The atmosphere in the federal sphere does not seem favorable to any of the lawsuits filed by the government branches against the appointments and the scope of the Oversight Board.
Just when the House Popular Democratic Party (PDP) minority joined the lawsuits against the Board, Rafael Cox Alomar, former Popular Resident Commissioner candidate said that there seems to be consensus in federal court regarding the fact that the territorial clause grants the US Congress absolute powers over the island.
"The environment is completely different, and it is an environment where the theory that Congress has plenary powers, powers that are basically unlimited seems to be growing. In other words, the colonial character of the relationship has been reaffirmed," said Cox Alomar.
As an example, he mentioned the Sánchez Valle case. The U.S. Supreme Court decision established that the Commonwealth does not have its own sovereignty regarding the federal constitutional clause on double jeopardy cases.
"I don´t think that –in the current environment- arguing that PROMESA is unconstitutional or that the Board does not have the power to do this, or that ... or that Congress cannot get involved in legislating in internal affairs without the consent of Puerto Ricans, will be very successful," he said.
He noted that the scenario suggests that the 1952 agenda remained unfinished. "Thinking about a new model based on the sovereignty of Puerto Rico is what is needed," he said.
The third lawsuit
Yesterday, the House PDP caucus filed a lawsuit before the Federal Court questioning the constitutionality of the creation of the Board, as well as the alleged usurpation of powers.
The other argument included in the lawsuit is the alleged "coercion" of the Board on the Legislative Assembly to modify public policy subject to the repeal of workers' rights.
This is the third case filed after the Board failed to certify the budget approved by the Legislative Assembly facing the breach of the agreement reached with Governor Ricardo Rosselló Nevares, which included repealing the Law of Unjust Dismissal (Law 80-1976) as a requirement to -among other things- retain the Christmas bonus of public employees.
Last week, the governor sued the Board for understanding that the federal agency has usurped his powers. Similarly, in a separate lawsuit, the Legislative Assembly argued an excess of authority on the part of the fiscal entity, and highlighted the imposition of "punitive" measures after Law 80 was not repealed.
"The Board wants to rule, wants to legislate and wants to establish public policy in Puerto Rico without being democratically elected. It does not have that power and it does not result from any clause in PROMESA Law. We are not challenging PROMESA, we are specifically challenging the Board," said the spokesman for the Popular minority in the House, Rafael "Tatito" Hernández.
For Cox Alomar, only “coercion” may have some space of all the arguments included in the lawsuit. However, the point could be "academic", since there might not be a "real controversy" since it is a closed topic.
However, for Rolando Emmanuelli, the argument that the appointment of Board members is unconstitutional since it did not have US Senate confirmation "solid".
Last week, Federal Judge Laura Taylor Swain ruled that the power of Congress over the territories allows it to constitute the Board without complying with the Appointments Clause.
"They would be bringing that argument with the intention of preserving the opportunity to appeal ... that point is solid. It actually rests on the the decision on whether they are federal or territorial officials," she said.
Differences in the minority
The lawsuit was signed by 15 of the 16 members of the House PDP minority. The only representative that did not sign was Jesus Manuel Ortiz, who told El Nuevo Día that favoring the lawsuit would have meant to endorse a fiscal budget that includes cuts that puts the provision of essential services at risk.
He noted that his decision is not related to his position as Public Affairs Secretary under the administration of Alejandro García Padilla, who was one of the main promoters of restructuring Puerto Rico's debt in Congress through PROMESA.
The suit was filed by former governor Aníbal Acevedo Vilá and also lawyers Jorge Martínez Luciano and Emil Rodríguez Escudero.
Another lawsuit
Emmanuelli also said that the Professors’ Association at the University of Puerto Rico Mayargüez campus (APRUM, Spanish acronym) also filed a lawsuit yesterday questioning the Board‘s power to legislate.
The appeal, explained the lawyer, is based on the reduction imposed by the federal entity to the UPR despite the fact that the General Fund allocation of $ 834 million is provided by Law 3-2017.
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