Do we really have to ask, What is Puerto Rico?

Does it really take 61 pages to answer such a simple question?  

The legal question in the recent Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC was not explicitly over the constitutional status of Puerto Rico, of course.  The question was over the constitutionality of the PROMESA Board, a body established under federal law to resolve Puerto Rico’s mounting debt load. Membership on the Board comes by presidential appointment, without the Senate’s advice and consent.  The question for the Court was whether board members are “officers of the United States.” If so, the Senate must approve their appointments before the members could join the board. In a unanimous opinion, the Court held that, since board members “have primarily local powers and duties,” they are not “officers of the United States.”

Chew on that for a moment.  This case immediately raises millions of important questions, none of which the Court wishes to answer.  For example:

How is it possible for the federal government to impose an unelected and unaccountable board upon a locality that is represented neither in Congress nor the Electoral College?  This is a Democratic Deficit of the highest order, sanctioned by the Court from the moment the US acquired the island. 

Whatever happened to home rule?  Where did it go?  

What does it mean to be a US citizen?  (the case you want to read is Balzac v. Porto Rico. Never did you imagine that US citizenship meant so little). And if you really want to go there: how does the US Constitution define freedom, and how does it protect it and defend it? (Not as well as you think).

How does the status of Puerto Rico align with constitutional commitments about freedom and democratic values?  

I could go on.

All these questions have an easy answer: the Insular Cases.  Over a century ago, the Court invented a doctrine in these cases — particularly in Downes v. Bidwell — to allow the US government to hold territories as colonies until Congress decided to incorporate them into the United States. In case you have any doubts about the racist underpinnings of this doctrine, all you need to know is that this is a doctrine created by the same Court that brought us Plessy v. FergusonPlessy fell, long ago.  And yet, the Insular Cases are still with us, cited approvingly by many federal courts across the circuits.

You don’t need to bother with all 61 pages to get to the crux of the matter.  All you need is the last two paragraphs of Justice Sotomayor’s concurrence.  Here’s what she wrote:

These cases raise serious questions about when, if ever, the Federal Government may constitutionally exercise authority to establish territorial officers in a Territory like Puerto Rico, where Congress seemingly ceded that authority long ago to Puerto Rico itself. The 1950s compact between the Federal Government and Puerto Rico undoubtedly carried ramifications for Puerto Rico’s status under federal and international law; the same may be true of the Appointments Clause analysis here. After all, the long awaited promise of Public Law 600’s compact between Puerto Rico and the Federal Government seemed to be that the people of Puerto Rico may choose their own territorial officers, rather than have such officers foisted on the Territory by the Federal Government.

Viewed against that backdrop, the result of these cases seems anomalous. The Board members, tasked with determining the financial fate of a self-governing Territory, exist in a twilight zone of accountability, neither selected by Puerto Rico itself nor subject to the strictures of the Appointments Clause. I am skeptical that the Constitution countenances this freewheeling exercise of control over a population that the Federal Government has explicitly agreed to recognize as operating under a government of their own choosing, pursuant to a constitution of their own choosing. Surely our Founders, having labored to attain such recognition of self-determination, would not view that same recognition with respect to Puerto Rico as a mere act of grace. Nevertheless, because these issues are not properly presented in these cases, I reluctantly concur in the judgment. 

This is a constitutional embarrassment. 

TL/DR: the question posed by the title has a very simple answer. Puerto Rico is a colony, plain and simple, sanctioned and legitimized by the United States Supreme Court. 

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