In 1947, Congress passed and President Harry Truman signed a law giving the people of Puerto Rico the right to elect their own governor. Until then, all territories of the United States, including Puerto Rico, had been governed by men appointed by the president and confirmed by the Senate. Most governors had been known more for their relationships to the president than, say, for their ability to speak Spanish. But after that 1947 law, Puerto Rican voters elected Luis Muñoz Marín to begin what would become a transformative governorship.
Even as more recent governors have resigned in disgrace, democratic self-government in Puerto Rico has remained. But that could change. Next week, the Supreme Court is scheduled to consider a case that could radically undermine the ability of over four million American citizens — in Puerto Rico, other territories and even the District of Columbia — to elect their own chief executives.
The court is being asked to decide whether a constitutional provision that ordinarily limits Congress applies when Congress legislates for a territory. That provision, the appointments clause, requires all “officers of the United States” to be appointed by a specified procedure, typically by the president with Senate confirmation. Because of this clause, it would be unconstitutional for Congress to allow voters to elect the attorney general or secretary of state; those officers must be appointed and confirmed. But on the assumption that the appointments clause doesn’t apply to territories or the District of Columbia, Congress allowed for the election of Puerto Rico’s governor in 1947 and the district’s mayor in 1973.
Congress’s grant of self-determination was, paradoxically, justified by a series of Supreme Court decisions that were grounded in imperialism and white supremacy. Those decisions held that constitutional provisions that normally limit Congress’s powers don’t apply in the capital district or territories. But over the years, those rulings also led to laws that have allowed for the dignity of self-rule in those places.
In 1820, for example, the court held that the needs of “the American empire” allowed Congress to tax district and territorial residents without also giving them voting representatives in Congress. “Representation is not made the foundation of taxation,” Chief Justice John Marshall explained without irony, despite having fought in a revolution premised on that issue.
And in the infamous Insular Cases of the early 20th century, the court allowed Congress to disregard the Bill of Rights when legislating for the territories of Puerto Rico and the Philippines. The court maintained that “the uncivilized parts” of those territories “were wholly unfitted to exercise” these rights, and Congress needed the discretion to decide when the islanders were ready.
But the one silver lining of Congress’s relatively unrestricted discretion to act in the District of Columbia and territories has been that Congress has had the same unrestricted discretion to establish democratic governments there.
For example, the Constitution normally prohibits Congress from delegating its lawmaking powers to a local government. Congress couldn’t allow the Cleveland City Council to enact new federal laws. But the Supreme Court has held that this “nondelegation doctrine” doesn’t apply in the territories or the District of Columbia. Accordingly, Congress approved a constitution for Puerto Rico in 1952 and home rule for the capital district in 1973, delegating to both local governments the power to pass laws for which Congress otherwise would be responsible.
Nevertheless, Congress hasn’t always been consistent about respecting this home rule — as next week’s Supreme Court case illustrates.
The case will review a 2016 law known as PROMESA, in which Congress created an unelected oversight board to restructure Puerto Rico’s multibillion-dollar debt. Describing the board as an agency of the Puerto Rican government, Congress even gave it the power to revise the territory’s laws. This return to colonial supervision angered not only many Puerto Ricans, but also some creditors. The creditors went to court, asserting that the board’s members were appointed in violation of the appointments clause.
A Federal District Court judge rejected the creditors’ argument on the ground that the appointments clause doesn’t apply in the territories. But in February, the United States Court of Appeals for the First Circuit reversed that ruling, holding that Congress is bound by the appointments clause everywhere.
The First Circuit considered the unwelcome possibility that if the appointments clause applies to Puerto Rico, it might also require the appointment, not election, of Puerto Rico’s governor or the District of Columbia’s mayor. But it distinguished these officers on the ground that the appointments clause applies only to “officers of the United States.” The court maintained that the governor of Puerto Rico, by contrast, is an officer “of the territory,” suggesting that her authority comes from the Puerto Rican constitution and not federal law.
But only three years ago, in another case involving Puerto Rico, the Supreme Court emphasized that the Puerto Rican Constitution is United States law: Congress approved that Constitution and can amend it, which Congress effectively did with PROMESA. Territorial officers thus are officers of the United States in the same way that William Barr, as attorney general, is both an officer of the Department of Justice and of the United States.
Moreover, the First Circuit’s distinction between territorial law and the United States law wouldn’t save the Washington mayor, whose authority undoubtedly comes from federal law. So if the Supreme Court upholds the First Circuit’s application of the appointments clause to Puerto Rico without offering a new explanation of why the clause shouldn’t also apply to its governor, it could doom territorial — and district — home rule.
The court could, of course, overturn its noxious territorial precedent, giving district and territorial residents the same constitutional rights as other Americans to representation in Congress and everything else. Failing this wholesale revision, the court should explicitly preserve Congress’s power to create the conditions for local self-government in the territories and the District of Columbia. Otherwise, in the name of freeing Puerto Rico from unconstitutional oversight by an unelected board, the court might make Washington and the territories even more constitutionally anomalous and less democratic than they are now.
The promise of 1947 would, decades later, be broken.
Nikolas Bowie is an assistant professor at Harvard Law School, where he teaches constitutional and local government law.