(Slip Opinion) OCTOBER TERM, 2019 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

FINANCIAL OVERSIGHT AND MANAGEMENT BOARD 

FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC, 

ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FIRST CIRCUIT 

No. 18–1334. Argued October 15, 2019—Decided June 1, 2020* 

In 2016, in response to a fiscal crisis in Puerto Rico, Congress invoked its

Article IV power to “make all needful Rules and Regulations respecting 

the Territory . . . belonging to the United States,” §3, cl. 2, to enact the 

Puerto Rico Oversight, Management, and Economic Stability Act 

(PROMESA). PROMESA created a Financial Oversight and Management Board, whose seven voting members are to be appointed by the

President without the Senate’s advice and consent. Congress authorized the Board to file for bankruptcy on behalf of Puerto Rico or its 

instrumentalities, to supervise and modify Puerto Rico’s laws and

budget, and to gather evidence and conduct investigations in support

of these efforts. 

After President Obama selected the Board’s members, the Board 

filed bankruptcy petitions on behalf of the Commonwealth and five of 

its entities. Both court and Board had decided a number of matters 

when several creditors moved to dismiss the proceedings on the ground 

that the Board members’ selection violated the Constitution’s Appointments Clause, which says that the President “shall nominate, and by 

—————— 

*Together with No. 18–1475, Aurelius Investment, LLC, et al. v. Commonwealth of Puerto Rico et al., No. 18–1496, Official Committee of Unsecured Creditors of All Title III Debtors Other Than COFINA v. Aurelius 

Investment, LLC, et al., No. 18–1514, United States v. Aurelius Investment, LLC, et al., and No. 18–1521, Unión de Trabajadores de la Industria Elećtrica y Riego, Inc. v. Financial Oversight and Management 

Board for Puerto Rico et al., also on certiorari to the same court. 
 

 

 

 

 

 

2 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR 

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Syllabus 

and with the Advice and Consent of the Senate, shall appoint . . . all 

. . . Officers of the United States . . . .” Art. II, §2, cl. 2. The court denied the motions, but the First Circuit reversed. It held that the Board 

members’ selection violated the Appointments Clause but also concluded that any Board actions taken prior to its decision were valid 

under the “de facto officer” doctrine. 

Held: 

1. The Appointments Clause constrains the appointments power as 

to all officers of the United States, even those who exercise power in or 

in relation to Puerto Rico. The Constitution’s structure provides 

strong reason to believe that this is so. The Appointments Clause reflects an allocation of responsibility, between President and Senate, in

cases involving appointment to high federal office. Concerned about 

possible manipulation of appointments, the Founders both concentrated the appointment power and distributed it, ensuring that primary responsibility for important nominations would fall on the President while also ensuring that the Senate’s advice and consent power 

would provide a check on that power. Other, similar structural constraints in the Constitution apply to all exercises of federal power, including those related to Article IV entities. Cf., e.g., Metropolitan 

Washington Airports Authority v. Citizens for Abatement of Aircraft 

Noise, Inc., 501 U. S. 252, 270–271 (MWAA). The objectives advanced

by the Appointments Clause counsel strongly in favor of applying that

Clause to all officers of the United States, even those with powers and 

duties related to Puerto Rico. Indeed, the Clause’s text firmly indicates

that it applies to the appointment of all “Officers of the United States.”

And history confirms this reading. Congress’ longstanding practice of 

requiring the Senate’s advice and consent for territorial Governors 

with important federal duties supports the inference that Congress expected the Appointments Clause to apply to at least some officials with

supervisory authority over the Territories. Pp. 5–9.

2. The Appointments Clause does not restrict the appointment or

selection of the Board members. Pp. 9–21.

(a) The Appointments Clause does not restrict the appointment of 

local officers that Congress vests with primarily local duties. The 

Clause’s language suggests a distinction between federal officers—who

exercise power of the National Government—and nonfederal officers—

who exercise power of some other government. Pursuant to Article I, 

§8, cl. 17, and Article IV, §3, Congress has long legislated for entities 

that are not States—the District of Columbia and the Territories. In 

so doing, Congress has both made local law directly and also created 

local government structures, staffed by local officials, who themselves 

have made and enforced local law. This suggests that when Congress 
 

 

Cite as: 590 U. S. ____ (2020) 3 

Syllabus 

creates local offices using these two unique powers, the officers exercise power of the local government, not the Federal Government. Historical practice indicates that a federal law’s creation of an office does 

not automatically make its holder an officer of the United States. Congress has for more than two centuries created local offices for the Territories and District of Columbia that are filled through election or

local executive appointment. And the history of Puerto Rico—whose

public officials with important local responsibilities have been selected

in ways that the Appointments Clause does not describe—is consistent 

with the history of other entities that fall within Article IV’s scope and 

with the history of the District of Columbia. This historical practice 

indicates that when an officer of one of these local governments has 

primarily local duties, he is not an officer of the United States within

the meaning of the Appointments Clause. Pp. 9–14.

(b) The Board members here have primarily local powers and duties. PROMESA says that the Board is “an entity within the territorial 

government” that “shall not be considered a department, agency, establishment, or instrumentality of the Federal Government,” §101(c), 

130 Stat. 553, and Congress gave the Board a structure, duties, and 

related powers that are consistent with this statement. The Board’s 

broad investigatory powers—administering oaths, issuing subpoenas,

taking evidence, and demanding data from governments and creditors 

alike—are backed by Puerto Rican, not federal, law. Its powers to 

oversee the development of Puerto Rico’s fiscal and budgetary plans 

are also quintessentially local. And in exercising its power to initiate

bankruptcy proceedings, the Board acts on behalf of, and in the interests of, Puerto Rico. Pp. 14–17. 

(c) Buckley v. Valeo, 424 U. S. 1, Freytag v. Commissioner, 501 

U. S. 868, and Lucia v. SEC, 585 U. S. ___, do not provide the relevant 

legal test here, for each considered an Appointments Clause problem

concerning the importance or significance of duties that were indisputably federal or national in nature. Nor do Lebron v. National Railroad 

Passenger Corporation, 513 U. S. 374, or MWAA, 501 U. S. 252, help. 

Lebron considered whether Amtrak was a governmental or a private 

entity, but the fact that the Board is a Government entity does not 

answer the “primarily local versus primarily federal” question. And 

the MWAA Court expressly declined to address Appointments Clause 

questions. However, the Court’s analysis in O’Donoghue v. United 

States, 289 U. S. 516, and Palmore v. United States, 411 U. S. 389, does 

provide a rough analogy. In O’Donoghue, the Court found that Article 

III’s tenure and salary protections applied to judges of the District of 

Columbia courts because those courts exercised the judicial power of 

the United States. But the Court reached the seemingly opposite con-
 

 

 

4 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR 

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Syllabus 

clusion in Palmore, a case decided after Congress had altered the nature of the District of Columbia local courts so that its judges adjudicated primarily local issues. Pp. 17–21.

3. Given the conclusion reached here, there is no need to consider 

whether to overrule the “Insular Cases” and their progeny, see, e.g., 

Downes v. Bidwell, 182 U. S. 244, 287, to consider the application of 

the de facto officer doctrine, see Ryder v. United States, 515 U. S. 177, 

or to decide questions about the application of the Federal Relations

Act and Public Law 600. Pp. 21–22. 

915 F. 3d 838, reversed and remanded.

 BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., 

and GINSBURG, ALITO, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. 

THOMAS, J., and SOTOMAYOR, J., filed opinions concurring in the judgment. 
 

 

 

_________________ 

_________________ 

Cite as: 590 U. S. ____ (2020) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that 

corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

Nos. 18–1334, 18–1475, 18–1496, 18–1514 and 18–1521 

FINANCIAL OVERSIGHT AND MANAGEMENT 

BOARD FOR PUERTO RICO, PETITIONER 

18–1334 v. 

AURELIUS INVESTMENT, LLC, ET AL. 

AURELIUS INVESTMENT, LLC, ET AL., PETITIONERS 

18–1475 v. 

COMMONWEALTH OF PUERTO RICO, ET AL. 

OFFICIAL COMMITTEE OF UNSECURED CREDITORS 

OF ALL TITLE III DEBTORS OTHER 

THAN COFINA, PETITIONER 

18–1496 v. 

AURELIUS INVESTMENT, LLC, ET AL. 

UNITED STATES, PETITIONER 

18–1514 v. 

AURELIUS INVESTMENT, LLC, ET AL. 

UNIÓN DE TRABAJADORES DE LA INDUSTRIA 

ELÉCTRICA Y RIEGO, INC., PETITIONER 

18–1521 v. 

FINANCIAL OVERSIGHT AND MANAGEMENT 

BOARD FOR PUERTO RICO, ET AL. 
 

2 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR 

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Opinion of the Court 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIRST CIRCUIT 

[June 1, 2020]

 JUSTICE BREYER delivered the opinion of the Court. 

The Constitution’s Appointments Clause says that the

President 

“shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other 

public Ministers and Consuls, Judges of the supreme 

Court, and all other Officers of the United States . . . .” 

Art. II, §2, cl. 2 (emphasis added). 

In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA). 130 

Stat. 549, 48 U. S. C. §2101 et seq. That Act created a Financial Oversight and Management Board, and it provided, 

as relevant here, that the President could appoint its seven

members without “the advice and consent of the Senate,” 

i.e., without Senate confirmation. 

The question before us is whether this method of appointment violates the Constitution’s Senate confirmation requirement. In our view, the Appointments Clause governs 

the appointments of all officers of the United States, including those located in Puerto Rico. Yet two provisions of the 

Constitution empower Congress to create local offices for

the District of Columbia and for Puerto Rico and the Territories. See Art. I, §8, cl. 17; Art. IV, §3, cl. 2. And the 

Clause’s term “Officers of the United States” has never been 

understood to cover those whose powers and duties are primarily local in nature and derive from these two constitutional provisions. The Board’s statutory responsibilities 

consist of primarily local duties, namely, representing

Puerto Rico in bankruptcy proceedings and supervising aspects of Puerto Rico’s fiscal and budgetary policies. We 

therefore find that the Board members are not “Officers of 
 

 

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Opinion of the Court 

the United States.” For that reason, the Appointments 

Clause does not dictate how the Board’s members must be 

selected. 

I 

A 

In 2006, tax advantages that had previously led major

businesses to invest in Puerto Rico expired. See Small 

Business Job Protection Act of 1996, §1601, 110 Stat. 1827.

Many industries left the island. Emigration increased. And 

the public debt of Puerto Rico’s government and its instrumentalities soared, rising from $39.2 billion in 2005 to $71

billion in 2016. See Dept. of Treasury, Puerto Rico’s Economic and Fiscal Crisis 1, 3, https://www.treasury.gov/

connect/blog/Documents/Puerto_Ricos_fiscal_challenges.pdf; 

GAO, U. S. Territories: Public Debt Outlook 12 (GAO–18–

160, 2017).

Puerto Rico found that it could not service that debt. Yet 

Puerto Rico could not easily restructure it. The Federal 

Bankruptcy Code’s municipality-related Chapter 9 did not

apply to Puerto Rico (or to the District of Columbia). See 

11 U. S. C. §§109(c), 101(52). But at the same time, federal 

bankruptcy law invalidated Puerto Rico’s own local “debtrestructuring” statutes. Puerto Rico v. Franklin Cal. TaxFree Trust, 579 U. S. ___ (2016). In 2016, in response to 

Puerto Rico’s fiscal crisis, Congress enacted PROMESA.

130 Stat. 549, 48 U. S. C. §2101 et seq.

PROMESA allows Puerto Rico and its entities to file for 

federal bankruptcy protection. See §§301, 302, 130 Stat. 

577, 579; cf. 11 U. S. C. §901 (related to bankruptcies of local governments). The filing and subsequent proceedings

are to take place in the United States District Court for the 

District of Puerto Rico, before a federal judge selected by 

the Chief Justice of the United States. PROMESA §§307–

308, 130 Stat. 582. PROMESA also created the Financial 

Oversight and Management Board—with seven members 
 

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Opinion of the Court 

appointed by the President and with the Governor serving

as an ex officio member. §§101(b), (e), id., at 553, 554–555. 

PROMESA gives the Board authority to file for bankruptcy 

on behalf of Puerto Rico or its instrumentalities. §304(a), 

id., at 579. The Board can supervise and modify Puerto

Rico’s laws (and budget) to “achieve fiscal responsibility and 

access to the capital markets.” §201(b), id., at 564; see 

§§201–207, id., at 563–575. And it can gather evidence and 

conduct investigations in support of these efforts. §104, id., 

at 558–561. 

As we have just said, PROMESA gives the President of 

the United States the power to appoint the Board’s seven

members without Senate confirmation, so long as he selects

six from lists prepared by congressional leaders. 

§101(e)(2)(A), id., at 554–555. 

B 

On August 31, 2016, President Obama selected the

Board’s seven members in the manner just described. The 

Board established offices in Puerto Rico and New York, and 

soon filed bankruptcy petitions on behalf of the Commonwealth and (eventually) five Commonwealth entities. Title 

III Petition in No. 17–BK–3283 (PR); see Order Pursuant 

to PROMESA Section 304(g), No. 17–BK–3283 (PR, Oct. 9, 

2019), Doc. 8829 (consolidating petitions filed on behalf of

the Commonwealth of Puerto Rico, the Puerto Rico Sales 

Tax Financing Corporation, the Puerto Rico Highways and 

Transportation Authority, the Employees Retirement System of the Government of the Commonwealth of Puerto 

Rico, the Puerto Rico Electric Power Authority, and the 

Puerto Rico Public Buildings Authority). And the Chief 

Justice then selected a federal judge to serve as bankruptcy

judge for Puerto Rico. Designation of Presiding District 

Judge, No. 17–BK–3283 (PR, May 5, 2017), Doc. 4. 

