Puerto Rico and the US territories:
The need to resolve constitutional and political issues
Saipan—I have just finished reading 1st Circuit Judge Gustavo Gelpi’s book, “The Constitutional Evolution of Puerto Rico and Other U.S. Territories (1898-Present).” For anyone interested in learning about the constitutional development and political history of Puerto Rico and the other territories of the United States, Judge Gelpi’s book is an excellent primer on the subject.
The book discusses the history of the U.S. territories, particularly Puerto Rico, and their treatment (many times disparate and unfair) by the U.S government, especially the Congress and the Supreme Court, ever since they became territories of the United States.
The reader will learn that, since the acquisition of Puerto Rico, Guam and the Philippines in 1898 as a result of the Spanish-American war, the United States has dealt with the territories primarily through “the plenary powers of Congress over the territories,” as set forth in Article IV of the U.S. Constitution. Referred to as the “Territorial Clause,” this provision of the U.S. Constitution gives Congress literally unfettered powers over the territories, i.e., as if the territories are merely properties belonging to the United States. Soon after these islands became “territories” of the United States, a series of cases relating to Puerto Rico and the other territories was decided by the U.S. Supreme Court. They have since been referred to as “the Insular Cases.” Composed of literally the same justices that decided the now infamous “separate but equal” case of Plessy v. Ferguson, the Supreme Court decided that the U.S. Constitution does not apply “of its own force” to Puerto Rico and the other territories unless they are destined for statehood.
As such, Puerto Rico and the other so-called “unincorporated territories” (e.g., Guam, the Virgin Islands, American Samoa) were deemed to be “not a part of the United States” for the purpose of the imposition of duty on goods entering the United States proper from Puerto Rico. Presumably, only the 50 states constitute “the United States” for purposes of the U.S. Constitution. The Insular Cases have since been viewed as racist and demeaning to the inhabitants of the insular territories. For example, the Insular Cases viewed the inhabitants of the territories as uncivilized, primitive savages with alien customs, strange languages and cultures, and so forth.
Judge Gelpi’s book discusses the decades of frustration on the part of the people and leaders of the U.S. territories with respect to the way that Congress and the Supreme Court have treated the territories ever since the Insular Cases were decided over a century ago. It took Congress a very long time to enact meaningful laws that began to address the rights of U.S. citizens in the territories, including their right to govern themselves locally, as well as to be accorded some of the rights and privileges that are accorded U.S. citizens in the 50 states.
For example, it took Congress over 50 years to enact federal legislation allowing Puerto Rico to draft and adopt its own local constitution. It also took Congress roughly 50 years to enact federal legislation granting U.S. citizenship to the people of Guam.
And to this day, Guam and the Virgin Islands are still governed pursuant to their respective Organic Acts, which Congress had enacted for those territories in 1950, and which have since been amended by Congress several times to, among others, allow for an elected territorial executive, to provide for a territorial supreme court and to have an elected delegate to the U.S. Congress.
To the present, the territorial governments of Guam and the Virgin Islands remain creatures of federal legislation. Unlike the Northern Mariana Islands, these two territories still do not have their own local constitution. And although Congress has since permitted both territories to draft and adopt their own constitution, Guam still has not done so. The Virgin Islands had earlier drafted a local constitution, but it was not approved by Congress.
Congress’ treatment of the territories over the past 125 years has mostly been uneven, disparate and, many times, unfair (if not condescending) to the people residing in the territories. For example, Congress enacted federal legislation in the ‘60s making the federal judges in Puerto Rico, Article III judges with lifetime tenure. But the federal judges on Guam, the Virgin Islands and the Northern Mariana Islands—for several decades now —remain Article I territorial judges, with a limited term of only 10 years.
Another example of the disparate treatment of the territories and commonwealths is the applicability of the Supplemental Security Income (SSI) program to the Northern Mariana Islands, but not to the other territories. Indeed, a native of Puerto Rico who was receiving SSI financial assistance while living in Illinois, became ineligible for the program when he moved back to Puerto Rico. Is this fair? Of course not.
So even Puerto Rico with over three million people has found itself on the short end of the congressional stick many times. For example, in 1950, Congress passed federal legislation that asked the people of Puerto Rico to decide whether it agreed with Congress’ proposal for the people of Puerto Rico to draft and adopt their own local constitution. Amid much fanfare and hoopla back then, the people of Puerto Rico agreed with the proposal of Congress, based on their understanding that, by adopting their own constitution, they would be establishing a new political relationship with the United States, i.e., Puerto Rico would become a “commonwealth” of the United States, and the people of Puerto Rico would have autonomy over all commonwealth matters, just like the way each State controls its internal affairs.
