A series of cases at the Supreme Court have the potential to reverse the Insular Cases (UPDATE: All cases granted 6/20/19, will be heard in October)

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I have listed the 5 cases below, with links to their respective Supreme Court docket files, which in turn have links to the Petitions themselves and all other available filings. For case 18-1334, I have included the Scotusblog record. I have also included the actual question from each case. Basically, all implicate the appointments clause of the Constitution.

What is not specifically implicated, yet is the implicit issue behind all of this, is the Insular Cases from 1901 that were earlier cited by the District Court in denying Plaintiffs relief, using the doctrine from those cases to rule that the Appointments clause is inapplicable in the territories. The First Circuit reversed, but upheld the past actions of the board implicating the “de facto officer” doctrine. Over the past couple of months, all Petitions for a Writ of Certiorari have been filed by all the respective parties in this case, including the United States.

The United States takes the position that the Insular Cases doctrine is valid and that the Appointments clause does NOT apply to the territories. They seek to reverse the judgement of the First Circuit and restore the judgement of the District Court.

In any event, we are VERY early in this process. These cases will be fully briefed during the summer and may be ready for consideration at the Supreme Court’s Long Conference, which I believe will be October 1, 2019. If the Supreme Court actually grants any or all of these petitions, they likely won’t be argued before January 2020 argument session at the earliest.

For the record, I believe the Insular Cases were wrongly decided and should be reversed.

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-1514.html

The above case is United States, Petitioner v. Aurelius Investment, LLC, et al., docket #18-1514, docketed on June 6, 2019.

Issue: In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), 48 U.S.C. 2101 et seq. (Supp. V 2017), to address the economic emergency facing the Commonwealth of Puerto Rico. The Act established a Financial Oversight and Management Board as an entity “within the territorial government” of Puerto Rico. 48 U.S.C. 2121(c)(1) (Supp. V 2017).

The question presented is whether members of the Board are “Officers of the United States” within the meaning of the Appointments Clause of the U.S. Constitution, Art. II, § 2, Cl. 2?

https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public\18-1521.html

Unión de Trabajadores de la Industria Eléctrica y Riego, Inc., Petitioner v. Financial Oversight and Management Board for Puerto Rico, et al., docket #18-1521, docketed on June 7, 2019.

Issue: After correctly determining that the members of the Financial Oversight and Management Board for Puerto Rico are principal Officers of the United States for purposes of the Appointments Clause of the United States Constitution, the court of appeals validated the Board’s past, present and future actions by applying the de facto officer doctrine. Thus, subjecting the Petitioner, Unión de Trabajadores de la Industria Eléctrica y Riego, Inc., and the People of Puerto Rico, to the actions of unconstitutionally appointed Officers of the United States that are exercising unfettered authority that is causing an ongoing injury to the Petitioner without appropriate relief.

Thus, the question presented is whether the de facto officer doctrine allows for unconstitutionally appointed principal Officers of the United States to continue acting, leaving the party that challenges their appointment with an ongoing injury and without an appropriate relief?

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-1496.html

Official Committee of Unsecured Creditors of All Title III Debtors Other Than COFINA, Petitioner v. Aurelius Investment, LLC, et al., docket #18-1496, docketed on May 31, 2019.

Issue: Whether the Appointments Clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico?

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-1475.html

Aurelius Investment, LLC, et al., Petitioners v. Commonwealth of Puerto Rico, et al., docket #18-1475, docketed on May 28, 2019.

Issue: A panel of the United States Court of Appeals for the First Circuit unanimously held that all seven voting members of the Financial Oversight and Management Board for Puerto Rico, a federal entity that manages Puerto Rico’s financial affairs and prosecutes its historic bankruptcy, have occupied their offices in violation of the Appointments Clause of the United States Constitution since 2016. Nevertheless, the First Circuit applied the so-called “de facto officer doctrine” to uphold all of the Board’s actions prior to the First Circuit’s decision, as well as the Board’s actions for 150 days after the First Circuit’s judgment.

The question presented is:

Does the de facto officer doctrine allow courts to deny meaningful relief to successful separation-ofpowers challengers who are suffering ongoing injury at the hands of unconstitutionally appointed principal officers?

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-1334.html

Financial Oversight and Management Board for Puerto Rico, Petitioner v. Aurelius Investment, LLC, et al., docket #18-1334, docketed April 24, 2019.

Issue: Whether the Appointments Clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico?

