NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 18–1334, 18–1475, 18–1496, 18–1514 and 18–1521
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, PETITIONER
AURELIUS INVESTMENT, LLC, et al.
AURELIUS INVESTMENT, LLC, et al., PETITIONERS
COMMONWEALTH OF PUERTO RICO, et al.
OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF ALL TITLE III DEBTORS OTHER THAN COFINA, PETITIONER
AURELIUS INVESTMENT, LLC, et al.
UNITED STATES, PETITIONER
AURELIUS INVESTMENT, LLC, et al.
UNIÓN DE TRABAJADORES DE LA INDUSTRIA ELÉCTRICA Y RIEGO, INC., PETITIONER
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, et al.
on writs of certiorari to the united states court of appeals for the first circuit
[June 1, 2020]
Justice Breyer delivered the opinion of the Court.
The Constitution’s Appointments Clause says that the President
“shall nominate, and by and with the Advice and Consent of the Senate
, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States
. . . .” Art. II, §2, cl. 2 (emphasis added).
In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).
48 U. S. C. §2101 et seq.
That Act created a Financial Oversight and Management Board, and it provided, as relevant here, that the President could appoint its seven members without “the advice and consent of the Senate,” i.e.
, without Senate confirmation.
The question before us is whether this method of appointment violates the Constitution’s Senate confirmation requirement. In our view, the Appointments Clause governs the appointments of all officers of the United States, including those located in Puerto Rico. 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. The Board’s statutory responsibilities consist of primarily local duties, namely, representing Puerto Rico in bankruptcy proceedings and supervising aspects of Puerto Rico’s fiscal and budgetary policies. We therefore find that the Board members are not “Officers of the United States.” For that reason, the Appointments Clause does not dictate how the Board’s members must be selected.
In 2006, tax advantages that had previously led major businesses to invest in Puerto Rico expired. See Small Business Job Protection Act of 1996, §1601,
1827. Many industries left the island. Emigration increased. And the public debt of Puerto Rico’s government and its instrumentalities soared, rising from $39.2 billion in 2005 to $71 billion in 2016. See Dept. of Treasury, Puerto Rico’s Economic and Fiscal Crisis 1, 3, https://www.treasury.gov/ connect/blog/Documents/Puerto_Ricos_fiscal_challenges.pdf; GAO, U. S. Territories: Public Debt Outlook 12 (GAO–18–160, 2017).
Puerto Rico found that it could not service that debt. Yet Puerto Rico could not easily restructure it. The Federal Bankruptcy Code’s municipality-related Chapter 9 did not apply to Puerto Rico (or to the District of Columbia). See 11 U. S. C. §§109(c), 101(52). But at the same time, federal bankruptcy law invalidated Puerto Rico’s own local “debt-restructuring” statutes. Puerto Rico
v. Franklin Cal. Tax-Free Trust
, 579 U. S. ___ (2016). In 2016, in response to Puerto Rico’s fiscal crisis, Congress enacted PROMESA.
48 U. S. C. §2101 et seq.
PROMESA allows Puerto Rico and its entities to file for federal bankruptcy protection. See §§301, 302,
11 U. S. C. §901 (related to bankruptcies of local governments). The filing and subsequent proceedings are to take place in the United States District Court for the District of Puerto Rico, before a federal judge selected by the Chief Justice of the United States. PROMESA §§307–308,
582. PROMESA also created the Financial Oversight and Management Board—with seven members appointed by the President and with the Governor serving as an ex officio member. §§101(b), (e), id.
, at 553, 554–555. PROMESA gives the Board authority to file for bankruptcy on behalf of Puerto Rico or its instrumentalities. §304(a), id.
, at 579. The Board can supervise and modify Puerto Rico’s laws (and budget) to “achieve fiscal responsibility and access to the capital markets.” §201(b), id.
, at 564; see §§201–207, id.
, at 563–575. And it can gather evidence and conduct investigations in support of these efforts. §104, id.
, at 558–561.
As we have just said, PROMESA gives the President of the United States the power to appoint the Board’s seven members without Senate confirmation, so long as he selects six from lists prepared by congressional leaders. §101(e)(2)(A), id.
, at 554–555.
