In 2016, as a debt-ridden Puerto Rico tried and failed to protect its assets from rapacious creditors, Congress enacted the Puerto Rico Oversight and Economic Management Act (PROMESA). PROMESA created the Financial Oversight and Management Board, a group of unelected officials charged with helping Puerto Rico restructure its debt and “achieve fiscal responsibility.” To the surprise of many, the Oversight Board was empowered to invalidate Puerto Rican laws, strong-arm the Puerto Rican government into accepting draconian spending cuts in education, healthcare, and pensions and sue officials who refused to comply.
Sadly, the extent of power given to the Oversight Board comes as no surprise to those familiar with the consequences as Puerto Rico’s status as a U.S. territory. As a U.S. territory, Puerto Rico is subject to the plenary power of Congress under the U.S. Constitution’s Territory Clause. This power, as old as the U.S. Constitution itself, permits Congress to treat U.S. territories such as Puerto Rico as colonies by another name.
This Article uses PROMESA as a vehicle to examine the development of Territory Clause jurisprudence over the history of the Republic, the legal underpinnings of the U.S. territorial governments, and the unfortunate fragility of the rights of our brothers and sisters of the U.S. territories. Ultimately, PROMESA represents past, present, and future for the U.S. territories and forces us to ask how we wish to conduct ourselves a nation.
La Promesa Cumplida [The Promise Fulfilled]: How the U.S. Constitution has Enabled Colonialism,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol67/iss4/10