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. Continue Reading...