On August 31, 2016, President Obama selected the Board’s seven members in the manner just described. The Board established offices in Puerto Rico and New York, and soon filed bankruptcy petitions on behalf of the Commonwealth and (eventually) five Commonwealth entities. Title
III Petition in No. 17–BK–3283 (PR); see Order Pursuant to PROMESA Section 304(g), No. 17–BK–3283 (PR, Oct. 9, 2019), Doc. 8829 (consolidating petitions filed on behalf of the Commonwealth of Puerto Rico, the Puerto Rico Sales Tax Financing Corporation, the Puerto Rico Highways and Transportation Authority, the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, the Puerto Rico Electric Power Authority, and the Puerto Rico Public Buildings Authority). And the Chief Justice then selected a federal judge to serve as bankruptcy judge for Puerto Rico. Designation of Presiding District Judge, No. 17–BK–3283 (PR, May 5, 2017), Doc. 4.
After both court and Board had decided a number of matters, several creditors moved to dismiss all proceedings on the ground that the Board members’ selection violated the Appointments Clause. The court denied the motions. See In re Financial Oversight and Management Bd. of Puerto Rico
, 318 F. Supp. 3d 537, 556–557 (PR 2018). The creditors appealed to the United States Court of Appeals for the First Circuit. That court reversed. It held that the selection of the Board’s members violated the Appointments Clause. 915 F.3d 838, 861 (2019). But it concluded that those Board actions taken prior to its decision remained valid under the “de facto
officer” doctrine. Id.
, at 862–863; see, e.g.
v. United States
159 U.S. 596
, 601 (1895) (judicial decisions could not later be attacked on ground that an unlawfully sitting judge presided); Ball
v. United States
140 U.S. 118
, 128–129 (1891) (same).
The Board, the United States, and various creditors then filed petitions for certiorari in this Court, some arguing that the appointments were constitutionally valid, others that the de facto
officer doctrine did not apply. Compare Pets. for Cert. in Nos. 18–1334, 18–1496, 18–1514 with Pets. for Cert. in Nos. 18–1475, 18–1521. In light of the importance of the questions, we granted certiorari in all the petitions and consolidated them for argument. 588 U. S. ___ (2019).
Congress created the Board pursuant to its power under Article IV of the Constitution to “make all needful Rules and Regulations respecting the Territory . . . belonging to the United States.” §3, cl. 2; see PROMESA §101(b)(2),
553. Some have argued in these cases that the Appointments Clause simply does not apply in the context of 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.
The Constitution’s structure provides strong reason to believe that is so. The Constitution separates the three basic powers of Government—legislative, executive, and judicial—with each branch serving different functions. But the Constitution requires cooperation among the three branches in specified areas. Thus, to become law, proposed legislation requires the agreement of both Congress and the President (or, a supermajority in Congress). See INS
462 U.S. 919
, 955 (1983) (noting that the Constitution prescribes only four specific actions that Congress can take without bicameralism and presentment). At the same time, legislation must be consistent with constitutional constraints, and we usually look to the Judiciary as the ultimate interpreter of those constraints.
The Appointments Clause reflects a similar allocation of responsibility, between President and Senate, in cases involving appointment to high federal office. That Clause reflects the Founders’ reaction to “one of [their] generation’s greatest grievances against [pre-Revolutionary] executive power,” the manipulation of appointments. Freytag
501 U.S. 868
, 883 (1991); see also The Federalist No. 76, p. 455 (C. Rossiter ed. 1961) (A. Hamilton) (the Appointments Clause helps to preserve democratic accountability). The Founders addressed their concerns with the appointment power by both concentrating it and distributing it. On the one hand, they ensured that primary responsibility for nominations would fall on the President, whom they deemed “less vulnerable to interest-group pressure and personal favoritism” than a collective body. Edmond
v. United States
520 U.S. 651
, 659 (1997). See also The Federalist No. 76, at 455 (“The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation”). On the other hand, they ensured that the Senate’s advice and consent power would provide “an excellent check upon a spirit of favoritism in the President and a guard against the appointment of unfit characters.” NLRB
v. SW General, Inc.
, 580 U. S. ___, ___ (2017) (slip op., at 2) (internal quotation marks omitted). By “limiting the appointment power” in this fashion, the Clause helps to “ensure that those who wielded [the appointments power] were accountable to political force and the will of the people.” Freytag
, at 884; see also Edmond
, 520 U. S., at 659. “The blame of a bad nomination would fall upon the president singly and absolutely,” while “[t]he censure of rejecting a good one would lie entirely at the door of the senate.” Id.
