or MWAA, 501 U.S. 252, help.
Lebron considered whether Amtrak was a governmental or a private
entity, but the fact that the Board is a Government entity does not
answer the “primarily local versus primarily federal” question. And
the MWAA Court expressly declined to address Appointments Clause
questions. However, the Court’s analysis in O’Donoghue v. United
States, 289 U.S. 516, and Palmore v. United States, 411 U.S. 389, does
provide a rough analogy. In O’Donoghue, the Court found that Article
III’s tenure and salary protections applied to judges of the District of
Columbia courts because those courts exercised the judicial power of
the United States. But the Court reached the seemingly opposite con-
4 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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Syllabus
clusion in Palmore, a case decided after Congress had altered the na-
ture of the District of Columbia local courts so that its judges adjudi-
cated primarily local issues. Pp. 17–21.
3. Given the conclusion reached here, there is no need to consider
whether to overrule the “Insular Cases” and their progeny, see, e.g.,
Downes v. Bidwell, 182 U.S. 244, 287, to consider the application of
the de facto officer doctrine, see Ryder v. United States, 515 U.S. 177,
or to decide questions about the application of the Federal Relations
Act and Public Law 600. Pp. 21–22.
915 F.3d 838, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and GINSBURG, ALITO, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined.
THOMAS, J., and SOTOMAYOR, J., filed opinions concurring in the judg-
ment.
Cite as: 590 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–1334, 18–1475, 18–1496, 18–1514 and 18–1521
_________________
FINANCIAL OVERSIGHT AND MANAGEMENT
BOARD FOR PUERTO RICO, PETITIONER
18–1334 v.
AURELIUS INVESTMENT, LLC, ET AL.
AURELIUS INVESTMENT, LLC, ET AL., PETITIONERS
18–1475 v.
COMMONWEALTH OF PUERTO RICO, ET AL.
OFFICIAL COMMITTEE OF UNSECURED CREDITORS
OF ALL TITLE III DEBTORS OTHER
THAN COFINA, PETITIONER
18–1496 v.
AURELIUS INVESTMENT, LLC, ET AL.
UNITED STATES, PETITIONER
18–1514 v.
AURELIUS INVESTMENT, LLC, ET AL.
UNIÓN DE TRABAJADORES DE LA INDUSTRIA
ELÉCTRICA Y RIEGO, INC., PETITIONER
18–1521 v.
FINANCIAL OVERSIGHT AND MANAGEMENT
BOARD FOR PUERTO RICO, ET AL.
2 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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Opinion of the Court
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 1, 2020]
JUSTICE BREYER delivered the opinion of the Court.
The Constitution’s Appointments Clause says that the
President
“shall nominate, and by and with the Advice and Con-
sent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States . . . .”
Art. II, §2, cl. 2 (emphasis added).
In 2016, Congress enacted the Puerto Rico Oversight, Man-
agement, and Economic Stability Act (PROMESA). 130
Stat. 549, 48 U.S. C. §2101 et seq. That Act created a Fi-
nancial Oversight and Management Board, and it provided,
as relevant here, that the President could appoint its seven
members without “the advice and consent of the Senate,”
i.e., without Senate confirmation.
The question before us is whether this method of appoint-
ment violates the Constitution’s Senate confirmation re-
quirement. In our view, the Appointments Clause governs
the appointments of all officers of the United States, includ-
ing those located in Puerto Rico. Yet two provisions of the
Constitution empower Congress to create local offices for
the District of Columbia and for Puerto Rico and the Terri-
tories. See Art. I, §8, cl. 17; Art. IV, §3, cl. 2. And the
Clause’s term “Officers of the United States” has never been
understood to cover those whose powers and duties are pri-
marily local in nature and derive from these two constitu-
tional provisions. The Board’s statutory responsibilities
consist of primarily local duties, namely, representing
Puerto Rico in bankruptcy proceedings and supervising as-
pects of Puerto Rico’s fiscal and budgetary policies. We
therefore find that the Board members are not “Officers of
Cite as: 590 U. S. ____ (2020) 3
Opinion of the Court
the United States.” For that reason, the Appointments
Clause does not dictate how the Board’s members must be
selected.
I
A
In 2006, tax advantages that had previously led major
businesses to invest in Puerto Rico expired. See Small
Business Job Protection Act of 1996, §1601, 110 Stat. 1827.
Many industries left the island. Emigration increased. And
the public debt of Puerto Rico’s government and its instru-
mentalities soared, rising from $39.2 billion in 2005 to $71
billion in 2016. See Dept. of Treasury, Puerto Rico’s Eco-
nomic and Fiscal Crisis 1, 3, https://www.treasury.gov/
connect/blog/Documents/Puerto_Ricos_fiscal_challenges.pdf;
GAO, U. S. Territories: Public Debt Outlook 12 (GAO–18–
160, 2017).
Puerto Rico found that it could not service that debt. Yet
Puerto Rico could not easily restructure it. The Federal
Bankruptcy Code’s municipality-related Chapter 9 did not
apply to Puerto Rico (or to the District of Columbia). See
11 U.S. C. §§109(c), 101(52). But at the same time, federal
bankruptcy law invalidated Puerto Rico’s own local “debt-
restructuring” statutes. Puerto Rico v. Franklin Cal. Tax-
Free Trust, 579 U. S. ___ (2016). In 2016, in response to
Puerto Rico’s fiscal crisis, Congress enacted PROMESA.
130 Stat. 549, 48 U.S. C. §2101 et seq.
PROMESA allows Puerto Rico and its entities to file for
federal bankruptcy protection. See §§301, 302, 130 Stat.
577, 579; cf. 11 U.S. C. §901 (related to bankruptcies of lo-
cal governments). The filing and subsequent proceedings
are to take place in the United States District Court for the
District of Puerto Rico, before a federal judge selected by
the Chief Justice of the United States. PROMESA §§307–
308, 130 Stat. 582. PROMESA also created the Financial
Oversight and Management Board—with seven members
4 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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Opinion of the Court
appointed by the President and with the Governor serving
as an ex officio member. §§101(b), (e), id., at 553, 554–555.
PROMESA gives the Board authority to file for bankruptcy
on behalf of Puerto Rico or its instrumentalities. §304(a),
id., at 579. The Board can supervise and modify Puerto
Rico’s laws (and budget) to “achieve fiscal responsibility and
access to the capital markets.” §201(b), id., at 564; see
§§201–207, id., at 563–575. And it can gather evidence and
conduct investigations in support of these efforts. §104, id.,
at 558–561.
As we have just said, PROMESA gives the President of
the United States the power to appoint the Board’s seven
members without Senate confirmation, so long as he selects
six from lists prepared by congressional leaders.
§101(e)(2)(A), id., at 554–555.
B
On August 31, 2016, President Obama selected the
Board’s seven members in the manner just described. The
Board established offices in Puerto Rico and New York, and
soon filed bankruptcy petitions on behalf of the Common-
wealth and (eventually) five Commonwealth entities. Title
III Petition in No. 17–BK–3283 (PR); see Order Pursuant
to PROMESA Section 304(g), No. 17–BK–3283 (PR, Oct. 9,
2019), Doc. 8829 (consolidating petitions filed on behalf of
the Commonwealth of Puerto Rico, the Puerto Rico Sales
Tax Financing Corporation, the Puerto Rico Highways and
Transportation Authority, the Employees Retirement Sys-
tem of the Government of the Commonwealth of Puerto
Rico, the Puerto Rico Electric Power Authority, and the
Puerto Rico Public Buildings Authority). And the Chief
Justice then selected a federal judge to serve as bankruptcy
judge for Puerto Rico. Designation of Presiding District
Judge, No. 17–BK–3283 (PR, May 5, 2017), Doc. 4.
After both court and Board had decided a number of mat-
ters, several creditors moved to dismiss all proceedings on
Cite as: 590 U. S. ____ (2020) 5
Opinion of the Court
the ground that the Board members’ selection violated the
Appointments Clause. The court denied the motions. See
In re Financial Oversight and Management Bd. of Puerto
Rico, 318 F. Supp. 3d 537, 556–557 (PR 2018). The credi-
tors appealed to the United States Court of Appeals for the
First Circuit. That court reversed. It held that the selec-
tion of the Board’s members violated the Appointments
Clause. 915 F.3d 838, 861 (2019). But it concluded that
those Board actions taken prior to its decision remained
valid under the “de facto officer” doctrine. Id., at 862–863;
see, e.g., McDowell v. United States, 159 U.S. 596, 601
(1895) (judicial decisions could not later be attacked on
ground that an unlawfully sitting judge presided); Ball v.
United States, 140 U.S. 118, 128–129 (1891) (same).
The Board, the United States, and various creditors then
filed petitions for certiorari in this Court, some arguing that
the appointments were constitutionally valid, others that
the de facto officer doctrine did not apply. Compare Pets.
for Cert. in Nos. 18–1334, 18–1496, 18–1514 with Pets. for
Cert. in Nos. 18–1475, 18–1521. In light of the importance
of the questions, we granted certiorari in all the petitions
and consolidated them for argument. 588 U. S. ___ (2019).
II
Congress created the Board pursuant to its power under
Article IV of the Constitution to “make all needful Rules
and Regulations respecting the Territory . . . belonging to
the United States.” §3, cl. 2; see PROMESA §101(b)(2), 130
Stat. 553. Some have argued in these cases that the Ap-
pointments Clause simply does not apply in the context of
Puerto Rico. But, like the Court of Appeals, we believe the
Appointments Clause restricts the appointment of all offic-
ers of the United States, including those who carry out their
powers and duties in or in relation to Puerto Rico.
The Constitution’s structure provides strong reason to be-
lieve that is so. The Constitution separates the three basic
6 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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Opinion of the Court
powers of Government—legislative, executive, and judi-
cial—with each branch serving different functions. But the
Constitution requires cooperation among the three
branches in specified areas. Thus, to become law, proposed
legislation requires the agreement of both Congress and the
President (or, a supermajority in Congress). See INS v.
Chadha, 462 U.S. 919, 955 (1983) (noting that the Consti-
tution prescribes only four specific actions that Congress
can take without bicameralism and presentment). At the
same time, legislation must be consistent with constitu-
tional constraints, and we usually look to the Judiciary as
the ultimate interpreter of those constraints.
The Appointments Clause reflects a similar allocation of
responsibility, between President and Senate, in cases in-
volving appointment to high federal office. That Clause re-
flects the Founders’ reaction to “one of [their] generation’s
greatest grievances against [pre-Revolutionary] executive
power,” the manipulation of appointments. Freytag v. Com-
missioner, 501 U.S. 868, 883 (1991); see also The Federalist
No. 76, p. 455 (C. Rossiter ed. 1961) (A. Hamilton) (the Ap-
pointments Clause helps to preserve democratic accounta-
bility). The Founders addressed their concerns with the ap-
pointment power by both concentrating it and distributing
it. On the one hand, they ensured that primary responsi-
bility for nominations would fall on the President, whom
they deemed “less vulnerable to interest-group pressure
and personal favoritism” than a collective body. Edmond v.
United States, 520 U.S. 651, 659 (1997). See also The Fed-
eralist No. 76, at 455 (“The sole and undivided responsibil-
ity of one man will naturally beget a livelier sense of duty
and a more exact regard to reputation”). On the other hand,
they ensured that the Senate’s advice and consent power
would provide “an excellent check upon a spirit of favorit-
ism in the President and a guard against the appointment
of unfit characters.” NLRB v. SW General, Inc., 580 U. S.
___, ___ (2017) (slip op., at 2) (internal quotation marks
Cite as: 590 U. S. ____ (2020) 7
Opinion of the Court
omitted). By “limiting the appointment power” in this fash-
ion, the Clause helps to “ensure that those who wielded [the
appointments power] were accountable to political force
and the will of the people.” Freytag, supra, at 884; see also
Edmond, 520 U.S., at 659. “The blame of a bad nomination
would fall upon the president singly and absolutely,” while
“[t]he censure of rejecting a good one would lie entirely at
the door of the senate.” Id., at 660 (internal quotation
marks omitted).
These other structural constraints, designed in part to
ensure political accountability, apply to all exercises of fed-
eral power, including those related to Article IV entities.
Cf., e.g., Metropolitan Washington Airports Authority v. Cit-
izens for Abatement of Aircraft Noise, Inc., 501 U.S. 252,
270–271 (1991) (MWAA) (separation-of-powers principles
apply when Congress acts under its Article IV power to leg-
islate “respecting . . . other Property”). See also, e.g., Act of
Aug. 7, 1789, ch. 8, 1 Stat. 50 (the First Congress using bi-
cameralism and presentment to make rules and regulations
for the Northwest Territory). The objectives advanced by
the Appointments Clause counsel strongly in favor of that
Clause applying to the appointment of all “Officers of the
United States.” Why should it be different when such an
officer’s duties relate to Puerto Rico or other Article IV en-
tities?
Indeed, the Appointments Clause has no Article IV ex-
ception. The Clause says in part that the President
“shall nominate, and by and with the Advice and Con-
sent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States,
whose Appointments . . . shall be established by Law
. . . .” Art. II, §2, cl. 2.
