whether members of the financial oversight board are officers of the united states who must be selected in the manner that the appointments clause prescribes or whether they are instead territorial officers who do not have to be selected in that manner the constitution's text structure and history in this court's precedents all make clear that the proper focus in answering that question is the nature of the authority the board exercises it comes down to whether congress has vested the board with the executive power of the national government or instead best of the board with the territorial executive power the statute that created the board answers that question in a straightforward way it it sets up an entity within the territorial government it gives the board only territory specific authority and instructs the board to pursue only territory specific objectives the board acts on behalf of puerto rico as its representative in judicial proceedings to restructure the territories debt's it pursues only puerto rico's interests in those proceedings it's up to the article three court that adjudicates those proceedings to balance all the competing interests congress also instructed the board to implement a method for restoring fiscal stability that too is territorial authority that reaches only puerto rico's budgeting and fiscal planning and the board must exercise that authority in a manner that protects puerto rico's final vital interest now congress did build in protections to guarantee the board's independence congress did that because it concluded that puerto rico staggering financial and humanitarian crisis could not be solved unless the board was insulated from the political pressures that caused that crisis in the st place but congress also insulated the board from federal control board members can be removed only for cause which means that the president cannot remove them based on disagreement with the board's policies or priorities in implementing from a so when you put all that together it's the board is in the territorial government it's been given seems to me that your very argument that it's independent is suggesting it can't belong to the territory and that there's a serious problem in the federal government is creating an entity that no one can control neither congress nor the president can remove they sent it to me for anything but cause tell me how this differs from the u s attorneys a u s attorney is an officer of the united states i think you except that how is the u s attorney different to make a general point and i'll specifically answer the u s attorney question the general point i think it's important make clear we don't say contrary to our friends on the other side that the appointments clause doesn't apply in puerto rico it applies in no i don't think so because the difference between that situation and this situation is article four and i really think that gets to the heart of the matter just the sort of new york but i think that the beef that my friends on the other side have is not with the appointments clause it's with article four and the difference between this situation and state is that congress has reserved authority under article four to alter the structure of a territorial government and to prescribe territorial law its subject under torture not give a least quick answer to your st part of yes of course the difference i think keep the key difference between a u s attorney and the board is that the u s attorney is executing laws of nation wide application that the u s criminal code title eighteen and u s attorney in puerto rico in that respect is no different than the u s attorney in new york the board does not implement laws a nationwide application that implements us but all the laws still have nationwide application even federal loans some thera laws have local application supposed to national they're still federal law because they were passed by congress and their federal dictates this is no different for the u s attorney i do think it's different in a fundamental way you honor it is territory specific it applies only to the territory of puerto rico and the board's authority is to is to act in the interest of the territory of puerto rico in the in the midst of really i mean t looks at florida and it says that there are a lot of hurricanes there in the waters are rising and we have a terrible florida problem and congress passes the florida reclamation act and it's supposed to deal with  you know the florida problem that it perceives but uses federal law to do so would you say that i think the phrase was the executive power of the national government with the head of the agency that the florida reclamation act sets up be exercising the executive power of the national government yes and the difference is i'm sorry right now i was just going to say what is the difference in this difference is the difference is that that congress with respect to the territories to act in their article one with nations was a nation wide application which are enforced by federal officials for example there's a female regional administrators an e p a regional administrator they're all the relevant precedent there and i think what you do is you look to two things st one is it's once congress say it's doing here congress said expressly we're invoking article four and we're creating an entity in the territory government that's yes and that's and that's simply an incorrect characterization i think it misinterprets independence for superintendence and i think if you think about it it's just not right to say that what you've got here is a federal overlord or a federal master the language of for circuit because think about what congress did here st it said that the that the board's authority is territory specific and then it said that the board is supposed to act on behalf of puerto rico and represent puerto rico in the restructuring proceedings it's not supposed to advance the broad interests of the states it advances puerto rico's interests and similarly with respect to little budget what's in congress thinking about the broader interests of the united states i mean here it was i was looking at this terrible financial crisis in puerto rico and considering the wind variety of options to address that crisis now one option could have been some kind of financial bailout congress didn't want to do that instead chose an option that had less financial cost for the american people as a whole so you know why shouldn't we think that congress and enacting this piece of legislation was not thinking about it through a broad national lens st i think what matters is what congress did not what the motivations of individual legislatures were in moving forward with what congress did nd the best evidence of what congress did is the statute itself what made a choice to create an entity in puerto rico and it instructed it to act on behalf of puerto rico and even with respect to its budgeting authority it said when you do your budgeting and fiscal planning you've got to ensure that there's adequate funding for essential services in puerto rico adequate funding for the puerto rico pension plan adequate funding for economic development of puerto rico it told this board to act for puerto rico council what if we don't think it's an all or nothing division when you look at the responsibilities of the board i mean certainly much of it has to do with territorial issues but you can certainly appreciate congressman viewing this obviously is something with nationwide significance so to some extent it's dealing with territorial issues to some extent it's dealing with issues