The political and juridical relationship with the United States, as formed by the Commonwealth of Puerto Rico, reflects one of the most polemical issues in the world today: the jurisdictional insertion of external entities into a nation’s affairs.

In the modern world, there is a common belief that the basic political unit of social organization continues to be the nation state. The state incorporates a territory and a society or community. It organizes social life through laws and the administration of rules for coexistence. It establishes regulations for the structure of political power. It guarantees the population’s security against social violence and attacks by internal and external enemies. It manages its affairs by organizing a government and establishes relationships with other states. Above all, the state guarantees the internal stability necessary for society to be able to live harmoniously, and therefore has a monopoly on the use of violence and has military, police and judicial institutions.

Regardless of the kind of regime each state adopts, the political, economic or military power it wields in the world, its relative efficiency in maintaining public confidence, its formal participation in supranational institutions, the level of subordination to other states or the particular scale or complexity of its cultural and territorial constitution, and despite the trend toward globalization of the economy, the nation state today continues to be the fundamental political and identity unit in the modern world. It is through the state that we form our primary sense of identity and channel our collective and individual aspirations. In other words, political sovereignty resides in the state.

Therefore, issues that involve some kind of cession of sovereign power to another state or to supranational institutions introduce elements that are difficult to harmonize in daily life with the democratic principles of self-determination and collective or national freedom. Puerto Rico is a clear example of a case in which part of its sovereign powers have been absorbed by another country, the United States, while the European Union, which today consists of 27 sovereign countries, illustrates the difficulty of harmonizing political sovereignty by each country with the powers delegated to the European Union institutions. For example, facing immigration from other regions, Europeans regularly question the wisdom of having to follow common immigration policies that make it difficult for each country to set its own rules. Another more recent example has been the political conflict caused by pressure from European Union regulatory agencies on Mediterranean countries to impose social and administrative policies that satisfy European interests more than national needs and aspirations.

In Puerto Rico, the problem of national sovereignty has been a cause for public discussion and internal political conflict since the times of Spanish rule. Under U.S. imperial rule, and as Puerto Rico has come to be fully involved in the modern world, the issue has been exacerbated to the point that it dominates the conflict between political parties. The many ramifications of this complicated issue are not the topic of this article, except in the way that the island’s subordination to the United States affects the jurisdiction and operations of the Puerto Rican judicial system.

In particular, it should be noted that the United States maintains a Federal District Court, which is part of its central judicial system, in Puerto Rico. Although the Commonwealth Constitution makes no mention of this court, and assumes that Puerto Rican judicial power “will be exercised by a Supreme Court, and by those other courts established by law,” the presence of the Federal District Court in Puerto Rico works as a separate entity from the local judicial code, with its own rules, internal mechanisms and judicial criteria. For example, the judges in this court are appointed by the president of the United States, without any participation by the representatives of the population over which they exercise their daily jurisdictional prerogatives.

This particular case of judicial (and political) sovereignty deficit creates limitations on the jurisdiction of the Puerto Rico justice system. This limitation is illustrated by the fact that over time the federal court has expanded its jurisdiction through internal changes, meaning without any public involvement, either directly or through Puerto Rican political institutions. For example, the number of federal justices has increased considerably during recent decades and the District Court has assumed jurisdiction over ever more extensive internal issues.

It should be noted that this trend is not exclusive to the federal judicial system in Puerto Rico. Throughout the United States, the trend of the federal bureaucracy (including the judiciary) taking over powers from the states has been continuous and ever increasing. Although the United States Constitution establishes the federalist principle that each state will exercise public policies not expressly assigned to the federal government, the trend, for more than a century, has been toward the expansion of the powers of the federal bureaucracy at the expense of functions traditionally performed by the states.

Five historical factors have promoted this trend toward centralization of power. One of them is the natural tendency of bureaucracies (public or private) to grow in terms of size and power. The nature of bureaucracies (of their structures, their natural mentality and tendency toward growth) has been recognized by sociologists, economists and political scientists, from Max Weber in the late 19th century to today. The United States is a consistent example of this social administrative phenomenon.

