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Puerto Rico Popular Democratic Party says repealing right to self-government not easy

By on July 23, 2018

Sen. Eduardo Bhatia (CB file)

SAN JUAN – The minority Popular Democratic Party (PDP) Senate Caucus in Puerto Rico, led by Minority Leader Eduardo Bhatia, asked a federal judge to allow it to file a legal brief as a friend of the court (amicus curiae) in the lawsuit filed by Gov. Ricardo Rossello against the island’s Financial Oversight and Management Board.

The motion, filed Saturday in U.S. District Court, comes after Magistrate Judge Judith Dein had rejected a request by members of the PDP in the House to intervene, rather than participate as friend of the court, in a companion case filed by Senate President Thomas Rivera Schatz and House Speaker Carlos “Johnny” Méndez Núñez. Both lawsuits claim the fiscal board has exceeded its authority under the Puerto Rico Oversight, Management, and Economic Stability Act (Promesa).

In arguments identifying a special interest warranting participation as a friend of the court, the motion noted that the PDP advocates for the full recognition of the people of Puerto Rico’s right to self-government, including existing rights under Act 600 of 1950, which allowed the island to organize its government under a constitution. The motion drew a distinction of their interests from those of the elected leaders of the commonwealth who control both the executive and legislative branches as members of the majority New Progressive Party (NPP), which pursues Puerto Rico’s admission as a U.S. state.

The motion noted that “said agenda includes minimizing the degree of autonomy and protections possessed by people of Puerto Rico pursuant to Public Law 600.” It further noted that “while Petitioners do not believe that the currently elected leaders of the Commonwealth will place their political agenda before the interests of the people of Puerto Rico, certainly Petitioners have a ‘special interest’ in ensuring that PROMESA is interpreted in a manner consistent with the existing degree of autonomy afforded under Public Law 600.”

The proposed brief, which was attached as an exhibit to the motion, argues that in adopting Promesa, Congress did not intend to redefine a structural relationship that the U.S. Supreme Court has described as bringing “mutual benefit to the Puerto Rican people and the entire United States.” The applicable standard, according to the brief, should be whether Congress unambiguously expressed its intention to do so.

“Stripping 3.3 million American citizens, which lack the procedural means to advocate via the normal political process, of their limited ability to participate in self-governance, demands an unambiguous expression of Congress’ intent to do so,” the document reads.

It points to prior changes in the political composition of Puerto Rico, noting that when Congress “elects to alter” the form of government for Puerto Rico, “it does so in clear and manifest manner, and specifically addresses language on the statute books that it wishes to change.” However, because Congress “was not willing to cross this Rubicon by shifting to the political configuration more closely resembling the naked colonialism requested by the Financial Oversight and Management Board, it strictly limited its intervention to that of fiscal oversight.”

The brief also alleges that the court need not go beyond the language of the statute itself to hold that Congress intended the financial board to be exclusively a method for fiscal oversight, and not an entity empowered by Congress to replace the existing republican form of government for local matters. Noting that Puerto Rico’s Constitution requires balanced budgets, it underscored for the court that “fiscal plans and budgets, after all, are only numerical targets based on rules under which governments routinely operate, many of which, as is the case for the Commonwealth, are inscribed in constitutions.”

Within Promesa, they argued, is the notion that balanced budgets are achievable, except to the extent that existing debt levels are prohibitive. “Fiscal rules, such as balanced budget requirements, are means to maintain credibility and access to financial markets…Notice, however, that to the extent it is determined, based on numerical rules, that the Commonwealth suffers from an unsustainable debt burden, the Oversight Board once again acts solely as a method to achieve a result,” the lawmakers said. Even when preparing the plan of adjustment, the plan is “only confirmable if all the legislative, regulatory and electoral approvals necessary to consummate the adjustment plan have been obtained,” the document says.

Attorney Rafael M. Arrillaga-Romany, who filed the request on behalf of the caucus, told Caribbean Business that “many want to belittle some of the protections we have to self-government, but there would be a tremendous political cost and reputational risk for Congress if it installed the type of government the oversight board claims is the result of Promesa.” He added that “a court should not let Congress do so through a backdoor; it must demand that Congress expressly legislate such a change.”

“All roads lead to the importance of ownership at many levels, including for the success of any fiscal plan,” the lawyer stressed.

See the full text of the document here.

Judge says Puerto Rico fiscal board is territorial entity and not subject to Appointments Clause


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