Sunday, February 23, 2020

[Editorial] A Trifecta in the New Insular Cases

By on August 24, 2017

The recent controversy regarding the purview of the Financial Oversight & Management Board (FOMB) challenging the constitutionality of the Puerto Rico Oversight, Management & Economic Stability Act (Promesa) could wind up addressing control issues not too far afield. In his filing, Theodore B. Olson—who represented former President George W. Bush in Bush v. Gore and former Gov. Pedro Rosselló in Rosselló v. Acevedo Vilá—alleges that Promesa violates the Appointments Clause of the U.S. Constitution.

When Olson went before the First Circuit Court of Appeals in Boston to nix the “Triple X” votes cast in favor of former Gov. Aníbal Acevedo Vilá, he used the same one person-one vote argument voiced in Bush v. Gore. I heard those legal arguments in delayed streaming; in the days of old, before Netflix was bold. Despite Olson’s impressive dossier, his jurisprudence as pertains to our Mambo Tropics was understandably askew. His pitch fell on deaf ears; it applied to the part of, but not the appurtenant to—a state, not a territory.

How will Olson fare this time around?

As it stands right now, two separate entities—Aurelius, a hedge fund possessing Puerto Rico debt, and the Irrigation & Electrical Workers Union (Utier by its Spanish acronym)—have filed suit challenging Promesa’s violation of the Appointments Clause because the members of the FOMB were appointed by then-President Obama without the confirmation of the U.S. Senate. Obama selected six of the FOMB members from lists submitted by the Speaker of the House, Senate Majority Leader, House Minority Leader and Senate Minority Leader.

The plaintiffs allege FOMB members are top-tier personnel similar to cabinet members “who have no superior officer save the president,” but require Senate confirmation. The defendants allege that board members are the creatures of congressional law that clearly establishes the board as a territorial entity.

Who is right? This will be decided by Justice Laura Taylor Swain, who presides over the Title III bankruptcy proceedings in the U.S. District Court for the District of Puerto Rico. Although there is legal precedence in Appointments Clause challenges involving federal agencies—the D.C. Circuit’s ruling on the impermissibility of the Consumer Financial Protection Bureau’s single-director structure—there are, to date, no cases challenging the Appointments Clause challenging territorial entities.

The Great Hall of the U.S. Supreme Court. (iStock)

Several legal experts for Bloomberg proposed that: “Even if a challenge were successful, the court could craft a moderate remedy that might avoid the full-blown havoc resulting from a dismissal of the Title III proceeding. Should the court find that the board violates the Appointments Clause, the court could fashion a narrowed remedy by limiting the oversight board’s authority and its commonwealth restructuring activities while Congress crafts a legislative fix.”

What most fail to mention is that there is a possibility at the end of the road that this will wind up being yet one more legal harangue that underscores Puerto Rico’s territorial status. That door was pried open when the U.S. District Attorney for the District of Puerto Rico filed “acknowledgement of Constitutional challenge and notice of potential participation”—and oh, by the way, the U.S. Solicitor General has 60 days to decide whether to intervene.

The involvement of the Solicitor General would open the possibility of a trifecta in the new millennial insular cases nearly 100 years after Balzac v. Puerto Rico decided Puerto Rico was not a part of, but appurtenant to the United States.

This newspaper’s sources on the Hill with ties to the GOP have already said President Trump would not be investing political capital in Promesa. Do not be surprised if Gov. Ricardo Rosselló’s recent missive to Trump, alleging the board is acting beyond its purview, becomes collateral damage in the Appointment’s Clause challenge. Consider the scenario where Justice Taylor decides everything remains hunky dory while the appeals process is put on a fast track and the case makes it all the way to the U.S. Supreme Court. In a split decision, the Supremes could decide that although the precedence exists on the Appointments Clause pertaining to federal agencies, Promesa, as a territorial entity, does not apply and the board’s powers are made clearer in the decision’s language—just for good measure.

Time was when legal observers doubted the U.S. Supreme Court would delve into Puerto Rico’s status; they were proven wrong in the Commonwealth of Puerto Rico v. Franklin California Tax Free Trust and they were proven wrong in Sánchez Valle v. the Commonwealth of Puerto Rico. If the Solicitor General jumps into the Promesa fray, we could be witnessing the third in a trifecta reaffirming Puerto Rico’s territorial status.


One Comment

  1. howard hills

    August 24, 2017 at 2:03 pm

    This is the first political status related editorial I have read by Mr. Schoene Roura in which the balance between a focus on the merits of the issues and his blatant ideological bias tips in favor of insight and truth. In other words, this strikes me as an erudite and objective analysis of the allocation of political risk and probable outcomes for stakeholders as federal court judicial review proceeds with respect to the constitutionality of the PROMESA enabling statute and powers of the Financial Oversight and Management Board established thereunder.

    I would augment his astute assessment with a few observations.

    The rulings of the U.S. Supreme Court and the briefs filed by the Solicitor General of the United States in the Sanchez Valle case were not in the nature of a “legal harangue that underscores Puerto Rico’s territorial status.” The federal territorial law and policy confirmed in that case are consistent with the interpretation of federal territorial organic law and federal court jurisprudence spanning the last 117 years of U.S. imperial rule in Puerto Rico.