That text firmly indicates that it applies to the appointment
of all “Officers of the United States.” And history confirms
8 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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Opinion of the Court
this reading. Before the writing of the Constitution, Con-
gress had enacted an ordinance that allowed Congress to
appoint officers to govern the Northwest Territory. As soon
as the Constitution became law, the First Congress
“adapt[ed]” that ordinance “to the present Constitution of
the United States,” Act of Aug. 7, 1789, 1 Stat. 51, in large
part by providing for an appointment process consistent
with the constraints of the Appointments Clause. In par-
ticular, it provided for a Presidential-appointment, Senate-
confirmation process for high-level territorial appointees
who assumed federal, as well as local, duties. See id., at 52,
n. (a); §1, id., at 53 (appointment by President, and confir-
mation by Senate, of Governor, secretary, and members of
the upper house); Act of Sept. 11, 1789, ch. 13, §1, 1 Stat.
68 (Governor “discharg[ed]” the federal “duties of superin-
tendent of Indian affairs”). Later Congresses took a similar
approach to later territorial Governors with federal duties.
See Act of June 6, 1900, §10, 31 Stat. 325 (appointment of
Governor of Territory of Alaska by President with confir-
mation by Senate); §2, id., at 322 (federal duties of Alaska
territorial Governor include entering into contracts in name
of the United States and granting reprieves for federal of-
fenses); Act of Mar. 2, 1819, §§3, 10, 3 Stat. 494, 495 (similar
for Governor of Arkansas). We do not mean to suggest that
every time Congress chooses to require advice and consent
procedures it does so because they are constitutionally re-
quired. At times, Congress may wish to require Senate con-
firmation for policy reasons. Even so, Congress’ practice of
requiring advice and consent for these Governors with im-
portant federal duties supports the inference that Congress
expected the Appointments Clause to apply to at least some
officials with supervisory authority over the Territories.
Given the Constitution’s structure, this history, roughly
analogous case law, and the absence of any conflicting au-
thority, we conclude that the Appointments Clause con-
strains the appointments power as to all “Officers of the
Cite as: 590 U. S. ____ (2020) 9
Opinion of the Court
United States,” even when those officers exercise power in
or related to Puerto Rico.
III
A
The more difficult question before us is whether the
Board members are officers of the United States such that
the Appointments Clause requires Senate confirmation. If
they are not officers of the United States, but instead are
some other type of officer, the Appointments Clause says
nothing about them. (No one suggests that they are “Am-
bassadors,” “other public Ministers and Consuls,” or
“Judges of the supreme Court.”) And as we shall see, the
answer to this question turns on whether the Board mem-
bers have primarily local powers and duties.
The language at issue does not offer us much guidance for
understanding the key term “of the United States.” The
text suggests a distinction between federal officers—offic-
ers exercising power of the National Government—and
nonfederal officers—officers exercising power of some other
government. The Constitution envisions a federalist struc-
ture, with the National Government exercising limited fed-
eral power and other, local governments—usually state
governments—exercising more expansive power. But the
Constitution recognizes that for certain localities, there will
be no state government capable of exercising local power.
Thus, two provisions of the Constitution, Article I, §8, cl. 17,
and Article IV, §3, cl. 2, give Congress the power to legislate
for those localities in ways “that would exceed its powers,
or at least would be very unusual” in other contexts. Pal-
more v. United States, 411 U.S. 389, 398 (1973). Using
these powers, Congress has long legislated for entities that
are not States—the District of Columbia and the Territo-
ries. See District of Columbia v. John R. Thompson Co.,
346 U.S. 100, 104–106 (1953). And, in doing so, Congress
has both made local law directly and also created structures
10 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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of local government, staffed by local officials, who them-
selves have made and enforced local law. Compare, e.g., Act
of Mar. 2, 1962, §401, 76 Stat. 17 (changing D. C. liquor tax
from $1.25 per gallon to $1.50 per gallon), with District of
Columbia Self-Government and Governmental Reorganiza-
tion Act, 87 Stat. 774 (giving local D. C. government pri-
mary legislative control over local matters). This structure
suggests that when Congress creates local offices using
these two unique powers, the officers exercise power of the
local government, not the Federal Government. Cf. Ameri-
can Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 (1828)
(Marshall, C. J.) (territorial courts may exercise the judicial
power of the Territories without the life tenure and salary
protections mandated by Article III for federal judges); Cin-
cinnati Soap Co. v. United States, 301 U.S. 308, 323 (1937)
(territorial legislators may exercise the legislative power of
the Territories without violating the nondelegation doc-
trine).
History confirms what the Constitution’s text and struc-
ture suggest. See NLRB v. Noel Canning, 573 U.S. 513,
524 (2014) (relying on history and structure in interpreting
the Recess Appointments Clause). See also McCulloch v.
Maryland, 4 Wheat. 316, 401 (1819) (emphasizing the util-
ity of historical practice in interpreting constitutional pro-
visions). Longstanding practice indicates that a federal
law’s creation of an office in this context does not automat-
ically make its holder an “Officer of the United States.” Ra-
ther, Congress has often used these two provisions to create
local offices filled in ways other than those specified in the
Appointments Clause. When the First Congress legislated
for the Northwest Territories, for example, it created a
House of Representatives for the Territory with members
selected by election. It also created an upper house of the
territorial legislature, whose members were appointed by
the President (without Senate confirmation) from lists pro-
Cite as: 590 U. S. ____ (2020) 11
Opinion of the Court
vided by the elected, lower house. And it created magis-
trates appointed by the Governor. See Act of Aug. 7, 1789,
1 Stat. 51, n. (a).
The practice of creating by federal law local offices for the
Territories and District of Columbia that are filled through
election or local executive appointment has continued una-
bated for more than two centuries. See, e.g., ibid. (North-
west Territories local offices filled by election); Act of Apr.
7, 1798, §3, 1 Stat. 550 (Mississippi, same); Act of May 7,
1800, §2, 2 Stat. 59 (Indiana, same); Act of May 15, 1820,
§3, 3 Stat. 584 (District of Columbia, same); Act of Apr. 30,
1900, §13, 31 Stat. 144 (Hawaii, same); Act of Aug. 24, 1912,
§4, 37 Stat. 513 (Alaska, same); Act of Aug. 23, 1968, §4, 82
Stat. 837 (Virgin Islands, same); Act of Sept. 11, 1968, Pub.
L. 90–497, §1, 82 Stat. 842 (Guam, same); Act of May 4,
1812, §3, 2 Stat. 723 (D. C. mayor appoints “all offices”); Act
of June 4, 1812, §2, 2 Stat. 744 (Missouri Governor, similar);
Act of Mar. 2, 1819, §3, 3 Stat. 494 (Arkansas, similar); Act
of June 6, 1900, §2, 31 Stat. 322 (Alaska, similar); Act of
Sept. 11, 1968, §1, 82 Stat. 843 (Guam, similar). Like
JUSTICE THOMAS, post, at 6 (opinion concurring in judg-
ment), we think the practice of the First Congress is strong
evidence of the original meaning of the Constitution. We
find this subsequent history similarly illuminates the text’s
meaning.
Puerto Rico’s history is no different. It reveals a
longstanding practice of selecting public officials with im-
portant local responsibilities in ways that the Appoint-
ments Clause does not describe. In 1898, at the end of the
Spanish-American War, the United States took responsibil-
ity for determining the civil rights of Puerto Ricans as well
as Puerto Rico’s political status. Treaty of Paris, Art. 9,
Dec. 10, 1898, 30 Stat. 1759. In 1900, the Foraker Act pro-
vided for Presidential appointment (with Senate confirma-
tion) of Puerto Rico’s Governor, the heads of six depart-
ments, the legislature’s upper house, and the justices of its
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high court. Organic Act of 1900, §§ 17, 18, 33, 31 Stat. 81,
84. But it also provided for the selection, through popular
election, of a lower legislative house with the power (subject
to upper house concurrence) to “alter, amend, modify, and
repeal any and all laws . . . of every character.” §§27, 32,
id., at 82, 84. There is no indication that anyone thought
members of the lower house, wielding important local re-
sponsibilities, were “Officers of the United States.”
Congress replaced the Foraker Act with the Jones Act in
1917. Organic Act of Puerto Rico, ch. 145, 39 Stat. 951. Un-
der the Jones Act the Puerto Rican Senate was elected and
consequently no longer satisfied the Appointments Clause
criteria. See §26, id., at 958. Similarly, the Governor of
Puerto Rico nominated four cabinet members, confirmed by
the Senate of Puerto Rico. §13, id., at 955–956. The elected
legislature retained “all local legislative powers,” including
the power to appropriate funds. §§ 25, 34, 37, id., at 958,
962, 964.
Congress amended the Jones Act in 1947 to provide for
an elected Governor of Puerto Rico, and granted that Gov-
ernor the power to appoint all cabinet officials. See Act of
Aug. 5, 1947, ch. 490, §§ 1, 3, 61 Stat. 770, 771. The Presi-
dent retained the power to appoint (with Federal Senate
confirmation) judges, an auditor, and the new office of Co-
ordinator of Federal Agencies, who was to supervise federal
functions in Puerto Rico and recommend to higher federal
officials ways to improve the quality of federal services. §6,
id., at 772.
In 1950, Congress enacted Public Law 600, “in the nature
of a compact” with Puerto Rico and subject to approval by
the voters of Puerto Rico. Act of July 3, 1950, ch. 446, §§1,
2, 64 Stat. 319. The Act adopted the Jones Act, as amended,
as the Puerto Rican Federal Relations Act, and provided for
the Jones Act’s substantial (but not complete) repeal upon
the effective adoption of a contemplated Puerto Rican con-
stitution. §§4, 5, id., at 319–320. Among the provisions of
Cite as: 590 U. S. ____ (2020) 13
Opinion of the Court
the Jones Act that Public Law 600 retained were several
related to Puerto Rico’s public debt. Congress retained, for
example, the triple-tax-exempt nature of Puerto Rican
bonds. Jones Act, §3, 39 Stat. 953. It also retained a (later
repealed) cap on the amount of public debt Puerto Rico or
its subdivisions could accumulate. Ibid. In a public refer-
endum, the citizens of Puerto Rico approved Public Law
600—including the limits on debt in §3 of the Federal Rela-
tions Act—and then began the constitution-making pro-
cess. Pub. L. 600, §§2, 3, 64 Stat. 319; see Act of July 3,
1952, 66 Stat. 327; A. Fernós-Isern, Original Intent in the
Constitution of Puerto Rico 13 (2d ed. 2002).
Puerto Rico’s popularly ratified Constitution, which Con-
gress accepted with a few fairly minor changes, does not in-
volve the President or the Senate in the appointment pro-
cess for local officials. That Constitution provides for the
election of Puerto Rico’s Governor and legislators. Art. III,
§1; Art. IV, §1. And it provides for gubernatorial appoint-
ment (and Puerto Rican Senate confirmation) of cabinet of-
ficers. Art. IV, §5.
The upshot is that Puerto Rico’s history reflects long-
standing use of various methods for selecting officials with
primarily local responsibilities. This history is consistent
with the history of other entities that fall within the scope
of Article IV and with the history of the District of Colum-
bia. See supra, at 10–11. And it comports with our prece-
dents, which have long acknowledged that Congress may
structure local governments under Article IV and Article I
in ways that do not precisely mirror the constitutional blue-
print for the National Government. See, e.g., Benner v. Por-
ter, 9 How. 235, 242 (1850). Cf. Glidden Co. v. Zdanok, 370
U.S. 530, 546 (1962) (plurality opinion) (recognizing that
local governments created by Congress could, like govern-
ments of the States, “dispense with protections deemed in-
herent in a separation of governmental powers”). Some-
times Congress has specified the use of methods that would
14 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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satisfy the Appointments Clause, other times it has speci-
fied methods that would not satisfy the Appointments
Clause, including elections and appointment by local offi-
cials. Officials with primarily local duties have often fallen
into the latter categories. We know of no case endorsing an
Appointments Clause based challenge to such selection
methods. Indeed, to read Appointments Clause constraints
as binding Puerto Rican officials with primarily local duties
would work havoc with Puerto Rico’s (federally ratified)
democratic methods for selecting many of its officials.
We thus conclude that while the Appointments Clause
does restrict the appointment of “Officers of the United
States” with duties in or related to the District of Columbia
or an Article IV entity, it does not restrict the appointment
of local officers that Congress vests with primarily local du-
ties under Article IV, §3, or Article I, §8, cl. 17.
B
The question remains whether the Board members have
primarily local powers and duties. We note that the Clause
qualifies the phrase “Officers of the United States” with the
words “whose Appointments . . . shall be established by
Law.” And we also note that PROMESA says that the
Board is “an entity within the territorial government” and
“shall not be considered a department, agency, establish-
ment, or instrumentality of the Federal Government.”
§101(c), 130 Stat. 553. But the most these words show is
that Congress did not intend to make the Board members
“Officers of the United States.” It does not prove that, inso-
far as the Constitution is concerned, they succeeded.
But we think they have. Congress did not simply state
that the Board is part of the local Puerto Rican government.
Rather, Congress also gave the Board a structure, a set of
duties, and related powers all of which are consistent with
this statement.
