This is the complete opposite of timely, it being older than my newborn child, but I realized I never got around to posting a link to my commentary on Financial Oversight and Management Board for Puerto Rico v. Aurelius, in which the Court upheld the constitutionality of the appointment of the officials in charge of overseeing Puerto Rico’s bankruptcy under PROMESA. My remarks are 10 minutes long and you can listen here.
As you’ll know if you’ve seen any of my previous blog posts on the case, I make three basic points.
First, there is the question of whether territorial officers are officers of the United States. I argue no, for reasons that I wrote about in this article (which Justice Thomas was kind enough to cite in his concurring opinion).
Second, there is the question of whether the officers in question were indeed territorial officers. Everybody on the Court concluded yes, and that seems plausible to me, though I don’t have a firm view.
Third, there is the question of whether there are any other constitutional constraints on the appointment of territorial officers. Justice Sotomayor raised one such argument in her separate opinion, and I have raised a different argument, analogous to a Chadha problem, but neither one was briefed or decided by the Court.
Post-script: I’ve since come across some interesting commentary by Professors Josh Blackman and Seth Barrett Tillman, raising the possibility that the board members are instead “officers under the authority of the United States” and also noting the perhaps-unanticipated consequences the Court’s decision has for impeachment of territorial officers.