02/06/2020
SCOTUS Justice Sotomayor, although concurring with the recent opinion on the legitimacy of the PROMESA Appointments, states that we should be exploring whether by approving PROMESA, Congress rescinded PR's compact under Law 600 and has taken illegally Puertorricans' self-rule.
"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), 130Stat. 553.
Further, there is a legitimate question whether Congress could validly repeal any element of its earlier compact with 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.” 64Stat. 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 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,
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 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))."
For the whole opinion:
Members of the Financial Oversight and Management Board, created by the Puerto Rico Oversight, Management, and Economic Stability Act, which was created by Congress under its Article IV power, are not subject to the Appointments Clause.
