Colonial Politics and Economics in the Perpetual Marginalization of Puerto Rican Society

by Elio Rodriguez Zeta edited by Sarah Lopez, Guillermo Bichara Guzman and Max Ferrandino

reviewed by DR.

CARLOS E. RODRIGUEZ-DIAZ

Associate Professor and Vice Chair, George Washington University Milken Institute School of Public Health

On nearly the fifth anniversary of Category 4 Hurricane Maria’s decimation of its electric power grid, Puerto Rico was again reminded of the cyclical tragedy of its unique colonial existence. On September 18, 2022, the Category 1 Hurricane Fiona battered the unincorporated U.S. territory with a torrential deluge between 12 and 20 inches and a complete island blackout. 1 11 days later, 266 thousand customers still remained without power, while 106 thousand customers continued to experience intermittent access to water service. 2 Puerto Ricans are all too familiar with the consequences of their fragile power infrastructure; in the wake of 2017’s Hurricane Maria, it took the Puerto Rico Electric Power Authority (PREPA) eighteen months to fully reconnect the Commonwealth’s 1.5 million customers to power services. 3 Even after the government-contracted private consortium LUMA Energy assumed PREPA’s power distribution and transmission responsibilities in June 2021, power outages appeared to be worsening in the summer months before Fiona. Though there seems to be greater disaster recovery success this time around, between a relatively more prepared grid repair effort under LUMA and an appropriate response in FEMA aid, these institutions still inherently represent interests which perpetuate colonial oppression of the island. Puerto Rico’s paltry median household income (about $50,000 less than the national average), its 40.5 percent poverty rate, and a 20 year exodus of its population portray a destitute society under direct U.S. administration. 4 Concerning disparities in diagnosis and mortality rates for, among other conditions, HIV and diabetes and an overreliance on federally-capped Medicaid coverage even before Hurricane Maria’s landfall confirm the international community’s concerns about the island’s human rights conditions. 5 Further, the U.S. government’s promotion of unpopular austerity and privatization measures through an imperious, unelected, and unrepresentative Fiscal Control Board dispels any narrative that the U.S. has heeded United Nations calls for decolonization through Puerto Rican selfdetermination. 6 7

The convergence of these socio-economic, political, and health crises are the long untreated symptoms of Puerto Rico’s exploited territorial possession by the American Empire. Therefore, redressing Puerto Rico’s intersectional plight first necessitates a reflection on and repudiation of this peculiar colonial relationship. This article aims to expose the living legacy of U.S. imperialism and colonialism on a paralyzed Puerto Rican society through the context of hurricane recovery. First, a comprehensive assessment of the 1920 Merchant Marine Act’s effects on the Puerto Rican economy will evaluate the consequences of an archaic federal statute on the island’s access to domestic goods during normal and emergency circumstances. Then, an analysis of Puerto Rico’s anachronistic territorial status as an ‘unincorporated territory’ will enunciate the systematic legal mechanisms which impose federal governance on the people of Puerto Rico without the consent of the governed. To this point, the article will highlight the exact ways in which the island’s 3.2 million residents, who are American citizens by law, are marginalized from the federal policy-making arena. These two colonial instruments—economic relegation under a century-old cabotage law and a repressive political status devoid of any meaningful representation or legal power in Washington—reflect a reality in which Puerto Rico is asphyxiated in its asymmetrical, unconsenting relationship with the United States. Thus, this article asserts that Puerto Rico’s exemption from the Merchant Maritime Act and the amplification of the territory’s political power within the federal government are requisite steps first for the improvement of Puerto Rico’s material conditions, and eventually for the overdue realization of its self-determination.

The 1920 Jones Act and Puerto Rico’s Fuel Economics

On September 25, 2022, just days after Hurricane Fiona, a shipping vessel which bore the flag of the Marshall Islands was barred from entry at Puerto Rico’s port in Guayanilla after it had departed from Texas City. This ship, with a cargo of 300 thousand barrels of diesel fuel, could have provided urgent aid to maintain generators at a time when hundreds of thousands of residents still remained without access to electricity and water. 8 Instead, it was forced to wait days for U.S. Federal Government approval for an exemption to a century-old federal cabotage regulation. The Merchant Marine Act of 1920, or the Jones Act, has long disproportionately affected non-contiguous American states and territories—Alaska, Hawaii, and Puerto Rico—that depend most on waterborne cargo transportation, and it especially plays a role in encumbering Puerto Rican relief efforts.

