This Article touches upon some issues of fundamental importance to the several million disenfranchised United States citizens that reside in Puerto Rico. I write with a modicum of uneasiness as a result of the uncertain terrain on which the United States-Puerto Rico relationship presently finds itself, firstly, by reason of two cases that are pending resolution by the Supreme Court of the United States — Puerto Rico v. Sánchez Valle[1] and the consolidated cases of Puerto Rico v. Franklin California Tax-Free Trust[2] and Acosta-Febo v. Franklin California Tax-Free Trust[3] — which have already been argued and are awaiting decision, and secondly, because Congress is now considering legislation entitled the “Puerto Rico Oversight, Management, and Economic Stability Act,” referred to by the uncomfortably inapt acronym “PROMESA” — “promise” in Spanish — pursuant to which the Government of Puerto Rico will be placed in virtual trusteeship by the U.S. Government.

Each of these cases and this legislation hold the potential to drastically change the U.S.-P.R. scenario depending on which of several paths the Court chooses to take in resolving the basic questions the cases raise, and what it is that Congress eventually enacts to “assist” the people of Puerto Rico. The final product of the cases could run a gamut of results. What Congress will produce is anyone’s guess, but judging from the so-called “discussion draft” of PROMESA, it does not appear that Puerto Rico is about to be released from the colonial grip of the plenary powers that were authorized by the Insular Cases,[4] but that in fact this grip will be tightened to a virtual stranglehold. This Article addresses several matters that may serve as background when these cases are decided and Congress passes legislation.

Introduction: A Presently Problematic State of Affairs

Even as we proceed well into the 21st century and this country actively promotes our democracy to the rest of the world, we unfortunately do not always practice what we preach. This is particularly true with reference to the constitutional and political rights of those who reside in our various outlying non-state jurisdictions, in areas which we euphemistically refer to as “territories” or “possessions,” when they are, de facto and de jure, colonies. There should be no question about this asseveration as regards American Samoa, Guam, or the U.S. Virgin Islands, for which as recently as January 13th of this year, the United States filed reports as required by Article 73(e) of the United Nations Charter, part of the U.N. Declaration Regarding Non-Self Governing Territories.[5]

Although the United States ceased filing these reports for Puerto Rico in 1952 following representations to the United Nations to the effect that Puerto Rico had become a self-governing entity by reason of the establishment of the Commonwealth of Puerto Rico, these avowals did not represent the true legal or constitutional situation when they were made, nor have they become any more true at any time since then to the present.[6] Any doubt as to the veracity of this assertion may be dispelled by consulting the amicus brief filed by the Solicitor General on behalf of the United States before the Supreme Court in Puerto Rico v. Sanchez Valle,[7] in which the United States argues that the approval of self-government for Puerto Rico in 1952 did not change Puerto Rico’s fundamental constitutional status as a U.S. territory subject to the paramount authority of Congress under the Territorial Clause.[8]

A perhaps even more poignant and present example of Congress’s colonial control over Puerto Rico lies with the proposed PROMESA legislation, which, among other things, would establish a so-called “Oversight Board,” a non-elected entity of seven members appointed by the President.[9] This Board will have the power to impose a deadline on the Government of Puerto Rico for developing a fiscal plan and budget that meet Congress’s criteria — as well as the right to reject Puerto Rico’s proposals and substitute its own instead.[10] Puerto Rico will not, of course, be represented on the Oversight Board: Unlike the previous version of the legislation, which suggested that at least two of the then-five members of the Board must already live or have a primary place of business in Puerto Rico to be appointed, the version introduced in the House on Tuesday only requires one member “shall maintain a primary residence . . . or have a primary place of business” in Puerto Rico, leaving open the possibility of filling this slot with anyone willing to move to Puerto Rico to satisfy that criterion.[11] Although the Governor is nominally part of the Board, he is only an “ex officio” member without any voting rights.[12] The legislation also gives the Board the prerogative to demand any information and documentation it believes may be relevant from the Government of Puerto Rico[13] and requires the Puerto Rico legislature to submit all acts it passes, along with estimates of their cost, to the Oversight Board for evaluation in short order.[14] If the Board determines that an act is not consistent with the approved fiscal plan, it may unilaterally dictate that the act be changed or simply overrule the Government of Puerto Rico to block its enforcement or application.[15] The Board may also require the Government of Puerto Rico to submit all contracts and leases to the Board for approval.[16] And, of course, Puerto Rico will also have to get the Board’s approval before it can “issue debt or guarantee, exchange, modify, repurchase, redeem, or enter into similar transactions with respect to its debt.”[17]

