What the Oversight Board did with the budget was to usurp the prerogatives of the governor and the legislature. Calling his budget “symbolic”, as the governor did while anticipating he will lose in court, is the typical response of the colonized. His argument is that the Board has plenary powers and that there is nothing to do. Slavery was legal and that did not justify the lashes and much less argue that there was nothing to do.
The governor has tried to remedy his mistake by filing a lawsuit against the Oversight Board. In addition to the arguments of democratic rights and moral and ethical principles that can be built to confront that board, there are also good legal arguments to curb their whims and defend the validly approved and signed budget.
1. The board’s budget was “certified” in violation of the PROMESA law process because it did so before the constitution-ordering process was completed for the approval of our budget, which concludes when the governor signs it. Without having finished the budget process under our laws, the board could not act unilaterally.
2. PROMESA does not say the Board can reject a validly approved budget just because they want it. Not repealing Law 80, which is the reason the Board is using to act as it has, has nothing to do with the objectives of PROMESA. The substantive differences between one and another budget are in public policy and not about budgetary policy. The Board has not even argued the budget the governor signed is not balanced or does not earmark resources for debt payment. The Board dismissed the democratically-approved budget with arguments that are not valid under PROMESA act itself.
3. The Board action is illegal because it violates the provisions of Law 600 and the Law 447 by which Congress approved the constitution of Puerto Rico. The governor himself said that he would defend the home rule that he has under our Constitution and it seems to me that it is time for the court to finally decide what the real scope of our Constitution is.
4. The Board action infringes the principles of separation of powers. This is the argument that can force the Board to negotiate in good faith for fear of losing its powers. First, the governor should accept the argument that the Board members occupy illegally their positions because under the Constitution of the United States, appointments are made by the President and confirmed by the Senate and if not done so, they are unconstitutional. That would override all the actions of the Board. Second, even under the plenary powers, Congress cannot administer a territory without a minimum system of separation of powers, and this Board has been given legislative and executive powers at the same time.
5. Confronting the powers of the Oversight Board, the Supreme Court of the United States can be forced to revoke the nefarious and racist insular cases that are the source of power to discriminate against and abuse Puerto Rico as the Board does.The judicial path would not be easy but doing nothing at this juncture would validate the absurd premise of those who created the Board: that those who do not live in a place will govern it better than those who live in it. Under that premise there is no statehood, no independence, no dignified association possible.