Dark Skies Over the Commonwealth
Is it Time to Mourn the Commonwealth?
By Juan A. Hernández
The Commonwealth of Puerto Rico or Estado Libre Asociado (ELA), as it is known in Spanish, has been under serious questioning since its inception as Puerto Rico’s political status in 1952 with the confirmation of the island’s Constitution.
However, as if the historical barrage against ELA had not been enough, a new onslaught against the commonwealth was recently unleashed not by the usual opponents who denounce the status as a form of neocolonialism—independentistas and statehooders—but by those who conceived the political status itself: the U.S. government. At least that is the way pro-commonwealth supporters or autonomistas see it.
This new onslaught came in the form of two U.S. Supreme Court decisions and the passing of the Puerto Rico Oversight, Management & Economic Stability Act (Promesa) that allegedly stripped the people of Puerto Rico and their Constitution of all traces of democratic self-rule, and has practically sent them back to the days of the Foraker Act in the early 20th century, the political prehistory of U.S.-Puerto Rico relations.
In June, the U.S. Supreme Court ruled in the Sánchez Valle case that the commonwealth cannot prosecute two men who had already pleaded guilty to federal
charges, as this would violate the U.S. Constitution’s double jeopardy clause. That same month, the top court also upheld a lower court ruling that declared unconstitutional the 2014 Public Corporation Debt Enforcement & Recovery Act, which allowed certain public corporations to restructure their debts, arguing that the U.S. Bankruptcy Code bars the island from writing its own bankruptcy law.
Meanwhile, Promesa is aimed at helping Puerto Rico deal with its fiscal and economic crisis, which includes a $70
billion public debt load. Promesa establishes a seven-member “territorial oversight board” that has the responsibilities of managing the island’s fiscal and budgetary affairs; the board also has the powers to override decisions made by the Puerto Rico government.
“The word ‘status’ was used, as it is used now, to signify the relationship between the U.S. and Puerto Rico. The ‘commonwealth’ is not a [type of] relationship with the U.S. The Commonwealth-ELA is the name of a political body created in the Constitution of the Commonwealth of Puerto Rico, with the authorization of the U.S. Congress,” said law Prof. Carlos Gorrín, while arguing that the historical and political tract of the relationship between the U.S. and Puerto Rico has practically remained the same since the beginning of the 20th century.
According to Gorrín, also a former Puerto Rican Independence Party (PIP) adviser, Public Law 600 (July 3, 1950) clearly states that the people of Puerto Rico could only adopt a document that would be called a ‘Constitution’ to structure its home rule. At the same time, this law amended the Jones Act (Merchant Marine Act, March 2, 1917) by eliminating all language regarding the government structure in Puerto Rico.
“The Jones Act created a government for Puerto Rico with a governor appointed by the U.S. president, a locally elected Legislature, a judiciary power headed by a P.R. Supreme Court…[Public Law 600] ripped all that from the Jones Act. Why? Logically, if the new government would hold office by this new law, all previous dispositions would have to be eliminated,” said Gorrín, while emphasizing that the Jones Act did not repeal the up-until-then in full force Foraker Act (April 12, 1900).
In its Section 4, the Jones Act states: “Except as provided in Section 5 of this Act, the Act entitled ‘An Act to provide a civil government for Porto Rico, and for other purposes,’ approved March 2, 1917, as amended, is hereby continued in force and effect and may hereafter be cited as the ‘Puerto Rican Federal Relations Act.’”
In essence, the Jones Act had done to the Foraker Act in 1917 what Public Law 600 did to the Jones Act in 1950: “ripped up” all dispositions of the government structure on the island, while leaving intact all the dispositions establishing the nature of the relationship between the U.S. and Puerto Rico.
Promesa questions concept of self-rule
Now, almost 100 years after the Jones Act and 64 years after the inception of the Commonwealth, while the passing of Promesa has not “overtly ripped” the dispositions for self-rule now in force, it did create a federal fiscal-control board that would supervise and approve anything Puerto Rico’s elected officials do that has an economic impact, thus “covertly ripping out” the concept of self-rule.
However, for former Popular Democratic Party (PDP) Sen. Eudaldo Báez Galib, there is an inherent problem whenever politicians analyze Puerto Rico’s current political situation in light of the recent U.S. Supreme Court decisions and the passing of Promesa—“they all try to bundle up things that cannot be bundled.”
“Promesa is probably the greatest insult ever made against Puerto Rico, even greater than the Foraker Act, because back then all the constitutional concepts developed around Puerto Rico didn’t even exist,” Báez Galib argued.
For the veteran politician, Promesa basically dismantles everything that had been built around “the compact” between the U.S. and Puerto Rico and secondly, it
takes away the validity of everything that had been authorized before in terms of political relations. Báez Galib is convinced Congress cannot legally pass such an Act.
“If there was a compact, an agreement, implying it could not be cancelled by any of the parties, therefore no one party could do that [pass Promesa],” Báez Galib stated, citing former U.S. Treasury Secretary Alexander Hamilton in the Federalist Papers (No. 22), who said it is “a gross heresy to maintain that a party to a compact has the right to revoke that compact.”
The former PDP senator’s argument is based on the existence of the hotly contested “compact.” Public Law 600 specifically says “this Act is now adopted in the nature of a compact,” which, while similar to one, does not necessarily mean it is a compact.
For Gorrín, there was no compact and the nature of the relationship between the U.S. and Puerto Rico remained the same.