of broader national significance what happens to your case in that i think it's i think the answer is the same because what matters is the power that congress chose to invoke in the way in which congress chose to trunkless did here was tell the board the way to address this problem is by acting in the interests of puerto rico and then it also insulated the board from federal control through the four cos they ask if we except that it says we're doing it under the territorial clause you're suggesting that that's enough reason for y absolutely absolutely not sure and that's why the rd factor  the critical one you have to look at the nature of the authority of the office is executed all right now let me ask you how you can label this a territorial officer as opposed to a federal officer handling a federal issue a federal mandate when none of the people of puerto rico have voted in any way to go on any of the directives that this agent has received i understand that point your honor but again i don't think that has anything to do with the appointments clause there is no doubt under this court's precedents starting two centuries ago and as recently  what's a federal officer and what's a territorial officer and i think the issue has to be that would congress chooses it's congress's choice if the territory chooses if it alexa governor if it aleck's legislature if it aleck's its own attorney general that those are officers that puerto rico have selected but if the federal government that everybody's right i think is that it's not consistent with the history of this country and if you start with the mayor of washington in one thousand dollars or two now that middle leads the enclave clause not the territories cost but the court has said that there are provisions that should be read in the same way if  you start with that the mayor of washington was appointed was you know congress created the position of mayor wanted and that's not true i mean that's one example but the other side says the historical practice is otherwise overwhelming in up until about the one thousand nine hundred and fifty s saying that a territorial officers had to be appointed by the president with the advice and consent of the senate so how do we deal with that historical practice you do have the mayor example so it's not uniform but how do we deal with that historical practice two points st on the mayor i think the mayor of washington is x an extremely significant historical marker because after all the presidents who made those appointments every year during that period were jefferson and madison were appointed with advice and consent and judges and territory judges but i actually think that let's go right to the judge's point because i think that actually proves our position and not theirs because even though territorial judges were always nominated by the president confirmed by the senate this court held starting in cancer and then also an angle brecht in mcallister that they weren't judicial officers of the united states despite the fact that the president nominated them and the senate can firm them and then to reinforce that there were three times in the country's history where a question arose about whether a territorial judge could be impeached by congress and in each of those three instances the political branches concluded that a territorial judge could not be impeached because a territorial judge was not a civil officer of the united states but only an officer of the territory exercising territorial power now with respect to the governors of course you know the appointments clause is not an either or proposition if it applies to the governors as principal officers it applies to the people the governor appoints as inferior officers but starting with the northwest ordinance and continuing throughout the country's history inferior officers have been appointed in matters that don't comply with the appointments or just does it strike you as a little strange mr verily to use the history in this kind of case so extensively i mean st it's a little bit all over the map and you each have your historical examples to point to but nd the position of territories currently is so different from the position of territories throughout much or most of our history so i guess it seems to me more natural rather than to luck to you know what the northwest ordinance did is is simply to use a kind of functional test and say are these people doing the sorts of things that would be done by state officials in states or are they doing the sorts of things that would be done by federal officials so two things  respectfully we think interpret the meaning of the phrase officer of the united states which is the job that has to be done in this case that history is very very relevant but nd even if one takes a functional analysis i think the right way to look at a functional analysis is to look at  what the board is actually charged with doing and what the board is actually charged with doing is acting in the shoes of the government of puerto rico in the restructuring proceedings and acting as an independent entity insulated from political pressure within the budgeting proceedings but but constrained by statute to act on behalf of in the interest of for the territory so if we're going to use a functional person very much like a state government not a federal overlord i think this would actually be kind of a crazy system if what you want to do is create a federal overlord to say you're a federal overlord take the national interest to it into account but when you actually administer the authority you have you have to only some as well territorial interests what do we do about the brief at least there's one one of the litigation is that so i'm going with respect to premise but there's all sorts of evidence that the board is taking directives from federal officials so i you know that brief you know respectfully your honor i think that shows the perils of relying on an amicus brief that relies on extra record information the vast majority of those of the documents there have not been disclosed but if i may talk about them because i've been asked about them the  the vast majority of those are communications from federal government officials to the board in the wake of the disasters in the hurricane saying we need information about what's going on on the ground here and so we saw there was information on the overwhelming majority of them now they did find one communication from a senate staffer i think or a house staffer i think a senate staffer saying we want you to resolve issue x this way again i've got to be outside the record to answer that but basically the board told him to pound sand general while mr chief justice i mean please the court we know that congress expressly invoked its authority over the territories and policed the board within the puerto rican government so the real question here is was that choice constitutional under article four it was the board budgets and restructures debt only for puerto rico it acts in the territory under a territory specific statute in our view mr chief justice the board focuses exclusively local but at a minimum it's primarily local which is the appropriate test under palm or justice kagan congress could have legislated directly it could have put this in the treasury department if it had another wide specify the powers would have gone to the assembly and the governor with respect to restructuring the debt and representing the commonwealth in these total three proceedings it didn't want that he wanted new and independent territorial officers on the ground in puerto rico