Unfortunately, this belief that the people of Puerto Rico would have autonomy over their internal affairs was dashed by several Supreme Court cases that were rendered just within the past several years. For example, Congress enacted federal legislation a few years ago which established a “Financial Oversight and Management Board” to oversee and manage the financial affairs of the bankrupt government of Puerto Rico. Most unusually, Congress gave this federally established oversight board, the power and authority to supersede the power and authority of the duly elected governor and legislature of Puerto Rico, with respect to Puerto Rico’s finances and debt obligations. Puerto Rico was then (and apparently still is) in bankruptcy to the tune of $70 billion originally.
The federal legislation came up for review before the Supreme Court on the issue of whether the members of the financial oversight and management board were subject to confirmation by the U.S. Senate on the assertion that they are “federal officers” since they were appointed by the U.S. president. (See, Financial Oversight and Management Board v. Aurelius Investment LLC, Case No. 18-1334, decided June 1, 2020.) The Supreme Court ruled that, although the financial oversight board members were appointed by the president, they are “not federal officers” and, therefore, are not subject to Senate confirmation.
The court decided that, although appointed by the president, the board members are rather “officers of the Commonwealth of Puerto Rico” and do not require U.S. Senate confirmation because of the “primarily local duties of the board.” This is so, notwithstanding the fact that the federal legislation that enacted the Puerto Rico Oversight Management and Economic Stability Authority or PROMESA also gave the PROMESA board powers that infringe on and supersede the power and authority of the duly elected executive and legislative officials of Puerto Rico.
The Supreme Court decision, with respect to the PROMESA board members, shows that, although Puerto Rico was given authority in 1950 under U.S. Public Law 600 to govern itself internally, Congress could still, at any time, step in, intrude or even take over the internal and local affairs of Puerto Rico.
The Supreme Court ruling shows that the Territorial Clause is “still alive and well” in Puerto Rico, notwithstanding the fact that 72 years ago, Congress had enacted Public Law 600 so that Puerto Rico could adopt its own constitution and assume full authority in governing itself internally.
In establishing the PROMESA board as “a commonwealth entity” but with powers that supersede the powers of the elected officials of Puerto Rico, Congress has, in effect, reneged on its 1950 commitment under Public Law 600 to give Puerto Rico full autonomy over all commonwealth matters, including its finances and debt obligations.
Still another recent Supreme Court case—Commonwealth of Puerto Rico v. Sanchez-Valle—decided that, unlike the 50 states, Puerto Rico is not a “sovereign” entity and as such, under the Double Jeopardy Clause of the U.S. Constitution, Puerto Rico cannot prosecute a person under Puerto Rico law, for the same offense that the person has already been prosecuted by the federal government under federal law. The court ruled that Puerto Rico derives its local authority to prosecute through the same source as the federal government—i.e., U.S. national sovereignty.
So where do things stand today with respect to the U.S. territories and the people who live there, in view of Congress’ continuing plenary powers over the territories? It appears, based on the recent Supreme Court rulings that the status quo still stands as it did when the Insular Cases were first decided in 1901. In other words, Congress still has “veto powers” over all territorial government affairs, pursuant to the Territorial Clause.
The local autonomy of the territories including Puerto Rico, if there is any, takes a back seat to the Territorial Clause of the U.S. Constitution. This constitutional provision is the federal government’s “trump card” (no pun intended) over the territories. When events in the territory go awry, as it sometimes happens, Congress can step in and take control of things.
But aside from the foregoing issues involving Puerto Rico and the other U.S. territories, the truly fundamental problem affecting the people of the territories relates to their inability, as U.S. citizens, to fully participate in the political affairs of their mother country—the United States. Praised as “the first democracy” when it was established in 1789, the United States ironically still has four million U.S. citizens in the territories and commonwealths who are not allowed to vote for the U.S. president.
Also, because the territories and commonwealths are not States, their citizens are not constitutionally represented in the U.S. Congress with their own elected representatives, at least in the House of Representatives.
Most unfortunately, the U.S. Supreme Court, to this day, is still reluctant to set aside its racist 1901 ruling in the Insular cases which decided that the territories are “not a part of the United States” until such time as Congress declares that a territory is “destined for statehood.” Only then would the U.S. Constitution apply to that territory and become an “incorporated territory” of the United States. Only then would it be considered “a part of the United States.”
Ultimately, most of the fundamental problems that the territories and their citizens have with their mother country stem from the outdated and archaic nature of the Territorial Clause that effectively says that Congress has “plenary powers” over the territories. In order to rectify and correct the constitutional problems confronting the territories, the U.S. Constitution must be amended so that, among other things, all U.S. citizens in the territories could vote for their president and be given full-fledged representation in Congress.
It is time for the U.S. Constitution to apply to all the territories, not just the 50 states. After all, the U.S. territories are not a part of a foreign country. Neither should they be treated as a piece of real property that could be disposed of by the U.S. Congress. Jose S. Dela Cruz is the former chief justice of the CNMI Supreme Court. Send feedback to email@example.com.