“[Public Law 600] then explicitly states that all other dispositions will remain in force. And what were those other dispositions? All those that didn’t have anything to do with the local government…the ones regarding the relations between the U.S. and Puerto Rico. So, in 1952, when the commonwealth’s constitution became effective, the relationship between the U.S. and Puerto Rico had not changed a bit. It was exactly the same relationship as defined by the Jones Act, which in turn was exactly the same as defined by the Foraker Act, which also was the same as under the military government after the Spanish-American War, that of a territory,” explained Gorrín, while emphasizing the commonwealth, meaning ELA, is just the name of Puerto Rico’s self-governing body.
Therefore, for the law professor, the recent opinions of the U.S. Supreme Court in the Sánchez Valle and Puerto Rico’s Bankruptcy Law cases change absolutely nothing, legally speaking.
“What indeed has changed is the illusion of something that never was…the myth, the mirage. The people thought the mirage was real,” argued Gorrín, who cited former Puerto Rico Supreme Court Chief Justice José Trías Monge, who allegedly admitted in his memoirs of having taken part in the design of the language that would convince the people of Puerto Rico there had been an actual change in the political relations between the island and the “metropolis,” in this case, the U.S.
“That gimmicky use of the language convinced more than three generations of Puerto Ricans [that the political relations had changed], who are now feeling as if someone has pulled the rug from under their feet,” added Gorrín, referring to the phrase “in the nature of a compact” used in Public Law 600 to describe the Act itself as “recognizing the principle of government by consent.”
Sánchez Valle and the issue of sovereignty
Still, Báez Galib is convinced the Sánchez Valle case was not the political tsunami that most politicians believe it to be because it simply did not deal with the issues of sovereignty or a change in status.
“If you take a look at several of the comments in the case, you will see that the justices are not considering the concept of sovereignty in terms of Puerto Rico having a self-government or not, or if there was a change in status or not. The sovereignty considered was one that was very specific and unique for double jeopardy and that is mentioned several times throughout the case,” said Báez Galib, who specifically referred to the first page of the top court’s opinion as written by Associate Justice Elena Kagan.
“The inquiry does not turn, as the term ‘sovereignty’ sometimes suggests, on the degree to which the second entity is autonomous from the first or sets its own political course. Rather, the issue is only whether the prosecutorial powers of the two jurisdictions have independent origins—or, said conversely, whether those powers derive from the same “ultimate source,” reads Kagan’s opinion.
Báez Galib pointed out how Justice Kagan clearly states in the court’s opinion that the concept of sovereignty in the Sánchez Valle case’s context “does not bear the ordinary meaning,” but that “for whatever reason, the
test we devised to decide whether two governments are distinct for double jeopardy purposes overtly disregards common indicia of sovereignty.”
“How come no one has emphasized this?” asked a somewhat perplexed Báez Galib.
For the former senator, this clearly demonstrates, first, the existence of self-government on the island, and second, that there was a significant development under the American concept of federalism.
Issues of interpretation
In the case of Puerto Rico’s Bankruptcy Law, Báez Galib argued the top court acted as it would have acted in any typical case brought before its consideration.
“The Puerto Rico Bankruptcy Law is a typical case of federal judiciary interpretation. The interpretation here is that federal law supersedes any local law. They [the Justices] don’t talk about sovereignty or anything of the like. It is a typical interpretation [of the federal law], like in the case for the death penalty,” argued Báez Galib, referring to the judicial decision reaffirming federal jurisdiction to try death penalty cases in Puerto Rico despite the fact that such punishment is expressly prohibited by the island’s Constitution.
The retired senator also compared the court’s opinion to the case of intercepting telephone calls, which are also prohibited by the Puerto Rico Constitution, but not by federal law.
For Gorrín, it is only inevitable for those who initially bought into the concept of “the compact” to be immersed in some sort of political and/or emotional turmoil after the U.S. Supreme Court decisions and the passing of Promesa. For the professor and many others, “the lie” on which the Constitution of Puerto Rico is based is more evident than ever.
“This is not an amendment. The law continues to say what it says, and the Constitution continues to say exactly the same. But, what happened was not the exercise of the sovereignty of the people of Puerto Rico in as much as the U.S. government granted its permission for it to happen. It was all a lie,” Gorrín said.
Báez Galib is ready to agree on “the nature of a compact” argument, but he pointed out that once the U.S. Congress received the Puerto Rico Constitution for confirmation, the law had turned into a compact.
“Once Public Law 600 was passed and [the Constitution voted by Puerto Ricans] returned to Congress, it was confirmed as a compact,” he said.
According to Báez Galib, a compact is different from a treaty because the latter is signed with a foreign nation, while the former, which is recognized in the U.S. Constitution, is between states and between the federal government and states.
“Those compacts cannot be breached by any of the parties. So, when Congress spoke of a compact, it was fully aware of what a compact is…. If such a compact exists, then Congress cannot strip powers away from the [Puerto Rican] Constitution,” argued the former senator, referring to the constitutional powers invested upon the governor (i.e. the organization of public agencies) and the Legislature (i.e. designing and passing laws, including the commonwealth’s budget).
On the other hand, if indeed there was no compact, for Báez Galib “here we have again the Foraker Act in its 2016 version.”
Nevertheless, and despite its alleged diminished luster, for Gorrín the Constitution of Puerto Rico still has important elements that do have an impact on the people, particularly its Bill of Rights. “There are some good ideas contained in the Puerto Rico Constitution. For instance, the Office of the Comptroller is not subordinated to the Legislature, the automatic renovation of the judiciary with a mandatory retirement at age 70,” he said.
—Editor Rosario Fajardo contributed to this story.