We need to reevaluate Puerto Rico’s territory status as we rebuild

We need to reevaluate Puerto Rico’s territory status as we rebuild

Hurricanes have long served as bookends in the history of Puerto Rico.

In 1867 Hurricane San Narciso — when hurricanes had saintly names — devastated the island and set the stage for the Grito de Lares in 1868, an armed insurrection against the Spanish government.

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In 1899, one year after the Spanish American War and the transfer of Puerto Rico to the United States, San Ciriaco leveled the island.

 

In 1900 Congress legislated the Foraker Act creating the new civil government, and in 1901 the Supreme Court ruled in Downes v. Bidwell declaring Puerto Rico (and Philippines and Guam) a non-incorporated territory that belonged to but was not a part of the United States.

The judicial doctrine of non-incorporation was — and is — based on the suspicious assumption that Puerto Ricans are foreigners and that the acquisition of the territory did not imply that it was on the road to future statehood or that all constitutional rights were applicable to the citizenry.

At the time, the public debate was phrased as a question on whether the Constitution followed the flag. We should not lose sight of the fact that the doctrine of non-incorporated territories is of judicial progeny. A textual reading of Article IV, Section 3, of the Constitution brings into question the historical context of such a racially and ethnically charged distinction made at the turn of the 20th century by the 1895 Plessy v. Ferguson decision.

It is worth recalling that in American territorial history, from the Northwest Ordinance of 1787 to the annexation of Hawaii in 1898, all territories have been deemed to be on the path to eventual statehood, some taking longer than others.

Although Puerto Ricans were granted American citizenship in 1916 by the Jones Act, the non-incorporated nature of the territory was reaffirmed in Balzac v. Porto Rico in 1922. In more recent times former Associate Justices William Brennan and Sandra Day O’Connor, as well as some district and appeals court judges, at different times, have suggested that the territory of Puerto Rico may have been incorporated as a matter of fact, but until now there has not been a clear and unambiguous declaration either by the Supreme Court, Congress or the presidency.

In 1928 Puerto Rico was hit by hurricane San Felipe, and in 1932 by San Ciprian, which respectively devastated the island and caused the death of hundreds of people. These hurricanes coincided with the Great Depression of the 1930’s and World War II. This turbulent period in Puerto Rico’s history was characterized by the implementation of FDR’s New Deal model in Puerto Rico by the appointed governor Rexford Tugwell, the creation of the Popular Democratic Party and the independence efforts led by Albizu Campos and the Nationalist Party, among other events. After World War II, Congress legislated the Federal Relations Act and Public Law 600, which authorized Puerto Rico to elect its governor and draft a constitution in 1952 for purposes of local self-government.

The political, economic and social crisis we are living today in Puerto Rico, magnified by the passing of hurricane María this past September, is precisely the unravelling of the territorial model created by Congress in the 1950’s.        

In this context it should be recalled that in the summer of 2016 the Supreme Court decided the cases Commonwealth of Puerto Rico v. Sanchez Valle and Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, which unambiguously reiterated the territorial nature of Puerto Rico. It is worth noting how in these two opinions the Supreme Court avoided the use of the term non-incorporated with reference to the territory.

Also, due to Puerto Rico’s massive debt and incapacity to meet its financial obligations, that same summer Congress legislated the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) for purposes of creating an oversight board and a bankruptcy-like proceeding under its Title III. It is estimated that Puerto Rico’s outstanding public debt is approximately 74 billion dollars. As of this writing the Government of Puerto Rico is under the jurisdiction of the United States District Court under Title III proceedings represented by the oversight board.

The devastation caused by hurricane María to Puerto Rico’s infrastructure, particularly its energy grid, and to private property, is being estimated by some at close to $90 billion and puts into question the viability of the territory of Puerto Rico.

There is no doubt in anyone’s mind that the only way to recover from this kind of epic damage, and to maintain some sort of functional government for its citizens, is through massive federal intervention, such as fund assignments through FEMA, Medicare and creating lines of credits to subsidize the operation of the Government of Puerto Rico.

It is not surprising that many have called for amendments to PROMESA, to strengthen the oversight board’s authority in the recovery process, particularly in light of questionable contracting practices. In order to assure long term stability and certainty Congress should explicitly declare that all actions taken by it in this matter are a recognition that the territory of Puerto Rico has for all practical and legal purposes been incorporated, and that eventual statehood is the only way of assuring the democratic rights of its citizens.      

Andrés L. Córdova is a law professor at Inter American University of Puerto Rico,. where he teaches contracts and property courses. He is also an occasional columnist on legal and political issues at the Spanish daily El Vocero de Puerto Rico.