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06/06/2020

Gregory Ablavsky on Territorial Appointments and FOMB v. Aurelius Investment
Michael Ramsey

At Balkinization, Gregory Ablavsky (Stanford), guest-blogging: PROMESA and Original Understandings of the Territories’ Constitutional Status.  From the introduction:

[Financial Oversight and Management Bd. v. Aurelius Investment] presented another iteration of the Court’s long-running attempts to make sense of the constitutional status of the territories. The question was whether congressional appointments of territorial officials to Puerto Rico’s financial oversight board required presidential nomination and Senate confirmation consistent with the Appointments Clause.  A unanimous Court said no.  A seven-Justice majority reasoned that the fact that federal law created the office did not transform the appointee into an officer of the United States, pointing to long-standing practice, although it noted that some high-level territorial officials did seem to require federal appointment.
 
Justice Thomas, however, would have gone further.  Arguing for a very sharp distinction between territorial and national power, he insisted that Congress reenacted the Northwest Ordinance to conform with the Appointments Clause because St. Clair and other territorial governors were also superintendents of Indian affairs, they wielded “powers of the National Government,” not the local government.  The First Congress, he insisted, “recognized the distinction between territorial and national powers.”
 
Unfortunately, this just-so story doesn’t fit the history....
 
And in conclusion:
 
So who does have it right?  I think the majority is on the right track when it recognizes both that a line between “territorial” and “national” power existed but that it was not always cleanly or neatly drawn.  But I actually think Justice Sotomayor’s concurrence—although it focused much more on the history of Puerto Rico—more accurately reflects how many in the territories would have thought about the relationship.  Sotomayor’s argument was that we should see territorial authority in the instances when the people of the territories themselves play a role in conferring that authority. That, in fact, was what those in the first territories clamored for—a chance to choose their own officers themselves, a view consistent with the Court’s own statements about democratic accountability in the context of commandeering. And Congress eventually listened: ironically, in contrast to the celebrated Northwest Ordinance, which created one of the least democratic forms of governance in U.S. history, later territorial governments provided for much greater popular input and control. In my view, this more functional test—rather than a formalist divide anachronistically thrust onto the First Congress’s unexplained actions—better captures what early Americans were arguing about when they argued over the territories.