Delaying Puerto Rican Self-Determination: How the Contradictory Mandates of Public Law 600 and PROMESA Undermine America's Founding Principle.

• Author: Stallone, Melanie

"I am skeptical that the Constitution countenances this freewheeling exercise of control over a population that the Federal Government has explicitly agreed to recognize as operating under a government of their own choosing, pursuant to a constitution of their own choosing. Surely our Founders, having labored to attain such recognition of self-determination, would not view that same recognition with respect to Puerto Rico as a mere act of grace." (1)

1. INTRODUCTION

   United States presidents have consistently claimed self-determination as an American idea dating back to the nation's anticolonial founding. (2) Indeed, the Declaration of Independence envisioned a form of government deriving its "just powers from the consent of the governed." (3) Undoubtedly, the American founders intended to establish a government founded by, and for, the people of the United States. (4) At the time of the government's founding, however, the people of the United States entitled to vote included only a handful of property-owning or tax-paying white males. (5) Over the next two-and-a-half centuries, the expansion of voting rights slowly extended self-determination to individuals outside this elite, elevated class. (6) Though the Twenty-sixth Amendment guarantees U.S. citizens aged eighteen or older the right to vote, the Supreme Court has devised an exception for American citizens of majority age living in U.S. territories. (7)

   Puerto Rico, the United States' oldest territorial possession, is an island comprised of federally disenfranchised American citizens--they are constitutionally prohibited from any meaningful engagement in federal politics because there are no voting representatives for Puerto Rico in either the House of Representatives or the Senate, and Puerto Rican-American citizens cannot vote for President. (8) Currently, Puerto Rico's citizens are suffering from a crippling debt crisis exacerbated by the onslaught of Hurricanes Irma and Maria in 2017, as well as the COVID-19 pandemic. (9) The federal government's attempts to financially aid Puerto Rico underscore the fact that Puerto Rico's inhabitants have never enjoyed self-determination as a territory operating under the plenary powers of Congress. (10) Members of Congress and grassroots organizations across Puerto Rico urge the American public to recognize the growing necessity for Puerto Rican self-determination, calling attention to Puerto

   Rico's fundamental problem from which almost all others stem. (11) This Note serves as a critique of the United States' hypocrisy in governing the territory of Puerto Rico. (12) First, this Note examines the colonial United States-Puerto Rico relationship by walking through the many judicial interpretations and congressional exercises undertaken in an effort to ascertain Puerto Rico's constitutional status. (11) This Note then considers the current condition of the island's economy by addressing recent federal legislation intended to mitigate Puerto Rico's debt crisis. (14) This Note goes on to analyze how this legislation is inconsistent with the constitutional status that the Supreme Court previously assigned to Puerto Rico. (15) Finally, this Note concludes by advocating for the prioritization of Puerto Rican self-determination. (16)

2. HISTORY

   1. From Colony to Compact: The Island Before Public Law 600

      1. The Insular Cases

         At the conclusion of the Spanish-American War, the United States acquired Puerto Rico as a territory. (17) For the first time, the United States possessed land noncontiguous with the North American continent. (18) Incidental to the acquisition of an island separated from mainland America by considerable oceanic distance was the constitutional question of how the federal government could govern the island's inhabitants. (19) In 1901, the Supreme Court first attempted to answer this question by handing down a line of decisions, collectively referred to as the Insular Cases, that laid the groundwork for the present-day colonial United States-Puerto Rico relationship. (20)

         Of these cases, Downes v. Bidwell was central in establishing Puerto Rico's constitutional status. (21) The narrow constitutional question in Downes was whether a federal tax on goods shipped from Puerto Rico violated the Constitution's Uniformity Clause, which requires congressional taxes to be uniform throughout the country. (22) In concluding that the tax on Puerto Rican goods was valid even though it was unique to Puerto Rico, the Court ultimately answered the broader constitutional question of whether territories are considered a part of the United States. (23)