Cite as: 590 U. S. ____ (2020) 15
Opinion of the Court
The government of Puerto Rico pays the Board’s ex-
penses, including the salaries of its employees (the mem-
bers serve without pay). §107, id., at 562; see §101(g), id.,
at 556. The Board possesses investigatory powers. It can
hold hearings. §104(a), id., at 558. It can issue subpoenas,
subject to Puerto Rico’s limits on personal jurisdiction and
enforceable under Puerto Rico’s laws. §104(f ), id., at 559.
And it can enforce those subpoenas in (and only in) Puerto
Rico’s courts. §§104(f )(2), 106(a), id., at 559, 562.
From its own offices in or outside of Puerto Rico, the
Board works with the elected government of Puerto Rico to
develop a fiscal plan that provides “a method to achieve fis-
cal responsibility and access to the capital markets.”
§201(b), id., at 564. If it finds it necessary, the Board can
develop its own budget for Puerto Rico which is “deemed . . .
approved” and becomes the operative budget. §202(e)(3),
id., at 568. It can ensure compliance with the plan and
budget by reviewing the Puerto Rico government’s laws and
spending and by “direct[ing]” corrections or taking “such
[other] actions as it considers necessary,” including pre-
venting a law from taking effect. §§203(d), 204(a), id., at
569, 571. The Board controls the issuance of new debt for
Puerto Rico. §207, id., at 575.
The Board also may initiate bankruptcy proceedings for
Puerto Rico or its instrumentalities. §304(a), id., at 579. It
may take any related “action necessary on behalf of,” and it
serves as “the representative of,” Puerto Rico or its instru-
mentalities. §315, id., at 584. These proceedings take place
in the U. S. District Court for Puerto Rico. §307, id., at 582.
To repeat: The Board has broad investigatory powers: It
can administer oaths, issue subpoenas, take evidence and
demand data from governments and creditors alike. But
these powers are backed by Puerto Rican, not federal, law:
Subpoenas are governed by Puerto Rico’s personal jurisdic-
tion statute; false testimony is punishable under the law of
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Opinion of the Court
Puerto Rico; the Board must seek enforcement of its sub-
poenas by filing in the courts of Puerto Rico. See §104, id.,
at 558–561. These powers are primarily local in nature.
The Board also oversees the development of Puerto Rico’s
fiscal and budgetary plans. It receives and evaluates pro-
posals from the elected Governor and legislature. It can
create a budget “deemed” to be that of Puerto Rico. It can
intervene when budgetary constraints are violated. And it
has authority over the issuance of new debt. §§201–207,
id., at 563–575. These powers, too, are quintessentially lo-
cal. Each concerns the finances of the Commonwealth, not
of the United States. The Board members in this respect
discharge duties ordinarily held by local officials.
Last, the Board has the power to initiate bankruptcy pro-
ceedings. But in doing so, it acts not on behalf of the United
States, but on behalf of, and in the interests of, Puerto Rico.
The proceedings take place in federal court; but the same is
true of all persons or entities who seek bankruptcy protec-
tion. The Board here acts as a local government that might
take precisely the same actions. See, e.g., 11 U.S. C.
§§109(c), 921 (related to bankruptcies of local govern-
ments).
Some Board actions, of course, may have nationwide con-
sequences. But the same can be said of many actions taken
by many Governors or other local officials. Taking actions
with nationwide consequences does not automatically
transform a local official into an “Officer of the United
States.” The challengers rely most heavily on the nation-
wide effects of the bankruptcy proceedings. E.g., Brief for
Aurelius et al. 31; Brief for Petitioner Unión de Trabaja-
dores de la Industria Eléctrica y Riego, Inc. (UTIER) 49.
But the same might be said of any major municipal, or even
corporate, bankruptcy. E.g., In re Detroit, 504 B.R. 97
(Bkrtcy. Ct. ED Mich. 2013) (restructuring $18 billion in
municipal debt).
Cite as: 590 U. S. ____ (2020) 17
Opinion of the Court
In short, the Board possesses considerable power—in-
cluding the authority to substitute its own judgment for the
considered judgment of the Governor and other elected offi-
cials. But this power primarily concerns local matters.
Congress’ law thus substitutes a different process for deter-
mining certain local policies (related to local fiscal respon-
sibility) in respect to local matters. And that is the critical
point for current purposes. The local nature of the legisla-
tion’s expressed purposes, the representation of local inter-
ests in bankruptcy proceedings, the focus of the Board’s
powers upon local expenditures, the local logistical support,
the reliance on local laws in aid of the Board’s procedural
powers—all these features when taken together and judged
in the light of Puerto Rico’s history (and that of the Territo-
ries and the District of Columbia)—make clear that the
Board’s members have primarily local duties, such that
their selection is not subject to the constraints of the Ap-
pointments Clause.
IV
The Court of Appeals, pointing to three of this Court’s
cases, reached the opposite conclusion. See Buckley v.
Valeo, 424 U.S. 1 (1976) (per curiam), Freytag v. Commis-
sioner, 501 U.S. 868, and Lucia v. SEC, 585 U. S. ___
(2018). It pointed out that the Court, in those cases, dis-
cussed the term “Officer of the United States,” and it con-
cluded that, for Appointments Clause purposes, an appoin-
tee is such an “officer” if “(1) the appointee occupies a
‘continuing’ position established by federal law; (2) the ap-
pointee ‘exercis[es] significant authority’; and (3) the signif-
icant authority is exercised ‘pursuant to the laws of the
United States.’ ” 915 F.3d, at 856. The Court of Appeals
concluded that the Board members satisfied this test. See
id., at 856–857.
We do not believe these three cases set forth the critical
legal test relevant here, however, and we do not apply any
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Opinion of the Court
test they might enunciate. Each of the cases considered an
Appointments Clause problem concerning the importance
or significance of duties that were indisputably federal or
national in nature. In Buckley, the question was whether
members of the Federal Election Commission—appointees
carrying out federal-election related duties—were “officers”
for Appointments Clause purposes. In Freytag, the Court
asked the same question about special federal trial judges
serving on federal tax courts. And in Lucia the Court asked
the same question about federal administrative law judges
carrying out Securities and Exchange Commission duties.
Here, PROMESA, a federal law, creates the Board and its
duties, and no one doubts their significance. But we cannot
stop there. To do so would ignore the history we have dis-
cussed—history stretching back to the founding. See supra,
at 10–13. And failing to take account of the nature of an
appointee’s federally created duties, i.e., whether they are
primarily local versus primarily federal, would threaten in-
terference with democratic (or local appointment) selection
methods in numerous Article IV Territories and perhaps
the District of Columbia as well. See, e.g., 48 U.S. C. §1422
(providing for an elected Governor of Guam); §1591 (same
for Virgin Islands); District of Columbia Self-Government
Act, §421, 87 Stat. 789 (same for D. C. Mayor); §422(2), 87
Stat. 790 (describing D. C. Mayor’s appointment powers);
48 U.S. C. §1422c (same for Guam’s Governor); §1597(c)
(same for Virgin Islands). There is no reason to understand
the Appointments Clause—which, at least in part, seeks to
advance democratic accountability and broaden appoint-
ments-related responsibility, see supra, at 6–7—as making
it significantly more difficult for local residents of such ar-
eas to share responsibility for the implementation of (stat-
utorily created) primarily local duties. Neither the text nor
the history of the Clause commands such a result.
Neither do Lebron v. National Railroad Passenger Corpo-
ration, 513 U.S. 374 (1995), or MWAA, 501 U.S. 252, help
Cite as: 590 U. S. ____ (2020) 19
Opinion of the Court
those challenging the Board’s constitutional legitimacy.
Lebron considered whether, for First Amendment purposes,
Amtrak was a governmental or a private entity. 513 U.S.,
at 379. All here agree that the Board is a Government en-
tity, but that fact does not answer the “primarily local ver-
sus primarily federal” question. In MWAA, the Court held
that separation-of-powers principles forbid Members of
Congress to become members of a board that controls fed-
erally owned airports. 501 U.S., at 275–276 (relying on
Bowsher v. Synar, 478 U.S. 714, 726 (1986), and INS v.
Chadha, 462 U.S. 919, 952 (1983)). The Court expressly
declined to answer any question related to the Appoint-
ments Clause. 501 U.S., at 277, n. 23.
While we have found no case from this Court directly on
point, we believe that the Court’s analysis in O’Donoghue v.
United States, 289 U.S. 516 (1933), and especially Palmore
v. United States, 411 U.S. 389, provides a rough analogy.
In O’Donoghue, the Court considered whether Article III’s
tenure and salary protections applied to judges of the courts
in the District of Columbia. The Court held that they did.
Those courts, it believed, were “ ‘courts of the United
States’ ” and “recipients of the judicial power of the United
States.” 289 U.S., at 546, 548. The judges’ salaries conse-
quently could not be reduced. Id., at 551.
In Palmore, however, the Court reached what might seem
the precisely opposite conclusion. A criminal defendant, in-
voking O’Donoghue, argued that the D. C. Superior Court
Judge could not constitutionally preside over the case be-
cause the judge lacked Article III’s tenure protection,
namely, life tenure. Palmore, supra, at 390. But the Court
rejected the defendant’s argument. Why? How did it ex-
plain O’Donoghue?
The difference, said the Court, lies in the fact that, in the
meantime, Congress had changed the nature of the District
of Columbia court. Palmore, supra, at 406–407; see District
of Columbia Court Reform and Criminal Procedure Act of
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1970, 84 Stat. 473. Congress changed what had been a uni-
fied court system where judges adjudicated both local and
federal issues into separate court systems, in one of which
judges adjudicated primarily local issues. §111, id., at 475.
Courts in that category had criminal jurisdiction over only
those cases brought “ ‘under any law applicable exclusively
to the District of Columbia.’ ” Id., at 486. Its judges served
for 15-year terms. Id., at 491.
This Court, in Palmore, considered a local judge presiding
over a local court. Congress had created that court in the
exercise of its Article I power to “exercise exclusive Legisla-
tion in all Cases whatsoever” over the District of Columbia.
See Art I, §8, cl. 17. The “focus” of these courts was “pri-
marily upon . . . matters of strictly local concern.” 411 U.S.,
at 407. Hence, the nature of those courts was a “far cry”
from that of the courts at issue in O’Donoghue. Palmore,
411 U.S., at 406.
The Court added that Congress had created non-Article
III courts under its Article IV powers. It wrote that Con-
gress could also create non-Article III courts under its Arti-
cle I powers. Id., at 403, 410. And it held that judges serv-
ing on those non-Article III courts lacked Article III
protections. Id., at 410.
Palmore concerned Article I of the Constitution, not Arti-
cle IV. And it concerned “the judicial Power of the United
States,” not “Officers of the United States.” But it provides
a rough analogy. It holds that Article III protections do not
apply to an Article I court “focus[ed],” unlike the courts at
issue in O’Donoghue, primarily on local matters. Here,
Congress expressly invoked a constitutional provision al-
lowing it to make local debt-related law (Article IV); it ex-
pressly located the Board within the local government of
Puerto Rico; it clearly indicated that it intended the Board’s
members to be local officials; and it gave them primarily
local powers, duties, and responsibilities.
In his concurring opinion, JUSTICE THOMAS criticizes the
Cite as: 590 U. S. ____ (2020) 21
Opinion of the Court
inquiry we set out—whether an officer’s duties are primar-
ily local or primarily federal—as too “amorphous,” post, at
10. But we think this is the test established by the Consti-
tution’s text, as illuminated by historical practice. And we
cannot see how Congress could avoid the strictures of the
Appointments Clause by adding to a federal officer’s other
obligations a large number of local duties. Indeed, we think
that our test, tied as it is to both the text and the history of
the Appointments Clause, is more rigorous than the bare
inquiry into the “nature” of the officer’s authority that
JUSTICE THOMAS proposes, and we believe it is more faith-
ful to the Clause’s original meaning. Ibid.
V
We conclude, for the reasons stated, that the Constitu-
tion’s Appointments Clause applies to the appointment of
officers of the United States with powers and duties in and
in relation to Puerto Rico, but that the congressionally man-
dated process for selecting members of the Financial Over-
sight and Management Board for Puerto Rico does not vio-
late that Clause. Given this conclusion, we need not
consider the request by some of the parties that we overrule
the much-criticized “Insular Cases” and their progeny. See,
e.g., Downes v. Bidwell, 182 U.S. 244, 287 (1901) (opinion
of Brown, J.); Balzac v. Porto Rico, 258 U.S. 298, 309
(1922); Reid v. Covert, 354 U.S. 1, 14 (1957) (plurality opin-
ion) (indicating that the Insular Cases should not be further
extended); see also Brief for Official Committee of Unse-
cured Creditors of All Title III Debtors (Other than
COFINA) 20–25 (arguing that the Insular Cases support
reversal on the Appointments Clause issue); Brief for
UTIER 64–66 (encouraging us to overrule the Insular
Cases); Brief for Virgin Islands Bar Association as Amicus
Curiae 13–18 (same); Cabranes, Citizenship and the Amer-
ican Empire, 127 U. Pa. L. Rev. 391, 436–442 (1978) (criti-
cizing the Insular Cases); Littlefield, The Insular Cases, 15
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Opinion of the Court
Harv. L. Rev. 169 (1901) (same). Those cases did not reach
this issue, and whatever their continued validity we will not
extend them in these cases. See Reid, supra, at 14.