, at 660 (internal quotation marks omitted).
These other structural constraints, designed in part to ensure political accountability, apply to all exercises of federal power, including those related to Article IV entities. Cf., e.g.
, Metropolitan Washington Airports Authority
v. Citizens for Abatement of Aircraft Noise, Inc.
501 U.S. 252
, 270–271 (1991) (MWAA
) (separation-of-powers principles apply when Congress acts under its Article IV power to legislate “respecting . . . other Property”). See also, e.g.
, Act of Aug. 7, 1789, ch. 8,
50 (the First Congress using bicameralism and presentment to make rules and regulations for the Northwest Territory). The objectives advanced by the Appointments Clause counsel strongly in favor of that Clause applying to the appointment of all “Officers of the United States.” Why should it be different when such an officer’s duties relate to Puerto Rico or other Article IV entities?
Indeed, the Appointments Clause has no Article IV exception. The Clause says in part that the President
“shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments . . . shall be established by Law . . . .” Art. II, §2, cl. 2.
That text firmly indicates that it applies to the appointment of all
“Officers of the United States.” And history confirms this reading. Before the writing of the Constitution, Congress had enacted an ordinance that allowed Congress to appoint officers to govern the Northwest Territory. As soon as the Constitution became law, the First Congress “adapt[ed]” that ordinance “to the present Constitution of the United States,” Act of Aug. 7, 1789,
51, in large part by providing for an appointment process consistent with the constraints of the Appointments Clause. In particular, it provided for a Presidential-appointment, Senate-confirmation process for high-level territorial appointees who assumed federal, as well as local, duties. See id.,
at 52, n. (a
); §1, id.
, at 53 (appointment by President, and confirmation by Senate, of Governor, secretary, and members of the upper house); Act of Sept. 11, 1789, ch. 13, §1,
68 (Governor “discharg[ed]” the federal “duties of superintendent of Indian affairs”). Later Congresses took a similar approach to later territorial Governors with federal duties. See Act of June 6, 1900, §10,
325 (appointment of Governor of Territory of Alaska by President with confirmation by Senate); §2, id.
, at 322 (federal duties of Alaska territorial Governor include entering into contracts in name of the United States and granting reprieves for federal offenses); Act of Mar. 2, 1819, §§3, 10,
495 (similar for Governor of Arkansas). We do not mean to suggest that every time Congress chooses to require advice and consent procedures it does so because they are constitutionally required. At times, Congress may wish to require Senate confirmation for policy reasons. Even so, Congress’ practice of requiring advice and consent for these Governors with important federal duties supports the inference that Congress expected the Appointments Clause to apply to at least some officials with supervisory authority over the Territories.
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.
The more difficult question before us is whether the Board members are officers of the United States such that the Appointments Clause requires Senate confirmation. If they are not officers of the United States, but instead are some other type of officer, the Appointments Clause says nothing about them. (No one suggests that they are “Ambassadors,” “other public Ministers and Consuls,” or “Judges of the supreme Court.”) And as we shall see, the answer to this question turns on whether the Board members have primarily local powers and duties.
The language at issue does not offer us much guidance for understanding the key term “of the United States.” The text suggests a distinction between federal officers—officers exercising power of the National Government—and nonfederal officers—officers exercising power of some other government. The Constitution envisions a federalist structure, with the National Government exercising limited federal power and other, local governments—usually state governments—exercising more expansive power. But the Constitution recognizes that for certain localities, there will be no state government capable of exercising local power. Thus, two provisions of the Constitution, Article I, §8, cl. 17, and Article IV, §3, cl. 2, give Congress the power to legislate for those localities in ways “that would exceed its powers, or at least would be very unusual” in other contexts. Palmore
v. United States
411 U.S. 389
, 398 (1973). Using these powers, Congress has long legislated for entities that are not States—the District of Columbia and the Territories. See District of Columbia
v. John R. Thompson Co.
346 U.S. 100
, 104–106 (1953). And, in doing so, Congress has both made local law directly and also created structures of local government, staffed by local officials, who themselves have made and enforced local law. Compare, e.g.