Of course, this is not PROMESA’s only outrageous inclusion. Tucked into the legislation is another provision which is perhaps even more pernicious to Puerto Rico and its people’s future, given the Island’s limited land and natural resources. Section 411 would open up thousands of acres of protected land in Puerto Rico to private development.[18] Even the Secretary of the Interior has condemned this provision.[19]

The PROMESA legislation is just the latest chapter. There is more damning evidence throughout history of the United States’s colonial hold over Puerto Rico. Review of this evidence and relationship demonstrates that Puerto Rico’s present woes were not only foreseeable but inevitable given the social, economic, and political processes to which Puerto Rico and its inhabitants have been subjected under the sovereignty of the United States.

The Tragic Transition to U.S. Sovereignty and Its Sequelae

The story of Puerto Rico’s present condition begins, in truth, with the Treaty of Paris of 1898, which ended the Spanish-American War. In providing for the cession of Puerto Rico from Spain to the United States, the Treaty stated, in its Article IX, that “[t]he civil rights and political status of the native inhabitants . . . shall be determined by Congress.”[20] This provision was contrary to the unwavering practice and prevalent constitutional law up to then regarding all other territorial acquisitions by the United States. In all prior cases, upon acquiring additional territory, U.S. citizenship and rights were granted to the inhabitants of the newly acquired lands, irrespective of the means used to add those territories to the Nation’s domain.[21]

The new practice instituted after the Spanish-American War effected not only a departure from past practice by the United State but a retrogression from how things were in Puerto Rico during Spanish rule, under which the Island was a province of Spain (the equivalent of a state under the U.S. form of government), and Puerto Ricans were full Spanish citizens with the right to elect sixteen delegates and three senators to the Spanish Cortes (the equivalent of our Congress).[22]

Although shortly after his arrival General Miles had proclaimed to the Puerto Rican population that the United States would “promote their prosperity and bestow the immunities and blessings of [U.S.] enlightenment and liberal institutions and government,”[23] the United States instead imposed a military regime that abolished all forms of democratic representation in local government. Furthermore, despite Miles’s bombastic promises, the colonial powers negotiated the Treaty of Paris and enacted Article IX without Puerto Rican participation or even consultation. The treaty and its Article IX were announced to Puerto Rico’s inhabitants as a fait accompli, in which they were stripped of their Spanish citizenship and rights and required to give allegiance to a new colonial overseer under whom they would be without any rights except those that Congress, in which they had no vote, chose to grant in the future. As an matter of American constitutional law, Article IX was clearly unconstitutional, for as Justice Kennedy stated in Boumediene v. Bush, “[t]he Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.”[24] And, of course, it does not take a rocket scientist to conclude that neither the Treaty of Paris nor any treaty can trump, so to speak, the Constitution by granting Congress powers that exceed those allowed by that document.

Unfortunately, however, the negotiation of the Treaty of Paris and its implementation coincided with a period of imperialist euphoria. The dominant political figures in the United States were enthusiastic exponents of the concept of Manifest Destiny, which promoted American exceptionalism and the expectation that the United States, “thanks to the superior qualities of the Anglo-Saxons . . . and to their democratic institutions, would inevitably absorb their neighbors.”[25]

The United States was not writing on a clean slate. What the United States could constitutionally do with territories it acquired had been categorically established by the Supreme Court back in 1856. In the much maligned (for other reasons) Scott v. Sanford case, Chief Justice Roger Taney had written:

