Emergency powers, anti‐corruption, and policy failures during the COVID‐19 pandemic in Puerto Rico

• Published date: 01 July 2023
• Author: Jose Atiles
• Date: 01 July 2023
• DOI: http://doi.org/10.1111/lapo.12201

ORIGINAL ARTICLE

Emergency powers, anti-corruption, and policy

failures during the COVID-19 pandemic

in Puerto Rico

Jose Atiles

Department of Sociology, University of Illinois

at Urbana-Champaign, Urbana, Illinois, USA

Correspondence

Jose Atiles, Department of Sociology,

University of Illinois at Urbana-Champaign,

Urbana, IL 61801, USA.

Email: jatiles@illinois.edu

Funding information

Illinois Program for Research in the

Humanities, University of Illinois at Urbana-

Champaign; University of Illinois at Urbana-

Champaign

Abstract

This paper explores how the use of emergency powers

by the US and Puerto Rican governments exacerbated

the impact of the COVID-19 pandemic and man-

ufactured the conditions for furthering the multilayered

economic, legal, political, and humanitarian crisis affect-

ing Puerto Rico since 2006. The paper discusses three

cases. First, it examines how the multiple declarations of

the state of emergency, and its constant renewals, pro-

duced contradictory public health policies. Since the

start of the COVID-19 pandemic in March 2020, the

Puerto Rican government has issued over 90 executive

orders aimed at addressing the emergency, producing an

unclear, contradictory, and unequal emergency manage-

ment policy. Second, the paper focuses on the impact of

the passing of Law 35 on April 5, 2020, which imposed

severe penalties on those who disobeyed executive

orders. As a result, hundreds of Puerto Ricans were

arrested, fined, and incarcerated for violating the issued

order. Third, the paper studies how, citing the presence

of corruption, the Puerto Rican government

implemented anti-corruption and anti-fraud policies that

made it more difficult for those most in need of it—

mainly poor and racialized individuals, as well as immi-

grants and working women—to access Pandemic Unem-

ployment Assistance. Thus, the paper argues that

emergency policies designed to address the pandemic,

punitive governance, and anti-corruption and anti-fraud

policies undermined Puerto Rico’s capacity to handle

the pandemic, exacerbated its impact, and created an

unequal recovery scenario.

DOI: 10.1111/lapo.12201

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

©2022 The Author. Law & Policy published by University of Denver and Wiley Periodicals LLC.

Law & Policy. 2023;45:253–272. wileyonlinelibrary.com/journal/lapo 253

1|INTRODUCTION

On February 9, 2021, the bill Law for Supervision and Accountability in Times of Emergency

(P. del. C. 0515) was introduced in the Puerto Rican legislature. After its approval by the House

of Representatives and the Senate on December 1, 2021, it was vetoed by the Puerto Rican gov-

ernor, Pedro Pierluisi, on January 6, 2022. The bill sought to establish terms and controls on

governmental declarations of the state of emergency in Puerto Rico (henceforth PR).

1

Among

other things, the bill aimed to limit the emergency powers of the executive branch, restrict the

length of states of emergency, regulate the processes of hiring and buying services during states

of emergency, and combat corruption during states of emergency. That is, the bill aimed to cre-

ate a legal framework for regulating the uses of emergency powers and for creating a clear pol-

icy on how to employ such powers during a crisis.

Governor Pierluisi justified his veto by arguing that the PR Constitution, the Political Code

of PR,

2

Law 20 of April 10, 2017,

3

and US jurisprudence on public health crises

4

already pro-

vided a legal framework for the declaration of a state of emergency, therefore, rendering the bill

unnecessary. Furthermore, Pierluisi stated that “this Bill leads us to ask if it is possible to legis-

late an emergency, and if the very powers that the PR Constitution defines as necessary to deal

with emergencies, can be subordinated to the political-partisan forces that control the Legisla-

ture.”

5

In his veto, Pierluisi further argued that “this Bill is detrimental to the needs of the peo-

ple in times of emergency,”and “in times when the bureaucracy should not interfere in the

mitigation, recovery, and reconstruction efforts that emergencies require. We cannot predict the

future, and not all emergencies are the same, so the need to be able to respond quickly is

essential.”

6

The debates surrounding the bill occurred at a time when PR, along with other Global

North and South countries, had been actively implementing several legal measures and emer-

gency powers to address the public health crisis caused by the COVID-19 pandemic

(Goitein, 2021; Kipfer & Mohamud, 2021). Some of these interventions included stay-at-home

orders, lockdowns, quarantines, mask and vaccination mandates, travel restrictions, rules for

business operations, restrictions on alcohol sales, and curfews (Burris, Anderson, &

Wagenaar, 2021; Burris, De Guia, et al., 2021). The continuous use of emergency measures to

contain the impact of the COVID-19 pandemic and the lack of a well-defined emergency policy

has further eroded Puerto Rican internal democracy and exacerbated previously existing forms

of social harm, inequality, and vulnerability. The overuse of emergency powers is particularly

evident in how the administrations of Wanda Vazquez (August 2019 to December 2020)

7

and

Pedro Pierluisi (January 2021–present) have managed the COVID-19 pandemic. For example,

between March 12 and December 30, former Governor V

azquez issued 48 executive orders to

address the COVID-19 pandemic,

8

while Governor Pierluisi has issued 45 executive orders to

this same end after taking office on January 2, 2021. As this paper demonstrates, these executive

orders and emergency declarations are often contradictory, unclear, and ineffective in

addressing the pandemic.

Nevertheless, the use of emergency powers by the PR government is not limited to the pan-

demic; indeed, PR has been living under a permanent state of emergency for the past 16 years

(Atiles, 2020,2021). To be sure, PR has been experiencing a multilayered economic, legal, polit-

ical, environmental, and humanitarian crisis, mainly resulting from the fiscal and debt crisis

and the structural adjustment programs introduced by the US and the PR governments since

2006 (Garriga-L

opez, 2020; LeBr

on, 2019). It is precisely in this context of multilayered crisis

and colonial history that the state of emergency, executive orders, and the emphasis on

individual responsibility have become key emergency measures for dealing with any crisis in

PR. In the Puerto Rican colonial imaginary, states of emergency and executive orders have

become the primary legal and public policy methods for dealing with any crisis affecting the

archipelago. The normalization of the use of emergency powers—which this paper

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