Page 22 - Suffolk University Law Review
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SUFFOLK UNIVERSITYLAW REVIEW (Vol. L:587
concerns. The result of the legislative process was PROMESA, an act that
established mechanisms for restructuring the debt of Puerto Rico and its
instrumentalities, with the goal of retuming the debt to the financia} markets.166
PROMESA requires FOMB to approve a fiscal plan that, among other things,
manages the core fiscal responsibilities for Puerto Rico.167 PROMESA created
a FOMB with broad authority that infringes upon the constitutional powers of
the three branches of Puerto Rico' s government.
According to PROMESA, the fiscal plan must remain in effect for at least
five years, but it will probably take eight to ten years before Puerto Rico is able
to return to the financia} markets.168 During that period, the FOMB must
review all budgets, executive actions, or bills that may have a fiscal impact on
Puerto Rico to determine their consistency with Puerto Rico's fiscal plan. Even
though the law allows the FOMB, Congress, and the Govemor to coordinate
wíth an eye to consensus in the enactment of the fiscal plan, the FOMB has
final authority to establish the fiscal plan and local budgets.169
Without a doubt, these provisions seize powers from Puerto Rico's
governor, legislature, and the P.R. Supreme Court, which are otherwise
conferred to them by the Constitution of the Commonwealth of Puerto Rico.
For up to ten years, Puerto Rico will be governed in fundamental areas by the
FOMB, not by elected representatives of the people. In this sense, PROMESA
is not only unconscionable, but also vulnerable, because Congress enacted it
pursuant to its territorial powers over the internal affairs of Puerto Rico.
Congress, however, relinquished these powers when Puerto Rico obtained
commonwealth status-as recognized in Flores de Otero and ratified in
Sanchez Valle.
PROMESA also disregards the people's right to elect their own
representatives, a comerstone of the sovereignty recognized in Sanchez Valle.
The Constitution of the Commonwealth of Puerto Rico protects this
fundamental right, as does the U.S. Constitution, and the International
Covenant on Civil and Política] Rights, to which the United States is a
signatory.P? Moreover, the FOMB's oversight power deprives the Puerto
166. See Andrés González Berdecía, Puerto Rico Be/ore the Supreme Court of the United States:
Constitutional Colonialism in Action, 7 COLUM. J. RACE & L. 80, 125 n.171 (2016) (indicating PROMESA
creates fiscal control board composed of unelected members); see a/so Note, Missed Opportunity: Urban
Fiscal Crises and Financia/ Control Boards, 110 HARV. L. REv. 733, 734-38 (1997) (describing characteristics
offinanciaJ control boards).
167. See Puerto Rico Oversight, Management, and Economic Stability Act § 201(b)(I) (noting plan must
also provide "access to capital markets"). The fiscal plan must "ensure the funding of esscntial public
services," "provide for the elimination of structural déficits," "include a debt sustainability analysis," "improve
fiscal governance, accountability, and interna! controls," "enable the achievement of fiscal targets," and
"provide fer capital expenditures and investments necessary to promote economic growth." Id.
168. Id. at § 20l(b)(2) (providing FOMB with discretion to determine length of fiscaJ plan beyond five
years).
169. See id. at § 201 (giving FOM B "sole discretion").
170. See P.R. CoNST. art. VI. § 4 (describing constitutionaJ election procedures); lnternational Covenant on
concerns. The result of the legislative process was PROMESA, an act that
established mechanisms for restructuring the debt of Puerto Rico and its
instrumentalities, with the goal of retuming the debt to the financia} markets.166
PROMESA requires FOMB to approve a fiscal plan that, among other things,
manages the core fiscal responsibilities for Puerto Rico.167 PROMESA created
a FOMB with broad authority that infringes upon the constitutional powers of
the three branches of Puerto Rico' s government.
According to PROMESA, the fiscal plan must remain in effect for at least
five years, but it will probably take eight to ten years before Puerto Rico is able
to return to the financia} markets.168 During that period, the FOMB must
review all budgets, executive actions, or bills that may have a fiscal impact on
Puerto Rico to determine their consistency with Puerto Rico's fiscal plan. Even
though the law allows the FOMB, Congress, and the Govemor to coordinate
wíth an eye to consensus in the enactment of the fiscal plan, the FOMB has
final authority to establish the fiscal plan and local budgets.169
Without a doubt, these provisions seize powers from Puerto Rico's
governor, legislature, and the P.R. Supreme Court, which are otherwise
conferred to them by the Constitution of the Commonwealth of Puerto Rico.
For up to ten years, Puerto Rico will be governed in fundamental areas by the
FOMB, not by elected representatives of the people. In this sense, PROMESA
is not only unconscionable, but also vulnerable, because Congress enacted it
pursuant to its territorial powers over the internal affairs of Puerto Rico.
Congress, however, relinquished these powers when Puerto Rico obtained
commonwealth status-as recognized in Flores de Otero and ratified in
Sanchez Valle.
PROMESA also disregards the people's right to elect their own
representatives, a comerstone of the sovereignty recognized in Sanchez Valle.
The Constitution of the Commonwealth of Puerto Rico protects this
fundamental right, as does the U.S. Constitution, and the International
Covenant on Civil and Política] Rights, to which the United States is a
signatory.P? Moreover, the FOMB's oversight power deprives the Puerto
166. See Andrés González Berdecía, Puerto Rico Be/ore the Supreme Court of the United States:
Constitutional Colonialism in Action, 7 COLUM. J. RACE & L. 80, 125 n.171 (2016) (indicating PROMESA
creates fiscal control board composed of unelected members); see a/so Note, Missed Opportunity: Urban
Fiscal Crises and Financia/ Control Boards, 110 HARV. L. REv. 733, 734-38 (1997) (describing characteristics
offinanciaJ control boards).
167. See Puerto Rico Oversight, Management, and Economic Stability Act § 201(b)(I) (noting plan must
also provide "access to capital markets"). The fiscal plan must "ensure the funding of esscntial public
services," "provide for the elimination of structural déficits," "include a debt sustainability analysis," "improve
fiscal governance, accountability, and interna! controls," "enable the achievement of fiscal targets," and
"provide fer capital expenditures and investments necessary to promote economic growth." Id.
168. Id. at § 20l(b)(2) (providing FOMB with discretion to determine length of fiscaJ plan beyond five
years).
169. See id. at § 201 (giving FOM B "sole discretion").
170. See P.R. CoNST. art. VI. § 4 (describing constitutionaJ election procedures); lnternational Covenant on