to resolve the fiscal crisis as it had with the d c control board twenty years earlier there very briefly between federal power over federal property and local power with respect to the district or here the territories so i think our position has been entirely consistent surely you don't see how i mean you say federal power over federal property but that's what the territory clause read your way which say that puerto rico is federal property you can't have it both ways so if you're you have to be disposing of federal control over federal property because that's where the territory is so i don't think so just sort of mayor but i don't know the much turns on that here the article four says both property and the territory and this court's cases have treated them differently so there it was dulles and reagan national airport those have a different status under the constitution from the territories but i think my point was just that where congress is acting with respect to something federal it's exercising national legislative power and it's creating national executive offices that's not what it's doing here it put a board inside the puerto rican government now yes it wanted it independent from other puerto rican actors that it thought had played a role in this debt crisis but it's a very different thing from putting it in the federal government and exercising federal power it was reorganizing the puerto rican government that is a quintessential exercise of article for power and i don't think by the way  it's not just the early washington mayor's territorial judges were federally pointed never treated as federal officers early territorial opera houses the could the d c control board d c judges to this day are pointed by the president confirmed by the senate they've never been treated as federal officers they do not have lifetime tenure in a guaranteed salary federal appointment has never been the hallmark of whether you are federal or territorial the hallmark has always been as mr really said what kind of power are you exercising officer doctrine that takes care of the board's x running up to the court's decision going forward i think all the parties now agree we still need a stay of the mandate because you'd have to give congress the opportunity to confirm a new board otherwise the board would shut down overnight you wouldn't have a board so you got to give the senate time to act right and then that new board would pick up where the old board left i would be the same people and so what you're talking about is a delay of possibly days while the senate gets its act together to confirm the people that they already recommended to the president with one exception i mean i we talk is that what we're talking about you win and there's no to  lose assuming judge jury is right and there's a slight delay that's what this case is about well i'm not assumption i hope we're not in a world where we lose and i would love to tell you that won't be a big deal not world but it's going to be a little more complicated than that they're almost certain to argue that the nominations have expired and that even though the senate has confirmed people before two expired terms of can't do that here even if we win that argument and even if the senate committee reports them out and even if the senate gets them to the floor during the period of the stay and we get a new board then they're which is to deprive a winning party of no remedy whatsoever that's not true they will get prospective remedy as all of the litigants did in the de facto officer cases including buckley it the nd this court stay expires the board can no longer act with duty or anybody else what the de facto officer doctrine says is even though you get meaningful perspective release we don't invalidate everything done moving backward in time that the officers alleged to have done will involve the appointed and so on and i think that's critical here because the board's been acting for three years we have that you know nearly one hundred dollars adversary proceedings hundreds of thousands of claims hundreds of millions of dollars collected are paid out twelve billion dollars in bonds issued in the casino title three proceeding that have been traded on the secondary on the market something like eighty five thousand times i mean i have no idea how one on wines this and i don't think that that really is a new tier of given any real way to do it and that's exactly what the de fact officer doctors for we don't wipe everything out in the past but i do want to say that i don't think we get to that i don't think the merits here or are close to congress did its homework it invoked article four it told us where it was i thought your argument would be that if you lawsuit also be a lot of legal ramifications in terms of calling into question the status of elected governors judges territorial judges the like is that not the case i think it depends on which of their four maybe five tests you pick they start with buckley if they're serious about that just significant authority under federal law that's the d c mayor city council the guam and virgin island governors and all territorial legislators and judges all of that authority flows directly from federal law whether an organic act or the d c home rule act so then they tweak buckley to say well not if you're elected and then i say well but you still don't see d c judges territorial judges washington mayors early territorial upper houses of the d c control board then they say well it's executing federal law or maybe it's a special law or maybe it's federal objectives maybe it's federal removal and there's a hodgepodge of other factors thrown in there if the court accepts those notwithstanding that there are historical counterexamples to every one of those tests then i suppose you could try to carve out the test in just a way as to pick up but i don't think there's any principled way to do it all of the federal authority that these territorial officers and d c officers exercise flows from federal law and if you take their test seriously yes justice can all it will threaten to undermine indeed i think it would condemn in its entirety home rule i mean and that just points out i mean there's both a upper level and a lower level disruption here the lower level disruption is undoing three years of what the board is done to try to stabilize the condition in puerto rico the upper level disruption is every test they've got run smack dab in history and every test they've got would federalize some number of officers who have always been thought of as territorial or local whether in of what what i took justice kagan opinion to be saying it sounds as values look there are other ways you could have defined sovereignty or you could have looked at sovereignty but if we're looking at source of authority the source of authority here flows from federal law well their test is a source test their test is buckley did you get significant authority from federal law so maybe there are other tests they could try to come up with you clearly that is what the states the constitution is the source of their power because the compact with the united states with their very existence is dependent upon but we don't define what a state act is with a federal act by their original source or what we define it by who passed a law the state or the federal government well except that under their test and i think under sanchez via you've got to look at where that power flowed from where did you get that authority and they keep saying authority under federal law ok well if that's your test all of that authority whether with