Neither, since we hold the appointment method valid,
need we consider the application of the de facto officer doc-
trine. See Ryder v. United States, 515 U.S. 177 (1995) (dis-
cussing the doctrine); see also, e.g., Brief for Aurelius et al.
48–69 (arguing the doctrine does not apply in this context);
Brief for UTIER 69–85 (same); Reply Brief for United
States 26–47 (insisting to the contrary); Brief for Cross-Re-
spondent COFINA Senior Bondholders’ Coalition 14–46
(same).
Finally, as JUSTICE SOTOMAYOR recognizes, post, at 8
(opinion concurring in judgment), we need not, and there-
fore do not, decide questions concerning the application of
the Federal Relations Act and Public Law 600. No party
has argued that those Acts bear any significant relation to
the answer to the Appointments Clause question now be-
fore us.
For these reasons, we reverse the judgment of the Court
of Appeals and remand the cases for further proceedings
consistent with this opinion.
It is so ordered.
Cite as: 590 U. S. ____ (2020) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–1334, 18–1475, 18–1496, 18–1514 and 18–1521
_________________
FINANCIAL OVERSIGHT AND MANAGEMENT
BOARD FOR PUERTO RICO, PETITIONER
18–1334 v.
AURELIUS INVESTMENT, LLC, ET AL.
AURELIUS INVESTMENT, LLC, ET AL., PETITIONERS
18–1475 v.
COMMONWEALTH OF PUERTO RICO, ET AL.
OFFICIAL COMMITTEE OF UNSECURED CREDITORS
OF ALL TITLE III DEBTORS OTHER
THAN COFINA, PETITIONER
18–1496 v.
AURELIUS INVESTMENT, LLC, ET AL.
UNITED STATES, PETITIONER
18–1514 v.
AURELIUS INVESTMENT, LLC, ET AL.
UNIÓN DE TRABAJADORES DE LA INDUSTRIA
ELÉCTRICA Y RIEGO, INC., PETITIONER
18–1521 v.
FINANCIAL OVERSIGHT AND MANAGEMENT
BOARD FOR PUERTO RICO, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 1, 2020]
JUSTICE THOMAS, concurring in the judgment.
2 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
PUERTO RICO v. AURELIUS INVESTMENT, LLC
THOMAS, J., concurring in judgment
The Court reaches the right conclusion: The appointment
process for members of the Financial Oversight and Man-
agement Board for Puerto Rico (Board) does not violate the
Appointments Clause. I cannot agree, however, with the
ill-defined path that the Court takes to reach this result. I
would resolve these cases based on the original public
meaning of the phrase “Officers of the United States” in the
Appointments Clause.
I
The Appointments Clause provides that the President
“shall nominate, and by and with the Advice and Consent
of the Senate, shall appoint Ambassadors, other public Min-
isters and Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose Appointments
are not herein otherwise provided for, and which shall be
established by Law.” Art. II, §2, cl. 2. The Clause also per-
mits Congress to vest the appointment of “inferior Officers”
in “the President alone,” “the Courts of Law,” or “the Heads
of Departments.” Ibid.
As I have previously explained, the original public mean-
ing of the phrase “Officers of the United States” includes
“all federal civil officials who perform an ongoing, statutory
duty.” Lucia v. SEC, 585 U. S. ___, ___ (2018) (THOMAS, J.,
concurring) (slip op., at 2) (citing Mascott, Who Are “Offic-
ers of the United States”? 70 Stan. L. Rev. 443, 454 (2018)
(Mascott)). At the founding, the term “officer” referred to
“anyone who performed a continuous public duty.” 585
U. S., at ___ (slip op., at 3). And the phrase “of the United
States” limited the Appointments Clause to “federal” offic-
ers. Ibid.; see Mascott 471–479.
II
Territorial officials performing duties created under Ar-
ticle IV of the Constitution are not federal officers within
Cite as: 590 U. S. ____ (2020) 3
THOMAS, J., concurring in judgment
the original meaning of the phrase “Officers of the United
States.” Since the founding, this Court has recognized a
distinction between Article IV power and the powers of the
National Government in Articles I, II, and III. The found-
ing generation understood the phrase “Officers of the
United States” to refer to officers exercising the powers of
the National Government, not officers solely exercising Ar-
ticle IV territorial power. Because the Board’s members
perform duties pursuant to Article IV, they do not qualify
as “Officers of the United States.”
A
The Territory Clause of Article IV provides Congress the
“Power to dispose of and make all needful Rules and Regu-
lations respecting the Territory . . . belonging to the United
States.” §3, cl. 2. This power is “absolute and undisputed.”
Sere v. Pitot, 6 Cranch 332, 337 (1810). Congress has “full
and complete legislative authority over the people of the
Territories and all the departments of the territorial gov-
ernments.” National Bank v. County of Yankton, 101 U.S.
129, 133 (1880).
“No one has ever doubted the authority of congress to
erect territorial governments within the territory of the
United States, under the general language of the clause, ‘to
make all needful rules and regulations.’ ” 3 J. Story, Com-
mentaries on the Constitution of the United States §1319,
p. 195 (1833). These governments are “the creations, exclu-
sively, of [Congress], and subject to its supervision and con-
trol.” Benner v. Porter, 9 How. 235, 242 (1850).1
——————
1 The Court of Appeals attempted to draw a distinction between power
exercised pursuant to territorial laws enacted by Congress and power
exercised pursuant to territorial laws enacted by a territorial legislature.
There is no meaningful distinction in this context. While the legislature
of the Territory may establish laws for the Territories, Article IV remains
the “ultimate source” of territorial power. Puerto Rico v. Sánchez Valle,
4 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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THOMAS, J., concurring in judgment
Because territorial governments “are not organized un-
der the Constitution,” they are not “subject to its complex
distribution of the powers of government.” Ibid. Congress
may give Territories “a legislative, an executive, and a judi-
ciary, with such powers as it has been their will to assign.”
Sere, 6 Cranch, at 337. And, since the founding, Congress
has done so in ways that do not comport with the Constitu-
tion’s restrictions on the National Government. For exam-
ple, Congress has delegated Article IV legislative authority
to territorial officials and legislatures,2 which it could not
——————
579 U. S. ___, ___ (2016) (slip op., at 15) (internal quotation marks omit-
ted). Congress is the source of the “entire dominion and sovereignty” of
a Territory, Simms v. Simms, 175 U.S. 162, 168 (1899), and therefore
all territorial laws, whether congressionally enacted or territorially en-
acted, derive from Article IV, Sánchez Valle, 579 U. S., at ___ (slip op., at
15) (recognizing that the “most immediate source of [the] authority” does
not change the nature of the power exercised).
2 See, e.g., Act of Aug. 7, 1789, 1 Stat. 51, and n. (a) (Northwest Terri-
tory); Act of May 26, 1790, ch. 14, §1, 1 Stat. 123 (Southwest Territory);
Act of Apr. 7, 1798, §3, 1 Stat. 550 (Mississippi); Act of May 7, 1800, §§2,
4, 2 Stat. 59 (Indiana); Act of Mar. 26, 1804, §4, 2 Stat. 284 (Louisiana);
Act of Jan. 11, 1805, ch. 5, §2, 2 Stat. 309 (Michigan); Act of Mar. 2, 1805,
§§1, 2, 2 Stat. 322 (Orleans); Act of Feb. 3, 1809, §§2, 4, 2 Stat. 515 (Illi-
nois); Act of June 4, 1812, §4, 2 Stat. 744 (Missouri); Act of Mar. 3, 1817,
§4, 3 Stat. 372 (Alabama); Act of Mar. 2, 1819, §5, 3 Stat. 494 (Arkansas);
Act of Mar. 30, 1822, §5, 3 Stat. 655 (Florida); Act of Mar. 3, 1823, §5, 3
Stat. 751 (Florida); Act of Apr. 20, 1836, §4, 5 Stat. 12 (Wisconsin); Act
of June 12, 1838, §4, 5 Stat. 236 (Iowa); Act of Aug. 14, 1848, §4, 9 Stat.
324 (Oregon); Act of Mar. 3, 1849, §4, 9 Stat. 404 (Minnesota); Act of
Sept. 9, 1850, §5, 9 Stat. 448 (New Mexico); Act of Sept. 9, 1850, §4, 9
Stat. 454 (Utah); Act of Mar. 2, 1853, §4, 10 Stat. 173 (Washington); Act
of May 30, 1854, §§4–6, 22–24, 10 Stat. 278–279, 284–285 (Nebraska and
Kansas); Act of Feb. 28, 1861, §4, 12 Stat. 173 (Colorado); Act of Mar. 2,
1861, §4, 12 Stat. 210–211 (Nevada); Act of Mar. 2, 1861, §4, 12 Stat. 240
(Dakota); Act of Feb. 24, 1863, ch. 56, §2, 12 Stat. 665 (Arizona); Act of
Mar. 3, 1863, §4, 12 Stat. 809 (Idaho); Act of May 26, 1864, §4, 13 Stat.
87 (Montana); Act of July 25, 1868, §4, 15 Stat. 179 (Wyoming); Act of
May 2, 1890, §4, 26 Stat. 83 (Oklahoma); Act of Apr. 12, 1900, §27, 31
Stat. 82 (Puerto Rico); Act of Apr. 30, 1900, §12, 31 Stat. 144 (Hawaii);
Act of July 1, 1902, §7, 32 Stat. 693–694 (Philippines); Act of Aug. 24,
1912, §4, 37 Stat. 513 (Alaska); Act of June 22, 1936, §5, 49 Stat. 1808
Cite as: 590 U. S. ____ (2020) 5
THOMAS, J., concurring in judgment
do with Article I legislative power. See Whitman v. Ameri-
can Trucking Assns., Inc., 531 U.S. 457, 472 (2001); Depart-
ment of Transportation v. Association of American Rail-
roads, 575 U.S. 43, 67–88 (2015) (THOMAS, J., concurring
in judgment). It has also established territorial courts that
do not comply with Article III. See Baude, Adjudication
Outside Article III, 133 Harv. L. Rev. 1511, 1525–1530
(2020) (analyzing territorial courts in early Territories).
The powers vested in territorial governments are distinct
from the powers of the National Government. Territorial
legislatures exercise the legislative power of the Territory,
not Article I legislative power. Cincinnati Soap Co. v.
United States, 301 U.S. 308, 322–323 (1937). Territorial
officials exercise the executive power of the Territory, not
Article II executive power. Snow v. United States, 18 Wall.
317, 321–322 (1873). And territorial courts exercise the ju-
dicial power of the Territory, not the “judicial power of the
United States” under Article III. American Ins. Co. v. 356
Bales of Cotton, 1 Pet. 511, 546 (1828); Clinton v. En-
glebrecht, 13 Wall. 434, 447 (1872).
B
Given the distinction between territorial and national
powers, the question becomes whether officers exercising
Article IV territorial power are officers “of the United
States” under the original meaning of the Appointments
Clause. They are not. Both the text of the Appointments
Clause and historical practice support this conclusion.
1
The text of the Appointments Clause indicates that “Of-
ficers of the United States” refers to officers exercising the
powers of the National Government, not officers exercising
territorial power. The Clause applies to the appointment of
——————
(Virgin Islands); Act of Aug. 1, 1950, §10, 64 Stat. 387 (Guam).
6 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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“Ambassadors, other public Ministers and Consuls, Judges
of the supreme Court, and all other Officers of the United
States.” Art. II, §2, cl. 2. Each of the officers specifically
mentioned in the Clause—“Ambassadors,” “public Minis-
ters,” “Consuls,” and “Judges of the supreme Court”—holds
an office that exercises national power. Ibid. Although not
dispositive, this fact suggests that the phrase “and all other
Officers of the United States” refers to “other” officers of the
National Government. See Beecham v. United States, 511
U.S. 368, 371 (1994) (“That several items in a list share an
attribute counsels in favor of interpreting the other items
as possessing that attribute as well”); see also A. Scalia &
B. Garner, Reading Law: The Interpretation of Legal Texts
195–198 (2012) (discussing the “associated-words canon,”
also known as noscitur a sociis).
2
Historical evidence from the founding era confirms that
officers exercising Article IV territorial power are not “Of-
ficers of the United States.” The Court acknowledges some
of this evidence and surveys the history of appointments in
Puerto Rico. Ante, at 8–14. I, however, would give more
weight and focus to the practices of the First Congress,
which provide “powerful evidence of the original under-
standing of the Constitution.” Comptroller of Treasury of
Md. v. Wynne, 575 U.S. 542, 580 (2015) (THOMAS, J., dis-
senting) (compiling cases relying on the practices of the
First Congress to interpret the Constitution).
Before the Constitution’s ratification, the Northwest Or-
dinance of 1787 set up a territorial government for the
Northwest Territory. Act of Aug. 7, 1789, 1 Stat. 51, n. (a)
(reproducing the Northwest Ordinance of 1787 enacted by
the Continental Congress). This ordinance granted Con-
gress the power to appoint the Northwest Territory’s Gov-
ernor, secretary, judges, and general militia officers. Ibid.
