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[COLUMN] Et tu, Ricky and José?

By on December 20, 2017

Most Puerto Ricans are familiar with the “Insular Cases,” a series of decisions by the U.S. Supreme Court that say Congress may do with Puerto Rico as it pleases, given its territorial status, with the exception of alienating fundamental rights. The most ubiquitous of these decisions is the 1901 Downes v. Bidwell decision, which is now at the center of the legal theory being used by Gov. Rosselló and the Fiscal Oversight & Management Board to defend Promesa, the P.R. Oversight, Management & Economic Stability Act, against claims by both creditors and a local union that the appointment of the members to the Board violates the Appointments Clause of the U.S. Constitution.

For context, all parties to the Appointments Clause litigation agree on one point: The only thing at issue in that litigation is whether, as the challengers claim, the President should have a free hand to appoint the Board members subject to Senate confirmation, or whether, instead, the incumbent Board members, who were effectively picked by four members of Congress, should be allowed to keep their positions and be spared Senate confirmation. Neither asset manager Aurelius nor Utier, the Irrigation & Electrical Workers Union, have sought to throw out Promesa or change any of its provisions other than the one dealing with how Board members are selected, and even then, they just suggest minor surgery on that one.

Attorney John Mudd

The Downes v. Bidwell decision is not a simple business decision handed down by the U.S. Supreme Court at the turn of the century; it is a pinnacle moment in U.S. legal history that provides a picture-perfect example of our nation’s past rooted in racism and colonialism. Let’s put this into context: Downes, which was written by the same Court that upheld racial segregation in Plessy v. Ferguson, states that “if the conquered are a fierce, savage, and restless people, [Congress] may […] govern them with a tighter rein, so as to curb their ‘impetuosity, and to keep them under subjection.’” The decision gives Congress the right to create such organizations as “it may deem best,” and “to deprive such territory of representative government if it is considered just to do so, and to change such local governments at [its] discretion.”

Furthermore, citing Downes as a reason to support the Board as “good law,” the Government of Puerto Rico accepts that U.S. citizens born in Puerto Rico are not protected by the U.S. Constitution, and are fundamentally seen as second-class citizens. More specifically, the Downes decision actually states that the 14th Amendment contains a “limitation to persons born or naturalized in the United States, which is not extended to persons born in any place,” with Puerto Ricans excluded from the protections of the 14th Amendment by this limitation.

Downes has been cited by Gov. Rosselló and his administration, as well as the Board, in its opposition to the Aurelius and Utier constitutional challenge to the Board’s appointment.

I can understand why the Board cites Downes in its legal arguments because its members will do anything to justify their continued existence. However, what depressed me is to see the Government of Ricardo Rosselló, who I had always regarded as the standard bearer of the

Statehood movement, invoking the most despicable judicial decision in history regarding Puerto Rico’s status.

Adding insult to injury, we are forced to reasonably conclude that the Board Chairman, José Carrión III, a leading proponent of Statehood, had final sign-off on the use of Downes in the legal motion. In doing so, Carrión signaled his support for a racist legal doctrine that claims Puerto Ricans are inferior and second-rate citizens in order to uphold his appointment on the Board. Shame on him.

(Juan J. Rodríguez / CB)

As a practicing federal lawyer, and Statehooder myself, invoking Downes is troubling enough; however, what makes it even more difficult to grasp is that it was unnecessary to rely on the Insular Cases to argue against the Aurelius/Utier challenge. Aurelius does not mention these cases in their claims at all. Gov. Rosselló could have rejected Downes and argued that Puerto Rico was an incorporated territory, to which Downes does not apply, as Judge Gelpí decided in Consejo de Salud de Playa de Ponce v. Rullan. This way Puerto Rico could continue to argue in favor of the Board’s legitimacy but without the inherent discrimination allowed by the Downes decision. So, the Puerto Rico government is raising questions about its own autonomy on their own volition and, in doing so, reinforcing the idea that the Board should have power over all Puerto Ricans rather than their own elected government.

Moreover, the government’s motion supports the ludicrous idea that the Board is merely a “territorial”—and not federal—government entity. As those of us in Puerto Rico know, that is laughable. The reality is that the Board has extensive powers over the Puerto Rico government that no other local agency has: Indeed, neither the Governor nor the Legislature may “exercise any control, supervision, oversight, or review over the Oversight Board or its activities,” as Sec. 108(a)(1) of Promesa states. Puerto Rico has no way of holding any member of the board accountable for the decisions they make.

Even worse, if Judge Swain were to side with the Board and the government of Puerto Rico, Puerto Rico could not later challenge the Downes case, and this bad law born of an era of racism and discrimination.

Why? The doctrine of “judicial estoppel,” which states that if a party argues one point and gets favorable treatment by the Court on that issue, it is precluded from subsequently arguing the contrary. How can Puerto Rico challenge this racist doctrine down the road if it is citing its principal case with approval?

The unintended consequence is that Gov. Rosselló, with the help of José Carrión III, will have undone 50-plus years of fighting for equality and Statehood to protect the Board, and for reasons that are not even necessary.

All this for the sake of the Commonwealth’s Title III bankruptcy. In the eyes of the Board and Gov. Rosselló, it is better to have 100 more years of colonialism and discrimination than to have to pay the island’s debt. This is the “unkindest cut of all.” Et tu, Ricky and José?

— John Mudd is an attorney and legal analyst in Puerto Rico with over 30 years of experience. He is admitted in Puerto Rico, the U.S. District Court for Puerto Rico and the First and Fourth Circuit Courts of Appeals. For more than three years, he has been analyzing the possibility of a control board for Puerto Rico. You can follow him on Twitter @muddlaw and on his blog www.johnmuddlaw.com.

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