Monday, December 11, 2017

[Column] Frankly, My Dear…Gone With the Wind?

By on September 14, 2017

SAN JUAN – Public attention has focused on the immediate dangers posed by a major hurricane that barely touched us with its destructive might. After the storm, there is calm amid the destruction, great or small. Everybody focuses on how to get water or when electricity will silence the power generators. Fallen trees are being removed. Malls, schools and government offices are reopening. But nothing will go back to normal. The winds are gone for now, but another storm promises to stay for quite awhile as a result of decades of irresponsible governments and over a century of colonialism.

The federal Promesa law and its creature, the Financial Oversight & Management Board, will re-emerge from the debris. Government officials will appear before the cameras, not to talk about preparing for a hurricane. They will claim to be protecting us from the winds of Promesa and the privations imposed by the board.

In this Thursday, June 30, 2016, file photo, U.S. President Barack Obama signs the Puerto Rico Oversight, Management, and Economic Stability Act in the Oval Office of the White House in Washington. (Susan Walsh, File/AP)

Before the storm, they talked about reducing the budget and services, especially health and education. We learned about bankruptcy proceedings under Promesa, requested by a government that had claimed during the political campaign that there was enough money to pay the debt. We read about the rejection of the budget proposed by the Legislature, the overhaul of the pension systems and the repeal or amendment of existing laws (for example, patients’ rights and the designation of directors of public corporations). We saw a government celebrating in the gardens of La Fortaleza the fiscal plan certified by the board, despite the inclusion of a “furlough program” (reducing work hours, salaries and bonuses of public employees) if several hundred million dollars were not saved elsewhere.

The “furlough program” overstepped the limits of political acceptability. Perhaps the other measures could somehow be explained or rationalized to a submissive populace. But reducing the salaries of public employees would provoke open opposition against an acquiescent government. The economic and political repercussions could be catastrophic. It was time to outdistance the government from the board by refusing to implement the furlough program. The board sued the government to force it to comply. The government says the board may recommend, but has no power to impose the decision.

Meanwhile, separate cases filed by creditors and a labor union have challenged the legality of the board itself, claiming its members have been designated in violation of the Appointments Clause of the Constitution, which requires U.S. officers be nominated by the President with the advice and consent of the Senate.

The solution to these issues must consider the legal backdrop of the drama. For the past 119 years, Puerto Rico has been an unincorporated territory, a possession that is not part of the U.S. Not all provisions of the U.S. Constitution apply here. One that undoubtedly does is the “territory clause,” which delegates to Congress the plenary power to make all needful rules and regulations. That includes Promesa, which provides that neither the governor nor the Legislature may do anything to defeat or impair determinations of the board. As a result, the chances for the government prevailing are slim, at best.

Regarding the constitutionality of board member designations under the Appointments Clause, the first issue is whether that clause applies. According to the so-called Insular Cases and their century-old doctrine of territorial nonincorporation, two types of constitutional provisions apply in Puerto Rico besides the territory clause itself: those that guarantee fundamental rights and those that Congress might extend to the territory. The Appointments Clause does not recognize fundamental rights of individuals. Has it been “extended” by Congress?

Several arguments stand in the way. First, according to Promesa, the board is funded with our taxes, and not by the U.S. Treasury, because it is not a federal agency but an instrumentality of the government of Puerto Rico. Its members are not “officers of the U.S.” Second, under Promesa, board designations do not comply with the Appointments Clause. If Congress had intended to extend the clause, it would have provided for designation of members in a manner consistent with it. Promesa is an exercise of plenary powers, which means Congress may regulate the territory without inconvenient constitutional limits, by simply not extending them to the territory, even tacitly.

The board will probably prevail in these cases. The salary of public employees will decrease, followed by the elimination of the Christmas bonus and the reduction of pensions. God knows what else is next. Even if it doesn’t happen, the decision will have been made not by a legitimate government—of the people, by the people and for the people—but by a government entity that is not our own, in which we have no real participation, and enforced by a judge designated by that other government.

There is nothing new in this. That has been the case since 1898. When the U.S. acquired sovereignty over Puerto Rico, the island became a territory subject to imperial plenary powers. Congress purports to continue exercising that authority. That is the textbook definition of colonialism. It will continue to characterize the relation between our two countries until we realize that it is incompatible with our general welfare, with basic values of democracy and the right of the people to self-determination. When those winds blow, the storm will begin to subside.

—Carlos Iván Gorrín Peralta is a professor of law at Universidad Interamericana de Puerto Rico.

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