respect to d c or the territories flows from federal law and of course the problem with the test just is sort of my only buckley's the significance to us it takes an officer who's got concededly federal power and says how significant is their power or the employer they are an officer it's not designed to answer the predicate question of well are they exercising federal power or territorial power that's the question the palm or get at is it a d c court or is it an article three court and the only way you know that is by asking two said if congress all it has to do is wave a magic article for and that gives permission obviously not but it's still got to be it's got you st you've got to ask where it was trying to put the office that's the st step and then you've got to ask whether it had the constitutional power to do that thing did it do something under article one or under article four that it couldn't do and the very st sentence of the court of appeals discussion is no one here has claimed that anything i extends beyond congress's reach on article four and that's true there's not a word in these briefs for more relief for you to your claiming that there is any power vested in the board that is not among congress's plenary power on or before that's the end of the analysis i think correctly understood what was congress doing it was putting it in the territorial government didn't give it any power it didn't have an article for they haven't claimed that it did that under palm or i think is the end of the analysis congress invoked its plenary power it didn't do anything article four didn't give it the power to do and mr will what is your answer to the question that just a sort of my us started off with about the difference between these board members and the u s attorney it's the same one that mr really gave which is where you have executive officers who are acting under statutes of nationwide application we think that that's best understood to be exercising federal how about if professor had instead of setting it up the way it did had just had amended chapter nine of the federal bankruptcy laws and said puerto rico instrumentalities get to use chapter nine the way everybody else does then creates the board to do that what do i do that i don't think the form of that matters you're asking the same two questions because there  a i guess what i was suggesting was that and that there would be a uniform national law oh i think you have to ask the same two questions was congress doing that on or the bankruptcy clause in order to warn or doing it under the territory clause an article for to just create or extend those laws to the territory and then did it do did it put any powers in that office that it couldn't have under article four so i think it be the same answer if when extending the bankruptcy statute it had said we're extending a similar system to puerto rico we're invoking article four we are creating this new board to oversee these new bankruptcy proceedings and we are putting that in the puerto rican government but then it doesn't seem to have much to do with whether the law is nationwide or not because my hypothetical was nation wide law and you're saying it wouldn't matter because congress said it was using article four but it's got to be more than what congress said i think that is pressing at exactly the tough question which i'm going to say fortunately is not presented here because it's a territory specific statute and it's only acting in the territory but paul moore does say primarily local and it's a little tough to figure out exactly what it means it seems to think that if you're doing the d c code most of the time rather than federal statutes most of the time it's you to creating your local which seems to point up that you can do a little bit of the nationwide thing without converting into a federal officer and we know that's true of territorial judges that's the best historical example they were hearing matters in the territory but they were due to killing them under federal law so i think that you're asking a really tough question about well what does local mean does it mean you're doing only the local matters or does it go to the geographic scope of the statute under which you act i think it's tough paul more seems to indicate the scope of the statute might matter history seems to indicate it might not if what you're doing is local and again all i can say is i think this is respects but i actually don't think that changes the analysis when the detroit mayor walks in on the chapter nine and files for municipal bankruptcy but we don't think that simply because he is invoked some power granted to him by federal law that he becomes a federal officer i mean here the boards to basically represent the commonwealth that someone like the debtor all it does is it the commonwealth says restructure our debt it walks in and files the petition in federal court it then basically represents the debtor not different from any other state or municipality tries to work out the claims of the creditor and the ultimate the judge wayne has to sort out the plan and confirm something in the bankruptcy so i don't think in that respect it's acting any differently from any state or locality that declares under chapter nine it's still under palmer it's still focused on local matters everything the board is doing it's doing in puerto rico which is why i don't think they've tried to claim look you needed in the article one power all you needed was article four suppose congress invokes article  puts it in the territorial government as it's done here but assign some matters that to pick up on just as kagan's questions are more national than local is the remedy for that problem to say that that officer can't perform the more just kagan is getting at is what is paul more mean by primarily it seems to leave some room to do nationwide or federal things as long as you are focused on the territory but if you assume that it's got to be exclusive the test that i think we need here i think it's a hard question what the remedy would be i think you'd still have the de facto officer potentially going to mess up their votes are doing it when the officer still be a valid territorial officer but perhaps exercise and some duties that he or she cannot exercise i think that's a potential remedy we haven't looked at that here we have in brief that i do think that it kind of it highlights the oddity of the other side's claim it's not as if they're pointing to some federal power provision i think of the latest of the difficulty as just the primarily local because the word primarily you're very careful in your brief to have that each time you articulate the tast and i'm not sure how we're supposed to figure that out i just can't i think you need it there we've known since cantor and eight hundred and twenty six the territorial judges are not federal officers and yet they are adjudicating cases under federal law they had general federal jurisdiction just like state courts exclusive until he turned seventy five so i think you got to have some primary test in there i think you're going to have difficult cases at the margins and all i can fall back on is this is not a difficult case because here there's nothing in pro may say that needed to be an exercise of article one by its terms it is limited to the territory it's not as if they can point you to some federal provisions of from a set that grant the federal power that you could just excise it says represent the commonwealth in the following ways and i did i do good and i think this is the best way to capture it congress could have given these powers