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UPDATE:

I have noted that all parties in these 5 cases, including the United States, have filed letters with the Supreme Court waiving their right to respond during the certiorari stage of proceedings and all parties have agreed that all 5 petitions should be granted and further, all parties have asked for expedited consideration at the June 20 Supreme Court conference. If the Supreme Court grants expedited consideration, quite likely under the circumstances, that would permit merits briefing to take place during the summer with the cases possibly being scheduled for arguments in November or December.

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UPDATE:

As expected, the Supreme Court has granted expedited consideration. They have granted all five cases and will schedule these cases during the October sitting. That opens up the door to a decision coming down late in 2019.

Text of the above order, issued just moments ago (6/20/19)

(CORRECTED ORDER LIST: 588 U.S.)
THURSDAY, JUNE 20, 2019
CERTIORARI GRANTED
18-1334 )
)
18-1475 )
)
18-1496 )
)
18-1514 )
)
18-1521 )
FINANCIAL OVERSIGHT BD. V. AURELIUS INVESTMENT, ET AL.
AURELIUS INVESTMENT, ET AL. V. PUERTO RICO, ET AL.
OFFICIAL COMMITTEE OF DEBTORS V. AURELIUS INVESTMENT, ET AL.
UNITED STATES V. AURELIUS INVESTMENT, ET AL.
UTIER V. FINANCIAL OVERSIGHT BD., ET AL.
The petitions for writs of certiorari are granted. The
cases are consolidated, and will be set for argument in the
second week of the October 2019 argument session.
Parties challenging the First Circuit’s ruling on the
Appointments Clause issue shall file an opening brief on that
issue on or before Thursday, July 25, 2019. The briefs are to
bear a light blue cover and are limited to 15,000 words.
Parties supporting the First Circuit’s ruling on the
Appointments Clause issue and challenging the ruling on the de
facto officer doctrine issue shall file a consolidated opening
brief on or before Thursday, August 22, 2019. The briefs are to
bear a light red cover and are limited to 20,000 words.
Parties challenging the First Circuit’s ruling on the
Appointments Clause issue and supporting the ruling on the de
facto officer doctrine issue shall file a consolidated opening
brief and reply on or before Thursday, September 19, 2019. The
briefs are to bear a yellow cover and are limited to 13,000
words.

Parties challenging the First Circuit’s ruling on the de
facto officer doctrine issue shall file with the Clerk and serve
upon counsel a reply brief limited to that issue on or before
2 p.m., Tuesday, October 8, 2019. The briefs are to bear a tan
cover and are limited to 6,000 words.
Amicus curiae briefs challenging the First Circuit’s ruling
on the Appointments Clause issue and/or supporting the ruling on
the de facto officer doctrine issue are to be filed on or before
Thursday, August 1, 2019. The briefs are to bear a light green
cover and are limited to 9,000 words. Amicus curiae briefs
supporting the First Circuit’s ruling on the Appointments Clause
issue and/or challenging the ruling on the de facto officer
doctrine issue are to be filed on or before Thursday, August 29,
2019. The briefs are to bear a dark green cover and are limited
to 9,000 words. An amicus curiae shall file only a single brief.

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UPDATE:

Most of the briefing has been completed in this case, other than party reply briefs.

Search - Supreme Court of the United States (Supreme Court docket #18-1334)

Among the various amici submitting briefs are the Cato Organization, the ACLU and the United States Chamber of Commerce.

Of note, the ACLU supports using this as a vehicle to overturn the Insular Cases, with which position I agree.

Links to all briefing is available via either of the above links.

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Bumping this thread, since it effectively previews these cases. They will be heard on Tuesday, October 15.

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After oral arguments today, it is looking like the Supreme Court will uphold the current structure of the Puerto Rico Financial Oversight and Management Board.

  1. The Justices appear to agree that the members of the Financial Oversight and Management Board are NOT subject to the Appointments Clause, as their functions are purely local.

  2. Because the Justices appear to have reached the above conclusion, it is not necessary for them to even address the “de facto officer” doctrine.

  3. Clearly zero of the Justices are interested in addressing the Insular Cases.

The bottom line is that the Board will continue to function as designed by Congress, its prior decisions will stand and it is free to move forward and make further decisions regarding Puerto Rico’s financial future.

In terms of winners and losers.

Winners: The Board itself. The United States Government. The Puerto Rican people as a whole.

Losers: The Puerto Rican Government. Bondholders. Puerto Rican unions.

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Bumping, as the Supreme Court just ruled on this.