Cite as: 590 U. S. ____ (2020) 7
THOMAS, J., concurring in judgment
And it provided the Governor the power to appoint “magis-
trates and other civil officers” of the Territory. Ibid.
In 1789, after the ratification of the Constitution, the
First Congress amended the Northwest Ordinance “to
adapt [it] to the present Constitution of the United States.”
Id., at 51. One of these amendments provided that “the
President shall nominate, and by and with the advice and
consent of the Senate, shall appoint all officers which by the
said ordinance were to have been appointed by the United
States in Congress assembled, and all officers so appointed
shall be commissioned by him.” Id., at 53. The officers not
previously designated for congressional appointment, in-
cluding “magistrates and other civil officers,” remained sub-
ject to appointment by the Governor. Id., at 51, n. (a), and
53. These amendments (and lack thereof ) provide strong
evidence that the First Congress understood the distinction
between territorial officers and officers of the National Gov-
ernment.
As the Court recognizes, Congress revised the Northwest
Ordinance to require “a Presidential-appointment, Senate-
confirmation process for high-level territorial appointees
who assumed federal, as well as local, duties.” Ante, at 8
(emphasis added). For example, Congress revised the ap-
pointment process for the Governor of the Northwest Terri-
tory, who performed duties under the powers of the Na-
tional Government in addition to his Article IV territorial
duties. The Governor “discharg[ed] the duties of superin-
tendent of Indian affairs,” Act of Sept. 11, 1789, ch. 13, §1,
1 Stat. 68, which required him to execute congressional reg-
ulations, manage trade with Indians, and obey instructions
received from the Secretary of War with respect to his du-
ties as superintendent. See Ordinance for the Regulation
of Indian Affairs (Aug. 7, 1786); see also F. Prucha, Ameri-
can Indian Policy in the Formative Years: The Indian Trade
and Intercourse Acts 1790–1834, p. 36 (1962). The Gover-
nor negotiated treaties with Indians on behalf of the United
8 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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THOMAS, J., concurring in judgment
States. See 2 The Papers of George Washington: Presiden-
tial Series 196–198 (D. Twohig ed. 1987); 33 Journals of the
Continental Congress, 1774–1789, p. 711 (R. Hill ed. 1936).
He even had the power to call on the militia of the States in
the President’s name to prevent “incursions of the hostile
Indians.” 2 The St. Clair Papers 125 (W. Smith ed. 1882).
Thus, at least with respect to the Governor, who wielded
powers of the National Government, the First Congress ap-
pears to have modified the Northwest Ordinance to ensure
its compliance with the Appointments Clause.
In contrast, Congress did not revise the process for ap-
pointing “magistrates and other civil officers,” who re-
mained subject to appointment by the Governor. 1 Stat. 51,
n. (a), and 53. The “magistrates and other civil officers” of
the Northwest Territory included justices of the peace,
clerks of the court, sheriffs, coroners, surveyors, and nota-
ries. 3 The Territorial Papers of the United States: The
Territory Northwest of the River Ohio, 1787–1803, pp. 304–
307 (C. Carter ed. 1934). If these officials were exercising a
statutory duty under the powers of the National Govern-
ment, they would have certainly been considered “Officers
of the United States” under the Appointments Clause. See
Mascott 484–507, 510–515. “The Founders considered in-
dividuals to be officers even if they performed only ministe-
rial statutory duties—including recordkeepers, clerks, and
tidewaiters (individuals who watched goods land at a cus-
tomhouse).” Lucia, 585 U. S., at ___ (THOMAS, J., concur-
ring) (slip op., at 3). But “the powers and duties of magis-
trates and other civil officers [were] regulated and defined
by the [territorial] assembly,” 1 Stat. 51, n. (a), and there-
fore were necessarily exercised pursuant to Article IV, see
supra, at 3–5. It is evident that the First Congress did not
consider these officials to be “Officers of the United States,”
because it allowed appointment by an official who is not the
“hea[d] of a department.” See United States v. Germaine,
99 U.S. 508, 510 (1879).
Cite as: 590 U. S. ____ (2020) 9
THOMAS, J., concurring in judgment
One cannot plausibly conclude that the First Congress—
seeking to “adapt” the Northwest Ordinance to the Consti-
tution, 1 Stat. 51—prescribed methods of appointing terri-
torial officers that violated the Appointments Clause. Ra-
ther, the First Congress recognized the distinction between
territorial and national powers, see supra, at 6–8, and un-
derstood that officers performing duties pursuant to only
Article IV territorial powers are not officers “of the United
States.” For these reasons, I would hold that the original
meaning of the phrase “Officers of the United States” does
not include territorial officers exercising only powers con-
ferred under Article IV.
C
Under the original meaning of the Appointments Clause,
the Board’s members are not “Officers of the United States.”
They are territorial officers exercising power granted under
Article IV.
The Board is “an entity within the territorial govern-
ment,” 48 U.S. C. §2121(c)(1), created “pursuant to article
IV, section 3 of the Constitution of the United States,”
§2121(b)(2), and funded by the Territory, §2127(b). The
members of the Board perform duties involving the over-
sight of Puerto Rico’s finances and fiscal reform efforts,
§§2141–2152, and the representation of Puerto Rico in debt
restructuring proceedings, §§2161–2177. Because “they do
not exercise the national executive power,” “national judi-
cial power,” or national legislative power, the Board’s mem-
bers are “Article IV executives,” not Officers of the United
States under the Appointments Clause. See Freytag v.
Commissioner, 501 U.S. 868, 913 (1991) (Scalia, J., concur-
ring in part and concurring in judgment) (emphasis de-
leted).
The Court rightfully acknowledges the territorial nature
of the Board’s duties. Ante, at 14–20. But in the process,
10 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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THOMAS, J., concurring in judgment
the Court sets up a dichotomy between officers with “pri-
marily local versus primarily federal” duties. Ante, at 18
(emphasis deleted). I cannot agree with this amorphous
test.
As an initial matter, the Court need not decide whether
an officer exercising both national and Article IV powers
qualifies as an “Officer of the United States.” The Board’s
members have responsibility for ongoing statutory duties
that are entirely within the scope of Article IV. See ante, at
14–20.
Resolving this unnecessary issue is especially problem-
atic because the original meaning of the phrase “Officers of
the United States” arguably includes all officers exercising
the powers of the National Government, even if those offic-
ers also exercise power vested under Article IV. The Gov-
ernor of the Northwest Territory, for example, seems to
have performed “primarily local” duties, yet the First Con-
gress believed the Governor was an “Officer of the United
States” subject to the restrictions of the Appointments
Clause. Supra, at 7–8; see also ante, at 8.
The Court fails to engage with this point. Indeed, it fails
to provide any foundation at all for its “primarily local” rule.
The only analysis to be found is a conclusory statement that
Palmore v. United States, 411 U.S. 389 (1973), “provides a
rough analogy.” Ante, at 19. But drawing a rule from a case
that is “no[t] . . . directly on point,” ibid., without even ana-
lyzing the underlying reasoning of that case, is not sound
constitutional interpretation. And favoring a tangentially
related decision from 1973 over the practices of the First
Congress is certainly not “more faithful to the [Appoint-
ment] Clause’s original meaning,” ante, at 21.
Finally, the Court fails to provide any explanation for
what makes an officer’s duties “primarily local.” Ante, at
14–20. Is it the relative importance of the duties? Or is it
the number of duties exercised pursuant to each power?
And what ratio is required for duties to be primarily local?
Cite as: 590 U. S. ____ (2020) 11
THOMAS, J., concurring in judgment
The Court’s opinion has no answers and does not even
acknowledge the questions. And, regardless of how these
questions are resolved, the primarily local test allows Con-
gress to evade the requirements of the Appointments
Clause by supplementing an officer’s federal duties with
sufficient territorial duties, such that they become “primar-
ily local,” whatever that means.
* * *
Today’s decision reaches the right outcome, but it does so
in a roundabout way that departs from the original meaning
of the Appointments Clause. I would hold that the Board’s
members are not “Officers of the United States” because
they perform ongoing statutory duties under only Article
IV. I therefore cannot join the Court’s opinion and concur
only in the judgment.
Cite as: 590 U. S. ____ (2020) 1
SOTOMAYOR
SOTOMAYOR , J., concurring
, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 18–1334, 18–1475, 18–1496, 18–1514 and 18–1521
_________________
FINANCIAL OVERSIGHT AND MANAGEMENT
BOARD FOR PUERTO RICO, PETITIONER
18–1334 v.
AURELIUS INVESTMENT, LLC, ET AL.
AURELIUS INVESTMENT, LLC, ET AL., PETITIONERS
18–1475 v.
COMMONWEALTH OF PUERTO RICO, ET AL.
OFFICIAL COMMITTEE OF UNSECURED CREDITORS
OF ALL TITLE III DEBTORS OTHER
THAN COFINA, PETITIONER
18–1496 v.
AURELIUS INVESTMENT, LLC, ET AL.
UNITED STATES, PETITIONER
18–1514 v.
AURELIUS INVESTMENT, LLC, ET AL.
UNIÓN DE TRABAJADORES DE LA INDUSTRIA
ELÉCTRICA Y RIEGO, INC., PETITIONER
18–1521 v.
FINANCIAL OVERSIGHT AND MANAGEMENT
BOARD FOR PUERTO RICO, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 1, 2020]
JUSTICE SOTOMAYOR, concurring in the judgment.
2 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
PUERTO RICO v. AURELIUS INVESTMENT, LLC
SOTOMAYOR, J., concurring in judgment
Nearly 60 years ago, the people of Puerto Rico “em-
bark[ed] on [a] project of constitutional self-governance” af-
ter entering into a compact with the Federal Government.
Puerto Rico v. Sánchez Valle, 579 U. S. ___, ___ (2016) (slip
op., at 3). At the conclusion of that endeavor, the people of
Puerto Rico established, and the United States Congress
recognized, a “republican form of government” “pursuant to
a constitution of [the Puerto Rican population’s] own adop-
tion.” Act of July 3, 1950, ch. 446, §§1, 2, 64 Stat. 319; see
also Act of July 3, 1952, 66 Stat. 327. One would think the
Puerto Rican home rule that resulted from that mutual en-
terprise might affect whether officers later installed by the
Federal Government are properly considered officers of
Puerto Rico rather than “Officers of the United States” sub-
ject to the Appointments Clause. U. S. Const., Art. II, §2,
cl. 2. Yet the parties do not address that weighty issue or
any attendant questions it raises. I thus do not resolve
those matters here and instead concur in the judgment.
I nevertheless write to explain why these unexplored is-
sues may well call into doubt the Court’s conclusion that
the members of the Financial Oversight and Management
Board for Puerto Rico are territorial officers not subject to
the “significant structural safeguards” embodied in the Ap-
pointments Clause. Edmond v. United States, 520 U.S.
651, 659 (1997). Puerto Rico’s compact with the Federal
Government and its republican form of government may
not alter its status as a Territory. But territorial status
should not be wielded as a talismanic opt out of prior con-
gressional commitments or constitutional constraints.
I
A
Puerto Rico became a Territory of the United States in
1898, pursuant to a treaty concluding the Spanish-
American War. After a series of temporary military gov-
erning measures, Congress passed the Foraker Act of 1900,
Cite as: 590 U. S. ____ (2020) 3
SOTOMAYOR, J., concurring in judgment
establishing a civil government exercising significant au-
thority over Puerto Rico’s internal territorial affairs. Or-
ganic Act of 1900, ch. 191, 31 Stat. 77. Over time, Congress
put in place incremental measures of autonomy, such as by
granting U. S. citizenship to the island’s inhabitants in
1917 and providing for the popular election of certain terri-
torial officials the same year. See Sánchez Valle, 579 U. S.,
at ___–___ (slip op., at 2–3); Organic Act of 1917, ch. 145, 39
Stat. 951. Yet throughout the early years of Puerto Rico’s
territorial status, “Congress retained major elements of
sovereignty,” and “[i]n cases of conflict, Congressional stat-
ute, not Puerto Rico law, would apply no matter how local
the subject.” Cordova & Simonpietri Ins. Agency Inc. v.
Chase Manhattan Bank N. A., 649 F.2d 36, 39 (CA1 1981)
(Breyer, J., for the court).
By 1950, however, international and local “pressures for
greater autonomy,” Calero-Toledo v. Pearson Yacht Leasing
Co., 416 U.S. 663, 671 (1974), prompted Congress to pass
Public Law 600, 64 Stat. 319, a measure “enabl[ing] Puerto
Rico to embark on the project of constitutional self-govern-
ance,” Sánchez Valle, 579 U. S., at ___ (slip op., at 3).
