Constitutional Violations Require Meaningful Remedies

This case asks whether Congress had the authority to create a board to bring bankruptcy-like proceedings on behalf of the Commonwealth of Puerto Rico. The board’s membership is appointed without Senate confirmation even though the board exercises extremely broad authority. The First Circuit found that these appointments violated the Constitution’s Appointments Clause. However, it upheld all of the board’s prior actions under what is known as the “de facto officer doctrine.” It even concluded that the unlawfully constituted board could continue to operate for several months.

In our friend-of-the-court brief, PLF argues that the Supreme Court should reverse the First Circuit’s remedy analysis and hold that when a government agency is established in violation of the principle of the separation of powers, courts should not ratify the agency’s unlawful actions or continue to allow that agency to act without authority. The de facto officer doctrine cannot properly be applied in this context. PLF’s amicus brief emphasizes that without a meaningful remedy, litigants are much less likely to challenge violations of the separation of powers, allowing the government to continue to violate the Constitution.