There is certainly no power given in the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure, nor to enlarge its territorial limits in any way, except by admission of new states . . . . [N]o power is given to acquire a Territory to be held and governed in a permanently [colonial] character.[26]

Perhaps equally important, the Sanford Court went on to rule that the Territorial Clause in Article I of the Constitution[27] was not applicable to territories acquired after the U.S.’s independence from Great Britain. Chief Judge Taney held that the Territorial Clause was only relevant to those lands held at the time of the treaty with Great Britain in 1783,[28] namely the Old Northwest Territories,[29] but did not apply to land acquired thereafter. The Court further ruled in 1886, in Yick Wo v. Hopkins, that the Fourteenth Amendment guaranteed equal rights to “all persons within the territorial jurisdiction [of the United States], without regard to any differences of race, of color, or of nationality.”[30] But these rulings, this vital precedent, would be disregarded.

Historian Rubin Francis Weston cogently describes what actually happened in the political arena of the times in his book, Racism in U.S. Imperialism:

Those who advocated overseas expansion faced this dilemma: what kind of relationship would the new peoples have to the body politic? Was it to be the relationship of the reconstruction period, an attempt at political equality for dissimilar races, or was it to be the southern “counterrevolutionary” point of view which denied the basic American constitutional rights to people of color? The actions of the federal government during the imperial period and the relegation of the negro to the status of second class citizenship indicate that the southern point of view prevailed. The racism which caused the relegation of the negro to a status of inferiority was to be applied to the overseas possessions of the United States.[31]

The advent of this racially charged imperialistic mania instigated the sharp departure from the past practice to which this Article earlier alluded.

The transition was not without dissent. The 1899 report of the Carroll Commission, appointed by President McKinley to investigate prevailing conditions in Puerto Rico, concluded that there should be “no hesitation in affirming that the people [of Puerto Rico] have good claims to be considered capable of self-government.”[32] Unfortunately, the military governor of Puerto Rico challenged the Commission’s recommendations, stating that “[t]he people [of Puerto Rico] generally have no conception of political rights combined with political responsibilities.”[33]

An acrimonious debate in Congress followed, and that body sided with General Davis. The decision was greatly influenced by considerations of how a progressive resolution of Puerto Rico’s case could affect the companion bill dealing with the Philippines, as to which one senator warned that we should “beware of those mongrels of the East, with breath of pestilence and touch of leprosy.”[34] With this pernicious atmosphere as background, Congress proceeded to enact the Foraker Act of 1900.[35] Through this Act, Congress accomplished its two most pressing goals: creating a colonial apparatus to replace the military regime that had ruled Puerto Rico since its invasion and raising money to fund this new administration.

This statute provided for the establishment of a civil government composed of a presidentially appointed governor, a supreme court, and an upper legislative body, with a lower house elected by the Puerto Ricans.[36] Importantly, it also established a tax on goods imported into Puerto Rico from the mainland United States, the proceeds of which would be used to defray the expenses of the newly established territorial government.[37] Because such a tax was alleged to violate the uniformity provision of the Taxing and Spending Clause of the Constitution,[38] it was challenged as unconstitutional, and thus came about the Insular Cases,[39] which presented the Supreme Court with the opportunity to define the relationship between the U.S. and Puerto Rico — and determine Congress’s power over the latter.

The Supreme Court, which was almost to a man the same Court that had validated racial segregation in the South in Plessy v. Ferguson,[40] just five years before in 1896, harked the imperialists’ clarion call, and answered with rulings that endorsed their undemocratic ideology and licensed Congress’s efforts to realize its ideals in its governance of the United States’s new colonial empire.