“ ‘[R]ecognizing’ ” and “affirm[ing] the ‘principle of govern-
ment by consent,’ ” Public Law 600 “offered the Puerto Ri-
can public a ‘compact,’ under which they could ‘organize a
government pursuant to a constitution of their own adop-
tion.’ ” Id., at ___, ___ (slip op., at 3, 16) (quoting Act of July
3, 1950, §1, 64 Stat. 319); see also 579 U. S., at ___ (slip op.,
at 3) (Public Law 600 “[d]escrib[ed] itself as ‘in the nature
of a compact’ ” (quoting §1, 64 Stat. 319)). Under the terms
of the compact, Public Law 600 itself was submitted to the
people of Puerto Rico, who voted to approve the law through
a popular referendum. See Leibowitz, The Applicability of
Federal Law to the Commonwealth of Puerto Rico, 56 Geo.
L. J. 219, 222–223 (1967). Delegates were then elected to a
constitutional convention to draft a constitution, and in a
special referendum, the draft constitution was submitted to
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the people of Puerto Rico for approval. Id., at 223.
In 1952, “both Puerto Rico and the United States ratified
Puerto Rico’s Constitution.” Sánchez Valle, 579 U. S., at
___ (BREYER, J., dissenting) (slip op., at 8). The people of
Puerto Rico first approved the draft Constitution in a refer-
endum. Congress then approved the draft Constitution
with modifications, noting the caveat that it “shall become
effective” only when Puerto Rico “declare[s] in a formal res-
olution its acceptance.” 66 Stat. 327–328. Finally, the con-
stitutional convention approved the modified Constitution,
and the people of Puerto Rico subsequently ratified modifi-
cations in another referendum. Thus, although the terms
of the compact provided for Congress’ approval, “when such
constitution did go into effect pursuant to the resolution of
approval by the Congress, it became what the Congress
called it, a ‘constitution’ under which the people of Puerto
Rico organized a government of their own adoption.”
Figueroa v. Puerto Rico, 232 F.2d 615, 620 (CA1 1956) (ci-
tation omitted). “The Commonwealth’s power, the [Puerto
Rico] Constitution proclaims, ‘emanates from the people
and shall be exercised in accordance with their will, within
the terms of the compact agreed upon between the people
of Puerto Rico and the United States.’ ” Sánchez Valle, 579
U. S., at ___ (slip op., at 4).
With the passage of Public Law 600 and the adoption and
recognition of the Puerto Rico Constitution, “the United
States and Puerto Rico . . . forged a unique political rela-
tionship, built on the island’s evolution into a constitutional
democracy exercising local self-rule.” Id., at ___ (slip op., at
2); cf. Calero-Toledo, 416 U.S., at 672 (noting with approval
the view that, after Public Law 600, Puerto Rico became “a
political entity created by the act and with the consent of
the people of Puerto Rico and joined in union with the
United States of America under the terms of the compact”
(quoting Mora v. Mejias, 206 F.2d 377, 387 (CA1 1953))).
Of critical import here, the Federal Government “relin-
quished its control over [Puerto Rico’s] local affairs[,]
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SOTOMAYOR, J., concurring in judgment
grant[ing] Puerto Rico a measure of autonomy comparable
to that possessed by the States.” Examining Bd. of Engi-
neers, Architects and Surveyors v. Flores de Otero, 426 U.S.
572, 597 (1976). Indeed, the very “purpose of Congress in
the 1950 and 1952 legislation was to accord Puerto Rico the
degree of autonomy and independence normally associated
with States of the Union.” Id., at 594; see also S. Rep. No.
1779, 81st Cong., 2d Sess., 2 (1950) (Public Law 600 was
“designed to complete the full measure of local self-govern-
ment in” Puerto Rico); H. R. Rep. No. 2275, 81st Cong., 2d
Sess., 6 (1950) (Public Law 600 was a “reaffirmation by the
Congress of the self-government principle”).1 The upshot is
that “Puerto Rico, like a State, is an autonomous political
entity, ‘ “sovereign over matters not ruled by the [Federal]
Constitution.” ’ ” Rodriguez v. Popular Democratic Party,
457 U.S. 1, 8 (1982) (quoting Calero-Toledo, 416 U.S., at
673). And only by holding out that guarantee to the United
Nations has the Federal Government been able to disclaim
certain continuing obligations it previously owed with re-
spect to Puerto Rico under the United Nations Charter. See
infra, at 11–12.
B
In the decades that followed, Puerto Rico underwent fur-
ther changes as a Commonwealth. For many years, the is-
land experienced dynamic growth, increasing its gross na-
tional product more than fourfold from 1950 to 1971.
Cheatham, Council on Foreign Relations, Puerto Rico: A
U. S. Territory in Crisis (Feb. 13, 2020). In 1976, after the
——————
1 To be sure, Public Law 600 reserved certain limited powers to Con-
gress (some of which were soon repealed). See ante, at 12–13. But those
narrow reservations of federal control did not purport to diminish the full
measure of territorial self-governance conferred upon the people of
Puerto Rico through Public Law 600 and the Puerto Rico Constitution.
See 39 Stat. 953; 64 Stat. 319–320.
6 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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revised Federal Tax Code conferred preferential tax treat-
ment on productive industries in Puerto Rico, Puerto Rico
developed robust pharmaceutical and manufacturing sec-
tors. Issacharoff, Bursak, Rennie, & Webley, What Is
Puerto Rico? 94 Ind. L. J. 1, 27 (2019).
Eventually, however, the island and its people confronted
several economic setbacks. Congress repealed Puerto Rico’s
favorable tax credits, and manufacturing growth deflated,
precipitating a prolonged recession. Steady outmigration
correlated with persistently high unemployment rates
greater than 8 percent. Dept. of Labor, Bureau of Labor
Statistics, Databases, Tables & Calculators by Subject
(May 28, 2020). Deprived of its primary sources of income,
the Commonwealth began borrowing heavily. The island’s
outstanding debts rose to approximately $70 billion, a sum
greater than its annual economic output. Puerto Rico’s
credit ratings were downgraded to junk levels, D. Austin,
Congressional Research Service, Puerto Rico’s Current Fis-
cal Challenges 4, 13 (June 3, 2016), rendering borrowing
practically impossible. Without any realistic ability to set
its finances on the right course, the island declared bank-
ruptcy in 2016.
Months later, Hurricane Maria made landfall, causing
immense devastation and a humanitarian emergency the
likes of which had not been seen in over a century. The
island suffered thousands of casualties and an estimated
$90 billion in damages. Most recently, significant earth-
quakes have further rattled an already shaken population
and economy still recovering from the impact of Hurricane
Maria. Robles, Months After Puerto Rico Earthquakes,
Thousands Are Still Living Outside, N. Y. Times, Mar. 1,
2020.
C
Congress passed the Puerto Rico Oversight, Manage-
ment, and Economic Stability Act (PROMESA), 130 Stat.
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SOTOMAYOR, J., concurring in judgment
549, 48 U.S. C. §2101 et seq., in the midst of Puerto Rico’s
dramatic reversal of fortune, with the aim of mitigating the
island’s “severe economic decline,” see 48 U.S. C.
§2194(m)(1). To that end, the statute establishes a Finan-
cial Oversight and Management Board to oversee the is-
land’s finances and restructure its debts. See ante, at 3–4;
Issacharoff, 94 Ind. L. J., at 30–31.
The Board’s decisions have affected the island’s entire
population, particularly many of its most vulnerable citi-
zens. The Board has ordered pensions to be reduced by as
much as 8.5 percent, a measure that threatens the sole
source of income for thousands of Puerto Rico’s poor and el-
derly. Walsh & Russell, $129 Billion Puerto Rico Bank-
ruptcy Plan Could Be Model for States, N. Y. Times, Sept.
29, 2019. Other proposed cuts take aim at already depleted
healthcare and educational services. It is under the yoke of
such austerity measures that the island’s 3.2 million citi-
zens now chafe.
PROMESA does not provide for the appointment of Board
members according to the straightforward methods set out
in the Appointments Clause. U. S. Const., Art. II, §2, cl. 2
(requiring principal “Officers of the United States” to be
nominated by the President, with Senate advice and con-
sent). Instead, the statute prescribes a labyrinthine proce-
dure by which the Speaker of the House, majority leader of
the Senate, minority leader of the House, and minority
leader of the Senate each submit to the President separate
lists with any number of candidates; and the President, in
turn, selects individuals from each of those lists, plus an
individual in his sole discretion. See §101(e), 130 Stat. 554–
555.2 With only one exception, then, the President is not
——————
2 Specifically, PROMESA provides that “[t]he Board shall be comprised
of one Category A member, one Category B member, two Category C
members, one Category D member, one Category E member, and one
Category F member.” §101(e)(1)(B), 130 Stat. 554. The Speaker of the
House submits “separate, non-overlapping list[s]” for the Category A and
8 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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SOTOMAYOR, J., concurring in judgment
“singly and absolutely” responsible for any members of the
Board. The Federalist No. 77, p. 461 (C. Rossiter ed. 1961)
(A. Hamilton) (Appointments Clause ensures that “[t]he
blame of a bad nomination . . . fall[s] upon the President
singly and absolutely”). And with no exceptions, the Senate
fails to advise or consent to the President’s selections.
Despite the Board’s wide-ranging, veto-free authority
over Puerto Rico, the solitary role PROMESA contemplates
for Puerto Rican-selected officials is this: The Governor of
Puerto Rico sits as an ex officio Board member without any
voting rights. §101(e)(3), 130 Stat. 555. No individual
within Puerto Rico’s government plays any part in deter-
mining which seven members now decide matters critical to
the island’s financial fate.
II
A
In concluding that the Board members are territorial of-
ficers not subject to the strictures of the Appointment
Clause, the Court does not meaningfully address Puerto
Rico’s history or status. Nor need it, as the parties do not
discuss the potential consequences that Congress’ recogni-
tion of complete self-government decades ago may have on
the Appointments Clause analysis. But in my view, how-
ever one distinguishes territorial officers from federal offic-
ers (whether under the Court’s “primarily local” test, ante,
at 14, or some other standard), the longstanding compact
between the Federal Government and Puerto Rico raises
——————
Category B members, the majority leader for the Senate submits a list
for the two Category C members, the majority leader of the House sub-
mits a list for the Category D member, and the minority leader of the
Senate submits a list for the Category E member. §101(e)(2)(A), id., at
554–555. Finally, “the Category F member may be selected in the Pres-
ident’s sole discretion.” §101(e)(2)(A)(vi), id., at 555. Many other condi-
tions apply to the lists submitted and the individuals who may appear
on them. See generally §§101(e)–(f ), id., at 554–556.
 Cite as: 590 U. S. ____ (2020) 9
SOTOMAYOR, J., concurring in judgment
grave doubts as to whether the Board members are territo-
rial officers not subject to the Appointments Clause. When
Puerto Rico and Congress entered into a compact and rati-
fied a constitution of Puerto Rico’s adoption, Congress ex-
plicitly left the authority to choose Puerto Rico’s govern-
mental officers to the people of Puerto Rico. That turn of
events seems to give to Puerto Rico, through a voluntary
concession by the Federal Government, the exclusive right
to establish Puerto Rico’s own territorial officers.
No less than the bedrock principles of government upon
which this Nation was founded ground this proposition.
When the Framers resolved to build this Nation on a repub-
lican form of government, they understood that the Ameri-
can people would have the authority to select their own gov-
ernmental officers. See, e.g., The Federalist No. 39, at 251
(J. Madison) (“[W]e may define a republic to be . . . a gov-
ernment which derives all its powers directly or indirectly
from the great body of the people”); A. Amar, America’s
Constitution: A Biography 278–279 (2005) (“[T]he general
understanding of republicanism across America” at the
founding embraced a concept of government “in which ‘the
people are sovereign’; in which ‘the people are consequently
the fountain of all power’; in which ‘all authority should
flow from the people’ ”). Core to the 1950s “compact” be-
tween the Federal Government and Puerto Rico was that
Puerto Rico’s eventual constitution “shall provide a repub-
lican form of government.” §2, 64 Stat. 319 (codified in 48
U.S. C. §731c). Thus, “resonant of American founding prin-
ciples,” the Puerto Rico Constitution set forth a tripartite
government “ ‘republican in form’ and ‘subordinate to the
sovereignty of the people of Puerto Rico.’ ” Sánchez Valle,
579 U. S., at ___ (slip op., at 4) (quoting P. R. Const., Art. I,
§2); see also Torres v. Puerto Rico, 442 U.S. 465, 470 (1979).
“[T]he distinguishing feature” of such “republican form of
government,” this Court has recognized over and again, “is
10 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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the right of the people to choose their own officers for gov-
ernmental administration, and pass their own laws in vir-
tue of the legislative power reposed in representative bod-
ies, whose legitimate acts may be said to be those of the
people themselves.” In re Duncan, 139 U.S. 449, 461 (1891)
(discussing the republican governments of the States); see
also Pacific States Telephone & Telegraph Co. v. Oregon,
223 U.S. 118, 149 (1912) (same).
Thus, whatever authority the Federal Government exer-
cised to select territorial officers for Puerto Rico before Con-
gress recognized Puerto Rico’s republican form of govern-
ment, the authority “to choose [Puerto Rico’s] own officers
for governmental administration” now seems to belong to
the people of Puerto Rico. Duncan, 139 U.S., at 461. In-
deed, however directly responsible the Federal Government
was for Puerto Rico’s local affairs before Public Law 600,
those matters might be said to “now procee[d]” in the first
instance “from the Puerto Rico Constitution as ‘ordain[ed]
and establish[ed]’ by ‘the people.’ ” Cf. Sánchez Valle, 579
U. S., at ___ (slip op., at 15) (quoting P. R. Const., Preamble)
(acknowledging “that the Commonwealth’s power to enact
and enforce criminal law now proceeds . . . from the Puerto
Rico Constitution,” “mak[ing] the Puerto Rican populace . . .
the most immediate source of such authority”).