to the governor in the legislature they already  of them they could have just debt they could propose budgets and fiscal plans the governor otherwise would have represented the commonwealth in the title three proceedings if they had created the title three proceeding but not otherwise specified that the board would play a role and the governor had filed this petition i don't think anyone believes that would have converted the government federal officers any more than the mayor of detroit or anybody to say it just a quick word on the on the remedy as we tried to say i think there are two things at play the de facto officer doctrine to she sure you have not applied it to adjudicators that's right or where you have more than a dozen cases applying it to legislative and executive bodies that this is an executive body that's not doing its duty cation right so i think it falls squarely within that that set of cases and indeed i think it's sort of the classic case for that given the immense reliance interests that have been built up on the board o years going forward everybody agrees we need to stay in order to confirm a new board if you decide we're wrong on the merits i think the right model there is more than pipeline that was six months same thing here you've got to get them out of committee you've got to get them through the floor they're go do some amount of ratification and then they're going to act to act going forward at a minimum though i'd say we need three months with the ability to come back and report progress just like what we did in the st circuit because we've got to allow congress and then the board some time  to act if the board is shut down in puerto rico i do think it imperils a process in which we have made really substantial gains in the last three years in trying to stabilize the island's finances and i can't stress to the court how important it is that the board be allowed to continue to do that work thank you thank you general thank you mr chief justice and may please the court in federalist forty eight james madison anticipated what congress attempted to do with the promise oversight board masking under complicated in indirect measures its encroachments on coordinate departments drawing all power into a gym at jewish vortex he urged all precautions against the enterprising ambition of this department from mesa was a response to a national financial crisis affecting millions of american citizens including three million dollars citizens american citizens and puerto rico is appointed supervised and removeable by the president of the united states reports regularly on its budget and decisions to federal officials and makes recommendations it's required to do so under the statute for changes in pro mesa and other federal laws other federal laws it presides over the largest municipal bankruptcy proceeding in united states history managing hundred billion dollars in and debt of those one hundred and sixty five thousand claims including over two hundred dollars claw back actions lawsuits against major financial institutions in a pr ding in an article three district court designated by the chief justice of the united states the board was effectively chosen these are the words of the congressional committee affectively chosen by members of congress all without the advice and consent of the senate the appointments clause is central to the separation of powers without which in the words of the framers we have the very definition of t it was a response to the most insidious and powerful weapon of th century desk the board were elected would it be constitutional no it would not be constitutional because how then and does it i mean the puerto rico governor election is unconstitutional as well the no because the puerto rican stories that are given to the puerto rican gov and under the puerto rican legislature are primarily local activities i just described what the premise is board powers are they are national in scope they bring cases in federal court against u s citizens they conduct an extensive investigation of the oversight over the of to prescribe a budget for puerto rico it has the power to veto decisions of a governor of puerto rico and the legislature of puerto rico that has the power and has sued the governor of puerto rico and government of puerto rican officials it's called an oversight board because it is not internal to puerto rico well but its oversight concerns every sentence you just said there it's of puerto rico of puerto rico its focus is on puerto rico yes the activities as things in any of the territories often do has broader impact i guess i'll get back to the question i asked your friend mr really what if we i mean i think it's very artificial to look at this and say is this local or is this national it obviously is some of each or even the local aspect certainly have national implications so again i mean we where do we know what your answer is but you could explain it what do you do with it what do i do if i view it as some of each well it is overwhelmingly a federal problem dealing with a federal issue in the in the league doco case just in two thousand and seven with an issue concern of the united states this is in a sense a little bit like will a bron case or other cases where this court has said the congress is dealing with a significant federal problem it has come up with a federal solution and has given this board powers over citizens through all over the united states but i think the response on the other side is that they've taken some of the powers and responsibilities that belongs to the governor and the legislature and given them to the board and the governor as you acknowledged is elected not appointed consistent with the appointments clause so is that wrong that they've taken the powers from the governor and legislature and given to the board they've taken all of the powers with respect to the financial situation in puerto rico and given it to the federal created board which is appointed by the president removeable by the president and has super and i think you start off as if but for this statute right who would who would be doing these activities and if it would be the governor of puerto rico over and doesn't that tell us something the governor of puerto rico does not have the power to do these activities understand that but for this statute who would wouldn't be the governor that's all that's what color statute this authority that's what your colleagues suggest well and is if that's erroneous could you direct us to what who would do it but for the statute the statute was created because the governor of puerto rico at there was no authority for officials in puerto rico to do these responsibilities to bring these actions these actions against the financial institutions in the mainland to bring in so overturn a budget to do at least various things to bring suit against the governor in sou legislature and governor wanted to do it they would pass a law they would represent puerto rico in the bankruptcy proceeding well they would they would take care of the problem that case was before this court was just a couple of years ago involving whether or not puerto rico could use the bankruptcy statutes to do no no no i'm saying we set up a what i think you're being asked by several of us is look at all the powers that the that the board has aren't they power is not the puerto rican government could exercise if it had the legislative and gubernatorial will i submit which one could i think virtually all of them justice brier this is a long statute prescribe and are enormous range of powers given the ability to