The Jones Act is a product of post-WWI bipartisan nationalism to address a perceived security weakness from the U.S.’s wartime reliance on foreign-flagged ships to ease strains on its ship capacity. 9 This maritime cabotage law governs which ships are qualified to transport goods from one U.S. port to another; qualifying ships must be U.S.-flagged, at least 75 percent U.S. owned, 75 percent staffed by Americans, and created entirely in the United States. 10 In prohibiting certain, unqualified ships from domestic trade, the Jones Act inhibits Puerto Rico’s ability to capitalize on international water routes. 11 For example, a Brazilian-flagged ship—which would not be Jonescompliant—originating from a Brazilian port to Miami would not be allowed to first stop in Puerto Rico before embarking for its final destination; alternatively, an American-flagged ship from Miami to Rio de Janeiro that is not 75 percent crewed by American citizens would be prohibited from first docking at another U.S. port, such as any in Puerto Rico.

Vocal critics like Cato Institute’s Colin Grabow have long attacked the economic ramifications of such a restrictive cabotage law for non-continental territories. These territories, which have no alternative mode of domestic cargo transportation, must depend on Jones Actqualifying maritime vessels for intra-U.S. domestic trade amid a time when the U.S. shipbuilding industry has long declined. 12 Consequently, the act’s strict specifications for domestic trade limit competition in both shipbuilding and in the maritime transport of goods, which allows a select few American carriers to “charge rates substantially above comparable world prices.” 13 New York’s Federal Reserve Bank corroborated this point when it assessed that a twenty-foot container of goods from the American East Coast to Puerto Rico “costs an estimated $3,063,” while “the same shipment costs $1,504 to nearby Santo Domingo (Dominican Republic) and $1,687 to Kingston (Jamaica).” 14 U.S. shippers, not subject to international market rates, leverage Puerto Rico’s reliance on domestic maritime trade and the lack of competition with foreign carriers from the continental U.S. to charge predatory costs for shipments to Puerto Rico. Critics like Grabow further assert that these consequences on Jones Act shipping costs are eventually passed down to retailers and intermediary producers, who then pass the costs to consumers. 15

As an island with a fossil-fuel reliant energy sector, the Jones Act’s disproportionate limitations on domestic trade has driven Puerto Rico to sustain its electrical sector entirely through international fuel imports. In the 2021 fiscal year, fossil-fuelpowered energy plants generated 97 percent of the island’s total electricity, of which natural gas and petroleum-powered plants represented 44 percent and 37 percent of the Commonwealth’s electricity respectively. 16 Since imported petroleum accounts for two-thirds of Puerto Rico’s total energy consumption, the island’s power prices fluctuate with fickle international oil prices. 17 Consequently, the island’s average electricity price in 2020 was “higher than in all but two U.S. States, Hawaii and Alaska,” two states that are disproportionately affected by the federal Jones Act due to their geographical distance from the continental Union. 18 Regardless of any meritable arguments from Jones Act proponents in their circuitous debate about the law’s net effects on the U.S., their primary claims in its defense—the creation of “650,000

American jobs” with shipyard construction and repair services, and the resulting “$150 billion in economic benefits each year”—are all irrelevant to Puerto Rico’s case. 19 After a century under the Jones Act, how has Puerto Rico benefited from “American job” creation when the island’s sole shipyard opened in August 2022? 20 Further, any purported economic output or tax revenue generated under the Jones Act means nothing when Puerto Rico’s health and economic poverty has not been alleviated under the administration of the world’s wealthiest and most powerful nation.

The exacerbation of economic distress in the aftermath of 2017’s Hurricane Maria or 2022’s Hurricane Fiona accentuates the Jones Act’s detriment to the Puerto Rican people.

