Puerto Rico officially lost the power to self-govern

The past few years have not been kind to Puerto Rico.

More than a million of Puerto Rico’s inhabitants have migrated to the mainland in the last decade; meanwhile, there has been a drop in the birth rate and the island is grappling with a fast aging population. The majority of the population faces poverty.

{mosads}The island has faced an economic recession since 2006. The government is bankrupt and its pension plans are insolvent, due to mismanagement and out of control public-debt financing for the last 30 years. Hurricane María crippled the island’s infrastructure, particularly its energy grid. Most recently, the island’s power to self-govern has been suspended.

There are many, at times competing, reasons that explain this course of events. There is, nonetheless, a common denominator that runs through all of them that account for why we are where we are. At its core, the fundamental problem facing Puerto Rico is its current unincorporated territorial status. This is not to suggest that if we solve the political status question all of its other problems will disappear. The problems facing Puerto Rico are many and deep, and no single step in and of itself will solve them. That said, it is important to realize that certain political conditions need to be met in order to fully address our current crisis.

As both President Bush (2007) and Obama (2011) Task Force Report on Puerto Rico’s Status noted, the economic and social development of Puerto Rico is inextricably tied to its political status. Failure to address the latter inevitably hampers the former.

This conclusion has been confirmed by Congress legislation of PROMESA in 2016 and the creation of the Financial Oversight Board, which for all practical purposes has placed the Government of Puerto Rico in the hands of unelected trustees.

On August 7, District Court Judge Taylor Swain dismissed the Government of Puerto Rico’s claim that the Financial Oversight Board is usurping its policymaking authority.

Regardless of one’s opinion on the necessity of a Financial Oversight Board — and there are compelling reasons for it — we must acknowledge that it is an unelected body which sits in fiscal judgement over Puerto Rico. From a purely democratic perspective this state of affairs highlights the disenfranchisement of 3.5 million American citizens and the urgent need to address it.

Another case before the district court, United States v. Maello-Madero, raises the question of whether an American citizen who resided in New York and later moved to Puerto Rico, was eligible to continue receiving Social Security (SSI) disability payments. American citizens in Puerto Rico are not eligible for SSI disability payments. Since Califano v. Torres in 1978 and Harris v Rosario in 1980, the Supreme Court has allowed the United States Government to discriminate against residents in Puerto Rico in the provision of welfare benefits so long as it has a rational basis. This rational basis, in turn, rests (again) on the doctrine of the unincorporated territory, allowing for the unequal protection of the law.  

Meanwhile, the territorial Popular Democratic Party (PPD) has promoted a campaign against incorporation and statehood. The 2012 and 2017 non-binding referendums prove, however, the voting majority in Puerto Rico favor statehood. Paradoxically enough, those in the PPD that favor independence do so as long as they can prospectively keep American citizenship for Puerto Rico.

Those that favor maintaining Puerto Rico as an unincorporated territory or moving it towards independence from the United States should place more faith in the democratic process, and at least argue for the celebration of a federally mandated referendum on the island’s status.

The only way out of the political and economic bottleneck in which Puerto Rico finds itself is by addressing the status question. The legal and constitutional responsibility to move the issue lies with Congress.

Andrés L. Córdova is a law professor at Inter American University of Puerto Rico, where he teaches contracts and property courses. He is also an occasional columnist on legal and political issues at the Spanish daily El Vocero de Puerto Rico.