After both court and Board had decided a number of matters, several creditors moved to dismiss all proceedings on 
Cite as: 590 U. S. ____ (2020) 5 

Opinion of the Court 

the ground that the Board members’ selection violated the 

Appointments Clause. The court denied the motions. See 

In re Financial Oversight and Management Bd. of Puerto 

Rico, 318 F. Supp. 3d 537, 556–557 (PR 2018). The creditors appealed to the United States Court of Appeals for the 

First Circuit. That court reversed. It held that the selection of the Board’s members violated the Appointments 

Clause. 915 F. 3d 838, 861 (2019). But it concluded that 

those Board actions taken prior to its decision remained

valid under the “de facto officer” doctrine. Id., at 862–863; 

see, e.g., McDowell v. United States, 159 U. S. 596, 601 

(1895) (judicial decisions could not later be attacked on 

ground that an unlawfully sitting judge presided); Ball v. 

United States, 140 U. S. 118, 128–129 (1891) (same). 

The Board, the United States, and various creditors then 

filed petitions for certiorari in this Court, some arguing that 

the appointments were constitutionally valid, others that

the de facto officer doctrine did not apply. Compare Pets.

for Cert. in Nos. 18–1334, 18–1496, 18–1514 with Pets. for 

Cert. in Nos. 18–1475, 18–1521. In light of the importance

of the questions, we granted certiorari in all the petitions 

and consolidated them for argument. 588 U. S. ___ (2019). 

II 

Congress created the Board pursuant to its power under 

Article IV of the Constitution to “make all needful Rules 

and Regulations respecting the Territory . . . belonging to

the United States.” §3, cl. 2; see PROMESA §101(b)(2), 130 

Stat. 553. Some have argued in these cases that the Appointments Clause simply does not apply in the context of 

Puerto Rico. But, like the Court of Appeals, we believe the

Appointments Clause restricts the appointment of all officers of the United States, including those who carry out their

powers and duties in or in relation to Puerto Rico. 

The Constitution’s structure provides strong reason to believe that is so. The Constitution separates the three basic 
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Opinion of the Court 

powers of Government—legislative, executive, and judicial—with each branch serving different functions. But the 

Constitution requires cooperation among the three 

branches in specified areas. Thus, to become law, proposed

legislation requires the agreement of both Congress and the

President (or, a supermajority in Congress). See INS v. 

Chadha, 462 U. S. 919, 955 (1983) (noting that the Constitution prescribes only four specific actions that Congress

can take without bicameralism and presentment). At the 

same time, legislation must be consistent with constitutional constraints, and we usually look to the Judiciary as

the ultimate interpreter of those constraints.

The Appointments Clause reflects a similar allocation of 

responsibility, between President and Senate, in cases involving appointment to high federal office. That Clause reflects the Founders’ reaction to “one of [their] generation’s 

greatest grievances against [pre-Revolutionary] executive 

power,” the manipulation of appointments. Freytag v. Commissioner, 501 U. S. 868, 883 (1991); see also The Federalist 

No. 76, p. 455 (C. Rossiter ed. 1961) (A. Hamilton) (the Appointments Clause helps to preserve democratic accountability). The Founders addressed their concerns with the appointment power by both concentrating it and distributing

it. On the one hand, they ensured that primary responsibility for nominations would fall on the President, whom 

they deemed “less vulnerable to interest-group pressure

and personal favoritism” than a collective body. Edmond v. 

United States, 520 U. S. 651, 659 (1997). See also The Federalist No. 76, at 455 (“The sole and undivided responsibility of one man will naturally beget a livelier sense of duty 

and a more exact regard to reputation”). On the other hand, 

they ensured that the Senate’s advice and consent power 

would provide “an excellent check upon a spirit of favoritism in the President and a guard against the appointment 

of unfit characters.” NLRB v. SW General, Inc., 580 U. S. 

___, ___ (2017) (slip op., at 2) (internal quotation marks 
 

Cite as: 590 U. S. ____ (2020) 7 

Opinion of the Court 

omitted). By “limiting the appointment power” in this fashion, the Clause helps to “ensure that those who wielded [the 

appointments power] were accountable to political force 

and the will of the people.” Freytag, supra, at 884; see also 

Edmond, 520 U. S., at 659. “The blame of a bad nomination 

would fall upon the president singly and absolutely,” while 

“[t]he censure of rejecting a good one would lie entirely at 

the door of the senate.” Id., at 660 (internal quotation

marks omitted). 

These other structural constraints, designed in part to 

ensure political accountability, apply to all exercises of federal power, including those related to Article IV entities.

Cf., e.g., Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 

270–271 (1991) (MWAA) (separation-of-powers principles

apply when Congress acts under its Article IV power to legislate “respecting . . . other Property”). See also, e.g., Act of 

Aug. 7, 1789, ch. 8, 1 Stat. 50 (the First Congress using bicameralism and presentment to make rules and regulations 

for the Northwest Territory). The objectives advanced by

the Appointments Clause counsel strongly in favor of that

Clause applying to the appointment of all “Officers of the 

United States.” Why should it be different when such an

officer’s duties relate to Puerto Rico or other Article IV entities? 

Indeed, the Appointments Clause has no Article IV exception. The Clause says in part that the President 

“shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other 

public Ministers and Consuls, Judges of the supreme 

Court, and all other Officers of the United States, 

whose Appointments . . . shall be established by Law 

. . . .” Art. II, §2, cl. 2. 

That text firmly indicates that it applies to the appointment 

of all “Officers of the United States.” And history confirms 
 

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this reading. Before the writing of the Constitution, Congress had enacted an ordinance that allowed Congress to

appoint officers to govern the Northwest Territory. As soon 

as the Constitution became law, the First Congress

“adapt[ed]” that ordinance “to the present Constitution of 

the United States,” Act of Aug. 7, 1789, 1 Stat. 51, in large 

part by providing for an appointment process consistent

with the constraints of the Appointments Clause. In particular, it provided for a Presidential-appointment, Senateconfirmation process for high-level territorial appointees 

who assumed federal, as well as local, duties. See id., at 52, 

n. (a); §1, id., at 53 (appointment by President, and confirmation by Senate, of Governor, secretary, and members of

the upper house); Act of Sept. 11, 1789, ch. 13, §1, 1 Stat. 

68 (Governor “discharg[ed]” the federal “duties of superintendent of Indian affairs”). Later Congresses took a similar 

approach to later territorial Governors with federal duties.

See Act of June 6, 1900, §10, 31 Stat. 325 (appointment of

Governor of Territory of Alaska by President with confirmation by Senate); §2, id., at 322 (federal duties of Alaska 

territorial Governor include entering into contracts in name 

of the United States and granting reprieves for federal offenses); Act of Mar. 2, 1819, §§3, 10, 3 Stat. 494, 495 (similar

for Governor of Arkansas). We do not mean to suggest that

every time Congress chooses to require advice and consent 

procedures it does so because they are constitutionally required. At times, Congress may wish to require Senate confirmation for policy reasons. Even so, Congress’ practice of

requiring advice and consent for these Governors with important federal duties supports the inference that Congress

expected the Appointments Clause to apply to at least some

officials with supervisory authority over the Territories. 

Given the Constitution’s structure, this history, roughly

analogous case law, and the absence of any conflicting authority, we conclude that the Appointments Clause constrains the appointments power as to all “Officers of the 
Cite as: 590 U. S. ____ (2020) 9 

Opinion of the Court 

United States,” even when those officers exercise power in

or related to Puerto Rico. 

III 

A 

The more difficult question before us is whether the

Board members are officers of the United States such that 

the Appointments Clause requires Senate confirmation. If 

they are not officers of the United States, but instead are

some other type of officer, the Appointments Clause says 

nothing about them. (No one suggests that they are “Ambassadors,” “other public Ministers and Consuls,” or

“Judges of the supreme Court.”) And as we shall see, the 

answer to this question turns on whether the Board members have primarily local powers and duties.

The language at issue does not offer us much guidance for 

understanding the key term “of the United States.” The 

text suggests a distinction between federal officers—officers exercising power of the National Government—and 

nonfederal officers—officers exercising power of some other 

government. The Constitution envisions a federalist structure, with the National Government exercising limited federal power and other, local governments—usually state 

governments—exercising more expansive power. But the 

Constitution recognizes that for certain localities, there will

be no state government capable of exercising local power.

Thus, two provisions of the Constitution, Article I, §8, cl. 17, 

and Article IV, §3, cl. 2, give Congress the power to legislate 

for those localities in ways “that would exceed its powers, 

or at least would be very unusual” in other contexts. Palmore v. United States, 411 U. S. 389, 398 (1973). Using 

these powers, Congress has long legislated for entities that

are not States—the District of Columbia and the Territories. See District of Columbia v. John R. Thompson Co., 

346 U. S. 100, 104–106 (1953). And, in doing so, Congress

has both made local law directly and also created structures 
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of local government, staffed by local officials, who themselves have made and enforced local law. Compare, e.g., Act 

of Mar. 2, 1962, §401, 76 Stat. 17 (changing D. C. liquor tax 

from $1.25 per gallon to $1.50 per gallon), with District of

Columbia Self-Government and Governmental Reorganization Act, 87 Stat. 774 (giving local D. C. government primary legislative control over local matters). This structure 

suggests that when Congress creates local offices using 

these two unique powers, the officers exercise power of the 

local government, not the Federal Government. Cf. American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 (1828)

(Marshall, C. J.) (territorial courts may exercise the judicial

power of the Territories without the life tenure and salary 

protections mandated by Article III for federal judges); Cincinnati Soap Co. v. United States, 301 U. S. 308, 323 (1937) 

(territorial legislators may exercise the legislative power of 

the Territories without violating the nondelegation doctrine).

History confirms what the Constitution’s text and structure suggest. See NLRB v. Noel Canning, 573 U. S. 513, 

524 (2014) (relying on history and structure in interpreting 

the Recess Appointments Clause). See also McCulloch v. 

Maryland, 4 Wheat. 316, 401 (1819) (emphasizing the utility of historical practice in interpreting constitutional provisions). Longstanding practice indicates that a federal 

law’s creation of an office in this context does not automatically make its holder an “Officer of the United States.” Rather, Congress has often used these two provisions to create

local offices filled in ways other than those specified in the 

Appointments Clause. When the First Congress legislated 

for the Northwest Territories, for example, it created a

House of Representatives for the Territory with members 

selected by election. It also created an upper house of the

territorial legislature, whose members were appointed by

the President (without Senate confirmation) from lists pro-
Cite as: 590 U. S. ____ (2020) 11 

Opinion of the Court 

vided by the elected, lower house. And it created magistrates appointed by the Governor. See Act of Aug. 7, 1789, 

1 Stat. 51, n. (a).

The practice of creating by federal law local offices for the

Territories and District of Columbia that are filled through 

election or local executive appointment has continued unabated for more than two centuries. See, e.g., ibid. (Northwest Territories local offices filled by election); Act of Apr. 

7, 1798, §3, 1 Stat. 550 (Mississippi, same); Act of May 7, 

1800, §2, 2 Stat. 59 (Indiana, same); Act of May 15, 1820, 

§3, 3 Stat. 584 (District of Columbia, same); Act of Apr. 30, 

1900, §13, 31 Stat. 144 (Hawaii, same); Act of Aug. 24, 1912,

§4, 37 Stat. 513 (Alaska, same); Act of Aug. 23, 1968, §4, 82

Stat. 837 (Virgin Islands, same); Act of Sept. 11, 1968, Pub. 

L. 90–497, §1, 82 Stat. 842 (Guam, same); Act of May 4,

1812, §3, 2 Stat. 723 (D. C. mayor appoints “all offices”); Act 

of June 4, 1812, §2, 2 Stat. 744 (Missouri Governor, similar); 

Act of Mar. 2, 1819, §3, 3 Stat. 494 (Arkansas, similar); Act 

of June 6, 1900, §2, 31 Stat. 322 (Alaska, similar); Act of

Sept. 11, 1968, §1, 82 Stat. 843 (Guam, similar). Like 

JUSTICE THOMAS, post, at 6 (opinion concurring in judgment), we think the practice of the First Congress is strong

evidence of the original meaning of the Constitution. We 

find this subsequent history similarly illuminates the text’s

meaning.

Puerto Rico’s history is no different. It reveals a 

longstanding practice of selecting public officials with important local responsibilities in ways that the Appointments Clause does not describe. In 1898, at the end of the 

Spanish-American War, the United States took responsibility for determining the civil rights of Puerto Ricans as well 

as Puerto Rico’s political status. Treaty of Paris, Art. 9, 

Dec. 10, 1898, 30 Stat. 1759. In 1900, the Foraker Act provided for Presidential appointment (with Senate confirmation) of Puerto Rico’s Governor, the heads of six departments, the legislature’s upper house, and the justices of its 
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high court. Organic Act of 1900, §§ 17, 18, 33, 31 Stat. 81, 

84. But it also provided for the selection, through popular

election, of a lower legislative house with the power (subject 

to upper house concurrence) to “alter, amend, modify, and 

repeal any and all laws . . . of every character.” §§27, 32, 

id., at 82, 84. There is no indication that anyone thought

members of the lower house, wielding important local responsibilities, were “Officers of the United States.” 

