principle involved in this case could not be more important than the words of the supreme court of the united states the separation of powers is the central guarantee of a just government and liberty for the people and its core the core of the separation of powers is imbedded in the appointments clause indeed as the court has said recently the manipulation of official appointments was one of the revolutions greatest grievances the power of appointment was the most insidious and powerful weapon of eighteenth century despotism james madison stressed that the combination of the power to the just district of columbia had equipment's cause not applied to that official justice marshall would not have written marbury versus madison he would have said to mr marbury you don't need you commission go away ok and that was eighteen zero three and just a few years later and eighteen zero six justice marshall again the united states supreme court repeated the the another justice of the peace of the district of columbia he said he must be an officer of the united states deriving all of his authority from congress and the president he is certainly not the officer of any other different the officers in the district of columbia are subject to a supervision by the secretary of treasury therefore they are not principal officers of the united states but they are officers of the united states the tests which the supreme court has articulated of frequently as recently as move the see it case in june of this year is that if an individual occupies a continuing position created by congress and exercises significant authority under federal law that person is an officer of the united states this test which is in newsweek as you officials they have positions that are created by law and base serve terms they can serve their terms again after the expiration the important thing here to recall here is that only the to the elected puerto rican government government sites gov the same powers that jefferson county in alabama had under alabama law in other words the ability to put themselves into authority under federal statute but but but let's go back to just take it a step at a time you know it's congress passes a law gives to the governor of puerto rico the power to put puerto rico into chapter nine bankruptcy a problem to the point i think it would be a problem your honor i think that to the extent that chapter nine bankruptcy you're talking about a federal of course a supreme court dealt with this just a couple of years ago but we're talking about a federal statute and  is the individual exercising authority under the federal statutes already given to him or her by congress of the united states to exercise an official function of the united states to deal with the problem that in officials but if it is at the exercise it isn't so much word the power derives from because of course as you point out ultimately congress on the same thing was true in a double jeopardy case the authority to exercise was with respect to territories or the property of the united states ultimately comes from none of us we're talking about the united states but to the extent the courts have held that to the extent that is local authority a local official authority then it is something that can be done by a territorial person but if it's if it's authority given by the congress to execute a statute of the united states the supreme court  can delegate to woman as a pelosi or something like that that is something that doesn't require the op the case of the appointment clause because it is not execution of federal significant federal authority it is something bankruptcy proceeding i would assume congress to do the same with respect to a territory i would submit that to the extent that you're talking about the bankruptcy laws of benighted states that's the law of the united states a significant authority of the united states a to federal courts to enforce the glory for messa is something that was created by congress destine with the authority by the president of the united states responsible to the president of united states to execute a national to deal with a national problem one of the various provisions of crime as a talk about national problems over section twenty two forty one for example says the end goal of  establish and facilitate commerce between territories on a state this is a national problem that congress felt so significant that it was so significant that a national statute which can only be enforced by these officials in the course of the united states federal ethics laws applies it they can conduct hearings issue subpoenas under take oaths which are the same types of authorities that w area but had implications throughout the united states or if there was an epidemic that had to be driven dealt with by the center for disease control this is the sort of problem it had manifestations congress specifically said whether we like it or not whether there's wise or not it was what congress perceived as something that had to be dealt with on a national level congress said this is a territorial office but the supreme court itself has said i don't think a court can go along with that level because we're talking about the separation of powers congress could invade the partners clause and the separation of powers by taking a rubber stamp and putting a label territorial specifically took the same position this was an authority that had to be subject to be pointless clause because it was the present officer acting under the powers of the united states marbury couldn't be decided the way it was  fact that the court the congress exercises binary authority over elections and in buckley versus the lie of the supreme court said that doesn't exempt congress from fulfilling the responsibility under exercise of its article four powers authorized the president to send terrorists for goods going into the philippines after it became territory that seems to cut against the notion that article four  to legislate concerning aliens the supreme court in atomic cases that does not exempt congress from the structural provisions of the constitution you could right away of brush aside the structural provisions of the constitution if that was the case we submit in the case of nations that we cited in our briefs support the proposition that the exercise of the veto power cannot be overridden by congress to b presentiment clause of the constitution cannot be overridden the appointments clause is as i said at the very beginning the very heart the core of this of the separation of powers and to the extent that a talk about non delegation talk about or the delegation talk about the delegation of authority to enact certain substantive provisions governing a particular territory but the structural provision that congress can only act in certain ways the delegation provision ties in with the fact that congress must act one house of was another