Puerto Rico crisis can only be solved when Congress accepts its plenary responsibility

This Thursday two House committees will hold two hearings on the financial and economic crisis of Puerto Rico.  Congress needs to understand this is not simply a local crisis.  There is a shared responsibility and the consequences of inaction or inadequate actions might have legal implications upon the U.S.  With great powers come great responsibilities; with plenary powers come plenary responsibilities. 

The most recent report from the government of Puerto Rico says our more than $70 billion debt is unpayable and we are very close to insolvency.  So far, Congress has been resistant to restoring the pre-1984 legal status that gave us the same access as the states to Chapter 9 of the Bankruptcy Code and to fix the unfair treatment under Medicaid, where we have to comply with the standards established by Congress, but that same Congress denies us the funding the fifty states receive. Even worse, the “solutions” that have been discussed are to partially revoke the self-government powers that Puerto Rico obtained in 1952 by creating some sort of non-elected financial board to rule the Island.  If there is a problem with democracy, the answer has to be more democracy.  But the route being considered by Congress is the opposite, the bold and extreme use of their colonial powers under the territorial clause of the Constitution. 

If the official position of Congress and the Executive Branch is that Puerto Rico is still today under the plenary powers of Congress, that nothing legally changed by the enactment of the Commonwealth Constitution in 1952, and if the power of Puerto Rico to impose taxes and to issue bonds comes from a federal law of 1917 and those bonds were marketed under a federal provision granting them triple tax exemption, then, who is legally ultimately responsible for that debt?  If the official position of the U.S. Government is that Congress cannot irrevocably cede sovereignty to Puerto Rico while it remains a U.S. territory it is an oxymoron to argue at the same time that they can “cede” their responsibility over the actions taken by a territory.   

In 2007, in the case of Limtiaco v. Camacho, a dispute regarding a bond issuance and whether it was an infringement of a debt limitation provision included in the federal Organic Act of Guam, the U.S. Supreme Court stated that “the potential consequences of territorial insolvency… is not a matter of purely local concern.”  If “not a matter of purely local interest”, they are obviously, a matter of national interest. That’s how I come to the conclusion with plenary powers comes plenary responsibility.

So far, the discussion in Washington has been framed as “Puerto Rico is in trouble, and is asking for help.”  The tone of the discussion needs to change. If Congress and the executive Bbranch are restating that Puerto Rico is a territory totally dependent of the will of Congress, then the U.S. bears full responsibility for the consequences of what happens in Puerto Rico.  We are not begging for anything.  If Puerto Rico has been denied by Congress the economic tools to deal with this crisis and to foster economic development, then what we are demanding is for the U.S. to answer for the consequences of their actions and lack of actions.  But the answer cannot be to limit and deprive Puerto Rico of the self-government powers we have.  The answer cannot be to diminish our democracy.  Grant us more powers, not less; grant us more democracy, not less; grant us the tools to move forward because I can assure you Puerto Rico will move forward.  We did it in the past; we will do it again. 

Vilá was governor of Puerto Rico (2005-08) and resident commissioner of Puerto Rico in Congress (2001-04).  This article is based on a essay submitted for publication by the author to the University of Puerto Rico Law Review, available on line, as a draft, here http://www.revistajuridicaupr.org/wp-content/uploads/2016/01/BORRADOR-PLENARY-POWER-.pdf