The PROMESA Board Members are not “Officers of the United States.” So what are they?

[This post is co-authored with Professor Seth Barrett Tillman]

Recently, the Supreme Court decided Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC. This case considered the status of members of the Financial Oversight and Management Board for Puerto Rico, who are appointed by the President without the Senate’s advice and consent. These positions were created by The Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA).

All nine Justices agreed that the appointment of these board members is not subject to the strictures of the Appointments Clause: that is, appointment by the President, with advice-and-consent by the Senate. All nine Justices also agreed that these board members are not “officers of the United States.” However, the Justices parted company on the next question: what precisely are the PROMESA board members? The majority opinion by Justice Breyer punts on this question. Justice Thomas’s concurrence hints at the answer. And Justice Sotomayor’s concurrence suggests these board members occupy some other type of position in a “zone of twilight.” This case illustrates that the precise characterization of federal positions is important. We cannot simply presume that the Constitution indiscriminately refers to different types of “offices” and “officers.” Our taxonomy provides a better answer: Article IV Territorial Officers Hold “Office[s] under the Authority of the United States,” and are bound by the Sinecure Clause.

Justice Breyer’s Majority Opinion

Justice Breyer’s majority opinion is largely consistent with our reading. He makes three broad points.

First, Justice Breyer suggests in at least four places that all “officers of the United States” must be appointed pursuant to the Appointments Clause (emphases added):

• “In our view, the Appointments Clause governs the appointments of all officers of the United States, including those located in Puerto Rico.” 
• But, like the Court of Appeals, we believe the Appointments Clause restricts the appointment of all officers of the United States, including those who carry out their powers and duties in or in relation to Puerto Rico.
• That text [of the Appointments Clause] firmly indicates that it applies to the appointment of all “Officers of the United States.” And history confirms this reading.
• Given the Constitution’s structure, this history, roughly analogous case law, and the absence of any conflicting authority, we conclude that the Appointments Clause constrains the appointments power as to all “Officers of the United States,” even when those officers exercise power in or related to Puerto Rico.

We agree. The Appointments Clause provides:

[The President] shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

In our view, the phrase “Officers of the United States” refers to appointed positions in the Executive and Judicial Branches. This language does not refer to appointed positions in the Legislative Branch. The Appointments Clause defines the phrase “Officers of the United States,” and, generally, how they are appointed: all such appointments are made to positions, which have been established by federal statute, in the executive and judicial branches. This category includes principal officers and inferior officers. Each of these positions must be created “by law”; that is through bicameralism and presentment. And all of these positions must be appointed.

We acknowledge that these statements could be consistent with an alternate reading of the Appointments Clause: that there are some “officers of the United States” who are not appointed. In other words, the Appointments Clause only refers to those “officers of the United States” who are appointed. But there are other elected “officers of the United States.” Some scholars, for example, maintain that the President is an “officer of the United States.” We disagree with this position for reasons we will explain in a forthcoming paper. But we do not think Justice Breyer was hinting at this alternate view. Rather, the Court seems to be saying that all “officers of the United States” must be appointed pursuant to the Appointments Clause.

Second, Justice Breyer recognizes that the phrase “officers of the United States” has limits. That is, not all positions–or, even, all appointed positions–created by federal statute are “officers of the United States.” Here, he writes that the creation of “local offices,” whose duties are “primarily local in nature,” takes the Board members outside the ambit of the Appointments Clause.

Yet two provisions of the Constitution empower Congress to create local offices for the District of Columbia and for Puerto Rico and the Territories. See Art. I, §8, cl. 17; Art. IV, §3, cl. 2. And the Clause’s term “Officers of the United States” has never been understood to cover those whose powers and duties are primarily local in nature and derive from these two constitutional provisions.

Third, Justice Breyer acknowledges that if the Board members are not “officers of the United States,” they must be “some other type of officer.”

If they are not officers of the United States, but instead are some other type of officer, the Appointments Clause says nothing about them.

What is that “other type of officer”? Justice Breyer does not give a direct answer. But he hints that there may be other types of federal officers.

Longstanding practice indicates that a federal law’s creation of an office in this context does not automatically make its holder an “Officer of the United States.”

That is, a federal law can create another type of federal officer, even one that resides outside the three branches: for example, the Article IV territorial officers on the PROMESA Board.

Justice Thomas’s Concurring Opinion

Justice Thomas also concludes that the PROMESA “Territorial officials” are not “officers of the United States.” But he relies on different reasoning than does the majority:

Territorial officials performing duties created under Article IV of the Constitution are not federal officers within the original meaning of the phrase “Officers of the United States.” Since the founding, this Court has recognized a distinction between Article IV power and the powers of the National Government in Articles I, II, and III. The founding generation understood the phrase “Officers of the United States” to refer to officers exercising the powers of the National Government, not officers solely exercising Article IV territorial power. Because the Board’s members perform duties pursuant to Article IV, they do not qualify as “Officers of the United States.”

Justice Thomas suggests that positions that are not authorized by Articles I, II, and III–in our view, positions outside the three branches of government–are not “officers of the United States.” (We do not think Article I positions, like Representatives, Senators, as well as appointed positions in the Legislative Branch, such as the Clerk of the House and the Secretary of the Senate, are “officers of the United States.”) Therefore, a position created pursuant to Article IV cannot fall within the ambit of the Appointments Clause. 

