Washington – Current Oversight members were appointed to a three-year term in 2016 which officially expired yesterday, without having been confirmed by the U.S. Senate and at a time when the U.S. Supreme Court is expected to review the constitutionality of those appointments.
Former President Barack Obama appointed Board members for a three-year term on August 31, 2016, under PROMESA.
Last June, after the Boston First Circuit Court of Appeals declared the appointments were unconstitutional, President Donald Trump referred the appointments to the Senate but clearly specifying that the confirmation was for Board members to complete the term that expired yesterday.
Jeffrey Farrow, who co-chaired Bill Clinton's White House Working Group said that, as of today, the nominations are not before the consideration of the Senate.
The U.S. Senate reconvenes on September 9. Unless President Trump replaces them, the seven members of the Board - overseeing the island's fiscal decisions - can remain in office, while the U.S. Supreme Court issues a decision.
Trump will have to decide whether to reappoint them or wait for the decision by the Supreme Court, whose approval to review the First Circuit's ruling allowed Board members to remain active.
On February 15, the First Circuit Court of Appeals determined that the current members of the Board are principal federal officers, so their appointments should have been made directly by the President and confirmed by the U.S. Senate.
However, the appellate court also determined to validate the decisions made by the Board.
Obama, based on PROMESA, selected six of the seven members from congressional leaders' recommendations. He directly appointed the seventh, José Ramón González. None was confirmed by the Senate.
Board spokesman Edward Zayas said the seven Board members are still interested in continuing in their positions, in being confirmed by the Senate - if reappointed by Trump - or willing to wait for the federal Supreme Court decision.
For Rolando Emanuelli, a lawyer for the Electric and Irrigation Industry Workers Union (UTIER, Spanish acronym), who has challenged the constitutionality of the appointments, the expiration of the appointments is "another setback to the legitimacy" of the Board.
The U.S. Supreme Court called for an oral hearing on the First Circuit's decision on October 15.
San Juan Intervenes
As part of the arguments of the case, the municipality of San Juan, former governors Sila María Calderón and Alejandro García Padilla, and more than 50 elected officials from the Popular Democratic Party (PPD) were among those who filed "amicus curiae" brief this week.
The municipality of San Juan demanded that the U.S. Supreme Court invalidate the decisions made by the members of the entity as of February 15 and confirm that the appointments were made violating the U.S. Constitution.
The lawyers representing San Juan- led by Mayor Carmen Yulín Cruz - argued that the First Circuit made the mistake of using the "de facto officer” doctrine to enable the Board members action to remain valid, even though it determined that their appointments violated the U.S. Constitution Appointments Clause.
The First Circuit's decision has allowed Board members to continue to flagrantly use their power and place Puerto Rico's 78 municipalities under its jurisdiction, the Municipality said.
The Puerto Rican people have seen how a group of "intruders (and) usurpers" deprived them of "their right to participate meaningfully and equally in the process of government," says the resource headed by Julissa Reynoso, an attorney in Winston & Strawn New York office. Reynoso was the U.S. ambassador to Uruguay.
Both UTIER, Aurelius and Assured Guaranty - which initiated the litigation against the constitutionality of the Board - claim that all the decisions made by the fiscal entity should be declared null and void and that the appellate court was wrong to apply the "de facto officer doctrine" that led to validate those actions.