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06/12/2020

Josh Blackman & Seth Barrett Tillman on Territorial Officers
Michael Ramsey

At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman:  The PROMESA Board Members Are Not "Officers of the United States." So What Are They?  From the introduction:

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.

And from later on:

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.