The Supreme Court not only totally ignored the controlling precedent of Loughborough v. Blake,[41] decided in 1820, which had unqualifiedly determined that the proscription against non-uniformity in taxation applied to the territories — in that case, the District of Columbia — but, in a perhaps an even more opprobrious action, side-stepped the explicit and unambiguous constitutional precept pronounced by Chief Judge Taney unequivocably prohibiting the establishment or maintenance of colonies by the United States. Instead of following its precedent, the Court gave its benediction to the creation by Congress of an American colonial system under the guise of something invented by the Court out of thin air, the so-called doctrine of territorial incorporation. Pursuant to this theory, the inhabitants of Puerto Rico, as denizens of an “unincorporated territory,” were to be denied all but the most fundamental constitutional protections and Congress was granted almost unlimited plenary powers. The so-called PROMESA congressional proposal is only the latest example of how Congress still exercises these powers. There have been many other manifestations throughout the 116 years of U.S. colonial rule.

Puerto Rico’s status has not changed an iota over this period, nor has that of its citizens. Just five years after Puerto Ricans were granted U.S. citizenship in 1917,[42] the Supreme Court ruled, quite incredibly, in Balzac v. Porto Rico,[43] that all the granting of U.S. citizenship meant for Puerto Ricans was that they could move to the Mainland and there exercise full rights as citizens, but that they were not entitled to the full rights of U.S. citizens while residing in Puerto Rico — such as, in the Balzac case, the right to trial by jury.

If another ludicrous example of this proposition is needed, consider the author — a U.S. Court of Appeals judge, sitting on the second-highest court of the United States, voting and deciding cases that have national import — who, because he resides in Puerto Rico, where he was born and has roots, cannot vote for President or Vice-President or claim representation in the legislative body that passes the laws that govern and touch every facet of life in Puerto Rico. Forgetting, for a moment, all concepts of equal protection, due process, or even fairness, does this make any sense?

[1] No. 15-108 (U.S. filed July 17, 2015).

[2] No. 15-233 (U.S. filed Aug. 21, 2015).

[3] No. 15-255 (U.S. filed Aug. 26, 2015).

[4] See De Lima v. Bidwell, 182 U.S. 1 (1901); Goetz v. United States, 182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222 (1901); Armstrong v. United States,182 U.S.243 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Huus v. N.Y. & P.R. S.S. Co., 182 U.S. 392 (1901).

[5] “Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self‑government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well‑being of the inhabitants of these territories, and, to this end: . . . e. . . . transmit regularly to the Secretary‑General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply.” U.N. Charter art. 73(e). See U.N. Secretary-General, Information from Non-Self-Governing Territories transmitted under Article 73 e of the Charter of the United Nations: Rep. of the Secretary-General, 3, U.N. Doc. A/71/68 (Feb. 1, 2016). http://www.un.org/en/ga/search/view_doc.asp?symbol=A/71/68.

[6] See Juan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal 133-67 (1988); José Trías Monge, Puerto Rico: The Trials of the Oldest Colony in the World (1997); see also Juan R. Torruella, Hacia dónde vas Puerto Rico?, 172 Yale L.J. 1503, 1514-18 (1998).

[7] No. 15-108 (U.S. filed July 17, 2015).

[8] Brief of U.S. Solicitor General at 16-19, Puerto Rico v. Sánchez Valle, No. 15-108 (U.S. filed July 17, 2015) (citing Grafton v. United States, 206 U.S. 333, 354 (1907)).

[9] H.R. 4900, 114th Cong. (2d Sess. 2016) § 101(e)(3) (draft introduced April 12, 2016).

[10] Id. § 201.

[11] Id. § 101(e)(2).

[12] Id. § 101(e)(3).

[13] Id. § 104(c)(2)

[14] Id. § 204(a)(1)-(2).

[15] Id. § 204(a)(5).

[16] Id. § 204(b)(2).

[17] Id. § 207.

[18] Id. § 411.

[19] Danica Coto, US official warns Puerto Rico resources targeted amid crisis, Yahoo, Apr. 1, 2016, https://www.yahoo.com/news/us-interior-secretary-visits-puerto-rico-unveil-project-151937605.html.

[20] Treaty of Peace between the United States of America and the Kingdom of Spain, U.S.-Spain, art. IV, Dec.10, 1898, 30 Stat. 1754, T.S. 343 [hereinafter Treaty of Paris].