house with presentment to the president subject to the president's veto and i submit that the appointments clause which the puerto rican government the decision as to whether or not to seek bankruptcy protection well we were making before we don't know the answer of the question right now because we are no provided for advice and consent proceedings for governors it has and has deviated from the requirements of the appointments calls for inferior officers in the very same statute which makes it pretty clear i think the congress never thought that the appointments clause apply now with respect to  principle officers the mayor of d c equivalent position really to a governor eighteen zero two statute congress very early on eighteen or two provided that mayor would be appointed by the president alone no advice and consent with the senate brief very effectively governor of louisiana of of florida of the philippines and the canal zone all initial governors appointed so he was a resident correct that those three temporarily critical point also created offices that would be considered inferior offices if the appointments clause applied and in instance after instance dozens and dozens of his american history which i will be tail congress adopted  want to apply and only give you some examples and there are many if you start with and this is the telling the police the night states if you start with the statute creating the territory government of wisconsin it provided that inferior officers would be nominated by the governor not by the president or any other federal official confirmed by the senate of puerto rico not the united states senate that violates the pointless cos if it applies and so i think there are so many examples in american history that show you that the congress did not believe the why you can have elections and that's why we are going to my friends on the other side are making us actually so threatening to the principle of territorial self government that there is their argument that these people are in the chain of executive command as you heard mr olson say over and and they will be movable only that the behest of the federal government that's what we seem to have here and i'm trying to think is there any example in our country's history yes i could provide your honor with too and i do think it's helpful to go over the facts of the d c control board because respectfully i don't think my friend has it correct if one looks and i think the citation for this you can find a footnote to or the brief for the united states but if you look at the statute establishing the d c control board it looks very much like from a so in that it's civically says that the control board is part of the d c government and not the government the united states and it has all the other provisions like the one you have here and as my friend mr olson says but the d c control board was subject by law to supervision by the treasury i've suggested he provide the sec haitien for that because we don't see that anywhere in the statute the only role that the treasury department has as we see in the statute is that it authorizes the control board to borrow money from the treasury but the d c government already had the authority to borrow money from the treasury under existing laws or just was it was just clarifying that also have the historical examples territorial judges your honor who could be appointed by several stories and removed by federal authorities and if you look at the mcallister decision from the supreme court in the late one nine hundred century you'll see that the supreme court expressed recess but the fact that exercise the article three power of the united states judicial power of the united states and language of the constitution and therefore they don't have to meet the separation of powers requirements of life tenure and no salary reduction that's been a lot of could at the three points i'd like to be able to make your one i think focus on the correct question my friends have suggested that the buckley test is the correct test but that's over the determinative question of whether the officer here is exercising significant authority under tauriel law or the law of the united states to figure out the answer that question one looks to the cases where the supreme court was actually grappling with that question how more bins cancer in the test how more is the modern case and it sets are three territorial and so oh quite quite clear and it just can't be right the test my friends and no side use if you look at page nine of their reply brief holding a continuing office created by federal law on exercising significant authority under federal law if a court order adopt that test we are immediately conclude that the government of the virgin islands and guam is unconstitutional because when both of those situations it's the organic law that congress america that creates the position of condition i just described is satisfied they must be appointments and attend and they will do with the point that they do with election but i guess what i'm trying to convey your honor is that under their test if you are you hold the continuing office created by several law exercising significant authority under federal law then you must be appointed you cannot pursuant to the partners question offices can't be filled in any other way and that and that's why their test is just about calm or that you know my friends and there was so i say well you can ignore pound more because that was about the application of local law but the whole point income or was that the d c code that was being used to prosecute a criminal defendant was a code passed by the congress now it was local law apply just in d c but it was passed by the congress and what the supreme court said is that was territorial last actively district of columbia law no the government was elected i think as i gather from your brief principal response to that is that the fact that congress chose to follow the point my procedure did mean that we shouldn't for congress appointments under the article and federation or by the confederation congress which no longer existed so it had to to conform to the new constitution it had to find somebody else to do the appointment that's right one and then point to which the same point i tried to make about inferior officers officers and so if congress really sought the appointment because applied it couldn't have taken that step congress is doing here isom it from the very first time it acted on a northwest ordinance and throughout our history is doing exactly with such as by said article four gives nobody has ever said there's no place in american history that has ever held or even suggested that the appointments clause applies to territory officers and i just think especially after sanchez via there's no way to get to that conclusion other separation of powers constraints home is unconstitutional every