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Could Puerto Rico be Expelled for its "Tremendous" Debt?

posted by Mitu Gulati

From Joseph Blocher & Mitu Gulati

We would not exactly call ourselves avid readers of the US Navy blogs. But there is an interesting post on the U.S. Naval Institute Blog today on Puerto Rico and debt by Commander George Capen (retired).

The context that inspired his blog post was the behavior of our president toward the current crisis in Puerto Rico. To quote: 

“Ultimately, the government of Puerto Rico will have to work with us to determine how this massive rebuilding effort—will end up being one of the biggest ever—will be funded and organized, and what we will do with the tremendous amount of existing debt already on the island.” – President Donald J. Trump, 29 September 2017:

Commander Capen, whose post is worth reading in its entirety, writes:

Puerto Rico didn’t ask to become a U.S. territory in 1898; nor do they get to vote in U.S. elections; nor do they have voting representation in Congress. But they are Americans. And they also voted to become a state (over 97 percent) earlier this year.

As an unincorporated commonwealth, our Congress holds the fate of Puerto Rico in their hands. Following their vote for statehood, our Congress can make Puerto Rico a state. Congress could also vote to cast Puerto Rico aside as an independent nation.

That final statement raises a question that we have been fascinated by (and have struggled with). Could Congress really “cast Puerto Rico aside as an independent nation,” even stripping Puerto Ricans of their US citizenship, because they have a “tremendous debt”?

If one thinks that the constitution gives Congress complete authority to do whatever it wants with the territories and their people, then the answer is yes. And that was almost certainly the view in the early 1900s when the infamous Insular Cases were decided.

But today? The Insular Cases have never been overruled, and so are technically still good law, but they reflect a mindset–and racist attitudes – that would surely give any judge pause. Most constitutional decisions of that ilk have been overturned, and efforts have been made to inter the Insular Cases as well.

Notably, the Insular Cases relied on principles of international law that—befitting the era in which they were decided—paid little heed to the wishes of colonized people (as Puerto Ricans were and arguably are). In the century since, international law has begun to recognize the principle of self-determination: Of peoples to determine for themselves what government will rule them. This principle has typically been invoked in favor of independence, but in the case of Puerto Rico, might it work in the opposite direction?

Surely the President did not have the currents of constitutional and international law in mind when he spent the weekend tweeting about Puerto Rico. But his statements implicate them nonetheless.

Comments

Commander Capen is correct: Puerto Rico's debt is the US's debt. However much certain elements may want to toss PR overboard and ignore that debt, creditors would be inclined to say, "Nice try US, but the debt is yours, and you just defaulted."

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