On December 4, 2018 we blogged about the oral argument in this appeal involving the constitutionality of federal legislation enacted to address Puerto Rico’s restructuring. (CLASH OF THE TITANS) The question was whether the people appointed to the oversight board had to be appointed by the President with the advice and consent of the Senate. The district court said no, but the First Circuit has now spoken and ruled otherwise. In an opinion written by Judge Torruella, joined by Judges Thompson and Kayatta, the Court of Appeals said the appointments, not adhering to this process, had been constitutionally muffed. The panel declined, however, to unravel the many decisions issued to date by the board not-so-appointed, applying the “de facto officer” doctrine. Aurelius Investment, LLC v. Commonwealth of Puerto Rico, Nos. 18-1671, 18-1746, 18-1787 (1st Cir., Feb. 15, 2019).
The decision runs through the maze of law relating to the Appointments Clause and Territorial Clause, and given