overturn decisions of the governor to rebirth no i understand that but i don't want to repeat my question you see what my question was are you do see those in one think the basic question i can simplify it i believe is couldn't the governor of puerto  legislature have created their own fiscal rescue plan yes correct no i don't believe so i think i was the case that it would give the authority to adjust debts to accommodate the various different creditors to oh you're talking about we are ok i guess your attention is that without premise the bankruptcy law wouldn't have changed to permit constitution or would one be excessively cynical to think that something else is involved here involving money and if so what is it what did the board do that hurts your client well with my  process is ongoing my client is being subjected to a process that is governed by officials that were appointed in violation of the separation of powers so that would sound it isn't complete we can't describe the degree to which someone might have been hurt but the courts this court said over and over again that it's fundamental that an officer of the united states must be appointed pursuant to the appointments clause that is fundamental to the separation of powers which is fundamental to the constitution and i mean you don't have to answer this if you don't want to but there is no money issue here of course there is of course what innocent there's over time just like to know what this is a real case unlike some and what's really going on here well there's over one hundred billion dollars of indebtedness being judah catered in various procedures a lot of we're right and your client wants more of it and somebody else you think is getting too much so what is it exactly if you want to answer really not we can't possibly answer that there are these extraordinarily large claims which the governor which of the agencies of puerto rico have defaulted on have not been able to pay these claims so yes you're there was a settlement of one small piece of it that was that had nothing to do with that at no time did my clients relinquish their constitutional claims or received from the mini way there was a small settlement with respect to  taxing authority where the sales tax went into an agency and that part of it has been resolved and we've agreed not to challenge my clients have agreed not to challenge that settlement in any way so that's a better materials when you have agreed to challenge in  was settled in some way and there was really basically no choice because the board was on going on a settlement was reached with respect to a small segment of the resources but in no way did my clients relinquish its constitutional evil here is congress a grand thing itself congress rather so the executive expense how about the member of the board that's appointed by the president took the position in an office of legal counsel opinion that that was a federal agency there's never been a resolution of that the d c control board has vastly more limited powers with respect to local matters that's serious concern here is if you were to prevail here what would that do for home rule in the territories with elected governors what would it do for the district of columbia with the elected mayor city council the judges appointments how if you were to prevail here with the line be drawn so that it does not affect home we would not affect home rule at all now people might make the argument that pro mesa itself affected in some way because it took over the responsibility of the of the puerto rican officials to do a set financial conditions establish a budget budget and all of those things but the outcome in favor of my clients in this case would simply i mean that the same officials would be appointed pursuant to the constitution that wouldn't change all more or all of the cases that we've relied upon but wouldn't require that similar officials maybe i'm not understanding in the territories who exercise territorial power but also fact national power or what i think of the issue might be primarily federal power or versus primarily local the palmore case itself which our opponents rely on repeatedly says in that opinion those were primarily or exclusively or largely there are various different adjectives used in that opinion local dish d c criminal proceedings criminal law under the laws of the district of columbia and this court has repeatedly lik the power that can be exercised in the territories on the territorial clause or under the plaza give power over the district of columbia local territorial matters the type of authority that may be given by a state to a local me when i read that when i read your brief the buckley to test is significant authority pursuant to the laws of the united states and i guess what struck me was that on many occasion modified that test in your brief you said significant federal authority pursuant to the laws of the united states and when you do that it strikes me that you're coming actually pretty close i mean if you agree on a test that seems not a bad thing it seems as though when you say significant federal authority you're coming pretty close to what mr wall and mr verily have well we've looked at each of the cases that are cited bolton are briefs on our  the it is it is and it's a test of this court not just in the buckley case but as as recently as recently as a couple years ago in the lucina case it's only always to distinguish between officers and employees and what i'm suggesting is that when you apply it to this situation your own briefs modified the test by talking about federal authority and implicitly comparing federal authority to local authority and we acknowledge that that with respect to the test that this court articulated repeatedly luci it was just the last time it did that authority under the laws of the united states has ours accepted the purely local authority that's been exercised in the territories so fits there's also stepsons for transitional government of the philippines for example there was a local government and  confused i honestly don't understand what the difference between your task and the government's test is in this case if you could articulate that in a few sentences i'd be grateful the test is difference between the two that well the difference between the two is that we believe and what but this chorus taught us that if you're exercising significant authority under the laws of the united states the laws are enacted by congress with respect to the government affairs of the federal government  purely local municipal the the speed limit i understand and i understand the test my question is what's the difference between that and the question asking whether the individual or the board is acting primarily locally or primarily nationally what's  difference what is the delta the the delta is is something that is when his support matter is that have to do with local affairs speed limits zoning and things of that nature as opposed to federal statutes that deal with a national crisis this was a national crisis a national could i rephrase that is asking whether the board is acting primarily locally or primarily nationally it is the board is acting primarily national ok so we agree on a test that pardon me so that we do agree on the task right what the whether the board is acting primarily locally or primarily national well that is a part of it yes because those because what this court has said repeatedly is that where there is local municipal authority congress has the ignore the de facto officer but just to finish this there is nuance between you and your