Washington - Law experts seem to detect political messages in the legal positions taken by the U.S. Department of Justice under the administrations of Barack Obama and Donald Trump in recent cases that have highlighted the colonial nature of the relationship between Washington and San Juan.
U.S. Solicitors General in 2015, in the Sánchez Valle case on the federal constitutional clause against double jeopardy to criminal charges, and in 2019, in favor of the constitutionality of the Board –that oversees the financial decisions of the government of Puerto Rico - have defended the vast powers of Congress over the island, based on the Territorial Clause of the U.S. Constitution.
They have embraced, above other considerations, the "malleability" of the powers of Congress under that clause, and the doctrine that the decisions they make on their territories do not tie up "future Congress," said constitutionalist Carlos Ramos González, a professor at the Inter-American University Law School.
Along the way, Ramos González said, "they have discarded any narrative of a bilateral pact" and affirmed that "the Constitution of the Commonwealth comes essentially from Congress."
Meanwhile, lawyer Domingo Emanuelli goes further and considers that when the U.S. Solicitor General Noel Francisco said Wednesday that if the appointments of Board members are unconstitutional, because they have not been confirmed by the Senate, so are the actions of the Puerto Rican governor and legislators the solicitor seems to be directing the move toward free association.
For Emanuelli, who favors statehood for Puerto Rico, there is no other explanation for what he considers to be an interest of the federal in giving relevance to the legal framework of the governor's election thus elevating "the status debate" in the legal dispute.
Former U.S. Solicitor General under Barack Obama, Donald Verrilli, intervened in the Sánchez Valle case to argue that the so-called Commonwealth status did not modify the constitutional territorial status of Puerto Rico or the power of Congress over the island. "The ultimate source of sovereign power in Puerto Rico thus remains the United States," Verrilli said on December 23, 2015, just as the debate over what PROMESA would be, gained momentum warning that the current status is not an "irrevocable" pact.
Six months later, just three years ago today, the U.S. Supreme Court ruled in the Sánchez Valle case that Puerto Rico's sovereignty lies with Congress and that the island's own government is as limited as that of a city before a state government.
Hours later, the U.S. House passed PROMESA, which from June 30, 2016, imposed the Board and ended the illusion of self-government.
The general perception back then saw in Verrilli -now a Board attorney- an effort to smooth the political process toward the adoption of PROMESA, based on the power of Congress under the Territorial Clause.
At a time when different sectors are asking the U.S. Supreme Court to review the decision of the First Circuit Court of Appeals that declared the appointments of members of the Board were unconstitutional- since six of the seven members were not confirmed by the federal Senate- Solicitor General Francisco, representing the Donald Trump administration, argued that if the decision is upheld, then constitutionality of the governor of Puerto Rico is called into question.
The court failed to identify any reason why, under its reasoning, the elected representatives of Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands would not also be principal U.S. officers, who must be selected by the President with the advice and consent of the Senate, Francisco added in his appeal.
When Verrilli filed the Board's certiorari petition asking to revoke the appellate court's ruling, he also said in April that, if the appointments are unconstitutional, so would be the decision Congress made seven decades ago to grant territorial self-government to Puerto Rico.