Act of Mar. 2, 1962, §401,
17 (changing D. C. liquor tax from $1.25 per gallon to $1.50 per gallon), with District of Columbia Self-Government and Governmental Reorganization Act,
774 (giving local D. C. government primary legislative control over local matters). This structure suggests that when Congress creates local offices using these two unique powers, the officers exercise power of the local government, not the Federal Government. Cf. American Ins. Co.
v. 356 Bales of Cotton
, 1 Pet. 511, 546 (1828) (Marshall, C. J.) (territorial courts may exercise the judicial power of the Territories without the life tenure and salary protections mandated by Article III for federal judges); Cincinnati Soap Co.
v. United States
301 U.S. 308
, 323 (1937) (territorial legislators may exercise the legislative power of the Territories without violating the nondelegation doctrine).
History confirms what the Constitution’s text and structure suggest. See NLRB
v. Noel Canning
573 U.S. 513
, 524 (2014) (relying on history and structure in interpreting the Recess Appointments Clause). See also McCulloch
, 4 Wheat. 316, 401 (1819) (emphasizing the utility of historical practice in interpreting constitutional provisions). 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.” Rather, Congress has often used these two provisions to create local offices filled in ways other than those specified in the Appointments Clause. When the First Congress legislated for the Northwest Territories, for example, it created a House of Representatives for the Territory with members selected by election. It also created an upper house of the territorial legislature, whose members were appointed by the President (without Senate confirmation) from lists provided by the elected, lower house. And it created magistrates appointed by the Governor. See Act of Aug. 7, 1789,
51, n. (a
The practice of creating by federal law local offices for the Territories and District of Columbia that are filled through election or local executive appointment has continued unabated for more than two centuries. See, e.g.
. (Northwest Territories local offices filled by election); Act of Apr. 7, 1798, §3,
550 (Mississippi, same); Act of May 7, 1800, §2,
59 (Indiana, same); Act of May 15, 1820, §3,
584 (District of Columbia, same); Act of Apr. 30, 1900, §13,
144 (Hawaii, same); Act of Aug. 24, 1912, §4,
513 (Alaska, same); Act of Aug. 23, 1968, §4,
837 (Virgin Islands, same); Act of Sept. 11, 1968, Pub. L. 90–497, §1,
842 (Guam, same); Act of May 4, 1812, §3,
723 (D. C. mayor appoints “all offices”); Act of June 4, 1812, §2,
744 (Missouri Governor, similar); Act of Mar. 2, 1819, §3,
494 (Arkansas, similar); Act of June 6, 1900, §2,
322 (Alaska, similar); Act of Sept. 11, 1968, §1,
843 (Guam, similar). Like Justice Thomas, post,
at 6 (opinion concurring in judgment), we think the practice of the First Congress is strong evidence of the original meaning of the Constitution. We find this subsequent history similarly illuminates the text’s meaning.
Puerto Rico’s history is no different. It reveals a longstanding practice of selecting public officials with important local responsibilities in ways that the Appointments Clause does not describe. In 1898, at the end of the Spanish-American War, the United States took responsibility for determining the civil rights of Puerto Ricans as well as Puerto Rico’s political status. Treaty of Paris, Art. 9, Dec. 10, 1898,
1759. In 1900, the Foraker Act provided for Presidential appointment (with Senate confirmation) of Puerto Rico’s Governor, the heads of six departments, the legislature’s upper house, and the justices of its high court. Organic Act of 1900, §§ 17, 18, 33,
84. But it also provided for the selection, through popular election, of a lower legislative house with the power (subject to upper house concurrence) to “alter, amend, modify, and repeal any and all laws . . . of every character.” §§27, 32, id.
, at 82, 84. There is no indication that anyone thought members of the lower house, wielding important local responsibilities, were “Officers of the United States.”
Congress replaced the Foraker Act with the Jones Act in 1917. Organic Act of Puerto Rico, ch. 145,
951. Under the Jones Act the Puerto Rican Senate was elected and consequently no longer satisfied the Appointments Clause criteria. See §26, id.
, at 958. Similarly, the Governor of Puerto Rico nominated four cabinet members, confirmed by the Senate of Puerto Rico. §13, id.
, at 955–956. The elected legislature retained “all local legislative powers,” including the power to appropriate funds. §§ 25, 34, 37, id.
, at 958, 962, 964.