Another factor is the dominance of the federal treasury over the economic resources provided by the tax structure (which dates to the early decades of the 20th century). Control over public resources (the dramatic growth of the treasury’s resources) has allowed the federal government to greatly expand its social assistance policies and compete favorably with local and state governmental organizations (and, in some cases, replace them).

A third factor is the growth of the U.S. empire during the 20th century, especially after World War II (1939-1945). The experience of managing an empire made clear the need for a centralized state apparatus that facilitated the determination and execution of imperial policies, which often must be hidden from public scrutiny to be successful. The federated state structures, although they are good for promoting democratic life, are inefficient for managing imperial affairs and, in particular, the multiple international crises (and wars) that result from the imposition of hegemonic policies. U.S. historian Chalmers Johnson has described the historical, organic relationship between the growth of the U.S. empire and the development of the federal government’s power. The so-called imperial presidency, the extraordinary power exercised today by the president as leader of the country, has served the empire well, but at the expense of democratic institutions, including the original federalist structure. As part of his thesis, Johnson says that when the British empire was in crisis in the early part of the second half of the 20th century, Britain believed that protecting the empire mean sacrificing its democratic institutions, so it opted to dismantle the empire and maintain its democracy.

A fourth factor is related to the development of the post-industrial capitalist economy’s national and global configuration. This development is mainly characterized by the concentration of capital and multi-national corporations, which replaced the local businesses that dominated the social scene when the republic was created. For small and medium-size businesses to have access to the public sector, it was essential to have a presence of local and state government agencies that were aware of the peculiarities of each territory and its markets. In the measure that businesses became more concentrated and the market became more national in nature (and globalized), the focus of the economic sector shifted from local governments to the central (federal) government institutions. It is more efficient to concentrate lobbying, the best means of influencing public policy on a regular basis, in Washington, than to establish operations in fifty different states. At the same time, leadership became more efficient with politicians subordinate to strong national institutions instead of local groups. The latter did not disappear, but became weaker with the development of organizations on a national scale.

The fifth factor, which is particularly applicable to Puerto Rico, is based on a defect in the United States’ federalist Constitution. It has to do with the power given to the federal courts to adjudicate conflicts between the federal government and the states. The Constitution establishes that when there is a jurisdictional conflict between a state and the federal government, the federal court must adjudicate the case. This judicial rule of the U.S. federal system violates the juridical principle that when there is a conflict between two parties, it must be adjudicated by a third party that has no ties to either of the parties in the conflict. To avoid conflicts of interest, judges are required by ethics rules to remove themselves from any case in which they have family, group, economic, friendship or other ties. The mere appearance of a conflict of interest is cause for recusal from a case, both in the Puerto Rico judicial branch as well as in the federal courts.

In the case of a conflict between the federal structure and the states, however, the Constitution of the United States gives the federal court, which in reality is one of the parties in the conflict, the authority to resolve the issue. Therefore, it is not surprising that throughout history the federal courts have been efficient instruments for expanding the powers of the federal government at the expense of local authorities.

Puerto Rico has not been an exception. The U.S. judicial system treats Puerto Rico, regardless of its particular political relationship with the United States, as if it were a federated state. In other words, it has its own internal judicial system but is subject to the jurisdiction of the Federal District Court, which functions separately from the local courts. And this court is called on to resolve not only constitutional problems (related to the U.S. Constitution) and other issues that the court believes fall within its responsibilities, but also any conflict that could arise between the institutions elected by the people of Puerto Rico and the federal government of the United States. This aspect of the U.S. constitutional system is inconsistent with basic principles of justice in democratic societies and is an issue that will remain unresolved as long as a political relationship exists between Puerto Rico and the United States, even in the case of federated statehood. Therefore, the limitation represented by the presence of this federal court in Puerto Rico is one of the most important aspects of Puerto Rican judicial power in terms of the local judicial code and the independence of a free society.

Author: Roberto Gándara Sánchez
Published: September 11, 2014.

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