Congress replaced the Foraker Act with the Jones Act in

1917. Organic Act of Puerto Rico, ch. 145, 39 Stat. 951. Under the Jones Act the Puerto Rican Senate was elected and 

consequently no longer satisfied the Appointments Clause

criteria. See §26, id., at 958. Similarly, the Governor of 

Puerto Rico nominated four cabinet members, confirmed by 

the Senate of Puerto Rico. §13, id., at 955–956. The elected 

legislature retained “all local legislative powers,” including 

the power to appropriate funds. §§ 25, 34, 37, id., at 958, 

962, 964. 

Congress amended the Jones Act in 1947 to provide for 

an elected Governor of Puerto Rico, and granted that Governor the power to appoint all cabinet officials. See Act of 

Aug. 5, 1947, ch. 490, §§ 1, 3, 61 Stat. 770, 771. The President retained the power to appoint (with Federal Senate

confirmation) judges, an auditor, and the new office of Coordinator of Federal Agencies, who was to supervise federal 

functions in Puerto Rico and recommend to higher federal

officials ways to improve the quality of federal services. §6, 

id., at 772. 

In 1950, Congress enacted Public Law 600, “in the nature

of a compact” with Puerto Rico and subject to approval by

the voters of Puerto Rico. Act of July 3, 1950, ch. 446, §§1, 

2, 64 Stat. 319. The Act adopted the Jones Act, as amended,

as the Puerto Rican Federal Relations Act, and provided for 

the Jones Act’s substantial (but not complete) repeal upon

the effective adoption of a contemplated Puerto Rican constitution. §§4, 5, id., at 319–320. Among the provisions of 
Cite as: 590 U. S. ____ (2020) 13 

Opinion of the Court 

the Jones Act that Public Law 600 retained were several 

related to Puerto Rico’s public debt. Congress retained, for

example, the triple-tax-exempt nature of Puerto Rican 

bonds. Jones Act, §3, 39 Stat. 953. It also retained a (later 

repealed) cap on the amount of public debt Puerto Rico or

its subdivisions could accumulate. Ibid. In a public referendum, the citizens of Puerto Rico approved Public Law

600—including the limits on debt in §3 of the Federal Relations Act—and then began the constitution-making process. Pub. L. 600, §§2, 3, 64 Stat. 319; see Act of July 3, 

1952, 66 Stat. 327; A. Fernós-Isern, Original Intent in the 

Constitution of Puerto Rico 13 (2d ed. 2002).

Puerto Rico’s popularly ratified Constitution, which Congress accepted with a few fairly minor changes, does not involve the President or the Senate in the appointment process for local officials. That Constitution provides for the

election of Puerto Rico’s Governor and legislators. Art. III, 

§1; Art. IV, §1. And it provides for gubernatorial appointment (and Puerto Rican Senate confirmation) of cabinet officers. Art. IV, §5. 

The upshot is that Puerto Rico’s history reflects longstanding use of various methods for selecting officials with

primarily local responsibilities. This history is consistent

with the history of other entities that fall within the scope

of Article IV and with the history of the District of Columbia. See supra, at 10–11. And it comports with our precedents, which have long acknowledged that Congress may 

structure local governments under Article IV and Article I 

in ways that do not precisely mirror the constitutional blueprint for the National Government. See, e.g., Benner v. Porter, 9 How. 235, 242 (1850). Cf. Glidden Co. v. Zdanok, 370 

U. S. 530, 546 (1962) (plurality opinion) (recognizing that

local governments created by Congress could, like governments of the States, “dispense with protections deemed inherent in a separation of governmental powers”). Sometimes Congress has specified the use of methods that would 
 

 

14 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR 

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Opinion of the Court 

satisfy the Appointments Clause, other times it has specified methods that would not satisfy the Appointments

Clause, including elections and appointment by local officials. Officials with primarily local duties have often fallen

into the latter categories. We know of no case endorsing an 

Appointments Clause based challenge to such selection

methods. Indeed, to read Appointments Clause constraints

as binding Puerto Rican officials with primarily local duties

would work havoc with Puerto Rico’s (federally ratified)

democratic methods for selecting many of its officials.

We thus conclude that while the Appointments Clause 

does restrict the appointment of “Officers of the United 

States” with duties in or related to the District of Columbia 

or an Article IV entity, it does not restrict the appointment

of local officers that Congress vests with primarily local duties under Article IV, §3, or Article I, §8, cl. 17. 

B 

The question remains whether the Board members have

primarily local powers and duties. We note that the Clause 

qualifies the phrase “Officers of the United States” with the 

words “whose Appointments . . . shall be established by

Law.” And we also note that PROMESA says that the 

Board is “an entity within the territorial government” and 

“shall not be considered a department, agency, establishment, or instrumentality of the Federal Government.”

§101(c), 130 Stat. 553. But the most these words show is 

that Congress did not intend to make the Board members

“Officers of the United States.” It does not prove that, insofar as the Constitution is concerned, they succeeded. 

But we think they have. Congress did not simply state

that the Board is part of the local Puerto Rican government.

Rather, Congress also gave the Board a structure, a set of

duties, and related powers all of which are consistent with

this statement. 
 

Cite as: 590 U. S. ____ (2020) 15 

Opinion of the Court 

The government of Puerto Rico pays the Board’s expenses, including the salaries of its employees (the members serve without pay). §107, id., at 562; see §101(g), id., 

at 556. The Board possesses investigatory powers. It can 

hold hearings. §104(a), id., at 558. It can issue subpoenas,

subject to Puerto Rico’s limits on personal jurisdiction and

enforceable under Puerto Rico’s laws. §104(f ), id., at 559. 

And it can enforce those subpoenas in (and only in) Puerto 

Rico’s courts. §§104(f )(2), 106(a), id., at 559, 562. 

From its own offices in or outside of Puerto Rico, the 

Board works with the elected government of Puerto Rico to

develop a fiscal plan that provides “a method to achieve fiscal responsibility and access to the capital markets.” 

§201(b), id., at 564. If it finds it necessary, the Board can 

develop its own budget for Puerto Rico which is “deemed . . . 

approved” and becomes the operative budget. §202(e)(3), 

id., at 568. It can ensure compliance with the plan and 

budget by reviewing the Puerto Rico government’s laws and

spending and by “direct[ing]” corrections or taking “such

[other] actions as it considers necessary,” including preventing a law from taking effect. §§203(d), 204(a), id., at 

569, 571. The Board controls the issuance of new debt for 

Puerto Rico. §207, id., at 575. 

The Board also may initiate bankruptcy proceedings for 

Puerto Rico or its instrumentalities. §304(a), id., at 579. It 

may take any related “action necessary on behalf of,” and it

serves as “the representative of,” Puerto Rico or its instrumentalities. §315, id., at 584. These proceedings take place

in the U. S. District Court for Puerto Rico. §307, id., at 582. 

To repeat: The Board has broad investigatory powers: It 

can administer oaths, issue subpoenas, take evidence and 

demand data from governments and creditors alike. But 

these powers are backed by Puerto Rican, not federal, law:

Subpoenas are governed by Puerto Rico’s personal jurisdiction statute; false testimony is punishable under the law of 
 

16 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR 

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Opinion of the Court 

Puerto Rico; the Board must seek enforcement of its subpoenas by filing in the courts of Puerto Rico. See §104, id., 

at 558–561. These powers are primarily local in nature.

The Board also oversees the development of Puerto Rico’s

fiscal and budgetary plans. It receives and evaluates proposals from the elected Governor and legislature. It can 

create a budget “deemed” to be that of Puerto Rico. It can 

intervene when budgetary constraints are violated. And it 

has authority over the issuance of new debt. §§201–207, 

id., at 563–575. These powers, too, are quintessentially local. Each concerns the finances of the Commonwealth, not 

of the United States. The Board members in this respect 

discharge duties ordinarily held by local officials. 

Last, the Board has the power to initiate bankruptcy proceedings. But in doing so, it acts not on behalf of the United

States, but on behalf of, and in the interests of, Puerto Rico. 

The proceedings take place in federal court; but the same is 

true of all persons or entities who seek bankruptcy protection. The Board here acts as a local government that might 

take precisely the same actions. See, e.g., 11 U. S. C. 

§§109(c), 921 (related to bankruptcies of local governments).

Some Board actions, of course, may have nationwide consequences. But the same can be said of many actions taken 

by many Governors or other local officials. Taking actions 

with nationwide consequences does not automatically 

transform a local official into an “Officer of the United 

States.” The challengers rely most heavily on the nationwide effects of the bankruptcy proceedings. E.g., Brief for 

Aurelius et al. 31; Brief for Petitioner Unión de Trabajadores de la Industria Eléctrica y Riego, Inc. (UTIER) 49. 

But the same might be said of any major municipal, or even 

corporate, bankruptcy. E.g., In re Detroit, 504 B. R. 97 

(Bkrtcy. Ct. ED Mich. 2013) (restructuring $18 billion in 

municipal debt). 
Cite as: 590 U. S. ____ (2020) 17 

Opinion of the Court 

In short, the Board possesses considerable power—including the authority to substitute its own judgment for the 

considered judgment of the Governor and other elected officials. But this power primarily concerns local matters. 

Congress’ law thus substitutes a different process for determining certain local policies (related to local fiscal responsibility) in respect to local matters. And that is the critical 

point for current purposes. The local nature of the legislation’s expressed purposes, the representation of local interests in bankruptcy proceedings, the focus of the Board’s 

powers upon local expenditures, the local logistical support, 

the reliance on local laws in aid of the Board’s procedural

powers—all these features when taken together and judged

in the light of Puerto Rico’s history (and that of the Territories and the District of Columbia)—make clear that the 

Board’s members have primarily local duties, such that 

their selection is not subject to the constraints of the Appointments Clause. 

IV 

The Court of Appeals, pointing to three of this Court’s 

cases, reached the opposite conclusion. See Buckley v. 

Valeo, 424 U. S. 1 (1976) (per curiam), Freytag v. Commissioner, 501 U. S. 868, and Lucia v. SEC, 585 U. S. ___ 

(2018). It pointed out that the Court, in those cases, discussed the term “Officer of the United States,” and it concluded that, for Appointments Clause purposes, an appointee is such an “officer” if “(1) the appointee occupies a

‘continuing’ position established by federal law; (2) the appointee ‘exercis[es] significant authority’; and (3) the significant authority is exercised ‘pursuant to the laws of the 

United States.’” 915 F. 3d, at 856. The Court of Appeals

concluded that the Board members satisfied this test. See 

id., at 856–857. 

We do not believe these three cases set forth the critical 

legal test relevant here, however, and we do not apply any 
18 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR 

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Opinion of the Court 

test they might enunciate. Each of the cases considered an 

Appointments Clause problem concerning the importance

or significance of duties that were indisputably federal or 

national in nature. In Buckley, the question was whether 

members of the Federal Election Commission—appointees 

carrying out federal-election related duties—were “officers” 

for Appointments Clause purposes. In Freytag, the Court 

asked the same question about special federal trial judges 

serving on federal tax courts. And in Lucia the Court asked 

the same question about federal administrative law judges 

carrying out Securities and Exchange Commission duties. 

Here, PROMESA, a federal law, creates the Board and its 

duties, and no one doubts their significance. But we cannot 

stop there. To do so would ignore the history we have discussed—history stretching back to the founding. See supra, 

at 10–13. And failing to take account of the nature of an

appointee’s federally created duties, i.e., whether they are 

primarily local versus primarily federal, would threaten interference with democratic (or local appointment) selection

methods in numerous Article IV Territories and perhaps

the District of Columbia as well. See, e.g., 48 U. S. C. §1422

(providing for an elected Governor of Guam); §1591 (same 

for Virgin Islands); District of Columbia Self-Government

Act, §421, 87 Stat. 789 (same for D. C. Mayor); §422(2), 87

Stat. 790 (describing D. C. Mayor’s appointment powers); 

48 U. S. C. §1422c (same for Guam’s Governor); §1597(c)

(same for Virgin Islands). There is no reason to understand 

the Appointments Clause—which, at least in part, seeks to

advance democratic accountability and broaden appointments-related responsibility, see supra, at 6–7—as making

it significantly more difficult for local residents of such areas to share responsibility for the implementation of (statutorily created) primarily local duties. Neither the text nor 

the history of the Clause commands such a result. 

 Neither do Lebron v. National Railroad Passenger Corporation, 513 U. S. 374 (1995), or MWAA, 501 U. S. 252, help 
 

 

Cite as: 590 U. S. ____ (2020) 19 

Opinion of the Court 

those challenging the Board’s constitutional legitimacy. 

Lebron considered whether, for First Amendment purposes,

Amtrak was a governmental or a private entity. 513 U. S., 

at 379. All here agree that the Board is a Government entity, but that fact does not answer the “primarily local versus primarily federal” question. In MWAA, the Court held 

that separation-of-powers principles forbid Members of 

Congress to become members of a board that controls federally owned airports. 501 U. S., at 275–276 (relying on 

Bowsher v. Synar, 478 U. S. 714, 726 (1986), and INS v. 

Chadha, 462 U. S. 919, 952 (1983)). The Court expressly 

declined to answer any question related to the Appointments Clause. 501 U. S., at 277, n. 23. 

While we have found no case from this Court directly on

point, we believe that the Court’s analysis in O’Donoghue v. 

United States, 289 U. S. 516 (1933), and especially Palmore 

v. United States, 411 U. S. 389, provides a rough analogy. 

In O’Donoghue, the Court considered whether Article III’s 

tenure and salary protections applied to judges of the courts

in the District of Columbia. The Court held that they did.

Those courts, it believed, were “‘courts of the United 

States’” and “recipients of the judicial power of the United

States.” 289 U. S., at 546, 548. The judges’ salaries consequently could not be reduced. Id., at 551. 

