June tends to be a flood of major opinions at the U.S. Supreme Court. Before COVID-19, most justices spent July and August giving speeches or teaching seminars abroad for law schools or just taking a summer vacation. Traditionally, that has meant a deadline of July 3 to get everything done. In turn, that means that — besides the cases argued near the end of the term — the justices have to accept that the current drafts on opinions are good enough and another round of changes to the majority opinion and to the other opinions are not going to make the opinions better are change anybody’s mind.
One of the opinions that folks have been waiting for is the case involving Puerto Rico’s finances. Back before the last presidential election, Puerto Rico was in a financial jam. It lacked the power to declare bankruptcy, and the Supreme Court had ruled against the solution that Puerto Rico had devised to get around that problem. So Congress passed a law that created a financial oversight board for Puerto Rico and gave that board the power to take Puerto Rico into bankruptcy.
That law created its own problem. The board was to be appointed by the President (although from lists created by the congressional leadership) without Senate Confirmation. This led to a new case challenging the board’s actions claiming that the structure violated the Appointments Clause of the Constitution. Today, we got the opinions on that case. On the one hand, the Supreme Court was unanimous on the result, holding that the board was validly appointed. But, the Supreme Court split 7-1-1 on the reasoning (explaining why the case has taken so long to resolve). The minor split was between the majority (written by Justice Breyer) and the concurrence (written by Justice Thomas). The majority describes the Appointments Clause as covering officers with federal duties and do not cover territorial officers with local duties. Justice Thomas would prefer to simply distinguish between Article I, Article II, and Article III officers (federal officers subject to the Appointments Clause) and Article IV officers (territorial officers who can be picked in whatever matter Congress designates). At the end of the day, this difference may not alter the result in a single case.
The more significant separate opinion was from Justice Sotomayor. Not surprisingly, as the only Latina on the Court and the child of two individuals born in Puerto Rico, she has concerns about the relationship between Puerto Rico and the rest of the United States. For most of U.S. history, territorial status was a temporary status on the way to statehood (except for the District of Columbia). And, after World War II, international law has looked poorly on quasi-permanent territorial status especially when that status limits the citizens of that territory from having a voice in government. As discussed in her opinion, the current Commonwealth status of Puerto Rico was supposed to be a solution that gave Puerto Rico autonomy in a way that satisfied international law. But, if Congress still has the Article IV power to alter and amend Puerto Rico’s status (including appointing a board that can overrule elected officials), then the U.S. representations to the U.N. about the status of Puerto Rico are not accurate.
While the financial problems of Puerto Rico require creative solutions, there is something wrong with three million U.S. citizens being subject to having their laws vetoed by federal appointees when they do not have voting representation in Congress or any vote in the presidential general election. This issue needs to be resolved by the next Democratic President as the status quo should not be seen by anybody as an acceptable situation.
