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07/29/2020

Congressional Self-Delegation in FOMB
Chris Green

The PROMESA case from last month, Financial Oversight and Management Board v. Aurelius Investment, unanimously turned back an Appointments Clause challenge to the composition of the board governing Puerto Rico’s bankruptcy. I mentioned earlier that Justice Breyer treated subsequent history in a much more originalism-friendly way than he had for the Court in Noel Canning. But it seems to me that the FOMB runs very straightforwardly afoul of the Court’s cases forbidding congressional self-delegation: Chadha, Bowsher, and especially the application of Chadha and Bowsher to DC government--independent of the Appointments Clause--in Municipal Washington Airport Authority

Five of the six members of the FOMB are chosen by the President from lists composed by congressional leaders (two lists for the Speaker and one list each for the minority leader of the House and majority and minority leaders of the Senate). While Justice Breyer notes the procedure in passing (and Justice Sotomayor’s concurrence in the judgment gives more detail), the Court never explains why this sort of congressional self-delegation is OK under Chadha, Bowsher, and MWAA.

The power to compose the lists from which the President may choose is, of course, far more important than the President’s selection power itself. Imagine a Democratic President allowed to select a Justice from among President Trump’s list of Supreme Court candidates: it’s obviously not nearly as significant as the power to create that list in the first place!

The size of the congressional self-delegation in PROMESA isn’t the main issue, though. Rather, it’s just not the sort of ex officio power that Congress may give to the Speaker or other congressional officers under MWAA.  The Court explained straightforwardly in MWAA: “If the power is executive, the Constitution does not permit an agent of Congress to exercise it. If the power is legislative, Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7.” Indeed, the FOMB Court notes at page 19 that MWAA was a Chadha/Bowsher case, rather than an Appointments Clause one. But if the Chadha/Bowsher ban on congressional self-delegation applies even to appointments that might fall outside the Appointments Clause, it condemns the FOMB even if the Court is right about whether its members are “officers of the United States.”