Washington - The U.S. Department of Justice and the Irrigation and Electrical Workers Union (Utier, Spanish acronym) will file today their writs of certiorari in favor of the U.S. Supreme Court reviewing the decision of the First Circuit Court of Appeals that declared unconstitutional the appointments of the current members of the Oversight Board.
On May 24, Attorney General Noel Francisco announced that the United States would file its own certiorari petition, independent of that of the Board overseeing the financial decisions of the government of Puerto Rico.
However, so far, federal Justice has not specified the position they will be taken.
The parties have until today to request the U.S. Supreme Court to review the February 15 ruling by the appellate court in the case originated by the investment firm Aurelius. Both the Board, which through PROMESA oversees the financial decisions of the government of Puerto Rico, and Aurelius and the Unsecured Creditors Committee (UCC) have already filed their petitions.
For UTIER attorney Rolando Emmanuelli, the participation of federal Justice raises the chances that the U.S. Supreme Court -which recesses at the end of Utier - will later decide to review the First Circuit Court of Appeals decision.
Because the First Circuit Court determined that Board members are principal U.S. officers should have been selected by the President “with the advice and consent of the Senate,” the Attorney General will have to juggle defending "the flexibility that the territorial clause gives the federal government," even at the cost of limiting the power of the President, according to constitutionalist Carlos Ramos, a professor at the Inter-American University of Puerto Rico School of Law.
Following the First Circuit's decision, President Donald Trump announced that he will send the Senate the nominations of the seven Board members, six of which were appointed by former President Barack Obama on the recommendation of congressional leadership without going through the Senate confirmation process.
However, over a month after the announcement, Trump has not referred the appointments to the Senate, which has until July 15 to confirm them before the Board becomes inoperative, according to an extension granted by the First Circuit.
Utier and Aurelius have argued, in different claims, that current Board members are federal officers who need Senate confirmation.
However, Emmanuelli also questions, among other things, that the First Circuit has given up to 150 days - originally 90 days and then extended 60 days until July 15 - in order to continue making decisions about Puerto Rico's fiscal and public debt crisis.
According to Utier, although Boston declared the appointments are unconstitutional, it did not invalidate the Board's decisions, which they consider contrary to the Supreme Court's jurisprudence.
Emmanuelli believes there are chances for the petition to be accepted because PROMESA -the federal law that created the Board- is a new statute, because it was declared unconstitutional, and because it is a matter of separation of powers.
Once the U.S. government and Utier have filed their certiorari petitions, the parties will have until July 5 to respond. By then, the current Term of the U.S. Supreme Court will have ended. Thus, the federal Supreme Court will see cases again in October.
Experts predict that if the White House continues to delay sending nominations to the Senate, the Board should ask the federal Supreme Court for another extension in order to continue operating at least until that Court decides whether or not to review the First Court decision.
According to several sources, the White House has not referred the appointments to the Senate because the FBI has not yet completed the background check process.