The developments of the early 1950s were not merely
symbolic either; this Court has recognized that the para-
digm shift in relations between Puerto Rico and the Federal
Government carried legal consequences. In Calero-Toledo,
for instance, this Court held that the “enactments of the
Commonwealth of Puerto Rico” were “ ‘State statute[s]’ ”
within the meaning of a federal law requiring a three-judge
court panel to consider any action seeking to enjoin a “‘State
statute.’ ” 416 U.S., at 675–676. The Court reasoned that
Puerto Rico was entitled to similar treatment as the States
under the federal law, due to “significant changes in Puerto
Rico’s governmental structure” in the early 1950s. See id.,
Cite as: 590 U. S. ____ (2020) 11
SOTOMAYOR, J., concurring in judgment
at 670–674. For similar reasons, this Court has recognized
on multiple other occasions that Puerto Rico is akin to a
State in key respects. See, e.g., Flores de Otero, 426 U.S.,
at 597 (Congress granted Puerto Rico “a measure of auton-
omy comparable to that possessed by the States”); Rodri-
guez, 457 U.S., at 8 (“Puerto Rico, like a state, is an auton-
omous political entity”); see also Sánchez Valle, 579 U. S.,
at ___ (BREYER, J., dissenting) (slip op., at 3) (“[T]he paral-
lels between admission of new States and the creation of
the Commonwealth [of Puerto Rico] are significant”).
The compact also had international ramifications, as the
Federal Government repeatedly represented at the time.
Shortly after the ratification and approval of the Puerto
Rico Constitution, federal officials certified to the United
Nations that, for Puerto Rico, the United States no longer
needed to comply with certain reporting obligations under
the United Nations Charter regarding territories “whose
peoples have not yet attained a full measure of self-govern-
ment.” Charter of the United Nations, 59 Stat. 1048, Art.
73, June 26, 1945, T. S. No. 993 (U. N. Charter). According
to federal officials, that was because the people of Puerto
Rico now had “complete autonomy in internal economic
matters and in cultural and social affairs under a Constitu-
tion adopted by them and approved by the Congress.” Mem-
orandum by the Government of the United States of Amer-
ica Concerning the Cessation of Transmission of
Information Under Article 73(e) of the Charter With Regard
to the Commonwealth of Puerto Rico, in A. Fernós-Isern,
Original Intent in the Constitution of Puerto Rico 153 (2d
ed. 2002). To the extent federal law had previously “di-
rected or authorized interference with matters of local gov-
ernment by the Federal Government,” federal officials elab-
orated, “[t]hose laws . . . ha[d] been repealed.” Ibid.; see
also ibid. (“Congress has agreed that Puerto Rico shall
have, under [the Puerto Rico] Constitution, freedom from
12 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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control or interference by the Congress in respect of inter-
nal government and administration”).
Based on those explicit representations, the United Na-
tions General Assembly declared that the people of Puerto
Rico “ha[d] been invested with attributes of political sover-
eignty which clearly identify the status of self-government
attained . . . as that of an autonomous political entity.”
G. A. Res. 748, U. N. GAOR, 8th Sess., Supp. No. 17, U. N.
Doc. A/2630 (Nov. 27, 1953). And consistent with that dec-
laration, the Federal Government promptly stopped com-
plying with the Charter’s reporting obligations with respect
to Puerto Rico (and has never since recommenced). Thus,
in the eyes of the international community looking in, as
well as of the Federal Government looking out, Puerto Rico
has long enjoyed autonomous reign over its internal affairs.
Indeed, were the Federal Government’s representations to
the United Nations merely aspirational, the United States’
compliance with its international legal obligations would be
in substantial doubt. See Lawson & Sloane, The Constitu-
tionality of Decolonization by Associated Statehood: Puerto
Rico’s Legal Status Reconsidered, 50 Boston College L. Rev.
1123, 1127 (2009) (arguing that if Puerto Rico remains “just
another territory subject to Congress’ plenary power under
the Territories Clause,” “the United States . . . is in viola-
tion of its international legal obligations vis-à-vis Puerto
Rico”).
There can be little question, then, that the compact al-
tered the relationship between the Federal Government
and Puerto Rico. At a minimum, the post-compact develop-
ments, including this Court’s precedents, indicate that Con-
gress placed in the hands of the Puerto Rican people the
authority to establish their own government, replete with
officers of their own choosing, and that this grant of self-
government was not an empty promise. That history
prompts serious questions as to whether the Board mem-
bers may be territorial officers of Puerto Rico when they are
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SOTOMAYOR, J., concurring in judgment
not elected or approved, directly or indirectly, by the people
of Puerto Rico.
B
Of course, it might be argued that Congress is neverthe-
less free to repeal its grant of self-rule, including the grant
of authority to the island to select its own governmental of-
ficers. And perhaps, it might further be said, that is exactly
what Congress has done in PROMESA by declaring the
Board “an entity within the territorial government” of
Puerto Rico. §101(c)(1), 130 Stat. 553. But that is not so
certain.
This Court has “ ‘repeatedly stated . . . that absent “a
clearly expressed congressional intention” ’ ” to repeal,
“ ‘[a]n implied repeal will only be found where provisions in
two statutes are in “irreconcilable conflict,” or where the
latter Act covers the whole subject of the earlier one and “is
clearly intended as a substitute.” ’ ” Carcieri v. Salazar, 555
U.S. 379, 395 (2009) (quoting Branch v. Smith, 538 U.S.
254, 273 (2003) (plurality opinion)). Not so, it seems, with
PROMESA on the one hand, and Congress’ 1950 and 1952
legislations on the other. As written, PROMESA is a tem-
porary bankruptcy measure intended to assist in restoring
Puerto Rico to fiscal security. It is not an organic statute
clearly or expressly purporting to renege on Congress’ prior
“gran[t to] Puerto Rico [of] a measure of autonomy compa-
rable to that possessed by the States,” Flores de Otero, 426
U.S., at 597, nor on the concomitant grant of authority to
select officers of its own choosing. It would seem curious to
interpret PROMESA as having done so indirectly, simply
through its characterization of the Board “as an entity
within the territorial government.” §101(c)(1), 130 Stat.
553.
Further, there is a legitimate question whether Congress
could validly repeal any element of its earlier compact with
14 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
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Puerto Rico on its own initiative, even if it had been abun-
dantly explicit in its intention to do so. The truism that
“one Congress cannot bind a later Congress,” Dorsey v.
United States, 567 U.S. 260, 274 (2012), appears to have its
limits: As scholars have noted, certain congressional ac-
tions are not subject to recantation. See, e.g., Magruder,
The Commonwealth Status of Puerto Rico, 15 U. Pitt.
L. Rev. 1, 14 (1953) (listing as examples the congressional
grant of independence to the Philippine Islands and con-
gressional grant of private title to public lands under home-
stead laws); Issacharoff, 94 Ind. L. J., at 14 (“Once a Con-
gress has disposed of a territory, of necessity it binds future
Congresses to the consequences of that decision”); T. Aleini-
koff, Semblances of Sovereignty: The Constitution, the
State, and American Citizenship 90 (2002) (“The granting
of neither statehood nor independence may be revoked, nor
may land grants or other ‘vested interests’ be called back by
a subsequent Congress”).
Plausible reasons may exist to treat Public Law 600 and
the Federal Government’s recognition of Puerto Rico’s sov-
ereignty as similarly irrevocable, at least in the absence of
mutual consent. Congress made clear in Public Law 600
that the agreement between the Federal Government and
Puerto Rico was “in the nature of a compact.” 64 Stat. 319.
That “solemn undertaking, based upon mutual consent, . . .
of such profound character between the Federal Govern-
ment and a community of U. S. citizens,” has struck many
as “incompatible with the concept of unilateral revocation.”
E.g., Report of the United States-Puerto Rico Commission
on the Status of Puerto Rico 12–13 (1966); see also A.
Leibowitz, Defining Status: A Comprehensive Analysis of
United States Territorial Relations 172–173 (1989) (de-
scribing how “many in the Congress” understood Public
Law 600 to constitute “an irrevocable grant of authority in
local affairs with an understanding of mutual consent being
required before Congress would resolve the ultimate status
Cite as: 590 U. S. ____ (2020) 15
SOTOMAYOR, J., concurring in judgment
question or change the status of the Commonwealth”). In-
deed, shortly after Congress approved the Puerto Rico Con-
stitution, federal officials expressly represented to the
United Nations that the compact was of a “bilateral na-
ture,” such that its “terms [could] be changed only by com-
mon consent.” F. Bolton, U. S. Rep. to the Gen. Assembly,
Statement to U. N. Committee IV (Trusteeship) (Nov. 3,
1953), reprinted in 29 Dept. State Bull. 802, 804 (1953); see
also Press Release No. 1741, U. S. Mission to the United
Nations, Statement by M. Sears, U. S. Rep. in the Comm.
on Information From Non-Self Governing Territories 2
(Aug. 28, 1953) (“[A] compact . . . is far stronger than a
treaty” because it “cannot be denounced by either party un-
less it has the permission of the other”).3
All of this presses up against broader questions about
Congress’ power under the Territories Clause of Article IV,
——————
3 In opting to proceed with Puerto Rico’s Commonwealth endeavor by
way of compact, Public Law 600 was not entirely without precedent.
When Congress enacted the Northwest Ordinance prior to Ratification
to govern the newly acquired Northwest Territory, it provided for a cat-
alog of fundamental rights, styled as “articles of compact between the
original States and the people and States in the said territory” that
would “forever remain unalterable, unless by common consent.” Act of
Aug. 7, 1789, 1 Stat. 52, n. (a) (reproducing the Northwest Ordinance of
1787). That understanding of a compact between the Federal Govern-
ment and the Territories was the only extant precedent for the compact
language in Public Law 600, and proponents of Public Law 600 were vo-
cal in their reliance on the Northwest Ordinance as a model. See Lawson
& Sloane, The Constitutionality of Decolonization by Associated State-
hood: Puerto Rico’s Legal Status Reconsidered, 50 Boston College L. Rev.
1123, 1149, n. 142 (2009) (prior to Public Law 600, “[t]he term ‘compact’
. . . had seldom appeared in U. S. law,” with the exception of the North-
west Ordinance and subsequent organic statutes modeled after the
Northwest Ordinance); J. Trías Monge, Puerto Rico: The Trials of the
Oldest Colony in the World 111 (1997) (discussing debate among the
drafters of Public Law 600 about whether to adopt the precise compact
language in the Northwest Ordinance).
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U. S. Const., Art. IV, §3, cl. 2, the purported source of legis-
lative authority for enacting PROMESA, see §101(b)(2), 130
Stat. 553; ante, at 5. May Congress ever simply cede its
power under that Clause to legislate for the Territories, and
did it do so nearly 60 years ago with respect to Puerto Rico?
If so, is PROMESA itself invalid, at least insofar as it holds
itself out as an exercise of Territories Clause authority?
This Court has never squarely addressed such questions,
except perhaps to acknowledge that Congress’ authority un-
der the Territories Clause may “continu[e] until granted
away.” National Bank v. County of Yankton, 101 U.S. 129,
133 (1880); cf. Cincinnati Soap Co. v. United States, 301
U.S. 308, 319 (1937) (recognizing that a statute preparing
the Philippine Islands for independence from the United
States “brought about a profound change in the status of
the islands and in their relations to the United States,” such
that “the power of the United States has been modified,”
even while “it has not been abolished”).
After all, the Territories Clause provides Congress not
only the power to “make all needful Rules and Regulations
respecting the Territor[ies],” but also the power to “dispose
of ” them, which necessarily encompasses the power to re-
linquish authority to legislate for them. U. S. Const., Art.
IV, §3, cl. 2. And some have insisted that the power to cede
authority exists no less in the absence of full “dispos[al]”
through independence or Statehood. See Aleinikoff, Sem-
blances of Sovereignty, at 77 (“It has been strongly argued
that” with “the establishment of commonwealth status,”
“Congress lost general power to regulate the internal affairs
of Puerto Rico”).
Still, the parties here do not dispute Congress’ ability to
enact PROMESA under the Territories Clause in the first
place; nor does it seem strictly necessary to call that matter
into question to resolve the Appointments Clause concern pre-
sented here. Despite the “full measure of self-government”
the island supposedly enjoys, U. N. Charter, Art. 73; see
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SOTOMAYOR, J., concurring in judgment
also supra, at 4–5, 9–12, Puerto Rico can well remain a
“Territory” subject to some measure of Congress’ Territories
Clause authority. But even assuming that the Territories
Clause thus enables Congress to enact federal laws “re-
specting” Puerto Rico, U. S. Const., Art. IV, §3, cl. 2, still
some things the Clause does not necessarily do: It does not
necessarily allow Congress to repeal by mere implication its
prior grant of authority to the people of Puerto Rico to
choose their own governmental officers. It does not neces-
sarily give Congress license to revoke unilaterally an in-
strument that may be altered only with mutual consent.
