The Harvard Law Review is re-examining the Insular Cases — the cases from the early 20th century which still dictate the fate of the unincorporated island territories of the United States.
For Puerto Rico, the renewed look at the historic legal cases could make a big difference. As the HLR admits, “At the turn of the century, the Harvard Law Review published much of the legal debate surrounding the relationship between the U.S. territories and the federal government: What should, and could, the U.S. Congress do with the territory it had acquired following the Spanish-American War? What part of the Constitution ‘follow[s] the flag’?”
The HLR was influential then, and that influence hasn’t waned over the past century. Right now, Puerto Rico is preparing for a new vote, perhaps the first federally-sponsored status vote, designed to give Puerto Rico a permanent status.
The Governor and the Residential Commissioner of Puerto Rico moved firmly to make sure that the upcoming vote could not be, as the 2012 vote was, considered controversial or unclear. On April 13th, the Department of Justice rejected the ballot, insisting that the current territorial status should remain on the ballot and that the Free Association option be clearly labeled as independence, to be sure that voters don’t confuse it with “enhanced commonwealth.” Puerto Rico is heading back to the drawing board to settle the requested ballot changes as quickly as possible. But there are many questions still being debated.
HLR has stepped in to offer clarification.
The Introduction to the special edition reviews the historical relationship between the U.S. and the unincorporated territories, and specifically the Insular Cases which together settled into the idea that Puerto Rico could be treated differently from the States, and could be kept in the unsatisfactory condition of an unincorporated territory indefinitely.
These cases and later cases based on them, the Introduction concludes, “have contributed to a damaging state of affairs in the territories. The territories receive ‘less in food stamps, welfare, and social security, and the protections of the federal minimum wage have also been restricted.‘ Look at Puerto Rico: In the wake of the island’s financial crisis, its doctors have left in droves. This exodus has been blamed in part on low Medicare and Medicaid payments. Medicaid covers nearly half of the island’s residents but its reimbursements fall far short of that same program’s payments on the mainland.Because of these conditions, Puerto Rico’s healthcare system is in a ‘state of emergency.'”
The same could be said of many elements of Puerto Rico’s infrastructure.
Chapter I, an examination of Puerto Rico’s current political status, quotes a 20th century court case (United States v. Lebrón-Caceres) which held that “America’s territories lack even a modicum of sovereign independence from the federal government; rather, ‘territorial governments are entirely . . . creation[s] of Congress,’ which ‘retains plenary power over [them]’ so long as their territorial status persists.”
In June 2016, there were decisions in two Supreme Court cases about Puerto Rico ( Puerto Rico v. Franklin California Tax-Free Trust and Puerto Rico v. Sanchez Valle). These decisions, both of which confirmed that Puerto Rico had no separate sovereignty, were followed by the formation of the PROMESA fiscal oversight board.
These three events, the HLR suggests, were a step back from the federal government’s tradition of treating Puerto Rico “like a state.” The authors offer several examples of all three branches describing Puerto Rico as “like a state” and treating Puerto Rico “like a state.”
“Like a state,” however, is not the same as a state. “Since the Founding, U.S. territories — unlike the states they were theoretically destined to become — have been constitutionally ineligible for voting representation in Congress or the Electoral College,” the article points out. This is not a problem for the democracy-loving United States, the authors say, because under the original documents establishing the U.S., “territorial status is simply a temporary condition, one that gives Congress the necessary degree of authority to adequately prepare the territory to assume the obligations of statehood. Conceptually, a territory is not a colony of the United States; it is a state-in-waiting.”
The Insular Cases changed that, creating a new, unincorporated type of territory. “As a constitutionally unincorporated territory,” the article continues, “Puerto Rico is not on a path to statehood, but neither is it necessarily on a path to independence. Rather, it remains stuck in a constitutional limbo — a limbo of the Supreme Court’s creation.”
The authors quote the early Supreme Court justices as emphasizing that Congress would have to use its power “in good faith and honor” to put Puerto Rico on a path to statehood as soon as practical, or else be guilty of a “violation of duty under the Constitution.”
Puerto Rico Report invites readers to read the articles discussed above and to weigh in in the comments with opinions.