Aurelius ACLU Amicus Brief

ACLU filed an amicus brief with the U.S. Supreme Court in Aurelius Investment. The First Circuit held that the members of the Financial Oversight and Management Board for Puerto Rico (FOMB) were improperly convened in violation of the Constitution’s Appointments Clause. 

ACLU takes no view on the final merits, but it urges that the Insular Cases should play no role in deciding the question, and that the court should overrule those decisions. Issued at the turn of the twentieth century, the Insular Cases drew a line between “incorporated” and “unincorporated” U.S. territories. 

In the latter — such as in Puerto Rico — the court assumed the Constitution applied only “in part.” That distinction cannot be found in the Constitution’s text, was meant to be temporary, and rests on racist assumptions about the territories’ inhabitants that no longer have a place in constitutional law. More importantly, the distinction casts a pall on the rights of the residents of U.S. territories — including more than 3 million who are U.S. citizens.