Congress amended the Jones Act in 1947 to provide for an elected Governor of Puerto Rico, and granted that Governor the power to appoint all cabinet officials. See Act of Aug. 5, 1947, ch. 490, §§ 1, 3,
771. The President retained the power to appoint (with Federal Senate confirmation) judges, an auditor, and the new office of Coordinator of Federal Agencies, who was to supervise federal functions in Puerto Rico and recommend to higher federal officials ways to improve the quality of federal services. §6, id.
, at 772.
In 1950, Congress enacted Public Law 600, “in the nature of a compact” with Puerto Rico and subject to approval by the voters of Puerto Rico. Act of July 3, 1950, ch. 446, §§1, 2,
319. The Act adopted the Jones Act, as amended, as the Puerto Rican Federal Relations Act, and provided for the Jones Act’s substantial (but not complete) repeal upon the effective adoption of a contemplated Puerto Rican constitution. §§4, 5, id.
, at 319–320. Among the provisions of the Jones Act that Public Law 600 retained were several related to Puerto Rico’s public debt. Congress retained, for example, the triple-tax-exempt nature of Puerto Rican bonds. Jones Act, §3,
953. It also retained a (later repealed) cap on the amount of public debt Puerto Rico or its subdivisions could accumulate. Ibid.
In a public referendum, the citizens of Puerto Rico approved Public Law 600—including the limits on debt in §3 of the Federal Relations Act—and then began the constitution-making process. Pub. L. 600, §§2, 3, 64 Stat.
319; see Act of July 3, 1952,
327; A. Fernós-Isern, Original Intent in the Constitution of Puerto Rico 13 (2d ed. 2002).
Puerto Rico’s popularly ratified Constitution, which Congress accepted with a few fairly minor changes, does not involve the President or the Senate in the appointment process for local officials. That Constitution provides for the election of Puerto Rico’s Governor and legislators. Art. III, §1; Art. IV, §1. And it provides for gubernatorial appointment (and Puerto Rican Senate confirmation) of cabinet officers. Art. IV, §5.
The upshot is that Puerto Rico’s history reflects long-standing use of various methods for selecting officials with primarily local responsibilities. This history is consistent with the history of other entities that fall within the scope of Article IV and with the history of the District of Columbia. See supra
, at 10–11. And it comports with our precedents, which have long acknowledged that Congress may structure local governments under Article IV and Article I in ways that do not precisely mirror the constitutional blueprint for the National Government. See, e.g., Benner
, 9 How. 235, 242 (1850). Cf. Glidden Co.
370 U.S. 530
, 546 (1962) (plurality opinion) (recognizing that local governments created by Congress could, like governments of the States, “dispense with protections deemed inherent in a separation of governmental powers”). Sometimes Congress has specified the use of methods that would satisfy the Appointments Clause, other times it has specified methods that would not satisfy the Appointments Clause, including elections and appointment by local officials. Officials with primarily local duties have often fallen into the latter categories. We know of no case endorsing an Appointments Clause based challenge to such selection methods. Indeed, to read Appointments Clause constraints as binding Puerto Rican officials with primarily local duties would work havoc with Puerto Rico’s (federally ratified) democratic methods for selecting many of its officials.
We thus conclude that while the Appointments Clause does
restrict the appointment of “Officers of the United States” with duties in or related to the District of Columbia or an Article IV entity, it does not
restrict the appointment of local officers that Congress vests with primarily local duties under Article IV, §3, or Article I, §8, cl. 17.
The question remains whether the Board members have primarily local powers and duties. We note that the Clause qualifies the phrase “Officers of the United States” with the words “whose Appointments . . . shall be established by Law.” And we also note that PROMESA says that the Board is “an entity within the territorial government” and “shall not be considered a department, agency, establishment, or instrumentality of the Federal Government.” §101(c),
553. But the most these words show is that Congress did not intend to make the Board members “Officers of the United States.” It does not prove that, insofar as the Constitution is concerned, they succeeded.
But we think they have. Congress did not simply state that the Board is part of the local Puerto Rican government. Rather, Congress also gave the Board a structure, a set of duties, and related powers all of which are consistent with this statement.
The government of Puerto Rico pays the Board’s expenses, including the salaries of its employees (the members serve without pay). §107, id.
, at 562; see §101(g), id.