         Justice White's concurring opinion elaborated on this broader constitutional question through the doctrine of territorial incorporation--the prevailing rule of the Insular Cases--that delineates the framework for determining whether a particular constitutional provision applies to a territory by labeling it as either incorporated or unincorporated in the United States. (24) Incorporated territories are those that the federal government deems destined for statehood; because Congress considers them an integral part of the United States, the Constitution applies fully to those incorporated territories. (25) For example, a territory the United States acquired through a treaty explicitly providing for the incorporation of the territory is an incorporated territory. (26) In contrast, for territories the United States acquired under a treaty with no conditions for incorporation, or where such conditions expressly prohibit incorporation, "incorporation does not arise until in the wisdom of Congress it is deemed that the acquired territory has reached that state where it is proper that it should enter into and form a part of the American family." (27) In the eyes of the Supreme Court and Congress, Puerto Rico today remains separate from the "American family" as an unincorporated territory. (28)

      2. Citizenship for Puerto Ricans

         The Territorial Clause of the Constitution grants Congress plenary powers to "make all needful Rules and Regulations respecting ... territory or other property belonging to the United States." (29) In an exercise of this power, Congress enacted the Jones-Shafroth Act on March 2, 1917, which gave Puerto Ricans immediate U.S. citizenship. (30) The Jones-Shafroth Act also included a Bill of Rights, similar to the first ten amendments of the U.S. Constitution, guaranteeing certain fundamental rights to the island's population of newly minted American citizens. (31) The Act further established a popularly elected Puerto Rican Senate and provided for the creation and retention of the elected office of Resident Commissioner to the U.S. Congress, a position with no voting power. (32) Finally, the Jones-Shafroth Act required that important government positions--including those of Governor, Attorney General, and justices on the Supreme Court of Puerto Rico--be filled by presidential appointment with the consent of the Senate. (33)

         After the Insular Cases established that Congress possesses the power to determine constitutional incorporation for all territories, the Jones-Shafroth Act's incremental steps toward Puerto Rican self-governance raised expectations of forthcoming incorporation. (34) The Supreme Court quickly shut down these expectations in Balzac v. Porto Rico. (35) Former President William Howard Taft, then Chief Justice of the Supreme Court, authored the majority opinion in Balzac, ruling that the Jones-Shafroth Act merely "enabled [Puerto Ricans] to move into the continental United States and becom[e] residents of any state there to enjoy every right of any other citizen of the United States." (36) Chief Justice Taft further wrote that "it is locality that is determinative of the application of the Constitution ... and not the status of the people who live in it." (37) According to the Supreme Court, geography--not American citizenship--controlled whether the Constitution applied to Puerto Rico; following Balzac, American citizens residing on the mainland, by virtue of simply existing there, enjoyed greater constitutional protections and freedoms than American citizens residing in Puerto Rico. (38)

      3. Under Pressure: The Global Pushback Against Colonialism

         By the conclusion of World War II--as the world entered a postwar era of decolonization--the formation of the United Nations (UN) forced the United States to address their territorial possessions. (39) Indeed, the UN was founded, in part, "[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples." (40) To further this purpose, the UN Charter mandates that member nations in possession of "territories whose peoples have not yet attained a full measure of self-government," must report statistical information regarding the conditions of their colonies to the Secretary General. (41) The United States was, and still is, bound by the terms of the UN Charter. (42)

         In compliance with the UN Charter's commitments, Congress passed the Elective Governor Act in 1947, which provided for the popular election of the Governor of Puerto Rico. (43) In 1948, the people of Puerto Rico elected their first Governor, Luis Munoz Marin. (44) Governor Munoz Marin, together with then-Resident Commissioner Antonio Fernos-Isern, began to develop theories upon which the United States and Puerto Rico could alter their relationship to provide Puerto Rico with greater levels of self-governance, with the "compact" theory gaining traction over the next several years. (45)

   2. From Compact to Commonwealth: Public Law 600's Enactment

      For decades, the political debate over Puerto Rico's status presented the polarized alternatives of either statehood or independence. (46) By the time Governor Munoz Marin took office, however, not even he was convinced of the viability of either statehood or independence, and a new, third alternative began gaining currency. (47)...