The Corner

Law & the Courts

The Supreme Court Treats Puerto Rico as a Subordinate Territory

Steps of the U.S. Supreme Court building in Washington, D.C., January 2020 (Sarah Silbiger/Reuters)

Supreme Court watchers were initially intrigued by the case of Financial Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC, which was decided Monday. At issue was when the Appointments Clause allows Congress to authorize the president to appoint federal officers without the consent of the Senate, as it did in giving President Obama the power to appoint a seven-member Financial Oversight and Management Board to work out Puerto Rico’s bankruptcy in federal court and manage its financial restructuring. The Court, however, unanimously decided to treat the case entirely as a question of the broad Article IV powers of the federal government to make laws and appoint local officials in federal territories — a hot issue in the 1850s, but not of much broad relevance today if you don’t live in Puerto Rico, the District of Columbia, or one of the smaller island territories. The Court thus upheld, without dissent, the power to bypass Senate confirmation of the Board’s members.

Still, the case presents some interesting angles. Justice Breyer’s opinion for a 7-Justice majority essentially agreed with Justice Thomas’s concurrence that the original meaning of the Appointments Clause determines the scope of federal appointment power over territorial officials, and that historical practices dating back to the First Congress are relevant to deciding what the text meant. Justice Thomas, as is his wont, argued for a broad, bright-line rule: “Territorial officials performing duties created under Article IV of the Constitution are not federal officers within 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.” Justice Breyer’s majority opinion, by contrast, concluded that “the Appointments Clause restricts the appointment of all officers of the United States, including those who carry out their powers and duties in or in relation to Puerto Rico,” but distinguished officers exercising powers that the federal government could not exercise in a state. Those officers, said Justice Breyer, are local, territorial Article IV officers who can be appointed without Senate confirmation. In fact, they can be popularly elected or locally appointed without presidential appointment, as many laws have provided over the years in D.C., Puerto Rico, and numerous other territories that are now states.

Justice Sotomayor, whose parents came to New York from Puerto Rico, wrote separately to argue that the Court’s analysis was giving short shrift to Puerto Rican “home rule.” Her opinion evokes the small-r republican and nationalist interests of Puerto Rico, arguing that the federal government promised Puerto Rico self-government in 1952, and that this could place legal outer limits on what it could impose on the island as if it were simply an ordinary territory wholly under federal control:

No individual within Puerto Rico’s government plays any part in determining which seven members now decide matters critical to the island’s financial fate. . . . When Puerto Rico and Congress entered into a compact and ratified a constitution of Puerto Rico’s adoption, Congress explicitly left the authority to choose Puerto Rico’s governmental 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.

However, Justice Sotomayor also invoked the more questionable argument that the constitutional power of the federal government might be limited by various representations it made to the United Nations about Puerto Rico’s status, as if the U.N. is legitimately sovereign over of the American constitutional system:

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-government.” Based on those explicit representations [in 1953], the United Nations General Assembly declared that the people of Puerto Rico “ha[d] been invested with attributes of political sovereignty which clearly identify the status of self-government attained . . . as that of an autonomous political entity.” . . . 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. (Emphasis added).

She also cited a law review article “arguing that if Puerto Rico remains ‘just another territory subject to Congress’ plenary power under the Territories Clause,’ ‘the United States . . . is in violation of its international legal obligations vis-à-vis Puerto Rico.’” This assumes that the Supreme Court has any business invalidating the constitutional arrangements of the United States and its territories based on rules of the United Nations.

Nonetheless, Justice Sotomayor reluctantly joined in the Court’s upholding of the Board, mainly because the parties to the case (primarily holders of Puerto Rican debt) hadn’t raised the issue, and thus the Court was in no position to rule on it.


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