In 2021, Congress’s ratification of the Defense Spending Authorization Act eliminated the federal government’s authority to grant exemptions to long-term cabotage regulations except to “address an immediate adverse effect on military operations.” 21 Since the Marshall Island-flagged ship containing three hundred thousand gallons of diesel did not relate to immediate military operations, its Jones Act waiver was subject to a dragged out case-by-case review by the Biden Administration.

Puerto Rico should not have to wait for a painstaking bureaucratic review of an archaic law to receive the necessary fuel aid to address power and water inaccessibility for hundreds of thousands of its people. Even a slight delay of fuel delivery engenders a life-or-death urgency for citizens particularly vulnerable to extended blackouts. 22 Fuel inaccessibility, in a society where the main energy infrastructure and even backup generators require the supply of imported fuel, jeopardizes lives: it threatens the ability for hospitals to perform needed functions, spoils produce and certain drugs in groceries and pharmacies, prevents citizens from storing food perishables in their own refrigerators, and relegates personal medical machines like respiratory devices inoperable. 23

As this analysis on the Jones Act delineated, this federal cabotage law, in its disproportionate ramifications on Puerto Rico’s economy, encapsulates the flagrant tradition of U.S. colonialism which exerts nationalistic interests over that of the Puerto Rican populace. It curtails domestic trade with the continental U.S., which in turn incentivizes Puerto Rico’s reliance on volatile international prices of imported, nonrenewable energy. It further hinders relief efforts from nonJones Act compliant domestic transportation during emergency relief efforts while sharing with Puerto Rico none of its supposed benefits. Though responsibility for Puerto Rico’s economic woes and its energy dependency on international fossil fuels extends far beyond just the 1920 Jones Act, it is clear that this statute has contributed to the deterioration of Puerto Rico’s material conditions. A complete exception for Puerto Rico from the Jones Act, or at the very least an expedited waiver process, would provide a more consistent, domestic supply of energy during the respites between severe natural hazards, and would ensure the unimpeded delivery of crucial relief during crises.

Puerto Rico’s Peculiar Status and the Political Rights and Non-Representation It Entails

The true pervasiveness of the federal government’s economic laws on Puerto Rico derives from Puerto Rico’s suppressed political voice as an “unincorporated U.S. territory.” To abridge a long and convoluted legal history of the land formerly known as Borikén to the indigenous Taínos, Puerto Rico was a colonial possession of a declining

Spanish Empire until the Spanish-American War saw the island’s ownership transferred to the United States in 1898; decades of American occupation ensued, where an insular government appointed directly by the U.S. federal government was liberalized in incremental stages over subsequent decades. 24

In the Insular Cases of the early twentieth century, the Supreme Court notoriously distinguished “incorporated territories,” acquired territories like Hawaii predetermined for U.S. statehood, from “unincorporated territories” like Guam and the U.S. Virgin Islands. Puerto Rico, which was designated into the latter category, was absorbed into an age of fledgling U.S. imperialism without a clear path to statehood. 25 Puerto Ricans, denied accession into statehood and placed into a nebulous legal standing of “unincorporation,” were further discriminated against when they were stripped of the full protections outlined in the U.S. Bill of Rights. In the 1922 Supreme Court case Balzac v. People of Porto Rico , Chief Justice Howard Taft delivered the unanimous opinion that Puerto Ricans on the island were not entitled to the 6th Amendment right to an impartial trial by jury, among other Constitutional assurances not deemed “fundamental.” 26 While the federal government has long rescinded many of these restrictions on Puerto Rico’s Constitutional rights, these judicial decisions nevertheless enforced a precedent of Puerto Ricans having to fight to qualify their merits as Americans to a reluctant government.