In Palmore, however, the Court reached what might seem

the precisely opposite conclusion. A criminal defendant, invoking O’Donoghue, argued that the D. C. Superior Court 

Judge could not constitutionally preside over the case because the judge lacked Article III’s tenure protection, 

namely, life tenure. Palmore, supra, at 390. But the Court 

rejected the defendant’s argument. Why? How did it explain O’Donoghue? 

The difference, said the Court, lies in the fact that, in the 

meantime, Congress had changed the nature of the District 

of Columbia court. Palmore, supra, at 406–407; see District 

of Columbia Court Reform and Criminal Procedure Act of 
 

20 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR 

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Opinion of the Court 

1970, 84 Stat. 473. Congress changed what had been a unified court system where judges adjudicated both local and

federal issues into separate court systems, in one of which 

judges adjudicated primarily local issues. §111, id., at 475. 

Courts in that category had criminal jurisdiction over only 

those cases brought “‘under any law applicable exclusively 

to the District of Columbia.’” Id., at 486. Its judges served 

for 15-year terms. Id., at 491. 

 This Court, in Palmore, considered a local judge presiding 

over a local court. Congress had created that court in the

exercise of its Article I power to “exercise exclusive Legislation in all Cases whatsoever” over the District of Columbia. 

See Art I, §8, cl. 17. The “focus” of these courts was “primarily upon . . . matters of strictly local concern.” 411 U. S., 

at 407. Hence, the nature of those courts was a “far cry” 

from that of the courts at issue in O’Donoghue. Palmore, 

411 U. S., at 406. 

The Court added that Congress had created non-Article

III courts under its Article IV powers. It wrote that Congress could also create non-Article III courts under its Article I powers. Id., at 403, 410. And it held that judges serving on those non-Article III courts lacked Article III 

protections. Id., at 410. 

Palmore concerned Article I of the Constitution, not Article IV. And it concerned “the judicial Power of the United 

States,” not “Officers of the United States.” But it provides

a rough analogy. It holds that Article III protections do not 

apply to an Article I court “focus[ed],” unlike the courts at

issue in O’Donoghue, primarily on local matters. Here, 

Congress expressly invoked a constitutional provision allowing it to make local debt-related law (Article IV); it expressly located the Board within the local government of

Puerto Rico; it clearly indicated that it intended the Board’s

members to be local officials; and it gave them primarily 

local powers, duties, and responsibilities.

In his concurring opinion, JUSTICE THOMAS criticizes the 
Cite as: 590 U. S. ____ (2020) 21 

Opinion of the Court 

inquiry we set out—whether an officer’s duties are primarily local or primarily federal—as too “amorphous,” post, at 

10. But we think this is the test established by the Constitution’s text, as illuminated by historical practice. And we 

cannot see how Congress could avoid the strictures of the 

Appointments Clause by adding to a federal officer’s other 

obligations a large number of local duties. Indeed, we think 

that our test, tied as it is to both the text and the history of 

the Appointments Clause, is more rigorous than the bare 

inquiry into the “nature” of the officer’s authority that 

JUSTICE THOMAS proposes, and we believe it is more faithful to the Clause’s original meaning. Ibid. 

V 

We conclude, for the reasons stated, that the Constitution’s Appointments Clause applies to the appointment of 

officers of the United States with powers and duties in and 

in relation to Puerto Rico, but that the congressionally mandated process for selecting members of the Financial Oversight and Management Board for Puerto Rico does not violate that Clause. Given this conclusion, we need not 

consider the request by some of the parties that we overrule 

the much-criticized “Insular Cases” and their progeny. See, 

e.g., Downes v. Bidwell, 182 U. S. 244, 287 (1901) (opinion 

of Brown, J.); Balzac v. Porto Rico, 258 U. S. 298, 309 

(1922); Reid v. Covert, 354 U. S. 1, 14 (1957) (plurality opinion) (indicating that the Insular Cases should not be further 

extended); see also Brief for Official Committee of Unsecured Creditors of All Title III Debtors (Other than 

COFINA) 20–25 (arguing that the Insular Cases support 

reversal on the Appointments Clause issue); Brief for 

UTIER 64–66 (encouraging us to overrule the Insular 

Cases); Brief for Virgin Islands Bar Association as Amicus 

Curiae 13–18 (same); Cabranes, Citizenship and the American Empire, 127 U. Pa. L. Rev. 391, 436–442 (1978) (criticizing the Insular Cases); Littlefield, The Insular Cases, 15 
22 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR 

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Opinion of the Court 

Harv. L. Rev. 169 (1901) (same). Those cases did not reach 

this issue, and whatever their continued validity we will not 

extend them in these cases. See Reid, supra, at 14. 

Neither, since we hold the appointment method valid,

need we consider the application of the de facto officer doctrine. See Ryder v. United States, 515 U. S. 177 (1995) (discussing the doctrine); see also, e.g., Brief for Aurelius et al. 

48–69 (arguing the doctrine does not apply in this context);

Brief for UTIER 69–85 (same); Reply Brief for United 

States 26–47 (insisting to the contrary); Brief for Cross-Respondent COFINA Senior Bondholders’ Coalition 14–46

(same).

Finally, as JUSTICE SOTOMAYOR recognizes, post, at 8 

(opinion concurring in judgment), we need not, and therefore do not, decide questions concerning the application of 

the Federal Relations Act and Public Law 600. No party

has argued that those Acts bear any significant relation to

the answer to the Appointments Clause question now before us. 

For these reasons, we reverse the judgment of the Court 

of Appeals and remand the cases for further proceedings

consistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 590 U. S. ____ (2020) 1 

THOMAS, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

Nos. 18–1334, 18–1475, 18–1496, 18–1514 and 18–1521 

FINANCIAL OVERSIGHT AND MANAGEMENT 

BOARD FOR PUERTO RICO, PETITIONER 

18–1334 v. 

AURELIUS INVESTMENT, LLC, ET AL. 

AURELIUS INVESTMENT, LLC, ET AL., PETITIONERS 

18–1475 v. 

COMMONWEALTH OF PUERTO RICO, ET AL. 

OFFICIAL COMMITTEE OF UNSECURED CREDITORS 

OF ALL TITLE III DEBTORS OTHER 

THAN COFINA, PETITIONER 

18–1496 v. 

AURELIUS INVESTMENT, LLC, ET AL. 

UNITED STATES, PETITIONER 

18–1514 v. 

AURELIUS INVESTMENT, LLC, ET AL. 

UNIÓN DE TRABAJADORES DE LA INDUSTRIA 

ELÉCTRICA Y RIEGO, INC., PETITIONER 

18–1521 v. 

FINANCIAL OVERSIGHT AND MANAGEMENT 

BOARD FOR PUERTO RICO, ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIRST CIRCUIT 

[June 1, 2020]

 JUSTICE THOMAS, concurring in the judgment. 
2 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR 

 PUERTO RICO v. AURELIUS INVESTMENT, LLC 

THOMAS, J., concurring in judgment 

The Court reaches the right conclusion: The appointment 

process for members of the Financial Oversight and Management Board for Puerto Rico (Board) does not violate the

Appointments Clause. I cannot agree, however, with the

ill-defined path that the Court takes to reach this result. I 

would resolve these cases based on the original public

meaning of the phrase “Officers of the United States” in the

Appointments Clause. 

I 

The Appointments Clause provides that the President 

“shall nominate, and by and with the Advice and Consent 

of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all 

other Officers of the United States, whose Appointments 

are not herein otherwise provided for, and which shall be 

established by Law.” Art. II, §2, cl. 2. The Clause also permits Congress to vest the appointment of “inferior Officers”

in “the President alone,” “the Courts of Law,” or “the Heads 

of Departments.” Ibid. 

As I have previously explained, the original public meaning of the phrase “Officers of the United States” includes 

“all federal civil officials who perform an ongoing, statutory 

duty.” Lucia v. SEC, 585 U. S. ___, ___ (2018) (THOMAS, J., 

concurring) (slip op., at 2) (citing Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 454 (2018) 

(Mascott)). At the founding, the term “officer” referred to

“anyone who performed a continuous public duty.” 585 

U. S., at ___ (slip op., at 3). And the phrase “of the United 

States” limited the Appointments Clause to “federal” officers. Ibid.; see Mascott 471–479. 

II 

Territorial officials performing duties created under Article IV of the Constitution are not federal officers within 
Cite as: 590 U. S. ____ (2020) 3 

THOMAS, J., concurring in judgment 

the original meaning of the phrase “Officers of the United

States.” Since the founding, this Court has recognized a 

distinction between Article IV power and the powers of the 

National Government in Articles I, II, and III. The founding generation understood the phrase “Officers of the

United States” to refer to officers exercising the powers of 

the National Government, not officers solely exercising Article IV territorial power. Because the Board’s members 

perform duties pursuant to Article IV, they do not qualify 

as “Officers of the United States.” 

A 

The Territory Clause of Article IV provides Congress the

“Power to dispose of and make all needful Rules and Regulations respecting the Territory . . . belonging to the United

States.” §3, cl. 2. This power is “absolute and undisputed.” 

Sere v. Pitot, 6 Cranch 332, 337 (1810). Congress has “full

and complete legislative authority over the people of the

Territories and all the departments of the territorial governments.” National Bank v. County of Yankton, 101 U. S. 

129, 133 (1880).

“No one has ever doubted the authority of congress to

erect territorial governments within the territory of the 

United States, under the general language of the clause, ‘to 

make all needful rules and regulations.’ ” 3 J. Story, Commentaries on the Constitution of the United States §1319, 

p. 195 (1833). These governments are “the creations, exclusively, of [Congress], and subject to its supervision and control.” Benner v. Porter, 9 How. 235, 242 (1850).1 

—————— 1The Court of Appeals attempted to draw a distinction between power 

exercised pursuant to territorial laws enacted by Congress and power 

exercised pursuant to territorial laws enacted by a territorial legislature. 

There is no meaningful distinction in this context. While the legislature 

of the Territory may establish laws for the Territories, Article IV remains 

the “ultimate source” of territorial power. Puerto Rico v. Sánchez Valle, 
 

4 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR 

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THOMAS, J., concurring in judgment 

Because territorial governments “are not organized under the Constitution,” they are not “subject to its complex

distribution of the powers of government.” Ibid. Congress

may give Territories “a legislative, an executive, and a judiciary, with such powers as it has been their will to assign.” 

Sere, 6 Cranch, at 337. And, since the founding, Congress

has done so in ways that do not comport with the Constitution’s restrictions on the National Government. For example, Congress has delegated Article IV legislative authority 

to territorial officials and legislatures,2 which it could not 

—————— 

579 U. S. ___, ___ (2016) (slip op., at 15) (internal quotation marks omitted). Congress is the source of the “entire dominion and sovereignty” of 

a Territory, Simms v. Simms, 175 U. S. 162, 168 (1899), and therefore 

all territorial laws, whether congressionally enacted or territorially enacted, derive from Article IV, Sánchez Valle, 579 U. S., at ___ (slip op., at 

15) (recognizing that the “most immediate source of [the] authority” does 

not change the nature of the power exercised). 2 See, e.g., Act of Aug. 7, 1789, 1 Stat. 51, and n. (a) (Northwest Territory); Act of May 26, 1790, ch. 14, §1, 1 Stat. 123 (Southwest Territory);

Act of Apr. 7, 1798, §3, 1 Stat. 550 (Mississippi); Act of May 7, 1800, §§2, 

4, 2 Stat. 59 (Indiana); Act of Mar. 26, 1804, §4, 2 Stat. 284 (Louisiana); 

Act of Jan. 11, 1805, ch. 5, §2, 2 Stat. 309 (Michigan); Act of Mar. 2, 1805, 

§§1, 2, 2 Stat. 322 (Orleans); Act of Feb. 3, 1809, §§2, 4, 2 Stat. 515 (Illinois); Act of June 4, 1812, §4, 2 Stat. 744 (Missouri); Act of Mar. 3, 1817,

§4, 3 Stat. 372 (Alabama); Act of Mar. 2, 1819, §5, 3 Stat. 494 (Arkansas); 

Act of Mar. 30, 1822, §5, 3 Stat. 655 (Florida); Act of Mar. 3, 1823, §5, 3

Stat. 751 (Florida); Act of Apr. 20, 1836, §4, 5 Stat. 12 (Wisconsin); Act

of June 12, 1838, §4, 5 Stat. 236 (Iowa); Act of Aug. 14, 1848, §4, 9 Stat. 

324 (Oregon); Act of Mar. 3, 1849, §4, 9 Stat. 404 (Minnesota); Act of

Sept. 9, 1850, §5, 9 Stat. 448 (New Mexico); Act of Sept. 9, 1850, §4, 9

Stat. 454 (Utah); Act of Mar. 2, 1853, §4, 10 Stat. 173 (Washington); Act

of May 30, 1854, §§4–6, 22–24, 10 Stat. 278–279, 284–285 (Nebraska and 

Kansas); Act of Feb. 28, 1861, §4, 12 Stat. 173 (Colorado); Act of Mar. 2, 

1861, §4, 12 Stat. 210–211 (Nevada); Act of Mar. 2, 1861, §4, 12 Stat. 240

(Dakota); Act of Feb. 24, 1863, ch. 56, §2, 12 Stat. 665 (Arizona); Act of 

Mar. 3, 1863, §4, 12 Stat. 809 (Idaho); Act of May 26, 1864, §4, 13 Stat. 

