SAN JUAN — Puerto Ricans have a solid national identity of which we are very proud. Our music, literature and overall cultural legacy are internationally recognized and celebrated globally. Our homeland, however, is a non-sovereign territory that belongs to the United States under the administration of the House Committee on Natural Resources.
Despite our American citizenship, recent events regarding Puerto Rico have evidenced a disparity in treatment towards our residents. Our current political relation with the U.S. stems from a series of racist, early 20th century Supreme Court decisions known as the Insular Cases. Categorizing differences in religion, customs, and modes of thought among other reasons, they established that equal administration of government and justice would be “impossible” for the inhabitants of Puerto Rico. Today, cemented on the Insular Cases, PROMESA prolongs this colonial power dynamic, conceptualizing the people who live there as inferior, and imposing a government entity pronounced unconstitutional by a Federal Court.
In February, as part of the territorial bankruptcy system case to restructure Puerto Rico’s public debt, the Boston First Circuit Court of Appeals, presided by Judge Juan Torruella, declared unconstitutional the process in which the members of the Fiscal Control Board were selected. Understanding that although Congress does have plenary powers over Puerto Rico, this does not imply avoiding the clause that regulates federal official appointments. During the case, Rolando Emmanuelli, an attorney representing the Electric and Irrigation Industry Workers Union (Spanish acronym UTIER), based his claim on the anachronism of the Insular Cases doctrine. According to him it “dates back to a slavery period and it treats Puerto Rico as property of the United States.” The court acknowledged the Insular Cases as a “relic ,”yet dismissed the argument because it is under the Insular Cases jurisprudence that Congress enacted the bipartisan PROMESA and created the Fiscal Control Board.
Interestingly in 2014, during a conference at the Harvard School of Law, Judge Torruella said the Insular Cases represents classic Plessy v. Ferguson legal doctrine, and how it should be totally eradicated from present-day constitutional reasoning since they directly clash with the constitution.
In 1901, the Supreme Court had to define their relation to the newly acquired territories resulting from the Spanish-American War. Driven by “certain principles of natural justice inherent in the Anglo-Saxon character,” and referring to the inhabitants as “savages” unfit to govern themselves, the Insular Cases outlined the hegemony of the U.S. over the territories. Holding that due to the difficulties of assimilating these “alien races,” only certain basic rights would apply to them. A regulation that created the concept of Puerto Rico belonging to the United States but not being part of the United States.
From a modern perspective, these decisions sound outdated and saturated with racism. In Puerto Rico, there is a racial and ethnic minority without political power, an overwhelming percentage of the people are of Hispanic origin. To this day. the discrimination provided by the Insular Cases gives Congress the legal justification to violate fundamental rights against American citizens because of their race and the place where they live. This disparity in constitutional rights led a federal court to deem Puerto Rico as a “citizenship apartheid” in the conclusion of the U.S. v. Vaello-Madero case.
José Luis Vaello-Madero lived in New York. Due to a disability, he was receiving Supplemental Security Income (SSI) benefits, and in 2013 he decided to move to Puerto Rico. He did not know how this relocation would disqualify him from participating in the SSI program. Under a federal statute, only residents of the 50 states and the District of Columbia are entitled to receive such benefits. In 2016, the Social Security Administration became aware of his new address, abruptly stopped his payments and later sued him for the amount paid since he moved to Puerto Rico, a total of $28,081. Vaello felt the government’s actions were unconstitutional. He refused to reimburse the money and challenged the Insular Cases as well as the territorial clause which gives Congress the power to enact all rules and regulations needed to govern a territory.
On February 4, Gustavo Gelpí, Chief Judge for the United States Court for the District of Puerto Rico wrote his decision on the case: “Classifying a group of the Nation’s poor and medically neediest United States citizens as ‘second tier’ simply because they reside in Puerto Rico is by no means rational. Fundamental rights are the same in the States as in the Territories, without distinction. As such, federal legislation that creates a citizenship apartheid based on historical and social ethnicity within United States soil, goes against this very concept.” Regarding the territorial clause, Gelpi added; “This clause is not a carte blanche for Congress to switch on and off at its convenience the fundamental constitutional rights to Due Process and Equal Protection by a birthright United States citizen.”
Vaello-Madero does not have to pay back the money. Unfortunately, aside from pointing out individual incongruences and deficiencies in the legacy of the Insular Cases, it does not seem like the Supreme Court can actually correct anything. This power is in the hands of the Executive and Legislative branches, who don’t really want to use that power to focus on the territorial “relationship.” To the contrary, regardless of its constitutionally illegal formation, the Control Board remains, and austerity measures prevail. Elements of self-governance delegated in 1948 were taken away when President Obama signed The Puerto Rico Oversight, Management and Economic Stability Act (PROMESA) in 2016.
Back to the premise of “unfit” to govern ourselves, the language of PROMESA perfectly fits the definition of colonialism. As Section 108 of the law states:
(a) In General.—Neither the Governor nor the Legislature may—
(1) exercise any control, supervision, oversight, or review over the Oversight Board or its activities; or
(2) enact, implement, or enforce any statute, resolution, policy, or rule that would impair or defeat the purposes of this Act, as determined by the Oversight Board.
(b) Oversight Board Legal Representation.—In any action brought by, on behalf of, or against the Oversight Board, the Oversight Board shall be represented by such counsel as it may hire or retain so long as the representation complies with the applicable professional rules of conduct governing conflicts of interests.
As Congress and its Fiscal Control Board tighten the severe austerity measures on the people of Puerto Rico, the recent resignation of Noel Zamot, the Revitalization Coordinator for the Board, represented the failure of PROMESA to implement a sustainable initiative to boost the local economy. Meanwhile, the federal government is not providing the help necessary to rebuild the country after the devastation of Hurricane Maria. Still struggling with the total social collapse left by the storm, many Puerto Ricans feel the only way out of poverty is to migrate to the United States, leading to the mass loss of residents in their prime working years.
The general outcome of 121 years of US intervention is not one of progress—it is a territory with a $70 billion debt, no financial model, a decaying infrastructure, and a population consisting mostly of poor families and elderly people.
Few months before the imposition of PROMESA, the Supreme Court defined the political status of Puerto Rico as a “quasi-colony.”
It’s never “quasi.”
It’s always been a colony.
Hugo Marín González is a Puerto Rican linguist and a journalist. A regular correspondent for La Jornada Latina in Pittsburgh, he holds a B.A. in Hispanic Linguistics from the Inter-American University of Puerto Rico in San Germán.