, at 556. The Board possesses investigatory powers. It can hold hearings. §104(a), id.
, at 558. It can issue subpoenas, subject to Puerto Rico’s limits on personal jurisdiction and enforceable under Puerto Rico’s laws. §104(f ), id.
, at 559. And it can enforce those subpoenas in (and only in) Puerto Rico’s courts. §§104(f )(2), 106(a), id.
, at 559, 562.
From its own offices in or outside of Puerto Rico, the Board works with the elected government of Puerto Rico to develop a fiscal plan that provides “a method to achieve fiscal responsibility and access to the capital markets.” §201(b), id.
, at 564. If it finds it necessary, the Board can develop its own budget for Puerto Rico which is “deemed . . . approved” and becomes the operative budget. §202(e)(3), id.
, at 568. It can ensure compliance with the plan and budget by reviewing the Puerto Rico government’s laws and spending and by “direct[ing]” corrections or taking “such [other] actions as it considers necessary,” including preventing a law from taking effect. §§203(d), 204(a), id.
, at 569, 571. The Board controls the issuance of new debt for Puerto Rico. §207, id.
, at 575.
The Board also may initiate bankruptcy proceedings for Puerto Rico or its instrumentalities. §304(a), id.
, at 579. It may take any related “action necessary on behalf of,” and it serves as “the representative of,” Puerto Rico or its instrumentalities. §315, id.
, at 584. These proceedings take place in the U. S. District Court for Puerto Rico. §307, id.
, at 582.
To repeat: The Board has broad investigatory powers: It can administer oaths, issue subpoenas, take evidence and demand data from governments and creditors alike. But these powers are backed by Puerto Rican, not federal, law: Subpoenas are governed by Puerto Rico’s personal jurisdiction statute; false testimony is punishable under the law of Puerto Rico; the Board must seek enforcement of its subpoenas by filing in the courts of Puerto Rico. See §104, id.
, at 558–561. These powers are primarily local in nature.
The Board also oversees the development of Puerto Rico’s fiscal and budgetary plans. It receives and evaluates proposals from the elected Governor and legislature. It can create a budget “deemed” to be that of Puerto Rico. It can intervene when budgetary constraints are violated. And it has authority over the issuance of new debt. §§201–207, id.
, at 563–575. These powers, too, are quintessentially local. Each concerns the finances of the Commonwealth, not of the United States. The Board members in this respect discharge duties ordinarily held by local officials.
Last, the Board has the power to initiate bankruptcy proceedings. But in doing so, it acts not on behalf of the United States, but on behalf of, and in the interests of, Puerto Rico. The proceedings take place in federal court; but the same is true of all persons or entities who seek bankruptcy protection. The Board here acts as a local government that might take precisely the same actions. See, e.g.
, 11 U. S. C. §§109(c), 921 (related to bankruptcies of local governments).
Some Board actions, of course, may have nationwide consequences. But the same can be said of many actions taken by many Governors or other local officials. Taking actions with nationwide consequences does not automatically transform a local official into an “Officer of the United States.” The challengers rely most heavily on the nationwide effects of the bankruptcy proceedings. E.g.
, Brief for Aurelius et al. 31; Brief for Petitioner Unión de Trabajadores de la Industria Eléctrica y Riego, Inc. (UTIER) 49. But the same might be said of any major municipal, or even corporate, bankruptcy. E.g.
, In re Detroit
, 504 B.R. 97 (Bkrtcy. Ct. ED Mich. 2013) (restructuring $18 billion in municipal debt).
In short, the Board possesses considerable power—including the authority to substitute its own judgment for the considered judgment of the Governor and other elected officials. But this power primarily concerns local matters. Congress’ law thus substitutes a different process for determining certain local policies (related to local fiscal responsibility) in respect to local matters. And that is the critical point for current purposes. The local nature of the legislation’s expressed purposes, the representation of local interests in bankruptcy proceedings, the focus of the Board’s powers upon local expenditures, the local logistical support, the reliance on local laws in aid of the Board’s procedural powers—all these features when taken together and judged in the light of Puerto Rico’s history (and that of the Territories and the District of Columbia)—make clear that the Board’s members have primarily local duties, such that their selection is not subject to the constraints of the Appointments Clause.
