Former Governor Aníbal Acevedo Vilá. (GFR Media)

Washington - Former Governor Aníbal Acevedo Vilá asked yesterday the U.S. Supreme Court to confirm the unconstitutionality of the appointments of the current Oversight Board members and to rule out questioning the validity of the governor's selection.

Acevedo Vilá intervened as "amicus curiae" or friend of the court in the case currently pending before the U.S. Supreme Court, after the First Circuit Court of Appeals that declared the appointments of the seven Board members were unconstitutional.

Previously, Acevedo Vilá had sent a letter to Governor Wanda Vázquez Garced urging her to revoke the position filed July 25 by the Puerto Rican government that adopted the Board and U.S. government's thesis that if the appointments to the Board are unconstitutional, so are the selections made by the governor and lawmakers.

Facing an oral hearing in October, the U.S. Supreme Court is receiving arguments for and against the decision of the First Circuit Court of Appeals that declared the unconstitutionality of the appointments of the seven members of the Board, as they are considered principal U.S. officers, and have not been directly appointed by the President and confirmed by the U.S. Senate.

Six of the seven members of the board overseeing the financial decisions of the elected government - José Carrión, Carlos García, David Skeel, Andrew Biggs, Ana Matosantos and Arthur González - were appointed by former President Barack Obama from lists of candidates suggested by congressional leaders, as established in PROMESA. The seventh, José Ramón González, was directly appointed by Obama.

Although the First Circuit did not compare those appointments with the island's elected officials, both the Board and the U.S. Department of Justice argue that they are territorial officers. However, if the appointments have to comply with the constitutional Appointments Clause, it can be argued that the same requirement applies to the island's governor and lawmakers.

A day after Ricardo Rosselló Nevares announced his decision to step down, after mass demonstrations against him, the Fiscal Agency & Financial Advisory Authority (FAFAA) supported the Board and federal Department of Justice´s thesis, since the agency understood that, like PROMESA, the authority for Puerto Rico to elect its officials stems from federal statutes.

In the letter sent to Governor Vázquez Garced on August 13, Acevedo Vilá said that the document filed on behalf of the government she is now leading opens the door for "our people to be deprived of the limited democratic prerogatives that they have achieved in the past 120 years."

Acevedo Vilá told El Nuevo Día that, in FAFAA´s document, the New Progressive Party (PNP) government seems to say that it "is against the colony because they want statehood," but in the meantime, "let the federal government do what it wants" with Puerto Rico.

In the appeal, Acevedo Vilá and his colleague Joel Montalvo argued that despite the U.S. Supreme Court has reaffirmed Congress plenary powers over the territories, the appointments of Board members violate "the fundamental doctrine of the separation of powers, paramount principles of the U.S. Constitution."

Although he said he would like to see the Insular Cases doctrine -which validated Congress plenary powers over the territories- reversed, Acevedo Vilá added that the Supreme Court does not necessarily have to do so in this case.

Acevedo Vilá alluded to the U.S. Supreme Court's decision in Buckley v. Valeo (1976) which determined, among other things, that despite Congress´ plenary authority to regulate federal elections, the alternative method that allowed congress members to appoint the members of Federal Election Commission (FEC) violated the constitutional Appointments Clause.

Both the Irrigation and Electrical Workers Union (Utier, Spanish acronym) and Aurelius, who challenged the appointments to the Board, also got the U.S. Supreme Court to review the First Circuit's decision to validate the decisions made by the Board members and allowed them to continue in office since February 15, pending confirmation by the Senate or the decision on the case.

On August 1, in Acevedo Vilá own amicus curiae brief, with  the letter to the governor, the Government Development Bank (GDB) Debt Recovery Authority also defended the constitutionality of the Board and added that it would be a mistake to "interrupt the results of three years of meticulous negotiations between the parties" to restructure the $4.7 billion debt of that government entity.


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