–Jorge M. Farinacci-Fernós, Assistant Professor, Interamerican University of Puerto Rico Law School
For the past 15 years, Puerto Rico has been on a permanent economic crisis, with a noticeable increase in austerity, social tension, economic disparity, corruption and political stalemate. In 2017, Puerto Rico suffered its worst natural disaster with hurricanes Irma and María. U.S. government indifference and local government incompetence required that Puerto Ricans learn how to develop a new social and community structure.
A little more than a month ago, all seemed “normal”. Then, in early July 2019, something happened. A “Telegraph” chat between the Governor and his closet aides (all men) was leaked to the public. It was devastating. It was full of sexist, homophobic, racist, elitist and nasty comments. Political opponents, the press, poor people, activists, among others, were targeted. More egregiously, the chat revealed a system of corruption, manipulation and contempt for the average people. The tipping point were jokes about the thousands that died as the result of government incompetence after hurricane María.
Thus began the Puerto Rican summer of 2019.
Thousands took to the streets demanding the resignation of the Governor. It was a genuine popular uprising. In less than two weeks, more than 650,000 people took to the streets. The Governor lost all political support, even from his own party.
Then the constitutional crisis began.
Puerto Rico’s Constitution (1952), although it includes a highly progressive Bill of Rights that, to this day, is the cornerstone of Puerto Rican society, lacks sufficient tools for democratic action in terms of replacing a corrupt or inept government. Still, the Constitution, as a whole, commands great respect. The popular call for the Governor’s resignation forced the hand of the legislators who, eventually, started impeachment proceedings. Seeing the writing on the wall, the Governor announced his resignation.
The Puerto Rican Executive Branch has only one elected member: the Governor. Every other official is appointed by the Governor and approved by one or both houses of the Legislature, depending on the post. The Constitution states that if the governorship is permanently vacant, the Secretary of State shall assume the office of Governor. The problem was that the Secretary of State resigned shortly after the Telegraph chat became public.
First, the Constitution only mentions the first instance of succession: the Secretary of State. The rest of the line of succession is dealt by statute. Since 1952, the Succession Act states that, after the Secretary of State, the next in line will be the Attorney General.
Precisely because the Secretary of State will be first in line in case there is a vacancy, the Constitution states that the Secretary of State must be confirmed by both houses of the Legislature, instead of just the Senate for every other cabinet member. This was clear, not just from the text of the Constitution, but from the debates of the Constitutional Convention in 1951-1952. Puerto Rico has been an originalist jurisdiction since 1953. If the records of the Constitutional Convention yield a legal answer, you have won your case.
Two days before his resignation became effective, Governor Rosselló appointed Pedro Pierluisi as Secretary of State. Because the Legislature was not in session, Pierluisi became Secretary of State as a recess appointee. Governor Rosselló then called for an extraordinary legislative session to consider Pierluisi’s nomination. The House of Representatives confirmed him a few hours before Rosselló’s resignation. The Senate scheduled its vote for after Rosselló’s resignation would become effective.
The constitutional question was: who would succeed the Governor at 5:00pm on Friday, August 2nd? Would it be the Attorney General, since she was the next in line after the Secretary of State and Pierluisi had yet to be confirmed by both houses? Or would it be Pierluisi, since he was a duly appointed Secretary of State during a legislative recess?
According to a 2005 amendment to the Succession Act, the Secretary of State could become Governor, even if he or she had not yet received bicameral confirmation. As such, on Friday, August 2nd, Pierluisi was sworn in.
The Senate filed an injunction against Pierliusi, arguing that since Rosselló’s resignation was effective on August 2nd at 5:00pm, and at that moment Pierluisi had not been confirmed by both houses, he was constitutionally barred from becoming Governor.
The case was immediately taken up by the Supreme Court. On Wednesday, August 7th, the Supreme Court issued a unanimous opinion. This was, in itself, important, since the Court is sharply divided by ideology and interpretive methodologies.
The unanimous opinion held that, in order for a Secretary of State to become Governor, he must first receive confirmation by both houses. Both the text and the adoption history of the Constitution yielded that clear command. As such, the Court declared unconstitutional the 2005 amendments to the Succession Act. Since on Friday, August 2nd at 5:00pm Mr. Pierluisi had not received confirmation by both houses, he was ineligible to become Governor.
Just four hours after the decision was released, Pierluisi stepped down and the Attorney General was sworn in.
The political crisis in Puerto Rico continues. Many voices, including leading jurists, are talking about constitutional reforms to introduce more democratic mechanisms to the structural components of the Constitution. While the current Governor suffers from democratic illegitimacy, there is universal recognition that she has constitutional authority to govern. For now, the constitutional crisis seems to have been adequately settled by the courts and the public. The political crisis still lives on.
Suggested Citation: Jorge M. Farinacci-Fernós, The Puerto Rican Summer: Political Upheaval and Constitutional Reassurance, Aug. 14, 2019, at: http://www.iconnectblog.com/2019/08/the-puerto-rican-summer:-political-upheaval-and-constitutional-reassurance/