Governing under the Influence

After presiding over a failed colonial client regime during a period when the human suffering index among his people has escalated, Governor Alejandro Garcia Padilla should be chastened, not exuberant, as his final days in power approach. Instead, the Governor remains defiant against the rule of law and the U.S. Supreme Court itself, as well as President Obama’s legal policies, as confirmed by the highest court, in rulings rejecting the Governor’s discredited ideology about the political status of Puerto Rico.

2016 was a year in which the U.S. Supreme Court embraced without reservation the legal doctrines the Governor now refuses to respect, despite his oath of office to uphold the U.S. Constitution and federal law. As every President and the Congress have confirmed for decades, in the 2016 Sanchez Valle case the federal high court ruled Puerto Rico remains a U.S. territory with powers of local self-government defined by federal territorial law rather than the local or federal constitutions. In doing so, the U.S. Supreme Court affirmed the legal position of the U.S. Solicitor General in the Sanchez Valle case, recognizing that Puerto Rico can never become sovereign as long as it remains a territory of the United States. That means nationhood and statehood are the only status choices leading to sovereignty and government by consent of the governed.

Now a federal judge in Puerto Rico has affirmed the Sanchez Valle ruling in another local case (U.S. v. Santiago Colon). This ruling confirms Puerto Rico has local self-government and the ability to exercise the powers of sovereign government as permitted by Congress under federal territorial law statutes. This territorial form of self-government known as “commonwealth” is limited to local civil administration over purely local matters not otherwise governed by federal laws. Federal law is supreme and nullifies the local territorial constitution and laws to the extent of any inconsistency.

Yet, because the Federal District Court upheld the local territorial court’s ruling on exclusion of evidence in the case, the Governor issued a press release declaring that Puerto Rico has “greater powers” of self-government and retained sovereignty in the U.S. system of federalism than the 50 States of the Union! He did not stop there, but went on to cite language in the record of arguments in the Sanchez Valle case in which one U.S. Supreme Court Associate Justice stated that Puerto Rico has an “exceptional distinctive status, and, in fact, self-government.”

Of course, Kagan’s statement is also true of the Commonwealth of the Northern Mariana Islands, Guam, the U.S. Virgin Islands and American Samoa, as well as 32 earlier territories that became states and four territories that became nations. The Sanchez ruling confirms that territories granted local self-government under federal territorial law do not acquire powers of sovereign except permissively and derivatively through the exercise of the supreme and plenary power of Congress over territories under U.S. sovereignty but not in a state of the union.

According to the Governor’s press release, the Santiago Colon ruling somehow confirms a “unique relationship” between Puerto Rico and the U.S. that is more democratic and sovereign than the Union of 50 States. Yet, the term “unique relationship” applies to the other four territories as well, and simply means Congress is free to be benevolent or discriminatory toward each territory as it sees fit. That is because of a 1922 U.S. Supreme Court ruling in Balzac v. Puerto Rico holding that the equal protection and due process principles of the U.S. Constitution apply to federal territorial law and policy only as determined by Congress.

The Governor seems to think that pretending to be sovereign makes it so. In doing so he ignores the fact that no federal court has ever ruled any federal territorial law applicable in a territory unconstitutional, even if it would be held unconstitutional if applied to a State of the Union on equal protection of due process grounds. Only laws, actions and measures of the local territorial regimes created by federal law and ratified by local referendum or local law that proved to be impermissibly discriminatory have ever been overturned by federal courts.

So it seems clear the Governor is still under the spell of the discredited platform of the local “commonwealth” party junta.  How else do we explain his absurd declaration that the “commonwealth” regime in the territory has more power than a State of the Union?  States have voting representation in the Congress that makes national law; not so for Puerto Rico as a territory in which Congress makes the supreme law.  A State of the Union has the power to prosecute a crime under state law even if the federal government prosecutes the same crime, but in Puerto Rico under “commonwealth” the local government can not prosecute a crime if there is a federal prosecution.

That is because the Sanchez Valle ruling confirmed the “commonwealth” regime is still functionally if not by name an agency of the federal government, not a separate sovereign political status. Even if it is “unique,” “exceptional” or “distinctive,” the “commonwealth” is a territory, not a sovereign status. That is why to the extent of any inconsistency with fiscal recovery measures adopted by the new federal control board under the PROMESA, the Constitution of the Commonwealth of Puerto Rico has been suspended by Congress.

The local powers of sovereign self-government which the territorial constitution prescribes for the Governor, the local territorial Legislative Assembly and the local territorial courts are stripped away by any mandate of the federal control board. Instead of condemning Congress for adopting PROMESA and calling the control board a “junta,” it is the Governor’s anti-statehood, anti-nationhood “commonwealth” party that is the junta denying real sovereignty to Puerto Rico. PROMESA was necessary to stop the Governor and his cohorts in the party junta from governing while under the influence of discredited “commonwealth” ideology.

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