Puerto Rico’s longstanding absence of representation in the federal government reaffirms this peculiar legacy of unincorporated, second-rate citizenship. With Congress’s passage of the Foraker Act in 1900, Puerto Rico gained its first form of popular, elected “delegates” from legislative districts to form a unicameral legislature. 27 The island was also granted a non-voting member in the U.S. House of Representatives, a quadrennially-elected official called the Resident Commissioner who happens to still be the only “representation” Puerto Rican residents receive in the U.S. Congress. 28 Their only real power is the ability to sponsor legislation and serve on committees as an official Member of Congress, but they do not have a final vote on the House floor. 29 Therefore, Puerto Rico and its residents do not possess any true and meaningful representation in the federal Congress’ votes for bills that concern them, like the 1920 Jones Act. Worse still, Puerto Ricans possess restricted, if any, representation in the election of the U.S. President and its Executive Administration. The Jones-Sharoth Act of 1917 endowed Puerto Ricans, both living and future, with U.S. citizenship and the ability to migrate to the rest of the Union freely and legally. 30 This freedom to migrate to the Union’s states unlocks Puerto Ricans’ only way to participate in the general election. As an unincorporated territory, the Commonwealth is not entitled to any electors in the U.S. Electoral College; therefore, the power of 3.2 million American citizens to make their voices heard through the federal ballot is contingent on their ability to relocate and have “official residency” in the states or Washington D.C. 31 Puerto Ricans’ disenfranchisement symbolizes a federal administration ruling without the consent of the territorial citizens it governs, which becomes especially egregious when the U.S. President wields their extensive unilateral powers for policies specifically concerning Puerto Rico, like for the discretion to authorize FEMA’s deployment for hurricane relief. As the people of Puerto Rico experienced with the Trump administration’s delayed responses to Hurricane Maria, their living conditions and the recovery of their postdisaster society lies at the mercy of a foreign bureaucracy and an often indifferent head of state with no political incentive to support their nonconstituents. 32

These instances of disenfranchisement and powerlessness systematically deprive Puerto Rico’s residents of their political agency at each facet of the federal government. The U.S. Supreme Court’s decisions, which relegated Puerto Rico to an inferior legal classification of an “unincorporated territory,” continue to confuse puertoriqueños as to what rights they possess through their unique citizenship; Puerto Rico’s sole Congressional representation is essentially a symbolic gesture that has no final vote on behalf of the Puerto Rican people when a bill is voted on in Capitol Hill; and the sitting U.S. President, who retains the power to either sign or veto these bills while wielding unilateral Executive Actions, is truly not beholden to represent the permanent residents of a territory that does not have the power to vote the president in or out of office. This thorough political marginalization, which epitomizes the United States’ longstanding colonization of Puerto Rico, is incongruent with the hyper-romanticized democratic values of equality, representation, and voting rights it claims to embody.

The U.S. must redress its open descrimination of American citizens by ending its discriminatory treatment towards its arbitrailydefined unincorporated territories. If America’s overseas colonies are subject to the will of federal policymakers, they should be granted representation with an accessible presidential ballot in their territories and an elected, voting member in Congress. The approval of the 23rd Amendment in 1961, which granted District of Columbia voters participation in presidential elections and electoral votes equal to the least populous state, serves as a legal precedent that proves that the U.S. government could grant presidential voting rights to non-states. 33

Conclusion

Enshrined within United Nations Resolution 1514 (XV) is the foundational declaration that “all peoples have the right to selfdetermination; by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.” 34 Yet despite its international recognition, the right to self-determination is not afforded to “the world’s oldest colony.” 35 U.S. institutional measures—from the Jones Act’s multifaceted afflictions on economic and disaster relief efforts to the systematic marginalization of the unincorporated territory from federal policy-making—hinder Puerto Rican material progress. The humanitarian implications of its economic and health crises, exacerbated by the likely effects of anthropogenic climate change on intensifying hurricane seasons, can not be remedied without a conscientious recognition and denunciation of this denigrating colonial relationship. This article has already presented pragmatic solutions, like an expedited Jones Act waiver process and the island’s presidential participation through the same political process as enfranchised voters in the nation’s capital, to meet the immediate concerns of Puerto Rico’s people. Hopefully, it may be through palatable, incremental progress that Puerto Rico may finally steer its own political future away from the cyclical, colonial trap it has long been relegated to.

References

1 Jaclyn Diaz, “5 numbers that show Hurricane Fiona’s devastating impact on Puerto Rico,” NPR, September 23, 2022, https://www.npr.org/2022/09/23/1124345084/impacthurricane-fiona-puerto-rico.

