A novel federal court finding threatens to undo the work of the Financial Oversight and Management Board for Puerto Rico, created in 2016 to manage the island’s path out of bankruptcy. Congress and the White House have less than 90 days to save the board and Puerto Rico’s future solvency. They must act promptly.
When President Barack Obama signed the Puerto Rico Oversight, Management and Economic Stability Act that created the board in 2016, he and Congress relied on Article IV of the Constitution. The article gives Congress plenary powers over U.S. territories, a power often affirmed by federal courts.
But a hedge fund holding some of Puerto Rico’s enormous $130 billion debt, facing a write-down ordered by the board, filed a lawsuit claiming that the board violated Article II, which requires Senate consent to the appointment of federal officers. Under PROMESA, Congress nominated the board members and the president appointed them.
A three-judge panel of the federal 1st Circuit Court of Appeals recently issued a ruling agreeing with the hedge fund, Aurelius Capital Management, but gave Congress and the White House 90 days to respond. The clock has been ticking.
The board’s work is absolutely critical to the restoration of Puerto Rico’s financial stability and credit rating. Under a series of territorial governments Puerto Rico met its obligations over the years only by borrowing, a pyramid scheme that came crashing down in 2015, when the island’s governor admitted that it would never be able to cover its debt.
Everyone dependent on the revenues of the island’s government, including its citizens and its bondholders, is facing losses. The board, modeled on successful financial oversight boards for New York City and the District of Columbia, was created to relieve the island’s politicians of the hard choices guided by the principles of bankruptcy.
Despite the devastation of Hurricane Maria in September 2017 the board has been making steady progress in reviewing and deciding the legal status of the holders of Puerto Rican debt and controlling the island government’s new obligations. Declaring it unconstitutional at this stage could result in legal gridlock and condemn the island to an uncertain future.
The ruling by the 1st Circuit Court of Appeals also raises a troubling question about the powers of Congress under Article IV, which has previously been interpreted as allowing Congress to suspend other parts of the Constitution in making laws for the nation’s territories. The issue is serious enough to merit Supreme Court review, one that is not likely to happen in 90 days.
The higher court could stay the adverse ruling in the interim. But the shadow cast by the decision over the authority of the board would effectively continue to the detriment of Puerto Rico and the board’s mission. The authority of the board needs to be affirmed as quickly as possible.
That message needs to be heard by Sen. Lisa Murkowski, R-Alaska, chairwoman of the Senate Committee on Energy and Natural Resources, and other committee members. In a recent hearing she raised questions about both the broader implications of the court ruling and the reach of the powers of the board. After hearing from Puerto Rico Gov. Ricardo Rosselló Nevares, who has challenged the board’s power to control his government’s budget, she said, “Is it a fair question to ask whether the [board’s] power should be reviewed? Did we do right in setting it up? Those are fair questions.”
Maybe so. But there is not time in 90 days or less to rewrite PROMESA nor to settle the profound constitutional questions raised by the court’s ruling. The Senate and the White House should reach rapid agreement on the personnel of the board to be nominated by the president and confirmed by Congress, and get it done now.