87 (Montana); Act of July 25, 1868, §4, 15 Stat. 179 (Wyoming); Act of

May 2, 1890, §4, 26 Stat. 83 (Oklahoma); Act of Apr. 12, 1900, §27, 31 

Stat. 82 (Puerto Rico); Act of Apr. 30, 1900, §12, 31 Stat. 144 (Hawaii); 

Act of July 1, 1902, §7, 32 Stat. 693–694 (Philippines); Act of Aug. 24, 

1912, §4, 37 Stat. 513 (Alaska); Act of June 22, 1936, §5, 49 Stat. 1808 
 

Cite as: 590 U. S. ____ (2020) 5 

THOMAS, J., concurring in judgment 

do with Article I legislative power. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 472 (2001); Department of Transportation v. Association of American Railroads, 575 U. S. 43, 67–88 (2015) (THOMAS, J., concurring

in judgment). It has also established territorial courts that 

do not comply with Article III. See Baude, Adjudication

Outside Article III, 133 Harv. L. Rev. 1511, 1525–1530 

(2020) (analyzing territorial courts in early Territories).

The powers vested in territorial governments are distinct 

from the powers of the National Government. Territorial 

legislatures exercise the legislative power of the Territory,

not Article I legislative power. Cincinnati Soap Co. v. 

United States, 301 U. S. 308, 322–323 (1937). Territorial 

officials exercise the executive power of the Territory, not

Article II executive power. Snow v. United States, 18 Wall. 

317, 321–322 (1873). And territorial courts exercise the judicial power of the Territory, not the “judicial power of the 

United States” under Article III. American Ins. Co. v. 356 

Bales of Cotton, 1 Pet. 511, 546 (1828); Clinton v. Englebrecht, 13 Wall. 434, 447 (1872). 

B 

Given the distinction between territorial and national 

powers, the question becomes whether officers exercising

Article IV territorial power are officers “of the United 

States” under the original meaning of the Appointments 

Clause. They are not. Both the text of the Appointments

Clause and historical practice support this conclusion. 

1 

The text of the Appointments Clause indicates that “Officers of the United States” refers to officers exercising the

powers of the National Government, not officers exercising

territorial power. The Clause applies to the appointment of 

—————— 

(Virgin Islands); Act of Aug. 1, 1950, §10, 64 Stat. 387 (Guam). 
 

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“Ambassadors, other public Ministers and Consuls, Judges 

of the supreme Court, and all other Officers of the United 

States.” Art. II, §2, cl. 2. Each of the officers specifically 

mentioned in the Clause—“Ambassadors,” “public Ministers,” “Consuls,” and “Judges of the supreme Court”—holds 

an office that exercises national power. Ibid. Although not 

dispositive, this fact suggests that the phrase “and all other

Officers of the United States” refers to “other” officers of the 

National Government. See Beecham v. United States, 511 

U. S. 368, 371 (1994) (“That several items in a list share an

attribute counsels in favor of interpreting the other items

as possessing that attribute as well”); see also A. Scalia & 

B. Garner, Reading Law: The Interpretation of Legal Texts 

195–198 (2012) (discussing the “associated-words canon,” 

also known as noscitur a sociis). 

2 

Historical evidence from the founding era confirms that 

officers exercising Article IV territorial power are not “Officers of the United States.” The Court acknowledges some 

of this evidence and surveys the history of appointments in 

Puerto Rico. Ante, at 8–14. I, however, would give more

weight and focus to the practices of the First Congress, 

which provide “powerful evidence of the original understanding of the Constitution.” Comptroller of Treasury of 

Md. v. Wynne, 575 U. S. 542, 580 (2015) (THOMAS, J., dissenting) (compiling cases relying on the practices of the

First Congress to interpret the Constitution). 

Before the Constitution’s ratification, the Northwest Ordinance of 1787 set up a territorial government for the

Northwest Territory. Act of Aug. 7, 1789, 1 Stat. 51, n. (a)

(reproducing the Northwest Ordinance of 1787 enacted by 

the Continental Congress). This ordinance granted Congress the power to appoint the Northwest Territory’s Governor, secretary, judges, and general militia officers. Ibid. 
 

 

Cite as: 590 U. S. ____ (2020) 7 

THOMAS, J., concurring in judgment 

And it provided the Governor the power to appoint “magistrates and other civil officers” of the Territory. Ibid. 

In 1789, after the ratification of the Constitution, the 

First Congress amended the Northwest Ordinance “to 

adapt [it] to the present Constitution of the United States.” 

Id., at 51. One of these amendments provided that “the

President shall nominate, and by and with the advice and 

consent of the Senate, shall appoint all officers which by the 

said ordinance were to have been appointed by the United 

States in Congress assembled, and all officers so appointed

shall be commissioned by him.” Id., at 53. The officers not 

previously designated for congressional appointment, including “magistrates and other civil officers,” remained subject to appointment by the Governor. Id., at 51, n. (a), and 

53. These amendments (and lack thereof ) provide strong 

evidence that the First Congress understood the distinction 

between territorial officers and officers of the National Government. 

As the Court recognizes, Congress revised the Northwest

Ordinance to require “a Presidential-appointment, Senateconfirmation process for high-level territorial appointees 

who assumed federal, as well as local, duties.” Ante, at 8 

(emphasis added). For example, Congress revised the appointment process for the Governor of the Northwest Territory, who performed duties under the powers of the National Government in addition to his Article IV territorial 

duties. The Governor “discharg[ed] the duties of superintendent of Indian affairs,” Act of Sept. 11, 1789, ch. 13, §1, 

1 Stat. 68, which required him to execute congressional regulations, manage trade with Indians, and obey instructions 

received from the Secretary of War with respect to his duties as superintendent. See Ordinance for the Regulation

of Indian Affairs (Aug. 7, 1786); see also F. Prucha, American Indian Policy in the Formative Years: The Indian Trade 

and Intercourse Acts 1790–1834, p. 36 (1962). The Governor negotiated treaties with Indians on behalf of the United 
 

8 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR 

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THOMAS, J., concurring in judgment 

States. See 2 The Papers of George Washington: Presidential Series 196–198 (D. Twohig ed. 1987); 33 Journals of the

Continental Congress, 1774–1789, p. 711 (R. Hill ed. 1936). 

He even had the power to call on the militia of the States in

the President’s name to prevent “incursions of the hostile

Indians.” 2 The St. Clair Papers 125 (W. Smith ed. 1882). 

Thus, at least with respect to the Governor, who wielded

powers of the National Government, the First Congress appears to have modified the Northwest Ordinance to ensure 

its compliance with the Appointments Clause. 

In contrast, Congress did not revise the process for appointing “magistrates and other civil officers,” who remained subject to appointment by the Governor. 1 Stat. 51, 

n. (a), and 53. The “magistrates and other civil officers” of

the Northwest Territory included justices of the peace, 

clerks of the court, sheriffs, coroners, surveyors, and notaries. 3 The Territorial Papers of the United States: The 

Territory Northwest of the River Ohio, 1787–1803, pp. 304–

307 (C. Carter ed. 1934). If these officials were exercising a

statutory duty under the powers of the National Government, they would have certainly been considered “Officers

of the United States” under the Appointments Clause. See 

Mascott 484–507, 510–515. “The Founders considered individuals to be officers even if they performed only ministerial statutory duties—including recordkeepers, clerks, and 

tidewaiters (individuals who watched goods land at a customhouse).” Lucia, 585 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3). But “the powers and duties of magistrates and other civil officers [were] regulated and defined 

by the [territorial] assembly,” 1 Stat. 51, n. (a), and therefore were necessarily exercised pursuant to Article IV, see 

supra, at 3–5. It is evident that the First Congress did not 

consider these officials to be “Officers of the United States,” 

because it allowed appointment by an official who is not the 

“hea[d] of a department.” See United States v. Germaine, 

99 U. S. 508, 510 (1879). 
Cite as: 590 U. S. ____ (2020) 9 

THOMAS, J., concurring in judgment 

One cannot plausibly conclude that the First Congress—

seeking to “adapt” the Northwest Ordinance to the Constitution, 1 Stat. 51—prescribed methods of appointing territorial officers that violated the Appointments Clause. Rather, the First Congress recognized the distinction between 

territorial and national powers, see supra, at 6–8, and understood that officers performing duties pursuant to only 

Article IV territorial powers are not officers “of the United 

States.” For these reasons, I would hold that the original 

meaning of the phrase “Officers of the United States” does 

not include territorial officers exercising only powers conferred under Article IV. 

C 

Under the original meaning of the Appointments Clause, 

the Board’s members are not “Officers of the United States.” 

They are territorial officers exercising power granted under 

Article IV. 

The Board is “an entity within the territorial government,” 48 U. S. C. §2121(c)(1), created “pursuant to article 

IV, section 3 of the Constitution of the United States,” 

§2121(b)(2), and funded by the Territory, §2127(b). The 

members of the Board perform duties involving the oversight of Puerto Rico’s finances and fiscal reform efforts,

§§2141–2152, and the representation of Puerto Rico in debt

restructuring proceedings, §§2161–2177. Because “they do 

not exercise the national executive power,” “national judicial power,” or national legislative power, the Board’s members are “Article IV executives,” not Officers of the United 

States under the Appointments Clause. See Freytag v. 

Commissioner, 501 U. S. 868, 913 (1991) (Scalia, J., concurring in part and concurring in judgment) (emphasis deleted).

The Court rightfully acknowledges the territorial nature 

of the Board’s duties. Ante, at 14–20. But in the process, 
10 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR 

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THOMAS, J., concurring in judgment 

the Court sets up a dichotomy between officers with “primarily local versus primarily federal” duties. Ante, at 18 

(emphasis deleted). I cannot agree with this amorphous 

test. 

As an initial matter, the Court need not decide whether 

an officer exercising both national and Article IV powers 

qualifies as an “Officer of the United States.” The Board’s 

members have responsibility for ongoing statutory duties

that are entirely within the scope of Article IV. See ante, at 

14–20. 

Resolving this unnecessary issue is especially problematic because the original meaning of the phrase “Officers of

the United States” arguably includes all officers exercising

the powers of the National Government, even if those officers also exercise power vested under Article IV. The Governor of the Northwest Territory, for example, seems to 

have performed “primarily local” duties, yet the First Congress believed the Governor was an “Officer of the United

States” subject to the restrictions of the Appointments

Clause. Supra, at 7–8; see also ante, at 8. 

The Court fails to engage with this point. Indeed, it fails 

to provide any foundation at all for its “primarily local” rule. 

The only analysis to be found is a conclusory statement that 

Palmore v. United States, 411 U. S. 389 (1973), “provides a 

rough analogy.” Ante, at 19. But drawing a rule from a case 

that is “no[t] . . . directly on point,” ibid., without even analyzing the underlying reasoning of that case, is not sound 

constitutional interpretation. And favoring a tangentially 

related decision from 1973 over the practices of the First

Congress is certainly not “more faithful to the [Appointment] Clause’s original meaning,” ante, at 21. 

Finally, the Court fails to provide any explanation for

what makes an officer’s duties “primarily local.” Ante, at 

14–20. Is it the relative importance of the duties? Or is it 

the number of duties exercised pursuant to each power? 

And what ratio is required for duties to be primarily local? 
Cite as: 590 U. S. ____ (2020) 11 

THOMAS, J., concurring in judgment 

The Court’s opinion has no answers and does not even 

acknowledge the questions. And, regardless of how these

questions are resolved, the primarily local test allows Congress to evade the requirements of the Appointments

Clause by supplementing an officer’s federal duties with

sufficient territorial duties, such that they become “primarily local,” whatever that means. 

* * * 

Today’s decision reaches the right outcome, but it does so

in a roundabout way that departs from the original meaning

of the Appointments Clause. I would hold that the Board’s 

members are not “Officers of the United States” because 

they perform ongoing statutory duties under only Article

IV. I therefore cannot join the Court’s opinion and concur 

only in the judgment. 
SOTOMAYOR, J., concurring

_________________ 

_________________ 

Cite as: 590 U. S. ____ (2020) 1 

SOTOMAYOR, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

Nos. 18–1334, 18–1475, 18–1496, 18–1514 and 18–1521 

FINANCIAL OVERSIGHT AND MANAGEMENT 

BOARD FOR PUERTO RICO, PETITIONER 

18–1334 v. 

AURELIUS INVESTMENT, LLC, ET AL. 

AURELIUS INVESTMENT, LLC, ET AL., PETITIONERS 

18–1475 v. 

COMMONWEALTH OF PUERTO RICO, ET AL. 

OFFICIAL COMMITTEE OF UNSECURED CREDITORS 

OF ALL TITLE III DEBTORS OTHER 

THAN COFINA, PETITIONER 

18–1496 v. 

AURELIUS INVESTMENT, LLC, ET AL. 

UNITED STATES, PETITIONER 

18–1514 v. 

AURELIUS INVESTMENT, LLC, ET AL. 

UNIÓN DE TRABAJADORES DE LA INDUSTRIA 

ELÉCTRICA Y RIEGO, INC., PETITIONER 

18–1521 v. 

FINANCIAL OVERSIGHT AND MANAGEMENT 

BOARD FOR PUERTO RICO, ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIRST CIRCUIT 

[June 1, 2020]

 JUSTICE SOTOMAYOR, concurring in the judgment. 
 

2 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR 

 PUERTO RICO v. AURELIUS INVESTMENT, LLC 

SOTOMAYOR, J., concurring in judgment 

Nearly 60 years ago, the people of Puerto Rico “embark[ed] on [a] project of constitutional self-governance” after entering into a compact with the Federal Government. 