2 Gobierno de Puerto Rico, “PREPS Puerto Rico Emergency Portal System,”September 30, 2022, https://web.archive.org/web/20220927115333/https://www. preps.pr.gov/, as of October 1, 2022.

3 Jim Wyss and Michelle Kaske, “Hurricane Fiona Exposes Puerto Rico’s Failure to Fix Frail Power Grid,” Bloomberg, September 19, 2022. https://www.bloomberg.com/news/ articles/2022-09-19/hurricane-fiona-exposes-puerto-rico-sfailure-to-fix-power-grid.; Associated Press, “Puerto Rico Power Fully Restored 18 Months After Hurricane Maria Wiped Out the Grid,” The Weather Channel, March 21, 2019, https://weather. com/news/news/2019-03-21-puerto-rico-power-restoredhurricane-maria.

4 U.S. Census Bureau, “Population Estimates, July 1, 2021 (V2021) Puerto Rico,” Quick Facts, accessed October 23, 2022, https://www.census.gov/quickfacts/fact/table/PR/ PST045221.; U.S. Census Bureau, “Income, Poverty and Health Insurance Coverage in the United States: 2021”, Press Release Number CB22-153, September 13, 2022, https://www.census. gov/newsroom/press-releases/2022/income-poverty-health- insurance-coverage.html; Frances Negrón - Muntaner, “The Emptying Island: Puerto Rican Expulsion in Post-Maria Time,” Hemispheric Institute, Expulsion 14, no. 1 (2018), accessed November 5, 2022, https://hemisphericinstitute.org/en/ emisferica-14-1-expulsion/14-1-essays/the-emptying-islandpuerto-rican-expulsion-in-post-maria-time.html.

5 Samantha Rivera Joseph et al. “Colonial Neglect and the Right to Health in Puerto Rico After Hurricane Maria,” American Journal of Public Health 110, no. 10 (Oct 2020), accessed November 6, 2022. https://ajph.aphapublications.org/ doi/full/10.2105/AJPH.2020.305814.

6 Jose Caraballo-Cueto, "The Economy of Disasters? Puerto Rico Before and After Hurricane Maria," CENTRO: Journal of the Center for Puerto Rican Studies 33, no. 1 (2021). Gale Academic OneFile (accessed November 7, 2022). https:// link.gale.com/apps/doc/A668270706/AONE?u=mlin_b_ bumml&sid=bookmark-AONE&xid=9b21b467.;

7 UN 2022 Session, 6th Meeting (AM), “Special Committee on Decolonization Approves Resolution Calling Upon United States to Promote Process for Puerto Rico’s Self Determination, Eventual Independence,” United Nations, June 20, 2022. https:// press.un.org/en/2022/gacol3360.doc.htm.

8 Jose A. Delgado, “La administración de Biden aprueba una exención en las normas de cabotaje para permitir la entrada a Puerto Rico del barco con diésel,” El Nueva Dia (Guaynabo, PR), Sep 28, 2022. https://www.elnuevodia.com/ corresponsalias/washington-dc/notas/la-administracion-debiden-aprueba-una-exencion-temporal-en-las-normas-decabotaje-para-puerto-rico/.

9 Jeffrey Pagel, Brannon Ike, and Kashian Russ, “Jones Act: protectionist policy in the twenty-first century,” Maritime Economics & Logistics, 21, no. 4 (2019), 441-442, https:// doi.org/10.1057/s41278-019-00123-9 (accessed October 20, 2022).

10 Constantine G. Papavizas, “Public Company Jones Act Citizenship,” Tulane Maritime Law Journal 39, no. 1 (Winter 2014): 384-386, accessed October 18, 2022, https://heinonline. org/HOL/P?h=hein.journals/tulmar39&i=3.

11 Grabow, “Jones Act: A Burden”

12 Colin Grabow, Inu Manak, and Daniel J. Ikenson, “The Jones Act: A Burden America Can No Longer Bear,” Cato Institute, June 28, 2018, https://www.cato.org/publications/ policy-analysis/jones-act-burden-america-can-no-longerbear.