The Court of Appeals, pointing to three of this Court’s cases, reached the opposite conclusion. See Buckley
424 U.S. 1
(1976) (per curiam
501 U.S. 868
, and Lucia
, 585 U. S. ___ (2018). It pointed out that the Court, in those cases, discussed the term “Officer of the United States,” and it concluded that, for Appointments Clause purposes, an appointee is such an “officer” if “(1) the appointee occupies a ‘continuing’ position established by federal law; (2) the appointee ‘exercis[es] significant authority’; and (3) the significant authority is exercised ‘pursuant to the laws of the United States.’ ” 915 F. 3d, at 856. The Court of Appeals concluded that the Board members satisfied this test. See id.
, at 856–857.
We do not believe these three cases set forth the critical legal test relevant here, however, and we do not apply any test they might enunciate. Each of the cases considered an Appointments Clause problem concerning the importance or significance of duties that were indisputably federal
or national in nature. In Buckley
, the question was whether members of the Federal Election Commission—appointees carrying out federal-election related duties—were “officers” for Appointments Clause purposes. In Freytag
, the Court asked the same question about special federal trial judges serving on federal tax courts. And in Lucia
the Court asked the same question about federal administrative law judges carrying out Securities and Exchange Commission duties.
Here, PROMESA, a federal law, creates the Board and its duties, and no one doubts their significance. But we cannot stop there. To do so would ignore the history we have discussed—history stretching back to the founding. See supra
, at 10–13. And failing to take account of the nature of an appointee’s federally created duties, i.e.
, whether they are primarily local versus primarily federal
, would threaten interference with democratic (or local appointment) selection methods in numerous Article IV Territories and perhaps the District of Columbia as well. See, e.g.
48 U. S. C. §1422 (providing for an elected Governor of Guam); §1591 (same for Virgin Islands); District of Columbia Self-Government Act, §421,
789 (same for D. C. Mayor); §422(2),
790 (describing D. C. Mayor’s appointment powers);
48 U. S. C. §1422c (same for Guam’s Governor); §1597(c) (same for Virgin Islands). There is no reason to understand the Appointments Clause—which, at least in part, seeks to advance democratic accountability and broaden appointments-related responsibility, see supra
, at 6–7—as making it significantly more difficult for local residents of such areas to share responsibility for the implementation of (statutorily created) primarily local duties. Neither the text nor the history of the Clause commands such a result.
Neither do Lebron
v. National Railroad Passenger Corporation
513 U.S. 374
(1995), or MWAA
501 U.S. 252
, help those challenging the Board’s constitutional legitimacy. Lebron
considered whether, for
First Amendment purposes, Amtrak was a governmental or a private entity. 513 U. S., at 379. All here agree that the Board is a Government entity, but that fact does not answer the “primarily local versus primarily federal” question. In MWAA
, the Court held that separation-of-powers principles forbid Members of Congress to become members of a board that controls federally owned airports. 501 U. S., at 275–276 (relying on Bowsher
478 U.S. 714
, 726 (1986), and INS
462 U.S. 919
, 952 (1983)). The Court expressly declined to answer any question related to the Appointments Clause. 501 U. S., at 277, n. 23.
While we have found no case from this Court directly on point, we believe that the Court’s analysis in O’Donoghue
v. United States
289 U.S. 516
(1933), and especially Palmore
v. United States
411 U.S. 389
, provides a rough analogy. In O’Donoghue
, the Court considered whether Article III’s tenure and salary protections applied to judges of the courts in the District of Columbia. The Court held that they did. Those courts, it believed, were “ ‘courts of the United States’ ” and “recipients of the judicial power of the United States.” 289 U. S., at 546, 548. The judges’ salaries consequently could not be reduced. Id.
, at 551.
, however, the Court reached what might seem the precisely opposite conclusion. A criminal defendant, invoking O’Donoghue
, argued that the D. C. Superior Court Judge could not constitutionally preside over the case because the judge lacked Article III’s tenure protection, namely, life tenure. Palmore
, at 390. But the Court rejected the defendant’s argument. Why? How did it explain O’Donoghue
The difference, said the Court, lies in the fact that, in the meantime, Congress had changed the nature of the District of Columbia court. Palmore
, at 406–407; see District of Columbia Court Reform and Criminal Procedure Act of 1970,
473. Congress changed what had been a unified court system where judges adjudicated both local and federal issues into separate court systems, in one of which judges adjudicated primarily local issues. §111, id.