Puerto Rico v. Sánchez Valle, 579 U. S. ___, ___ (2016) (slip 

op., at 3). At the conclusion of that endeavor, the people of

Puerto Rico established, and the United States Congress

recognized, a “republican form of government” “pursuant to

a constitution of [the Puerto Rican population’s] own adoption.” Act of July 3, 1950, ch. 446, §§1, 2, 64 Stat. 319; see 

also Act of July 3, 1952, 66 Stat. 327. One would think the 

Puerto Rican home rule that resulted from that mutual enterprise might affect whether officers later installed by the 

Federal Government are properly considered officers of 

Puerto Rico rather than “Officers of the United States” subject to the Appointments Clause. U. S. Const., Art. II, §2, 

cl. 2. Yet the parties do not address that weighty issue or 

any attendant questions it raises. I thus do not resolve 

those matters here and instead concur in the judgment.

I nevertheless write to explain why these unexplored issues may well call into doubt the Court’s conclusion that 

the members of the Financial Oversight and Management

Board for Puerto Rico are territorial officers not subject to 

the “significant structural safeguards” embodied in the Appointments Clause. Edmond v. United States, 520 U. S. 

651, 659 (1997). Puerto Rico’s compact with the Federal 

Government and its republican form of government may

not alter its status as a Territory. But territorial status 

should not be wielded as a talismanic opt out of prior congressional commitments or constitutional constraints. 

I 

A 

Puerto Rico became a Territory of the United States in

1898, pursuant to a treaty concluding the SpanishAmerican War. After a series of temporary military governing measures, Congress passed the Foraker Act of 1900, 
Cite as: 590 U. S. ____ (2020) 3 

SOTOMAYOR, J., concurring in judgment 

establishing a civil government exercising significant authority over Puerto Rico’s internal territorial affairs. Organic Act of 1900, ch. 191, 31 Stat. 77. Over time, Congress

put in place incremental measures of autonomy, such as by 

granting U. S. citizenship to the island’s inhabitants in 

1917 and providing for the popular election of certain territorial officials the same year. See Sánchez Valle, 579 U. S., 

at ___–___ (slip op., at 2–3); Organic Act of 1917, ch. 145, 39 

Stat. 951. Yet throughout the early years of Puerto Rico’s 

territorial status, “Congress retained major elements of 

sovereignty,” and “[i]n cases of conflict, Congressional statute, not Puerto Rico law, would apply no matter how local 

the subject.” Cordova & Simonpietri Ins. Agency Inc. v. 

Chase Manhattan Bank N. A., 649 F. 2d 36, 39 (CA1 1981) 

(Breyer, J., for the court). 

By 1950, however, international and local “pressures for

greater autonomy,” Calero-Toledo v. Pearson Yacht Leasing 

Co., 416 U. S. 663, 671 (1974), prompted Congress to pass 

Public Law 600, 64 Stat. 319, a measure “enabl[ing] Puerto

Rico to embark on the project of constitutional self-governance,” Sánchez Valle, 579 U. S., at ___ (slip op., at 3).

“‘[R]ecognizing’” and “affirm[ing] the ‘principle of government by consent,’” Public Law 600 “offered the Puerto Rican public a ‘compact,’ under which they could ‘organize a

government pursuant to a constitution of their own adoption.’” Id., at ___, ___ (slip op., at 3, 16) (quoting Act of July 

3, 1950, §1, 64 Stat. 319); see also 579 U. S., at ___ (slip op.,

at 3) (Public Law 600 “[d]escrib[ed] itself as ‘in the nature

of a compact’” (quoting §1, 64 Stat. 319)). Under the terms 

of the compact, Public Law 600 itself was submitted to the 

people of Puerto Rico, who voted to approve the law through 

a popular referendum. See Leibowitz, The Applicability of

Federal Law to the Commonwealth of Puerto Rico, 56 Geo. 

L. J. 219, 222–223 (1967). Delegates were then elected to a 

constitutional convention to draft a constitution, and in a 

special referendum, the draft constitution was submitted to 
 

 

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SOTOMAYOR, J., concurring in judgment 

the people of Puerto Rico for approval. Id., at 223. 

In 1952, “both Puerto Rico and the United States ratified 

Puerto Rico’s Constitution.” Sánchez Valle, 579 U. S., at 

___ (BREYER, J., dissenting) (slip op., at 8). The people of

Puerto Rico first approved the draft Constitution in a referendum. Congress then approved the draft Constitution 

with modifications, noting the caveat that it “shall become

effective” only when Puerto Rico “declare[s] in a formal resolution its acceptance.” 66 Stat. 327–328. Finally, the constitutional convention approved the modified Constitution.

Thus, although the terms of the compact provided for Congress’ approval, “when such constitution did go into effect

pursuant to the resolution of approval by the Congress, it

became what the Congress called it, a ‘constitution’ under 

which the people of Puerto Rico organized a government of 

their own adoption.” Figueroa v. Puerto Rico, 232 F. 2d 615, 

620 (CA1 1956) (citation omitted). “The Commonwealth’s 

power, the [Puerto Rico] Constitution proclaims, ‘emanates

from the people and shall be exercised in accordance with

their will, within the terms of the compact agreed upon between the people of Puerto Rico and the United States.’” 

Sánchez Valle, 579 U. S., at ___ (slip op., at 4). 

With the passage of Public Law 600 and the adoption and 

recognition of the Puerto Rico Constitution, “the United

States and Puerto Rico . . . forged a unique political relationship, built on the island’s evolution into a constitutional 

democracy exercising local self-rule.” Id., at ___ (slip op., at

2); cf. Calero-Toledo, 416 U. S., at 672 (noting with approval

the view that, after Public Law 600, Puerto Rico became “a 

political entity created by the act and with the consent of

the people of Puerto Rico and joined in union with the 

United States of America under the terms of the compact”

(quoting Mora v. Mejias, 206 F. 2d 377, 387 (CA1 1953))).

Of critical import here, the Federal Government “relinquished its control over [Puerto Rico’s] local affairs[,] 
 

 

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SOTOMAYOR, J., concurring in judgment 

grant[ing] Puerto Rico a measure of autonomy comparable 

to that possessed by the States.” Examining Bd. of Engineers, Architects and Surveyors v. Flores de Otero, 426 U. S. 

572, 597 (1976). Indeed, the very “purpose of Congress in 

the 1950 and 1952 legislation was to accord Puerto Rico the 

degree of autonomy and independence normally associated

with States of the Union.” Id., at 594; see also S. Rep. No. 

1779, 81st Cong., 2d Sess., 2 (1950) (Public Law 600 was 

“designed to complete the full measure of local self-government in” Puerto Rico); H. R. Rep. No. 2275, 81st Cong., 2d

Sess., 6 (1950) (Public Law 600 was a “reaffirmation by the 

Congress of the self-government principle”).1 The upshot is

that “Puerto Rico, like a State, is an autonomous political 

entity, ‘“sovereign over matters not ruled by the [Federal] 

Constitution.”’” Rodriguez v. Popular Democratic Party, 

457 U. S. 1, 8 (1982) (quoting Calero-Toledo, 416 U. S., at 

673). And only by holding out that guarantee to the United 

Nations has the Federal Government been able to disclaim 

certain continuing obligations it previously owed with respect to Puerto Rico under the United Nations Charter. See 

infra, at 11–12. 

B 

In the decades that followed, Puerto Rico underwent further changes as a Commonwealth. For many years, the island experienced dynamic growth, increasing its gross national product more than fourfold from 1950 to 1971. 

Cheatham, Council on Foreign Relations, Puerto Rico: A

U. S. Territory in Crisis (Feb. 13, 2020). In 1976, after the 

—————— 1To be sure, Public Law 600 reserved certain limited powers to Congress (some of which were soon repealed). See ante, at 12–13. But those 

narrow reservations of federal control did not purport to diminish the full 

measure of territorial self-governance conferred upon the people of

Puerto Rico through Public Law 600 and the Puerto Rico Constitution.

See 39 Stat. 953; 64 Stat. 319–320. 
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SOTOMAYOR, J., concurring in judgment 

revised Federal Tax Code conferred preferential tax treatment on productive industries in Puerto Rico, Puerto Rico

developed robust pharmaceutical and manufacturing sectors. Issacharoff, Bursak, Rennie, & Webley, What Is

Puerto Rico? 94 Ind. L. J. 1, 27 (2019). 

Eventually, however, the island and its people confronted 

several economic setbacks. Congress repealed Puerto Rico’s

favorable tax credits, and manufacturing growth deflated,

precipitating a prolonged recession. Steady outmigration 

correlated with persistently high unemployment rates 

greater than 8 percent. Dept. of Labor, Bureau of Labor 

Statistics, Databases, Tables & Calculators by Subject 

(May 28, 2020). Deprived of its primary sources of income, 

the Commonwealth began borrowing heavily. The island’s 

outstanding debts rose to approximately $70 billion, a sum

greater than its annual economic output. Puerto Rico’s 

credit ratings were downgraded to junk levels, D. Austin, 

Congressional Research Service, Puerto Rico’s Current Fiscal Challenges 4, 13 (June 3, 2016), rendering borrowing

practically impossible. Without any realistic ability to set

its finances on the right course, the island declared bankruptcy in 2016.

Months later, Hurricane Maria made landfall, causing 

immense devastation and a humanitarian emergency the 

likes of which had not been seen in over a century. The 

island suffered thousands of casualties and an estimated 

$90 billion in damages. Most recently, significant earthquakes have further rattled an already shaken population

and economy still recovering from the impact of Hurricane

Maria. Robles, Months After Puerto Rico Earthquakes, 

Thousands Are Still Living Outside, N. Y. Times, Mar. 1, 

2020. 

C 

Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), 130 Stat. 
 

Cite as: 590 U. S. ____ (2020) 7 

SOTOMAYOR, J., concurring in judgment 

549, 48 U. S. C. §2101 et seq., in the midst of Puerto Rico’s 

dramatic reversal of fortune, with the aim of mitigating the

island’s “severe economic decline,” see 48 U. S. C. 

§2194(m)(1). To that end, the statute establishes a Financial Oversight and Management Board to oversee the island’s finances and restructure its debts. See ante, at 3–4; 

Issacharoff, 94 Ind. L. J., at 30–31. 

The Board’s decisions have affected the island’s entire 

population, particularly many of its most vulnerable citizens. The Board has ordered pensions to be reduced by as

much as 8.5 percent, a measure that threatens the sole 

source of income for thousands of Puerto Rico’s poor and elderly. Walsh & Russell, $129 Billion Puerto Rico Bankruptcy Plan Could Be Model for States, N. Y. Times, Sept.

29, 2019. Other proposed cuts take aim at already depleted 

healthcare and educational services. It is under the yoke of 

such austerity measures that the island’s 3.2 million citizens now chafe. 

PROMESA does not provide for the appointment of Board 

members according to the straightforward methods set out

in the Appointments Clause. U. S. Const., Art. II, §2, cl. 2 

(requiring principal “Officers of the United States” to be 

nominated by the President, with Senate advice and consent). Instead, the statute prescribes a labyrinthine procedure by which the Speaker of the House, majority leader of 

the Senate, minority leader of the House, and minority 

leader of the Senate each submit to the President separate 

lists with any number of candidates; and the President, in

turn, selects individuals from each of those lists, plus an 

individual in his sole discretion. See §101(e), 130 Stat. 554– 

555.2 With only one exception, then, the President is not 

—————— 2Specifically, PROMESA provides that “[t]he Board shall be comprised

of one Category A member, one Category B member, two Category C

members, one Category D member, one Category E member, and one

Category F member.” §101(e)(1)(B), 130 Stat. 554. The Speaker of the

House submits “separate, non-overlapping list[s]” for the Category A and 
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SOTOMAYOR, J., concurring in judgment 

“singly and absolutely” responsible for any members of the 

Board. The Federalist No. 77, p. 461 (C. Rossiter ed. 1961)

(A. Hamilton) (Appointments Clause ensures that “[t]he 

blame of a bad nomination . . . fall[s] upon the President

singly and absolutely”). And with no exceptions, the Senate 

fails to advise or consent to the President’s selections. 

Despite the Board’s wide-ranging, veto-free authority 

over Puerto Rico, the solitary role PROMESA contemplates 

for Puerto Rican-selected officials is this: The Governor of 

Puerto Rico sits as an ex officio Board member without any 

voting rights. §101(e)(3), 130 Stat. 555. No individual 

within Puerto Rico’s government plays any part in determining which seven members now decide matters critical to

the island’s financial fate. 

II 

A 

In concluding that the Board members are territorial officers not subject to the strictures of the Appointment

Clause, the Court does not meaningfully address Puerto

Rico’s history or status. Nor need it, as the parties do not 

discuss the potential consequences that Congress’ recognition of complete self-government decades ago may have on

the Appointments Clause analysis. But in my view, however one distinguishes territorial officers from federal officers (whether under the Court’s “primarily local” test, ante, 

at 14, or some other standard), the longstanding compact 

between the Federal Government and Puerto Rico raises 

—————— 

Category B members, the majority leader for the Senate submits a list

for the two Category C members, the majority leader of the House submits a list for the Category D member, and the minority leader of the

Senate submits a list for the Category E member. §101(e)(2)(A), id., at 

554–555. Finally, “the Category F member may be selected in the President’s sole discretion.” §101(e)(2)(A)(vi), id., at 555. Many other conditions apply to the lists submitted and the individuals who may appear

on them. See generally §§101(e)–(f ), id., at 554–556. 
 

Cite as: 590 U. S. ____ (2020) 9 

SOTOMAYOR, J., concurring in judgment 

grave doubts as to whether the Board members are territorial officers not subject to the Appointments Clause. When 

Puerto Rico and Congress entered into a compact and ratified a constitution of Puerto Rico’s adoption, Congress explicitly left the authority to choose Puerto Rico’s governmental officers to the people of Puerto Rico. That turn of 

events seems to give to Puerto Rico, through a voluntary

concession by the Federal Government, the exclusive right

to establish Puerto Rico’s own territorial officers. 