And it does not necessarily permit Congress to declare by
fiat that the law must treat its exercise of authority under
the Territories Clause as territorial rather than federal, ir-
respective of the compact it entered with the people of
Puerto Rico leaving complete territorial authority to them.
Cf. Hernández Colón, The Evolution of Democratic Govern-
ance Under the Territorial Clause of the U. S. Constitution,
50 Suffolk U. L. Rev. 587, 605 (2017) (after 1952, “Congress
partially relinquished its territorial powers over Puerto
Rico’s internal affairs, as recognized in Sanchez Valle,” even
while “Congress continues to retain territorial powers in
federal affairs” (emphasis added)).
III
Nor is it significant that Congress has historically pro-
vided for the appointment of officers who perform duties re-
lated to the Territories through methods other than those
prescribed by the Appointments Clause. Those methods
may be permissible up to a point in a Territory’s develop-
ment. But that historical practice does not, in my view, re-
solve the far more complex question whether Congress can
continue to act in that manner indefinitely or long after
granting Territories complete self-government.
Essentially none (if any) of the allegedly nonconforming
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appointments referenced by the parties occurred in circum-
stances where, as in the case of Puerto Rico, Congress pre-
viously granted the Territories complete home rule. See in-
fra, at 19–21, and nn. 4–5. Instead, they largely occurred
during the initial or transitional stages of a Territory’s ex-
istence, when often the terms of the organic statute estab-
lishing the Territory expressly provided for the Federal
Government to act on behalf of the Territory. (After all, in
newly established Territories, no recognized territorial gov-
ernment existed until the organic statute established one.)
Because in that state of affairs, an organic statute plainly
contemplated that Congress had authority to establish of-
fices for the Territory, such congressionally established of-
fices could fairly—indeed, necessarily—be treated as “terri-
torial” to the extent they were tasked with territorial
duties.
Does that necessarily remain the case if Congress later
grants or establishes complete territorial self-government?
As Puerto Rico’s history may demonstrate, it is seemingly
at that point that Congress purports to recognize that the
Territory itself (not the Federal Government) wields au-
thority over matters of the Territory, including the ability
to select its own territorial officers. Perhaps it is also at
that point that a distinction between territorial officers and
federal officers crystallizes: Territorial officers are those
who derive their authority from the people of the Territory;
federal officers are those who derive their authority from
the Federal Government. And here, the Board members in-
disputably are selected by the Federal Government, under
a statute passed by Congress that specifies not just their
governance responsibilities but also the priorities of their
decisionmaking. See ante, at 3–4.
The scores of historical vignettes highlighted by petition-
ers, see, e.g., Brief for Petitioner Financial Oversight and
Management Board for Puerto Rico 28–33; Brief for Peti-
Cite as: 590 U. S. ____ (2020) 19
SOTOMAYOR, J., concurring in judgment
tioner Official Committee of Retired Employees of the Com-
monwealth of Puerto Rico 10–17, do not appear to foreclose
this possibility or even address the question. Rather, they
seem consistent with a broader historical narrative about
early territorial development: that Congress has tradition-
ally exercised its power under the Territories Clause with
the aim of promptly preparing newly established Territo-
ries to transition gradually to territorial self-government.
To the extent Congress deviated from the requirements of
the Appointments Clause in establishing territorial govern-
ments, it generally did so either to facilitate temporary gov-
ernments in the Territories before self-government was
practically possible or to begin transferring appointment
authority directly into the hands of the territorial popula-
tion.
For example, Congress has often provided for territorial
officials to be appointed by a (Presidentially nominated and
Senate confirmed) territorial Governor, a method that the
Appointments Clause does not appear to contemplate. See,
e.g., Brief for Petitioner Financial Oversight and Manage-
ment Board for Puerto Rico 31, and n. 13. But those ar-
rangements arose from the organic statutes establishing
the Territories (and thus their initial territorial govern-
ments) in the first place.4 The same is generally true of in-
stances where Congress provided for Presidential appoint-
ment (without Senate confirmation) of territorial officials
whose duties might otherwise make them principal officers
under the Appointments Clause (requiring Senate confir-
mation). See, e.g., Brief for Petitioner Official Committee
of Retired Employees of the Commonwealth of Puerto Rico
——————
4 See, e.g., 1 Stat. 51–52, and n. (a) (1789) (Northwest Territory); Act of
Feb. 3, 1809, ch. 13, §§1, 2, 2 Stat. 514–515 (Illinois); Act of June 4, 1812,
§2, 2 Stat. 744 (Missouri); Act of Feb. 8, 1861, ch. 59, §§1, 7, 12 Stat. 172,
174 (Colorado); Act of May 26, 1864, ch. 95, §§1, 7, 13 Stat. 85, 88 (Mon-
tana); Act of July 25, 1868, ch. 235, §§1, 7, 15 Stat. 178, 180 (Wyoming);
Act of May 2, 1890, ch. 182, §§1, 7, 26 Stat. 81, 85 (Oklahoma).
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11. Those scenarios broadly conformed with the template
of the organic statute establishing the Louisiana Territory,
2 Stat. 245, which Congress passed as an “emergency pro-
visio[n]” shortly after territorial acquisition in order “to pre-
serve order until a proper government could be put in
place,” D. Currie, The Constitution in Congress, The Jeffer-
sonians: 1801–1829, p. 112 (2001).5
As for the numerous instances where officers with terri-
torial responsibilities were popularly elected or appointed
by territorial officials, see ante, at 11, Congress typically
transitioned to these arrangements after establishing an
initial territorial government. The Northwest Ordinance,
for example, allowed the Governor to appoint “magistrates
and other civil officers” “during the continuance of [a] tem-
porary government” established at the outset of the North-
west Territory’s existence, as “necessary for the preserva-
tion of the peace and good order.” Act of Aug. 7, 1789, ch.
8, 1 Stat. 51, n. (a). As soon as the Territory met a certain
population threshold, however, the territorial population
was to directly elect members of the lower house of the ter-
ritorial legislature, which would in turn play a role in se-
lecting the civil officers of the territorial government. Ibid.
Following the Northwest Ordinance’s lead, the organic stat-
utes for many subsequent territories contemplated similar
——————
5 See 2 Stat. 245 (1803) (Louisiana) (authorizing the President to “take
possession of, and occupy the territory,” to “employ any part of the army
and navy of the United States” in doing so, and to establish a “temporary
government” “until . . . provision for the temporary government . . . be
sooner made by Congress”); cf. 3 Stat. 524 (1819) (Florida) (similar); 31
Stat. 910 (1901) (Philippines) (authorizing the establishment of a “tem-
porary government” pending “the establishment of a permanent civil
government”); 33 Stat. 429 (1904) (Panama Canal Zone) (authorizing the
President “[t]o provide for the temporary government” of the Territory
“until . . . provision for the temporary government . . . be sooner made by
Congress”).
Cite as: 590 U. S. ____ (2020) 21
SOTOMAYOR, J., concurring in judgment
arrangements for “transition[ing]” quickly to forms of “rep-
resentative government.” J. Eblen, The First and Second
United States Empires: Governors and Territorial Govern-
ment 1784–1912, pp. 54, 59 (1968); see also Leibowitz, De-
fining Status, at 6–7.
Congress’ provision of limited or incremental home-rule
measures, moreover, seems to reveal little about the re-
strictions the Appointments Clause imposes on officers se-
lected by the Federal Government. By definition, selection
by home rule does not track the methods outlined in the
Appointments Clause. But perhaps that is because home-
rule measures give to the Territory the ability to select its
own governing officers, which by necessity are territorial
rather than federal. That the Territory selects its own gov-
erning officers, and that these officers are necessarily terri-
torial, does not obviously imply that Congress may disre-
gard the Appointments Clause when it later provides for
the Federal Government to select officers carrying out ter-
ritorial responsibilities.6
In all, then, it is not particularly surprising that many
officers who acted for the Territories historically were ap-
pointed in a manner other than that set out in the Appoint-
ments Clause. Viewed in proper historical context, those
officers’ appointments may reflect nothing more than the
necessary incidents of the transition to and establishment
of full territorial self-government. For the overwhelming
majority of Territories in this Nation’s history, of course,
that turning point coincided with Statehood. See Leibowitz,
Defining Status, at 6–8 (describing the “transitory nature”
of the early Territories’ “evolutionary process culminat[ing]
——————
6 For that reason, no unavoidable tension seems to exist between re-
quiring compliance with the Appointments Clause for the Board mem-
bers and preserving complete home rule in Puerto Rico (or, for that mat-
ter, any of the other Territories).
22 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
PUERTO RICO v. AURELIUS INVESTMENT, LLC
SOTOMAYOR, J., concurring in judgment
in Statehood” and “the establishment of popular self-gov-
ernment”); District of Columbia v. Carter, 409 U.S. 418,
431–432 (1973) (“From the moment of their creation, the
Territories were destined for admission as States into the
Union, and ‘as a preliminary step toward that foreordained
end—to tide over the period of ineligibility—Congress, from
time to time, created territorial governments, the existence
of which was necessarily limited’ ” (quoting O’Donoghue v.
United States, 289 U.S. 516, 537 (1933))). But critically,
the transitional phase was never intended to last indefi-
nitely. See Amar, America’s Constitution, at 273 (describ-
ing the Founders’ understanding that “[t]he older states
would help their younger siblings grow up and would there-
after regard them as equals, rather than as permanent ad-
olescents—the status to which Mother England had
wrongly relegated her own New World wards”). The histor-
ical examples thus reveal little, if anything, about Congress’
ability to establish territorial officers in Territories that
(much like Puerto Rico) have long operated under the full
measure of self-government.
This Court’s precedents do not speak to that circum-
stance either. No doubt the Court has said that the Terri-
tories Clause gives Congress “full and complete legislative
authority over the people of the Territories and all the de-
partments of the territorial governments.” County of Yank-
ton, 101 U.S., at 132–133; see also id., at 133 (“Congress
may not only abrogate laws of the territorial legislatures,
but it may itself legislate directly for the local govern-
ment”); Sere v. Pitot, 6 Cranch 332, 337 (1810); ante, at 3–4
(THOMAS, J., concurring in judgment). But none of those
cases had to do with the Appointments Clause. More im-
portant, none of them addressed the scope of Congress’ au-
thority with respect to a fully self-governing Territory. See
Leibowitz, Defining Status, at 15 (observing that “the broad
statements of Congressional power” in those cases “were
Cite as: 590 U. S. ____ (2020) 23
SOTOMAYOR, J., concurring in judgment
made in the context of a territory’s evolution toward state-
hood,” and that “[t]his context was the ‘restriction . . . nec-
essarily implied in its terms’ ”). Much less do those cases
inform whether and how Congress may validly act on behalf
of a Territory like Puerto Rico, as to which Congress has
expressly (and perhaps irrevocably in the absence of com-
mon consent) “relinquished . . . control over . . . [territorial]
affairs.” Flores de Otero, 426 U.S., at 597; see also Rodri-
guez, 457 U.S., at 8 (describing Puerto Rico as “an autono-
mous political entity, ‘sovereign over matters not ruled by
the [Federal] Constitution’ ” (quoting Calero-Toledo, 416
U.S., at 673)). Indeed, as the same cases expressly
acknowledged, Congress’ authority under the Territories
Clause may “continu[e]” only “until granted away.” County
of Yankton, 101 U.S., at 133; see also supra, at 15–16.
* * *
These cases raise serious questions about when, if ever,
the Federal Government may constitutionally exercise au-
thority to establish territorial officers in a Territory like
Puerto Rico, where Congress seemingly ceded that author-
ity long ago to Puerto Rico itself. The 1950s compact be-
tween the Federal Government and Puerto Rico undoubt-
edly carried ramifications for Puerto Rico’s status under
federal and international law; the same may be true of the
Appointments Clause analysis here. After all, the long-
awaited promise of Public Law 600’s compact between
Puerto Rico and the Federal Government seemed to be that
the people of Puerto Rico may choose their own territorial
officers, rather than have such officers foisted on the Terri-
tory by the Federal Government.
Viewed against that backdrop, the result of these cases
seems anomalous. The Board members, tasked with deter-
mining the financial fate of a self-governing Territory, exist
in a twilight zone of accountability, neither selected by
24 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR
PUERTO RICO v. AURELIUS INVESTMENT, LLC
SOTOMAYOR, J., concurring in judgment
Puerto Rico itself nor subject to the strictures of the Ap-
pointments Clause. I am skeptical that the Constitution
countenances this freewheeling exercise of control over a
population that the Federal Government has explicitly
agreed to recognize as operating under a government of
their own choosing, pursuant to a constitution of their own
choosing. Surely our Founders, having labored to attain
such recognition of self-determination, would not view that
same recognition with respect to Puerto Rico as a mere act
of grace. Nevertheless, because these issues are not
properly presented in these cases, I reluctantly concur in
the judgment.