On September 20, 2017, Hurricane Maria made landfall in Puerto Rico, decimating Puerto Rico's electrical grid and leaving millions in darkness. More than four months later, approximately a third of the island's population remains without electricity, and, according to a forensic investigation by CNN, more than a thousand deaths appear to be the direct result of the hurricane and its aftermath. Hurricane Maria was, in a sense, a collision between a history of neglect and an impending future: The island's obsolete infrastructure was not prepared for the category 5 winds unleashed by a rapidly warming ocean during one of the hottest years on record. The devastation, terrible in its own right, is also a symbol and counterpart to another upheaval--the upending of Puerto Rico's obsolete political status.
A little historical perspective shows the roots of Puerto Rico's thwarted progress. In 1946, Puerto Rico was universally recognized as a non-self-governing territory, i.e., a colony, and appeared as such on the United Nations' list of non-self-governing territories. The United Nations Charter required--and continues to require--all colonial powers to submit annual reports to the United Nations Committee on Decolonization about their efforts to bring about self-government in each of their colonies. Puerto Rico's official designation as a colony was short-lived, however, as in 1952 the United States allowed Puerto Rico to adopt its own Constitution and become a "Commonwealth," ushering in a new period of democratic autonomy through a "compact" between the United States and Puerto Rico. Or so the story goes. Puerto Rico was removed from the U.N. list of non-self-governing territories through a vote in the U.N. General Assembly, and the U.S. was freed from the responsibility of reporting to the U.N. about its island territory. Recent years, however, have shown more clearly than ever that the adoption of the Puerto Rican Constitution did not represent a transition to democratic self-rule, but a transition from one form of colonialism to another.
In 2016, the Supreme Court laid bare in Puerto Rico v. Sanchez Valle that the Puerto Rican Constitution is not based on the consent of the governed, the axiomatic foundation of any real system of self-government. Rather, the Puerto Rican government exists at the whim of Congress--a Congress in which Puerto Ricans do not have representation. (To draw a historical contrast, pre-independence Ireland had enjoyed proportional, elected representation in the British Parliament since 1800. Puerto Rico has been a U.S. territory for 120 years and has never had a voting representative in Congress.) Puerto Rico does not even have the limited sovereignty reserved to states and Indian tribes. The appellant in Puerto Rico v. Sanchez Valle noted that if Puerto Rico lacks even the independent authority that states and Indian tribes have to prosecute crimes, that the Puerto Rican Constitution must then have been "a cruel hoax" on the Puerto Rican people and on the nations of the world that voted to remove Puerto Rico from the list of non-self-governing territories. Puerto Ricans who celebrate the anniversary of their Constitution's ratification as a holiday would be scandalized to discover that Congress could likely amend or even abolish the Puerto Rican Constitution without consulting a single Puerto Rican voter. This "cruel hoax" argument was unavailing, although Justice Breyer's dissent captures its essence for posterity. In 2016, in Puerto Rico v. Franklin California Tax-Free Trust, the Supreme Court also denied Puerto Rico the right to implement its own bankruptcy law, even though federal law at the time did not provide any mechanism for Puerto Rico to restructure its debt.
While these Supreme Court decisions called into question the future and significance of the Puerto Rican Constitution, the Puerto Rico Oversight Management Economic Stability Act (PROMESA) of 2016 reduced it to a farce. Although Puerto Ricans would still be allowed to elect their representatives, Congress gave an unelected Fiscal Control Board effective veto power over both the governor and the legislature of Puerto Rico. The Fiscal Control Board could also issue its own binding directives with island-wide effect. The raison d'être of the Board was, of course, to recoup the investments of Wall Street bondholders, and the Board has shown that it is not afraid to flex its muscles to accomplish its purpose. Last year, the Board attempted unilaterally to fire the chief executive of Puerto Rico's electrical company, PREPA, and install its own "Chief Transformation Officer" who would have been encharged with overseeing massive privatization of the electrical grid. Although the concerns about PREPA's governance were real, the normal mechanisms of democratic accountability had already dealt a blow to PREPA's mishandled response to Hurricane Maria and canceled one of PREPA's major contracts. A federal district court in New York reined in the Board in November 2017, but only because the Board was deemed to have acted prematurely by failing to spend sufficient time consulting with elected officials. The Board can act unilaterally, but it cannot treat the elected government with complete contempt. A small victory.
Even with modest curtailment by federal courts, congressional imposition of an unelected Board that can run roughshod over an elected government is an affront to democratic self-rule. This is one of the reasons why Puerto Ricans of different political stripes, including the governor of Puerto Rico, Ricardo Roselló, and the Mayor of San Juan, Carmen Yulín Cruz, are now demanding that the U.N. re-designate Puerto Rico as a non-self-governing territory and push the U.S. to complete the decolonization process. Their demand of the U.N. is simple: recognize the truth. If Congress passes a law like PROMESA that privileges the profits of vulture funds over the rights of Puerto Ricans, it can still have a salutary, if jolting, effect. If we have sown the wind, let us reap the whirlwind. Let it rip away the pretense of an outdated colonial régime masquerading as a democratic government in the eyes of the world.