No less than the bedrock principles of government upon

which this Nation was founded ground this proposition. 

When the Framers resolved to build this Nation on a republican form of government, they understood that the American people would have the authority to select their own governmental officers. See, e.g., The Federalist No. 39, at 251 

(J. Madison) (“[W]e may define a republic to be . . . a government which derives all its powers directly or indirectly 

from the great body of the people”); A. Amar, America’s 

Constitution: A Biography 278–279 (2005) (“[T]he general 

understanding of republicanism across America” at the 

founding embraced a concept of government “in which ‘the

people are sovereign’; in which ‘the people are consequently 

the fountain of all power’; in which ‘all authority should 

flow from the people’”). Core to the 1950s “compact” between the Federal Government and Puerto Rico was that 

Puerto Rico’s eventual constitution “shall provide a republican form of government.” §2, 64 Stat. 319 (codified in 48 

U. S. C. §731c). Thus, “resonant of American founding principles,” the Puerto Rico Constitution set forth a tripartite 

government “‘republican in form’ and ‘subordinate to the 

sovereignty of the people of Puerto Rico.’” Sánchez Valle, 

579 U. S., at ___ (slip op., at 4) (quoting P. R. Const., Art. I, 

§2); see also Torres v. Puerto Rico, 442 U. S. 465, 470 (1979).

“[T]he distinguishing feature” of such “republican form of 

government,” this Court has recognized over and again, “is 
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the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the 

people themselves.” In re Duncan, 139 U. S. 449, 461 (1891) 

(discussing the republican governments of the States); see 

also Pacific States Telephone & Telegraph Co. v. Oregon, 

223 U. S. 118, 149 (1912) (same).

Thus, whatever authority the Federal Government exercised to select territorial officers for Puerto Rico before Congress recognized Puerto Rico’s republican form of government, the authority “to choose [Puerto Rico’s] own officers

for governmental administration” now seems to belong to 

the people of Puerto Rico. Duncan, 139 U. S., at 461. Indeed, however directly responsible the Federal Government 

was for Puerto Rico’s local affairs before Public Law 600, 

those matters might be said to “now procee[d]” in the first

instance “from the Puerto Rico Constitution as ‘ordain[ed]

and establish[ed]’ by ‘the people.’” Cf. Sánchez Valle, 579 

U. S., at ___ (slip op., at 15) (quoting P. R. Const., Preamble) 

(acknowledging “that the Commonwealth’s power to enact 

and enforce criminal law now proceeds . . . from the Puerto 

Rico Constitution,” “mak[ing] the Puerto Rican populace . . . 

the most immediate source of such authority”).

The developments of the early 1950s were not merely

symbolic either; this Court has recognized that the paradigm shift in relations between Puerto Rico and the Federal

Government carried legal consequences. In Calero-Toledo, 

for instance, this Court held that the “enactments of the 

Commonwealth of Puerto Rico” were “ ‘State statute[s]’ ” 

within the meaning of a federal law requiring a three-judge 

court panel to consider any action seeking to enjoin a “‘State 

statute.’” 416 U. S., at 675–676. The Court reasoned that 

Puerto Rico was entitled to similar treatment as the States 

under the federal law, due to “significant changes in Puerto 

Rico’s governmental structure” in the early 1950s. See id., 
 

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at 670–674. For similar reasons, this Court has recognized

on multiple other occasions that Puerto Rico is akin to a 

State in key respects. See, e.g., Flores de Otero, 426 U. S., 

at 597 (Congress granted Puerto Rico “a measure of autonomy comparable to that possessed by the States”); Rodriguez, 457 U. S., at 8 (“Puerto Rico, like a state, is an autonomous political entity”); see also Sánchez Valle, 579 U. S., 

at ___ (BREYER, J., dissenting) (slip op., at 3) (“[T]he parallels between admission of new States and the creation of 

the Commonwealth [of Puerto Rico] are significant”).

The compact also had international ramifications, as the

Federal Government repeatedly represented at the time.

Shortly after the ratification and approval of the Puerto

Rico Constitution, federal officials certified to the United 

Nations that, for Puerto Rico, the United States no longer 

needed to comply with certain reporting obligations under

the United Nations Charter regarding territories “whose 

peoples have not yet attained a full measure of self-government.” Charter of the United Nations, 59 Stat. 1048, Art. 

73, June 26, 1945, T. S. No. 993 (U. N. Charter). According

to federal officials, that was because the people of Puerto 

Rico now had “complete autonomy in internal economic 

matters and in cultural and social affairs under a Constitution adopted by them and approved by the Congress.” Memorandum by the Government of the United States of America Concerning the Cessation of Transmission of 

Information Under Article 73(e) of the Charter With Regard

to the Commonwealth of Puerto Rico, in A. Fernós-Isern, 

Original Intent in the Constitution of Puerto Rico 153 (2d 

ed. 2002). To the extent federal law had previously “directed or authorized interference with matters of local government by the Federal Government,” federal officials elaborated, “[t]hose laws . . . ha[d] been repealed.” Ibid.; see 

also ibid. (“Congress has agreed that Puerto Rico shall 

have, under [the Puerto Rico] Constitution, freedom from 
 

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control or interference by the Congress in respect of internal government and administration”).

Based on those explicit representations, the United Nations General Assembly declared that the people of Puerto

Rico “ha[d] been invested with attributes of political sovereignty which clearly identify the status of self-government 

attained . . . as that of an autonomous political entity.”

G. A. Res. 748, U. N. GAOR, 8th Sess., Supp. No. 17, U. N. 

Doc. A/2630 (Nov. 27, 1953). And consistent with that declaration, the Federal Government promptly stopped complying with the Charter’s reporting obligations with respect 

to Puerto Rico (and has never since recommenced). Thus, 

in the eyes of the international community looking in, as 

well as of the Federal Government looking out, Puerto Rico

has long enjoyed autonomous reign over its internal affairs. 

Indeed, were the Federal Government’s representations to

the United Nations merely aspirational, the United States’ 

compliance with its international legal obligations would be

in substantial doubt. See Lawson & Sloane, The Constitutionality of Decolonization by Associated Statehood: Puerto 

Rico’s Legal Status Reconsidered, 50 Boston College L. Rev. 

1123, 1127 (2009) (arguing that if Puerto Rico remains “just 

another territory subject to Congress’ plenary power under 

the Territories Clause,” “the United States . . . is in violation of its international legal obligations vis-à-vis Puerto 

Rico”).

There can be little question, then, that the compact altered the relationship between the Federal Government

and Puerto Rico. At a minimum, the post-compact developments, including this Court’s precedents, indicate that Congress placed in the hands of the Puerto Rican people the

authority to establish their own government, replete with

officers of their own choosing, and that this grant of selfgovernment was not an empty promise. That history

prompts serious questions as to whether the Board members may be territorial officers of Puerto Rico when they are 
 

 

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SOTOMAYOR, J., concurring in judgment 

not elected or approved, directly or indirectly, by the people 

of Puerto Rico. 

B 

Of course, it might be argued that Congress is nevertheless free to repeal its grant of self-rule, including the grant 

of authority to the island to select its own governmental officers. And perhaps, it might further be said, that is exactly

what Congress has done in PROMESA by declaring the

Board “an entity within the territorial government” of

Puerto Rico. §101(c)(1), 130 Stat. 553. But that is not so 

certain. 

This Court has “‘repeatedly stated . . . that absent “a 

clearly expressed congressional intention”’” to repeal,

“‘[a]n implied repeal will only be found where provisions in 

two statutes are in “irreconcilable conflict,” or where the 

latter Act covers the whole subject of the earlier one and “is

clearly intended as a substitute.”’” Carcieri v. Salazar, 555 

U. S. 379, 395 (2009) (quoting Branch v. Smith, 538 U. S. 

254, 273 (2003) (plurality opinion)). Not so, it seems, with 

PROMESA on the one hand, and Congress’ 1950 and 1952 

legislations on the other. As written, PROMESA is a temporary bankruptcy measure intended to assist in restoring

Puerto Rico to fiscal security. It is not an organic statute 

clearly or expressly purporting to renege on Congress’ prior

“gran[t to] Puerto Rico [of] a measure of autonomy comparable to that possessed by the States,” Flores de Otero, 426 

U. S., at 597, nor on the concomitant grant of authority to

select officers of its own choosing. It would seem curious to 

interpret PROMESA as having done so indirectly, simply 

through its characterization of the Board “as an entity 

within the territorial government.” §101(c)(1), 130 Stat. 

553. 

Further, there is a legitimate question whether Congress

could validly repeal any element of its earlier compact with 
 

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Puerto Rico on its own initiative, even if it had been abundantly explicit in its intention to do so. The truism that 

“one Congress cannot bind a later Congress,” Dorsey v. 

United States, 567 U. S. 260, 274 (2012), appears to have its 

limits: As scholars have noted, certain congressional actions are not subject to recantation. See, e.g., Magruder, 

The Commonwealth Status of Puerto Rico, 15 U. Pitt. 

L. Rev. 1, 14 (1953) (listing as examples the congressional

grant of independence to the Philippine Islands and congressional grant of private title to public lands under homestead laws); Issacharoff, 94 Ind. L. J., at 14 (“Once a Congress has disposed of a territory, of necessity it binds future

Congresses to the consequences of that decision”); T. Aleinikoff, Semblances of Sovereignty: The Constitution, the 

State, and American Citizenship 90 (2002) (“The granting 

of neither statehood nor independence may be revoked, nor 

may land grants or other ‘vested interests’ be called back by

a subsequent Congress”). 

Plausible reasons may exist to treat Public Law 600 and

the Federal Government’s recognition of Puerto Rico’s sovereignty as similarly irrevocable, at least in the absence of 

mutual consent. Congress made clear in Public Law 600

that the agreement between the Federal Government and

Puerto Rico was “in the nature of a compact.” 64 Stat. 319. 

That “solemn undertaking, based upon mutual consent, . . . 

of such profound character between the Federal Government and a community of U. S. citizens,” has struck many

as “incompatible with the concept of unilateral revocation.” 

E.g., Report of the United States-Puerto Rico Commission

on the Status of Puerto Rico 12–13 (1966); see also A. 

Leibowitz, Defining Status: A Comprehensive Analysis of 

United States Territorial Relations 172–173 (1989) (describing how “many in the Congress” understood Public

Law 600 to constitute “an irrevocable grant of authority in

local affairs with an understanding of mutual consent being 

required before Congress would resolve the ultimate status 
 

 

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SOTOMAYOR, J., concurring in judgment 

question or change the status of the Commonwealth”). Indeed, shortly after Congress approved the Puerto Rico Constitution, federal officials expressly represented to the 

United Nations that the compact was of a “bilateral nature,” such that its “terms [could] be changed only by common consent.” F. Bolton, U. S. Rep. to the Gen. Assembly, 

Statement to U. N. Committee IV (Trusteeship) (Nov. 3,

1953), reprinted in 29 Dept. State Bull. 802, 804 (1953); see

also Press Release No. 1741, U. S. Mission to the United 

Nations, Statement by M. Sears, U. S. Rep. in the Comm. 

on Information From Non-Self Governing Territories 2 

(Aug. 28, 1953) (“[A] compact . . . is far stronger than a

treaty” because it “cannot be denounced by either party unless it has the permission of the other”).3 

All of this presses up against broader questions about 

Congress’ power under the Territories Clause of Article IV, 

—————— 3 In opting to proceed with Puerto Rico’s Commonwealth endeavor by 

way of compact, Public Law 600 was not entirely without precedent.

When Congress enacted the Northwest Ordinance prior to Ratification

to govern the newly acquired Northwest Territory, it provided for a catalog of fundamental rights, styled as “articles of compact between the

original States and the people and States in the said territory” that 

would “forever remain unalterable, unless by common consent.” Act of 

Aug. 7, 1789, 1 Stat. 52, n. (a) (reproducing the Northwest Ordinance of 

1787). That understanding of a compact between the Federal Government and the Territories was the only extant precedent for the compact

language in Public Law 600, and proponents of Public Law 600 were vocal in their reliance on the Northwest Ordinance as a model. See Lawson 

& Sloane, The Constitutionality of Decolonization by Associated Statehood: Puerto Rico’s Legal Status Reconsidered, 50 Boston College L. Rev. 

1123, 1149, n. 142 (2009) (prior to Public Law 600, “[t]he term ‘compact’ 

. . . had seldom appeared in U. S. law,” with the exception of the Northwest Ordinance and subsequent organic statutes modeled after the 

Northwest Ordinance); J. Trías Monge, Puerto Rico: The Trials of the 

Oldest Colony in the World 111 (1997) (discussing debate among the 

drafters of Public Law 600 about whether to adopt the precise compact 

language in the Northwest Ordinance). 
 

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U. S. Const., Art. IV, §3, cl. 2, the purported source of legislative authority for enacting PROMESA, see §101(b)(2), 130 

Stat. 553; ante, at 5. May Congress ever simply cede its 

power under that Clause to legislate for the Territories, and 

did it do so nearly 60 years ago with respect to Puerto Rico? 

If so, is PROMESA itself invalid, at least insofar as it holds 

itself out as an exercise of Territories Clause authority?

This Court has never squarely addressed such questions, 

except perhaps to acknowledge that Congress’ authority under the Territories Clause may “continu[e] until granted

away.” National Bank v. County of Yankton, 101 U. S. 129, 

133 (1880); cf. Cincinnati Soap Co. v. United States, 301 

U. S. 308, 319 (1937) (recognizing that a statute preparing

the Philippine Islands for independence from the United 

States “brought about a profound change in the status of 

the islands and in their relations to the United States,” such 

that “the power of the United States has been modified,” 

even while “it has not been abolished”). 