[21] For example, after the Mexican-American War, just fifty years before, residents of the newly acquired territory were given the choice between declaring a preference to retain Mexican citizenship and automatically becoming U.S. citizens by staying in the territory for one year. See Treaty of Guadalupe Hidalgo, U.S.-Mex., art. VIII, Feb. 2, 1848, 9 Stat. 922, T.S. 207; Mae M. Ngai, Birthright Citizenship and the Alien Citizen, 75 Fordham L. Rev. 2521, 2527 (2007).

[22] Fernando Bayrón Toro, Elecciones y Partidos Politicos de Puerto Rico 3 (1977); see 330 Gaceta de Madrid Tomo IV 625, 625 (Nov. 26, 1897) (Sp.) (publication of decree providing for Spanish residents of the Antilles the same rights as the inhabitants of the Spanish peninsula), http://www.boe.es/datos/ pdfs/BOE//1897//330/A00625‑00625.pdf; Real Decreto, 298 Gaceta de Puerto Rico 2, 2-3 (Dec.16,1897) (Sp.) (Title I through IV of decree).         http://chroniclingamerica.loc.gov/lccn/2013201074/1897‑12‑16/ed‑1/seq‑1/; Real Decreto (Continuación), 299 Gaceta de Puerto Rico 1,1-2 (Dec. 17, 1897) (Sp.) (Title V through title VIII), http://chroniclingamerica.loc.gov/leen/2013201074/1897-12-17/ed-1seq-1/; Real Decreto (Conclusión), 300 Gaceta de Puerto Rico 1, 1 (Dec. 18, 1897) (Sp.) (Title IX through end), http:/chroniclingamerica.loc.gov/ leen2013201074/1897-12-18/ed-1seq-1/; see also Report of the . . . Annual Meeting of the Lake Mohonk Conference of Friends of the Indian and Other Dependent Peoples, Vol. 25, Parts 1907-09, at 176.

[23] Annual Report of the Maj. General Commanding the Army, Nelson A. Miles, Nov. 5, 1898, Messages, 1898-1899, at 31-32.

[24] 553 U.S. 723, 727 (2008).

[25] Hugh Thomas, Cuba, The Pursuit of Freedom 211 (1971).

[26] 60 U.S. 393, 446 (1856) (emphasis added).

[27] “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.” U.S. Const. art IV, § 3.

[28] See Definitive Treaty of Peace Between the United States of America and His Britanic Majesty, U.S.- Gr. Brit., Sept.3, 1783, 8 Stat. 80.                                                                                         

[29] 60 U.S. at 446-47. See Northwest Ordinance of 1787, 1 Stat. 50, 51 (1789).

[30] 118 U.S. 356, 369-70 (1886) (emphasis added).

[31] Rubin Francis Weston, Racism in U.S. Imperialism: The Influence of Racial Assumptions on American Foreign Policy, 1893-1946, at 15 (1972).

[32] Henry K. Carroll, Report on the Island of Porto Rico, Special Commission for the United States on Porto Rico, U.S. Government Printing Office 59-61, 63 (1899).

[33] George W. Davis, Report of the Military Governor of Porto Rico on Civil Affairs,” Vol. 1, pt.13, Annual Reports of the War Department,1900, U.S. Government Printing Office 19-20 (1900).

[34] 33 Cong. Rec. 3616 (daily ed. Apr. 2, 1900) (statement of Sen. Bates). See also id. at 3613.

[35] 31 Stat. 77 (1900) (described as “An Act Temporarily to provide revenues and a civil government for Porto Rico, and for other purposes”).

[36] 31 Stat. 77, 81-82, 84.

[37] Id. at 78.

[38] That clause concludes, “all Duties. Imposts and Excises shall be uniform throughout the United States.” U.S. Const. art. I, § 8, cl.1.

[39] See supra, note 5.

[40] 163 U.S. 537 (1896).

[41] 18 U.S. 317 (1820).

[42] Jones Act (Puerto Rico), ch.145, § 2, 39 Stat. 951, 951-52 (1917) (codified as amended at 48 U.S.C. § 737 (1994)).

[43] 258 U.S. 298 (1922).