Washington – The Donald Trump’s administration called on the U.S. Supreme Court to review and revoke the First Circuit’s decision that declared unconstitutional the appointments of the current members of the Oversight Board, on the grounds that failure to do so would strike a blow to the power of Congress to decide how to govern its territories.
In a writ of certiorari filed Wednesday, the U.S. Solicitor General Noel Francisco rejected the ruling of the First Circuit Court of Appeals that concluded that the Board members are principal federal officers, so they must be appointed by the U.S. President and confirmed by the Senate.
“The Appointments Clause has never been understood as applying to territorial officers or constraining Congress’s authority to establish territorial governments,” stated Francisco.
As the Board argued, the Solicitor General insisted that if the First Circuit’s decision is maintained it opens the door to question the constitutionality of the Puerto Rican Governor, although it´s an elective position, and even of government officials who were not confirmed by the U.S. Senate.
“The court of appeals’ decision threatens to upend the governmental structure of all U.S. territories,” he said, noting that the Appointments Clause does not contain an “elections exception”.
The petition filed by the Trump’s administration strengthens efforts to get the Supreme Court to review the First Circuit’s February 15 decision. But the U.S. Supreme Court, which ends its current Term this month, usually accepts only about 80 out of 7,000 to 8,000 certiorari petitions filed annually.
Solicitor General Francisco urged the Supreme Court to review the case, on the grounds that the political process initiated by President Trump to appoint current Board members to complete their three-year term may not be concluded by July 16, when the extension that the First Circuit granted the fiscal entity expires.
On August 31, 2016, former President Barack Obama selected six of the Board members out of the lists presented by Congress bipartisan leaders. The seventh member, José Ramón González, was appointed directly by Obama.
Francisco expressed concern that the Board’s inability to operate would undermine the fiscal recovery and would cause judicial chaos "in which the island’s 32 creditors compete" for public resources, with "devastating practical consequences".
“There is no telling what, if anything, will remain for Puerto Rico’s schools, police and fire departments, hospitals, courts, shelters, retirees, and others who rely on governmental funding,” stated the Solicitor General.
In defending the Board as a territorial entity, Francisco maintained that "no federal official directs or manages" its operations.
Healso stated that PROMESA, which created the Board to handle the fiscal crisis and the debt restructuring process, establishes that the powers of subpoena of the fiscal entity are granted on the basis of the laws of Puerto Rico.
Francisco argued that the First Circuit’s ruling represents the first time that a court determines that "territorial officials" must be appointed pursuant to the Appointments Clause.
“If Congress had elected to address Puerto Rico’s financial crisis not by creating an Oversight Board, but by requiring the Governor and Legislature of Puerto Rico to use their preexisting powers in a particular way, that decision plainly would not have transformed the territorial government into a federal agency,” stressed Francisco.
The U.S. Solicitor General mentioned the Sánchez Valle decision of June 9, 2016 – the same day that PROMESA was approved in the U.S. House –, to point to the Puerto Rican colonial situation.
He recalled that PROMESA was created under the power of Congress to legislate on territories, pursuant to Article IV of the U.S. Constitution. "Congress remains the ultimate source of power undergirding" the territorial government and its laws, he warned.
He stressed that the determination of the First Circuit "reflects" Congress’s "broad latitude to develop innovative approaches to territorial governance,"– as Sánchez Valle decided.
Governor Ricardo Rosselló Nevares, who has not intervened in this case nor challenged the constitutionality of the Board, found the Trump administration’s arguments absurd, very similar to those of the fiscal entity before the U.S. Supreme Court.
"I am almost speechless because it is so ridiculous, but it denotes what a geopolitical black hole Puerto Rico is in," he said, referring to the island’s colonial situation.
According to Rolando Emmanuelli, the Irrigation and Electrical Workers Union (UTIER, Spanish acronym) lawyer, Trump’s administration certiorari petition seeks to "put fear" in terms of the effect on the territorial governments and the island’s fiscal recovery. "The President appoints the members of the Board and can dismiss them. The (territorial) governors do not enforce any federal law," Emmanuelli said.