Hurricane María provides another reason why federal courts could revisit Harris and Califano. The hurricane blew away the mainland’s lack of awareness regarding the inequality that United States citizens suffer just for residing in Puerto Rico. As First Circuit Court of Appeals Judge Juan R. Torruella points out in the Harvard Law Review Forum, “[i]f there is a silver lining to be found within the catastrophic impact of Hurricane María on the Island of Puerto Rico, it is that the barrage of news generated by that unfortunate event has served to inform the rest of the nation that Puerto Rico is a ‘part of the United States’ and that its residents are ‘citizens of the United States.’” Juan R. Torruella, Why Puerto Rico Does Not Need Further Experimentation with Its Future: A Reply to the Notion of “Territorial Federalism,” 131 Harv. L. Rev. F. 65, 67 (2018). This newfound awareness could trigger juridical change as other American citizens learn of the limits imposed on their rights due to anachronistic historical and geographical quirks dating to precedents established by the same Supreme Court that decided Plessy.
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Califano and Harris, and the ensuing forty years of discrimination upheld under rational basis review, may be ripe for reconsideration. “Bureaucratic inertia, combined with the powerlessness and distance of the territories” has given this discriminatory treatment a lifespan that approaches Plessy’s. Leibowitz, Defining Status, supra, at 31. But the reality is that these cases were decided “without benefit of briefing or argument,” as Justice Marshall warned, or worse, without even the benefit of the government of Puerto Rico participating in the case and being heard. Harris, 446 U.S. at 654 (Marshall, J., dissenting). Circumstances surrounding Puerto Rico have changed. There is increased national awareness of its existence and political consensus against its disparate treatment. As a result, federal courts could now conclude that heightened scrutiny is “a proposition [that] surely warrants [their] full attention,” potentially leading to an adverse result for the United States. Id.; see also Hernández-Colón, The Evolution, supra, at 606 (“Elemental principles of fairness and equal protection demand that such distinctions drawn by Congress in the application of federal programs to Puerto Rico and other nonstate areas should be subject to strict scrutiny.”).
This “federal” judge appears mainly interested in increasing taxpayer money going to Puerto Rico. It’s long past time to cut (even if involuntarily on PR’s part) Puerto Rico loose and unilaterally grant it FULL INDEPENDENCE.
First remove all vestige of “civil law” from the legal system. Then PR can succeed as either a State or independently. And, of course, if it wants to be a state it will have to quit conducting it’s courts in Spanish LOL!
This is basic, fundamental.
I agree that having “insular” areas is a strain on the Constitution.