adversaries on are you dealing primarily with a local matter and they would say dealing with a budget dealing with running the government that's all local you order tipping to say something different but i'm not sure what that difference is because when they use the words primarily local matters that's the way i understand them to be using them at the best they can obviously correct me if i'm wrong what of that they're saying this board is dealing with primarily local matters because then i've read it but that doesn't mean i know what you're referring to could you succinctly make that the difference between how you view primarily dealing with well in your way  the way the other side of the insolvency of a territory of the united states is not a local matter that's what this court said in only him call case in two thousand and seven of the at and that's what congress was saying when it was dealing with the an act meant of this statute we have a fiscal catastrophe a humanitarian crisis involving millions of citizens three million american citizens in puerto rico but citizens all over the united states who are owed money by the government of puerto rico or agencies of the government of puerto we don't really it's all just on a it's just a question of size and we have the same thing we're talking about not puerto rico but  see i don't know the pronunciation puerto rico your position would be different were a county in puerto rico i think that it's possible that you could find a fiscal  of puerto rico involving that a tiny fraction of the significance of puerto rico we're talking here about not just the size but the dimension of the problem the number of citizens that are involved the number of creditors claims over two hundred clawback claims against financial institutions throughout the united states that are being pursued in federal court this is a so would it be right to say mr olson that you view this sta e as essentially a statute about debt restructuring i mean it has other aspects and the board does other things and oversee is puerto rican budgets going forward but you're saying that what we should do is look at the statute and say it's about restructuring and a bankrupt territories debt and that that has to be viewed as national is that the theory well that is part of the theory and as as the united states repeatedly said with respect to in the free tag case the deputy solicitor general was asked a question about what if the governor of puerto rico was appointed by congress or a federal official and hit the response from the federal government was that would invoke  important case if we conclude that the powers and duties here are primarily local and i know you disagree but if we conclude that do you lose the i suspect that if there's if there's an agency in puerto rico that's dealing with purely local problems like the key like you to start in iraq you keep saying purely local well primarily up that's narrow big difference with well there's a big diff it may be a big difference and may be important in this case how more case was talking about relative it wasn't purely local but was primarily local court used exclusively but i think the court meant in the palmore case those courts that were dealing with problems in the district of columbia involving district of columbia criminal laws so if you're the focus is on that of course there are state officials that going on force federal law that's always been the case from the beginning of the constitution so it is primarily what's being involved here this is the the congressional budget office itself looked at this particular statute and said this is a federal office the le bron case that looked at and i just try the question again if we conclude it's primarily local to you have an alternative argument or do you lose well i don't i don't i think that it can't conceivably  thought of as primarily local given the scope of the authority but i imagine a hypothetical situation where you might have a small unit of government a subdivision of for a rico that was purely a minute support problem yes that could be say just a few minutes ago that we've done all these things we've made all those decisions so put the constitution aside let us continue to do that let us how the fruits of the decisions that we made with unconstitutional officers facto officer status in more recent times you're absolutely right with adjudicatory officers we have said no you have to give the people a new hearing so deal with that distinction and well we'll with why e problems but also conducting article one activities and forcing the laws of the united states and this agency has that same authority that overlaps both but the right  justice ginsburg i would submit that the the this board is both adjudicating and enforcing laws in the same sense and has many of the same powers that the administrative law judge had in the luci a case and so that that distinction simply doesn't hold up at the gather in puerto rico it's acting as a kind of a petitioner is not and that's one of the one small part of what mesa does that has to do with one hundred and sixty five thousand claims it doesn't have to do with overturning the or the budget changing the financial structure of puerto rico suing in in federal courts citizens of the united states outside of puerto rico in connection with financial claims clawback claims they call them in the bank in the financial insolvency concept if one were to look at all of the authorities and i want to have to finish with point that these officials are appointed by the president of the united states an officer of the united states removeable by the president and that what this court said in the bows your case that means that that's the official that they must fear and therefore obey  officials of the united states and therefore supervision thank you counsel justice and may pleased the court i would like to address the issue of the answer cases the remedy and and also some of the question the questions of the court if we stand in front of this building we will see the words equal lesser set of constitutional rights than what we have standing here today on the other hand the st circuit decided that my client suffered a constitutional injury but still they were left without a remedy equal justice under law should mean the same thing here in d c that in puerto rico it should reject ideas grounded on class of it to reject classifications grounded in ideas of alien races and savage people it also mean that when there is a constitutional injury justice requires a remedy now in this case the the st circuit stated correctly that the in sorry cases haulover like a dark cloud over t case and it is true because the opposing parties have been relying on the inserted cases since the beginning of the proceedings to establish that even the structural provisions of the constitution don't apply to the people of  the does matter here because the provision of the constitution does apply and i thought it was more we've been trying to work out a new mayor look into this is what about the federal relations see if in fact are be the one who might have thought of this but he does give these powers to deal and the deal is the legislature puerto rico and the governor do this but there was a reservation there was a constitutional amendment in puerto rico promising that they would pay creditors and that they had some priorities and so for not is that relevant i've begun to think that the partnership starter libra as yet it is is is more served by considering this a local law and considering it a federal law because if it's a federal law it