But what are the PROMESA Board members if they are not “officers of the United States”? Where do such “territorial officials” fit within the Constitution’s taxonomy of “offices” and “officers”?

Justice Sotomayor’s Concurring Opinion

Justice Sotomayor “reluctantly concur[red] in judgment.” She agrees with the majority that the PROMESA Board members are not “officers of the United States.” But she suggests that they should be considered “officers of Puerto Rico.”

One would think the Puerto Rican home rule that resulted from that mutual enterprise might affect whether officers later installed by the Federal Government are properly considered officers of Puerto Rico rather than “Officers of the United States” subject to the Appointments Clause. U. S. Const., Art. II, §2, cl. 2.

Justice Sotomayor added that the Board members float in a “twilight zone of accountability.”

The Board members, tasked with determining the financial fate of a self-governing Territory, exist in a twilight zone of accountability, neither selected by Puerto Rico itself nor subject to the strictures of the Appointments Clause. I am skeptical that the Constitution countenances this freewheeling exercise of control over a population that the Federal Government has explicitly agreed to recognize as operating under a government of their own choosing, pursuant to a constitution of their own choosing.

We love this sterling allusion to Justice Jackson’s Youngstown concurrence allusion. And, like the prior opinions, the concurrence does not resolve where the PROMESA Board members fall in the Constitution’s taxonomy. 

Article IV Territorial Officers Hold “Office under the Authority of the United States”

Article IV territorial officers are not “officers of the United States.” They are not appointed pursuant to the Appointments Clause. Moreover, we think these territorial officers do not hold “office . . . under the United States.” These positions exist outside the three branches of the federal government. Justice Thomas’s concurrence alludes to this point in the passage we quoted above. According to Justice Thomas, the power to authorize territorial positions comes from Article IV; therefore such positions are not within the three branches of government. But there is another phrase in the Constitution that provides a more natural fit for Article IV territorial officers.

The Ineligibility Clause, also known as the Sinecure Clause, states, “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time. . . .”  This Clause is the only provision in the Constitution that uses the phrase “civil Office under the Authority of the United States.” Who holds such an office? In our view the phrase “civil Office under the Authority of the United States” encompasses all officers of the United States, but also refers to a broader category of irregularly appointed officers. 

Congress has the authority to “grant letters of Marque and Reprisal.” These letters authorized private parties (known as privateers) to engage in hostilities against foreign states, and seize property.  The holders of such letters have an irregular type of federal position, at least by modern conceptions. Such holders have a special authority conferred upon them, and their positions are outside the regular or permanent government, and its bureaucracy. We think the Ineligibility Clause, also known as the Sinecure Clause, places limits on who can receive a letter of Marque and Reprisal.

The PROMESA Board members are best considered “office[s] under the authority of the United States.” In our view, the PROMESA Board Members are subject to the Sinecure Clause. The positions were created by the 114th Congress in 2016. As a result, members of the 114th Congress could not have been appointed to PROMESA during the 114th Congress. This prohibition makes some sense, especially because the positions could be appointed without Senate advice-and-consent. If PROMESA Board members were not subject to the Sinecure Clause, the President could reward loyal members of Congress with potentially lucrative positions and emoluments. The Sinecure Clause was designed to eliminate this risk of self-aggrandizement. Members of the House of Representatives who were in the 114th Congress can now be appointed to PROMESA. Senators in office during the 114th Congress would be bound by the Sinecure Clause in until circa January 2021. 

Many scholars read the phrase “officers of the United States” in an expansive, if not quasi-literal fashion. They argue that this phrase includes all federal positions, but excludes state positions. The Supreme Court has now recognized that there are some federal positions, i.e., positions created by federal statute, that are not “officers of the United States.” This holding provides some judicial recognition that the phrase “officers of the United States” is not all-encompassing. In other words, the Court has rejected the maximalist reading of the phrase “officer of the United States.” Justice Breyer wrote that “[t]he language at issue does not offer us much guidance for understanding the key term ‘of the United States.'” Why? He explained, “[t]he text suggests a distinction between federal officers—officers exercising power of the National Government—and nonfederal officers—officers exercising power of some other government.” But the Court rejects that simplistic distinction. Rather, the dividing line between who is and who is not an “officer of the United States” is not a mere federal-versus-state dichotomy. According to both Justice Breyer, as well as Justice Thomas, the answer is far more complex. The Court and the concurrences do not draw that line based on a literal reading of the word “officer” and the modifying phrase: “of the United States.” Instead, the Court carefully considered historical practice–and in particular the practices of the First Congress.

We have long argued (and long before President Trump’s election) that the Framers used divergent “office”- and “officer”-language throughout the Constitution to refer to different categories of positions. The phrase “officers of the United States” is not coterminous with the phrase “office . . . the United States.” To this day, important legal questions turn on these distinctions. For example, does the President hold an “office . . . under the United States” for purposes of the Foreign Emoluments Clause? In the PROMESA case, the Court held that territorial officers are not “officers of the United States” even though these positions are established by a federal statute. For that reason and others, we submit, courts should not simply assume that the President automatically holds an “office . . . under the United States,” solely because he holds a federal position. 

We intend to share our comprehensive article on the Offices and Officers of the Constitution in due course.