After all, the Territories Clause provides Congress not

only the power to “make all needful Rules and Regulations

respecting the Territor[ies],” but also the power to “dispose

of ” them, which necessarily encompasses the power to relinquish authority to legislate for them. U. S. Const., Art. 

IV, §3, cl. 2. And some have insisted that the power to cede

authority exists no less in the absence of full “dispos[al]”

through independence or Statehood. See Aleinikoff, Semblances of Sovereignty, at 77 (“It has been strongly argued

that” with “the establishment of commonwealth status,” 

“Congress lost general power to regulate the internal affairs

of Puerto Rico”).

Still, the parties here do not dispute Congress’ ability to

enact PROMESA under the Territories Clause in the first 

place; nor does it seem strictly necessary to call that matter

into question to resolve the Appointments Clause concern presented here. Despite the “full measure of self-government”

the island supposedly enjoys, U. N. Charter, Art. 73; see 
 

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SOTOMAYOR, J., concurring in judgment 

also supra, at 4–5, 9–12, Puerto Rico can well remain a 

“Territory” subject to some measure of Congress’ Territories

Clause authority. But even assuming that the Territories

Clause thus enables Congress to enact federal laws “respecting” Puerto Rico, U. S. Const., Art. IV, §3, cl. 2, still 

some things the Clause does not necessarily do: It does not 

necessarily allow Congress to repeal by mere implication its

prior grant of authority to the people of Puerto Rico to 

choose their own governmental officers. It does not necessarily give Congress license to revoke unilaterally an instrument that may be altered only with mutual consent.

And it does not necessarily permit Congress to declare by

fiat that the law must treat its exercise of authority under 

the Territories Clause as territorial rather than federal, irrespective of the compact it entered with the people of 

Puerto Rico leaving complete territorial authority to them. 

Cf. Hernández Colón, The Evolution of Democratic Governance Under the Territorial Clause of the U. S. Constitution, 

50 Suffolk U. L. Rev. 587, 605 (2017) (after 1952, “Congress 

partially relinquished its territorial powers over Puerto 

Rico’s internal affairs, as recognized in Sanchez Valle,” even 

while “Congress continues to retain territorial powers in 

federal affairs” (emphasis added)). 

III 

Nor is it significant that Congress has historically provided for the appointment of officers who perform duties related to the Territories through methods other than those 

prescribed by the Appointments Clause. Those methods 

may be permissible up to a point in a Territory’s development. But that historical practice does not, in my view, resolve the far more complex question whether Congress can 

continue to act in that manner indefinitely or long after 

granting Territories complete self-government.

Essentially none (if any) of the allegedly nonconforming 
 

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appointments referenced by the parties occurred in circumstances where, as in the case of Puerto Rico, Congress previously granted the Territories complete home rule. See infra, at 19–21, and nn. 4–5. Instead, they largely occurred 

during the initial or transitional stages of a Territory’s existence, when often the terms of the organic statute establishing the Territory expressly provided for the Federal 

Government to act on behalf of the Territory. (After all, in

newly established Territories, no recognized territorial government existed until the organic statute established one.) 

Because in that state of affairs, an organic statute plainly

contemplated that Congress had authority to establish offices for the Territory, such congressionally established offices could fairly—indeed, necessarily—be treated as “territorial” to the extent they were tasked with territorial 

duties. 

Does that necessarily remain the case if Congress later

grants or establishes complete territorial self-government?

As Puerto Rico’s history may demonstrate, it is seemingly 

at that point that Congress purports to recognize that the 

Territory itself (not the Federal Government) wields authority over matters of the Territory, including the ability 

to select its own territorial officers. Perhaps it is also at

that point that a distinction between territorial officers and

federal officers crystallizes: Territorial officers are those 

who derive their authority from the people of the Territory;

federal officers are those who derive their authority from

the Federal Government. And here, the Board members indisputably are selected by the Federal Government, under 

a statute passed by Congress that specifies not just their 

governance responsibilities but also the priorities of their 

decisionmaking. See ante, at 3–4. 

The scores of historical vignettes highlighted by petitioners, see, e.g., Brief for Petitioner Financial Oversight and 

Management Board for Puerto Rico 28–33; Brief for Peti-
 

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SOTOMAYOR, J., concurring in judgment 

tioner Official Committee of Retired Employees of the Commonwealth of Puerto Rico 10–17, do not appear to foreclose 

this possibility or even address the question. Rather, they 

seem consistent with a broader historical narrative about 

early territorial development: that Congress has traditionally exercised its power under the Territories Clause with 

the aim of promptly preparing newly established Territories to transition gradually to territorial self-government. 

To the extent Congress deviated from the requirements of

the Appointments Clause in establishing territorial governments, it generally did so either to facilitate temporary governments in the Territories before self-government was

practically possible or to begin transferring appointment 

authority directly into the hands of the territorial population. 

For example, Congress has often provided for territorial

officials to be appointed by a (Presidentially nominated and 

Senate confirmed) territorial Governor, a method that the

Appointments Clause does not appear to contemplate. See, 

e.g., Brief for Petitioner Financial Oversight and Management Board for Puerto Rico 31, and n. 13. But those arrangements arose from the organic statutes establishing

the Territories (and thus their initial territorial governments) in the first place.4 The same is generally true of instances where Congress provided for Presidential appointment (without Senate confirmation) of territorial officials 

whose duties might otherwise make them principal officers 

under the Appointments Clause (requiring Senate confirmation). See, e.g., Brief for Petitioner Official Committee 

of Retired Employees of the Commonwealth of Puerto Rico 

—————— 4See, e.g., 1 Stat. 51–52, and n. (a) (1789) (Northwest Territory); Act of 

Feb. 3, 1809, ch. 13, §§1, 2, 2 Stat. 514–515 (Illinois); Act of June 4, 1812,

§2, 2 Stat. 744 (Missouri); Act of Feb. 8, 1861, ch. 59, §§1, 7, 12 Stat. 172,

174 (Colorado); Act of May 26, 1864, ch. 95, §§1, 7, 13 Stat. 85, 88 (Montana); Act of July 25, 1868, ch. 235, §§1, 7, 15 Stat. 178, 180 (Wyoming);

Act of May 2, 1890, ch. 182, §§1, 7, 26 Stat. 81, 85 (Oklahoma). 
 

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11. Those scenarios broadly conformed with the template

of the organic statute establishing the Louisiana Territory,

2 Stat. 245, which Congress passed as an “emergency provisio[n]” shortly after territorial acquisition in order “to preserve order until a proper government could be put in

place,” D. Currie, The Constitution in Congress, The Jeffersonians: 1801–1829, p. 112 (2001).5 

As for the numerous instances where officers with territorial responsibilities were popularly elected or appointed

by territorial officials, see ante, at 11, Congress typically

transitioned to these arrangements after establishing an

initial territorial government. The Northwest Ordinance, 

for example, allowed the Governor to appoint “magistrates

and other civil officers” “during the continuance of [a] temporary government” established at the outset of the Northwest Territory’s existence, as “necessary for the preservation of the peace and good order.” Act of Aug. 7, 1789, ch. 

8, 1 Stat. 51, n. (a). As soon as the Territory met a certain 

population threshold, however, the territorial population

was to directly elect members of the lower house of the territorial legislature, which would in turn play a role in selecting the civil officers of the territorial government. Ibid. 

Following the Northwest Ordinance’s lead, the organic statutes for many subsequent territories contemplated similar 

—————— 5See 2 Stat. 245 (1803) (Louisiana) (authorizing the President to “take 

possession of, and occupy the territory,” to “employ any part of the army

and navy of the United States” in doing so, and to establish a “temporary

government” “until . . . provision for the temporary government . . . be 

sooner made by Congress”); cf. 3 Stat. 524 (1819) (Florida) (similar); 31 

Stat. 910 (1901) (Philippines) (authorizing the establishment of a “temporary government” pending “the establishment of a permanent civil

government”); 33 Stat. 429 (1904) (Panama Canal Zone) (authorizing the 

President “[t]o provide for the temporary government” of the Territory

“until . . . provision for the temporary government . . . be sooner made by

Congress”). 
 

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SOTOMAYOR, J., concurring in judgment 

arrangements for “transition[ing]” quickly to forms of “representative government.” J. Eblen, The First and Second 

United States Empires: Governors and Territorial Government 1784–1912, pp. 54, 59 (1968); see also Leibowitz, Defining Status, at 6–7. 

Congress’ provision of limited or incremental home-rule 

measures, moreover, seems to reveal little about the restrictions the Appointments Clause imposes on officers selected by the Federal Government. By definition, selection 

by home rule does not track the methods outlined in the 

Appointments Clause. But perhaps that is because homerule measures give to the Territory the ability to select its

own governing officers, which by necessity are territorial

rather than federal. That the Territory selects its own governing officers, and that these officers are necessarily territorial, does not obviously imply that Congress may disregard the Appointments Clause when it later provides for

the Federal Government to select officers carrying out territorial responsibilities.6 

In all, then, it is not particularly surprising that many

officers who acted for the Territories historically were appointed in a manner other than that set out in the Appointments Clause. Viewed in proper historical context, those 

officers’ appointments may reflect nothing more than the 

necessary incidents of the transition to and establishment 

of full territorial self-government. For the overwhelming

majority of Territories in this Nation’s history, of course, 

that turning point coincided with Statehood. See Leibowitz, 

Defining Status, at 6–8 (describing the “transitory nature”

of the early Territories’ “evolutionary process culminat[ing] 

—————— 6For that reason, no unavoidable tension seems to exist between requiring compliance with the Appointments Clause for the Board members and preserving complete home rule in Puerto Rico (or, for that matter, any of the other Territories). 
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in Statehood” and “the establishment of popular self-government”); District of Columbia v. Carter, 409 U. S. 418, 

431–432 (1973) (“From the moment of their creation, the 

Territories were destined for admission as States into the 

Union, and ‘as a preliminary step toward that foreordained 

end—to tide over the period of ineligibility—Congress, from 

time to time, created territorial governments, the existence

of which was necessarily limited’” (quoting O’Donoghue v. 

United States, 289 U. S. 516, 537 (1933))). But critically, 

the transitional phase was never intended to last indefinitely. See Amar, America’s Constitution, at 273 (describing the Founders’ understanding that “[t]he older states 

would help their younger siblings grow up and would thereafter regard them as equals, rather than as permanent adolescents—the status to which Mother England had 

wrongly relegated her own New World wards”). The historical examples thus reveal little, if anything, about Congress’ 

ability to establish territorial officers in Territories that 

(much like Puerto Rico) have long operated under the full

measure of self-government. 

This Court’s precedents do not speak to that circumstance either. No doubt the Court has said that the Territories Clause gives Congress “full and complete legislative

authority over the people of the Territories and all the departments of the territorial governments.” County of Yankton, 101 U. S., at 132–133; see also id., at 133 (“Congress

may not only abrogate laws of the territorial legislatures,

but it may itself legislate directly for the local government”); Sere v. Pitot, 6 Cranch 332, 337 (1810); ante, at 3–4 

(THOMAS, J., concurring in judgment). But none of those 

cases had to do with the Appointments Clause. More important, none of them addressed the scope of Congress’ authority with respect to a fully self-governing Territory. See 

Leibowitz, Defining Status, at 15 (observing that “the broad 

statements of Congressional power” in those cases “were 
 

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SOTOMAYOR, J., concurring in judgment 

made in the context of a territory’s evolution toward statehood,” and that “[t]his context was the ‘restriction . . . necessarily implied in its terms’”). Much less do those cases 

inform whether and how Congress may validly act on behalf 

of a Territory like Puerto Rico, as to which Congress has

expressly (and perhaps irrevocably in the absence of common consent) “relinquished . . . control over . . . [territorial] 

affairs.” Flores de Otero, 426 U. S., at 597; see also Rodriguez, 457 U. S., at 8 (describing Puerto Rico as “an autonomous political entity, ‘sovereign over matters not ruled by

the [Federal] Constitution’” (quoting Calero-Toledo, 416 

U. S., at 673)). Indeed, as the same cases expressly 

acknowledged, Congress’ authority under the Territories

Clause may “continu[e]” only “until granted away.” County 

of Yankton, 101 U. S., at 133; see also supra, at 15–16. 

* * * 

These cases raise serious questions about when, if ever, 

the Federal Government may constitutionally exercise authority to establish territorial officers in a Territory like 

Puerto Rico, where Congress seemingly ceded that authority long ago to Puerto Rico itself. The 1950s compact between the Federal Government and Puerto Rico undoubtedly carried ramifications for Puerto Rico’s status under 

federal and international law; the same may be true of the

Appointments Clause analysis here. After all, the longawaited promise of Public Law 600’s compact between 

Puerto Rico and the Federal Government seemed to be that 

the people of Puerto Rico may choose their own territorial 

officers, rather than have such officers foisted on the Territory by the Federal Government. 

Viewed against that backdrop, the result of these cases

seems anomalous. The Board members, tasked with determining the financial fate of a self-governing Territory, exist 

in a twilight zone of accountability, neither selected by 
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Puerto Rico itself nor subject to the strictures of the Appointments Clause. I am skeptical that the Constitution 

countenances this freewheeling exercise of control over a

population that the Federal Government has explicitly

agreed to recognize as operating under a government of 

their own choosing, pursuant to a constitution of their own

choosing. Surely our Founders, having labored to attain

such recognition of self-determination, would not view that 

same recognition with respect to Puerto Rico as a mere act

of grace. Nevertheless, because these issues are not 

properly presented in these cases, I reluctantly concur in 

the judgment.