Presentation for Panel Discussion at the American University Washington College of Law, October 14 2019.
I thank the organizers of this event for the invitation to share my thoughts on a topic which, from the outset, seems to be an oxymoron. Is Puerto Rico’s Fiscal Control Board a Legitimate Source of Democratic Power? How can “fiscal control board” and “democratic power” appear in the same sentence? The short answer to the question is … no.
I was here over three years ago, when a similar event was held on the eve of the Supreme Court argument in the case of Franklin California, which was decided a few months later. At that time I denounced the colonial nature of the relationship between Puerto Rico and the United States. Back then I said:
All parties to the case argue from the same fundamental premise: the exclusion of the territory from the application of a federal statute, as an exercise of plenary powers under the territory clause. Regardless of the final result, the problem will not have been resolved, because the roots of the problem are structural. The territorial status maintains Puerto Rico in an unsustainable position of dependence on the political processes of a government –Congress, executive and judicial power– from which the people of Puerto Rico have been excluded.
Should Puerto Rico have the authority to renegotiate its public debt? Of course! But it shouldn’t do it from the position of political subordination and economic dependence imposed by a colonial regime. Any decision of the Supreme Court, or any legislation passed by Congress and the president, either allowing bankruptcy proceedings under federal law, or under the colonial ignominy of a fiscal control board, might be a temporary aid to stabilize the patient. But it is no cure for the disease which will continue to fester. Any serious attempt to solve the deep problems has to address the colonial nature of the territorial relationship.
The French have a saying: Plus ça change, plus c’est la même chose. The more things change, the more they stay the same. Many things have happened in the last three years: Sánchez Valle, Franklin California, Promesa in 2016; María and its aftermath, worsening corruption and economic crisis, in 2017-2018; the summer of 2019, the protests, the ousting of governors Rosselló and Pierluisi.
And now we are where we started. Back at American University College of Law, on the eve of the third Supreme Court oral argument regarding Puerto Rico in a span of three years. The issues now are not related to the scope of an individual right (such as in Sánchez Valle) or the application of a federal statute (as in Franklin California). Now the Court is confronted squarely with the constitutional validity of a federal law regarding Puerto Rico, in relation to the composition of a board created by Congress. And if it is invalid, does that invalidate its decisions over the course of three years regarding the greatest bankruptcy in the history of the United States. Needless to say, the Court has never invalidated a federal law regarding Puerto Rico.
I have spent many hours poring over the briefs presented by the parties in this case, and some amici briefs. I will not even attempt to reproduce the arguments or even summarize them. But I would like to point out an argument which is absent from all of them. Some briefs even attempt to close the door to the possibility of its discussion. Nobody has clearly pointed out the idea that for over a hundred years the Constitution of the U.S. does not apply to the unincorporated territory of Puerto Rico ex proprio vigore (by its own force) since the territory is not part of the U.S. Some provisions do apply, and those are: first, those that secure fundamental rights; and second, those that Congress has extended to the territory.
Of course, we might all agree that that is part of the ignominious nature of the Insular Cases. The idea that Congress, a creature of the Constitution, might switch its provisions on or off to serve its purposes at any given time, is contrary to fundamental concepts of modern constitutionalism and the rule of law. But that is exactly what the Court said that Congress can do since the 1901 case of Downes v. Bidwell. The Foraker Act of 1900 to establish a civil government for Puerto Rico created a tax to be paid on merchandise shipped from Puerto Rico to the US. It was challenged under the tax uniformity clause of the Constitution. The Court decided that the clause was not applicable to Puerto Rico because Congress had decided that it would not apply when it passed the tax. That might sound tautological, circular, but that has been part of the “law of the land”, central to US territorial policy ever since.
That is now an option for the solution of the Aurelius case. But nobody is making the shameful argument. Everybody seems to draw away from the Court of Appeals characterization of the “on/off switch” theory of constitutional interpretation. Some parties would like the Court to repudiate the Insular Cases, or at least narrow their scope to reduce the plenary powers of Congress with the application of clauses which limit them, such as the advice and consent requirement for executive appointments.
Others would like the Court to say that the distinction between incorporated and unincorporated territories was not principled from the outset and should no longer stand. That route is also open to the Court. But what are the consequences? Does that mean that the territories should be treated like those acquired before 1898, as part of the US in perpetuity, and whose inhabitants must have the same rights as the inhabitants of the states? That would imply that Prof. Christina Duffy Ponsa’s theory regarding the underlying purposes of the distinction would disappear. She has theorized that the idea of unincorporated territories was aimed not at governing the territories in perpetuity, because they were in fact different. Three decades after the Civil War, they could not be part of the indissoluble union. Only by creating a different category of territories could they be governed as long as it was convenient, but they could be relinquished when necessary, which is what happened with the Philippines.
Is there, in some circles of the US, an increasing shame regarding the infamous doctrine of the Insular Cases, and a concomitant acceptance of the possibility of admitting Puerto Rico —and perhaps the other unincorporated territories— as full fledged members of the union?
Is the judicial power the proper forum for advancing that idea? Should Congress be constitutionally railroaded in such a politically charged issue? Is it a valid legal and judicial strategy? Is it a legitimate goal within the constitutional design, if the political branches have not moved in that direction?
More importantly, is it legitimate to try to judicially steer the status question towards a solution which has not received a clear support of the people of Puerto Rico?
These are complicated political questions arising in the context of a complicated constitutional litigation, which in turn emerges from the complicated political reality of territorial colonialism.
Regardless of the decision in the case, the colonial status will remain and Congress will still have the plenary powers it has now, perhaps constitutionally sandpapered so that it is not so blatantly rough to current politically correct sensibilities. Perhaps some might sleep better at night knowing that you now maintain colonies which Congress must govern without violating appointments clause, the advice and consent requirement and the security blanket of separation of powers.
But in Puerto Rico we will still be the victims of colonialism because few people are now considering what is really at stake: the right of the people of Puerto Rico to self-determination, in order to get out of an illegal territorial/colonial regime.
There is no best or worst-case scenario here. Any decision will only reiterate the worst: the ignominy of colonial rule in open conflict with the ideological foundations of this Republic, of modern constitutionalism, and international human rights norms, specifically the right of all peoples to self-determination and independence, with its concomitant affirmative obligation of colonial powers to respect and promote self-determination.
That is what legal academia ought to be concerned about, and not about the niceties of the appointment of colonial officers with the advice and consent of the Senate under the doctrine of separation of powers.
That would make a difference, both to Puerto Rico and to the United States, which shamefully maintain a colonial regime.