meter federal office holder in the territories needs to be directly federally selected by the president and confirmed by the united states senate the d law by federal statute they would become unconstitutional overnight more with territorial legislature to popularly elected they don't comply with the points cause territorial courts and it would be governors and  somehow he doesn't satisfy the bucket test but he's equally exercising significant authority pursuant to federal law here's here's the possible distinction that having troubles thinking through witches you have on the one hand federal in that second model then there is in the first model and a lot more concerns that the manner in which the structural restrictions in the constitution  between when congress makes one choice and when it makes the other in a sense it is structured the tour to a government and either instance and it is federal law that gives that local law its force and i think for the other side to say in their briefs walk in puerto rico their powers collapse on on real scrutiny because the basis of that clearly is that by putting power in the hands of the people the power of these elected officials in puerto rico to bribes from local law and not from federal law and that's the practical way to state wishing between what is being an officer of the united states acting pursuant to federal authority and being territorial officer which focus is on the laws made by the people in puerto rico i think you ask about factors like does the energy for their governmental objectives is it subject to continuing governmental control and yes those are satisfied here because no one in this courtroom disputes that the board easy governmental entity the question is of which government and so just as mr rowley was saying they have historically sometimes the devolved to the governor of the territory sometimes they had well i think direct congressional selection would have raise a different a more difficult which is that at least on six different occasions the supreme court has said that when congress legislated some structure the territorial government the strictures of the federal separation of powers don't apply now it hasn't gone further and addressed the question of can congress itself i think it's a difficult question to actually which we've model which which we are a brief i think our position would be that the board could continue to function and needs to be able to continue to function in order to provide stability of the island is in the middle of the most complex president picks from the list submitted by judicial commission that's true today and has been for quite some time and under the northwest ordinance the president picked certain officials in the territory government from lists of needed by congress we are the president certainly has here is able to go back and forth ask for more names and is able to just reject all the salty other put forward his or her nominees and have them senate confirmed we would say that is not itself and ask given the historical analogues to be a problem but i would point out i don't think the court and to get in the any of that because all of that is raised by the bondholders only in support of their argument that these are principle officers rather than in fear also is a key point miscalls applies the united states agrees with them on that it's just our basic government so i understand your argument congress's plenary powers leave it with the option of how it structures territorial government but i think the issue here is not the structural hours  whether that was a limitation on the substance of what congress would do or rather a limitation on how congress could do that substance i think that's why over the only limit that i'm aware of that sort of procedure on congress is by cameras and prison an test but it's not our test it's the supreme court's test and the test is clear and it's repeated and it's binding on this court on is or a territorial exception to article four  justice marshall didn't think so the pretend court didn't think so the court said that sense the early eighteen hundreds congress regularly appointed non article three territorial course the authority to appoint their own clerks to extent that the test would be applied to the virgin islands or any other property or territory of the united states what the supreme court has said the test is is the test today and if we got that test in this case it would by this court to the test that the supreme court has established will be applied by this court the test is clear let me put it this way if the supreme court agreed one hundred percent with you on this test and it was the law of the land what by that yes i i would have to look at a particular provision or a particular place or something like that but there is no territorial exception that test is what the supreme court said repeatedly and repeated has chosen a constitutionally permissible means of implementing that power we submit that congress and this case has has sued performed a permissible exercise of the substantive effect of your decision and the board can continue to make decisions but subject to the fact that substantively ultimately those decisions are going to have to be approved that they abide be constitutionally appointed board puerto rico are not protected by the core provisions of the constitution which were put there in order to protect people's liberty and justice that is what the supreme court i said it again and again and i heard one of the members of the court saying what if congress just creates this border and then picks the people that's exe picks the people to serve on that board that's exactly what happened in the metropolitan washington airports authority and and that's exactly what justice scalia talked about in his concurring opinion and that's precisely what the founders of the constitution were concerned about and called very definition of tyranny there should be a separate appointment process for people who exercise significant authority under the constitution of the united states applying that standard that fundamental standard of separation of powers with respect to this board which was created by congress to solve a national problem not just a clearly local problem creating officers appointed by the president removal by the president subject to the control and come and take care clause of the constitution by the president exercising the same powers that the supreme court talked about just a few months ago in the lucy at case there's no question this is a federal board so minute federal problems these are federal officers of the united states they need to be appointed consistent with the constitution of the united states and that is not a bad thing that is a good thing that is why the separation of powers existed and that's why the appointments clause is the center of the separation of powers thank you thank you