, at 475. Courts in that category had criminal jurisdiction over only those cases brought “ ‘under any law applicable exclusively to the District of Columbia.’ ” Id.
, at 486. Its judges served for 15-year terms. Id.
, at 491.
This Court, in Palmore
, considered a local judge presiding over a local court. Congress had created that court in the exercise of its Article I power to “exercise exclusive Legislation in all Cases whatsoever” over the District of Columbia. See Art I, §8, cl. 17. The “focus” of these courts was “primarily upon . . . matters of strictly local concern.” 411 U. S., at 407. Hence, the nature of those courts was a “far cry” from that of the courts at issue in O’Donoghue
411 U. S., at 406.
The Court added that Congress had created non-Article III courts under its Article IV powers. It wrote that Congress could also create non-Article III courts under its Article I powers. Id.
, at 403, 410. And it held that judges serving on those non-Article III courts lacked Article III protections. Id.
, at 410.
concerned Article I of the Constitution, not Article IV. And it concerned “the judicial Power of the United States,” not “Officers of the United States.” But it provides a rough analogy. It holds that Article III protections do not apply to an Article I court “focus[ed],” unlike the courts at issue in O’Donoghue
, primarily on local matters. Here, Congress expressly invoked a constitutional provision allowing it to make local debt-related law (Article IV); it expressly located the Board within the local government of Puerto Rico; it clearly indicated that it intended the Board’s members to be local officials; and it gave them primarily local powers, duties, and responsibilities.
In his concurring opinion, Justice Thomas criticizes the inquiry we set out—whether an officer’s duties are primarily local or primarily federal—as too “amorphous,” post
, at 10. But we think this is the test established by the Constitution’s text, as illuminated by historical practice. And we cannot see how Congress could avoid the strictures of the Appointments Clause by adding to a federal officer’s other obligations a large number of local duties. Indeed, we think that our test, tied as it is to both the text and the history of the Appointments Clause, is more rigorous than the bare inquiry into the “nature” of the officer’s authority that Justice Thomas proposes, and we believe it is more faithful to the Clause’s original meaning. Ibid.
We conclude, for the reasons stated, that the Constitution’s Appointments Clause applies to the appointment of officers of the United States with powers and duties in and in relation to Puerto Rico, but that the congressionally mandated process for selecting members of the Financial Oversight and Management Board for Puerto Rico does not violate that Clause. Given this conclusion, we need not consider the request by some of the parties that we overrule the much-criticized “Insular Cases” and their progeny. See, e.g.
182 U.S. 244
, 287 (1901) (opinion of Brown, J.); Balzac
v. Porto Rico
258 U.S. 298
, 309 (1922); Reid
354 U.S. 1
, 14 (1957) (plurality opinion) (indicating that the Insular Cases should not be further extended); see also Brief for Official Committee of Unsecured Creditors of All Title III Debtors (Other than COFINA) 20–25 (arguing that the Insular Cases support reversal on the Appointments Clause issue); Brief for UTIER 64–66 (encouraging us to overrule the Insular Cases); Brief for Virgin Islands Bar Association as Amicus Curiae
13–18 (same); Cabranes, Citizenship and the American Empire, 127 U. Pa. L. Rev. 391, 436–442 (1978) (criticizing the Insular Cases); Littlefield, The Insular Cases, 15 Harv. L. Rev. 169 (1901) (same). Those cases did not reach this issue, and whatever their continued validity we will not extend them in these cases. See Reid
Neither, since we hold the appointment method valid, need we consider the application of the de facto
officer doctrine. See Ryder
v. United States
515 U.S. 177
(1995) (discussing the doctrine); see also, e.g.
, Brief for Aurelius et al. 48–69 (arguing the doctrine does not apply in this context); Brief for UTIER 69–85 (same); Reply Brief for United States 26–47 (insisting to the contrary); Brief for Cross-Respondent COFINA Senior Bondholders’ Coalition 14–46 (same).
Finally, as Justice Sotomayor recognizes, post
, at 8 (opinion concurring in judgment), we need not, and therefore do not, decide questions concerning the application of the Federal Relations Act and Public Law 600. No party has argued that those Acts bear any significant relation to the answer to the Appointments Clause question now before us.
For these reasons, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion.
It is so ordered.