    It has instead been the “harangue of autonomist doctrine in denial that ‘commonwealth’ is territorial” that misled U.S. citizens of Puerto Rico to forego the right to government by consent and self-determination that they do have as Americans. Lamentably, this forfeiture of rights has been based on the false promise of a so-called right of “mutual consent” and “sovereign autonomy with ‘dual national citizenship'” under a fictitious “bilateral pact” and “fiscal autonomy” that they don’t have as residents of a territory. Those fictional rights do not exist and never will exist.

    Schoene Roura also seems to assume that if “the U.S. Supreme Court would delve into Puerto Rico’s status” it somehow would have an epiphany and embrace the ideological narcissism of the autonomist ideological doctrine. To the contrary, it was Cold War imperialists and judicial activists in the federal courts who “delved into status” by pandering to political mythology of the autonomist junta during the late 20th century. Not in actual rulings but dictum in court opinions like that in the U.S. v. Quinones and PDP v. Rodriquez rulings that paid lip service to the idea that “commonwealth” meant Puerto Rico was no longer a “mere territory.”

    Just as the phrase “in the nature of a compact” in the 1950 federal organic act allowing a territorial constitution to be adopted does not mean it was in fact and actual compact, the term “mere territory” is an adjective without legal content because it does not mean Puerto Rico is anything more than a territory. This tendency of federal courts in the context of velvet gloved Cold War imperialism to “delve into status” was typical of the anti-democratic, anti-statehood, anti-independence collaboration between the autonomists in Puerto Rico since American rule began.

    Indeed, the autonomist scam goes back to the Luis Munoz Rivera “pact” with the Spanish colonial aristocracy offering “autonomy” instead of true equality and liberty in 1897. In the post WWII era Luis Munoz Marin and the federal imperialist court judges willing to “delve into status” were collaborating to justify the hoax played by autonomists and their imperialist cohorts in Washington in the U.N. in 1953. That resulted in U.N. Resolution 748 declaring Puerto Rico decolonized even though everyone knew it wasn’t.

    Current SCOTUS Associate Justices Breyer and Kennedy have a history of collaboration with the autonomist party junta. That was not only true of Breyer in his appellate court rulings on Puerto Rico status, it was more recently reflected in Kennedy’s opinion in the GITMO case (Boumediene). That ruling opportunistically borrowed and absurdly invoked the meaningless “fundamental rights” phrase in Balzac to uphold a non-existent right of habeas corpus for foreign enemy combatants on foreign soil. An ironic outcome when that same token throw away phrase from Balzac never once has been invoked to redeem or vindicate any “fundamental right” of citizenship in regard to any federal government action of law in Puerto Rico.

    But the Sanchez Valle case made it impossible for Breyer or Kennedy to spin the web of autonomist illusion any longer. The more the court “delves into status” the more decisive the rejection of the autonomist doctrines will be come. Schoene Roura is right about that, even though that was perhaps not the inference he intended readers to draw.

    Finally, it should be noted that the Balzac case and Chief Justice Taft’s use of a dumb-ass property law term about Puerto Rico not being “part of, but appurtenant to” the U.S. is not the source of Puerto Rico’s protracted and embarrassing colonial status problem, and Schoene Roura implies. The problem with Balzac is that without any compelling logic Taft deviated from the Lousiana, Alaska and Hawaii precedents in which conferral of U.S. citizenship under the instrument for acquisition of U.S. sovereignty over a foreign population and territory also extended the U.S. Constitution in keeping with the Northwest Ordinance tradition of territorial incorporation.

    In a cavalier and flippant tone Taft’s opinion brashly stated that any territorial citizens who didn’t like being denied fundamental rights in the territory could relocate to a state. Given the failed client state syndrome under the “commonwealth” regime Schoene Roura defends, voting for statehood with their feet and rejecting “autonomy” for equality, that is exactly what a million Americans form Puerto Rico have done over the last decade.

    The Sanchez Valle case, Commonwealth v. Franklin case, like the earlier Acosta Martinez, Romeu and Quinones cases, confirm what has been clear for decades. Balzac and the cases that follow it are to wrong because these rulings classify the “commonwealth” as a territory under the unincorporated territory doctrine of the early Insular Cases. Balzac is wrong because the early Insular Cases applied to non-citizens in the unincorporated territories, and when Balzac was decided the territorial residents were U.S. citizens and the territory should have been recognized as incorporated under the U.S. Constitution. If not, Puerto Rico should have become a sovereign nation like the Philippines territory in 1946, or Puerto Rico would have become a state like Alaska and Hawaii in the 1950’s.

    Instead, the same collusion between imperialists in the U.S. and the autonomists in Puerto Rico to prevent informed democratic self-determination leading to statehood or nationhood have prevented equal rights and opportunities of citizenship at the national level and kept the residents of Puerto Rico on the imperial autonomist plantation and federal native reservation known as the “commonwealth” regime. Schoene Roura is one of the overseers who uses the editorial page of Caribbean Business to keep the natives from getting restless and make sure they are happy campers in a failed client state.

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