really is oversight board has the mr olson mentioned has the old already to file this bankruptcy proceedings which is a federal power be on behalf of the government but also we see that they have the authority to impair contracts which is something that wasn't mentioned before impaired contracts even outside of the scope of the bankruptcy proceedings which is in the title to promise that if the board understands that a contract made with the government up by the government rico with other parties is inconsistent with the provisions of promise that it can and it can even prevent the execution of those of those contracts so that is a very significant power among the other powers that the oversight board  has not even the government the local government of puerto rico has now i do want to just to stress on the issue of the answer cases because it is important for the people of puerto rico and for my clients stress that it isn't it is a matter of overruling the answer cases and the doctrine of territory and corporation it is a matter of constitutional law but also a matter of called the united states is justice justice briar's pointed out the other parties rely on the insular cases in any way so it would be very unusual for us to address them in this case would why are they relied on the answer a case is since the beginning of the proceedings actually that the  when we come before this court to say that they are not relevant sill as i was about to mention the insular cases comply with all of the factors that this that this court stablished in jan is as specially the quality of the reasoning because it is based purely on racial considerations to say that some provisions of the constitution don't apply to the unincorporated territory is because they are of a different race that's the that's the root of that doctrine now i think the argument was that the appointments clause does apply to puerto rico and the question is simply whether it's implicated on these particular facts with respect to this particular agency yes i am i guess again i just don't see the  but still it was a morally repugnant doctrine that was purely on the basis of considering the basis of race and therefore it was overruled the same here with cases and i cannot stress enough that the parties have i had on the ans cases in this in this case that is why it's the part the perfect opportunity to address them can i ask you a question about the duties of the board if the duties of the board and responsibilities are considered primarily local office the same question i asked mr olson do you have an alternative or you your honor i don't think that we that the so the already of the board can can can be considered purely local i understand that but if we conclude otherwise oversight board cannot stand and we if we look at the already that it was vested on this officers through promise and i would like to address the revenue because i think that it is very important for for us to address that my friends on the other side have mentioned the consequences of this of this case in terms of millions of dollars but they have forgot about the impact to the people what the old what the opposing parties are asking this court to validate through the de facto office or doctrine is a certification of the fiscal plan which is not subject to judicial review that imposes sturdy measures on the people that has impaired contractual obligations including the collective bargaining agreement of my clients stripping them of workers rights like salaries overpaying overpayment and medical medical benefits but also we are talking about agreements with bondholders with the prayer of power which is the employers that provides for the payment of the bond of the bonds head of the salaries head of the con the contributions through the retirement system and which is the blueprint for all of this proceedings or the budgets are inconsistent with by my side the board can substitute for its own added sole discretion thank you thank you counsel three minutes mr burley thank mr chief justice i want to make one overarching point on the merits on one point on rabbiting on the merits i want to go at the sum of each question i think in was if you think that some of the i don't think you can resolve it based on effects and if you think about it the effects we're talking about here are not the board's actions it was the issuance of the bonds and then the default by the government of puerto rico the elected representatives of puerto rico so if it's effect than their offices the united states that can't be right and just not a minister bill test it can't be whether they're enforcing federal law mr unconstitutional and it's also would mean that the d c government from the from the beginning until home rule was unconstitutional because they were enforcing federal statute so that can't be right it can't be based on the source of authority they're really not arguing that anymore and even if you wanted to accept the intermediate authority appoint you and try to carve out puerto rico that way you can't say why you can't see the virgin island you can't say home rule in d c you basically blow everything else up if you adopt that standard which is why they don't really advocate for it so really it needs to be our test our test is one that's faithful to the text is faithful to the history rests on principle it avoids threats to home rule and said ministry maybe they're going to be hard questions on the margin and we discussed those today this is not a hard case this  exclusively territorial authority now and remedy i think mr alston's answer to justice alito is question tells you all you need to know about what's going to happen next they've brought this suit because they wanted to from ford they're perfectly entitled to have every right to do that but that's what they want because they don't like the way this board is working out the debt problems and so what you can be sure of if we're in the remedies phase i hope that we are not but what you can be sure of if we is that they are going to fight ratification by the board tooth and nail for years and years and do everything possible to keep this thing in a situation in which they they think they have the hope to get a different board that complement their objectives so that's what will happen if we go down that path and i would strongly urge the court not to do that if you do reach the remedial issue then i think that they facto officer doctrine perfectly reasonable judgment but more fundamentally there is no reason to reach the remedial issue mr fairlie or let's say it is your test but let's also say that the crux of the statute there is some other things in it but the crux of the statute is that it sets up a scheme for restructuring the debt of a bankrupt territory and with the backdrop that that could not have been done under pre primary federal law by local officials themselves why is  primarily local ransome suggests two things st you wouldn't think that the mayor of detroit was converted into a federal official because he took detroit into bankruptcy under chapter nine he still exercising local power same with the board and nd again the question i think has to be whose interest is the board advancing in that process it's the court the article three court that engages in the bro adjustment of interests here to achieve a nationwide result of boards job as the statute expressly says is to act on behalf of the people puerto rico or the government or rico as its representative it's an advocate for puerto rico and that's why it's territory authority thank you thank you counsel the case is submitted