13 Joseph T. Francois, Hugh M. Arce, Kenneth A. Reinert, and Joseph E. Flynn, “Commercial Policy and the Domestic Carrying Trade,” The Canadian Journal of Economics, 29, no. 1 (Feb. 1996): 183, accessed October 25, 2022. https://www.jstor. org/stable/136158.

14 Federal Reserve Bank of New York, Report on the Competitiveness of Puerto Rico’s Economy, June 29, 2012, 13, https://www.newyorkfed.org/medialibrary/media/regional/ PuertoRico/report.pdf.

15 Ibid.

16 U.S. Energy Information Administration, “Puerto Rico Energy Profile.”

17 Ibid.

18 Ibid.

19 Roger Wicker et al. “Why the Jones Act is still needed 100 years later,” DefenseNews, June 5, 2020, https://www. defensenews.com/opinion/commentary/2020/06/05/why-thejones-act-is-still-needed-100-years-later/.

20 Marian Díaz, “Porta Ship opens the first shipyard in Puerto Rico,” El Nuevo Día, August 29, 2022, https://www.elnuevodia. com/english/news/story/porta-ship-opens-the-first-shipyard- in-puerto-rico/.

21 Jose A. Delgado “La Administracion de Biden”

22 Daniella Silva and Nicole Acevedo, “Lack of power in Puerto Rico creates life-or-death situations for those with medical needs,” NBC News, September 23, 2022, https://www. nbcnews.com/news/latino/lack-power-puerto-rico-creates-lifedeath-situations-medical-needs-rcna49151.

23 Ibid.

24 Office of the Historian and Office of the Clerk U.S. House of Representatives, Hispanic Americans in Congress 1822-2012 (Washington D.C.: U.S. Government Printing Office, 2013), Appendix I, 746, https://www.govinfo.gov/content/pkg/GPOCDOC-108hdoc225/pdf/GPO-CDOC-108hdoc225.pdf.

25 Juan R. Torruella, “Ruling America’s Colonies: The Insular Cases,” Yale Law & Policy Review, 73-74, https://openyls.law. yale.edu/bitstream/handle/20.500.13051/17212/04_32YaleL_ PolyRev57_2013_2014_.pdf?sequence=2&isAllowed=y.

26 Cornell Law School, “BALZAC v. PEOPLE OF PORTO RICO (two cases),” Legal Information Institute, sec. 18, https:// www.law.cornell.edu/supremecourt/text/258/298.

27 Fifty-Sixth Congress. “Chapter 191” in The Statutes At Large of the United States of America From December 1899 to March 1901, (Washington: Government Printing Office, 1901), 82-83, https://tile.loc.gov/storage-services/service/ll/llsl//llsl-c56/ llsl-c56.pdf.

28 Ibid.

29 “What is the Resident Commissioner,” About, U.S. Congresswoman Jenniffer González-Colón, accessed October 25, 2022, https://gonzalez-colon.house.gov/about.

30 Library of Congress, “1917 Jones-Shafroth Act,” accessed October 25, 2022, https://guides.loc.gov/latinx-civil-rights/ jones-shafroth-act.

31 “Can citizens of U.S. Territories vote for President?,” Electoral College Frequently Asked Questions, National Archives, accessed October 25, 2022, https://www.archives.gov/ electoral-college/faq#territories.

32 Dave Graham, “Puerto Ricans say Trump’s disaster response was too slow, too clumsy,” Reuters, September 28, 2017, https:// www.reuters.com/article/usa-puertorico-trump/puerto-ricanssay-trumps-disaster-response-was-too-slow-too-clumsyidINKCN1C33DL.

33 Constitution of the United States, “Twenty-Third Amendment,” Constitution Annotated, accessed November 6, 2022, https://constitution.congress.gov/constitution/ amendment-23/.

34 UN General Assembly Resolution 1514 (XV), “Declaration on the Granting of Independence to Colonial Countries and Peoples,” United Nations Human Rights Office of the High Commissioner, December 14, 1960, https://www.ohchr.org/en/ instruments-mechanisms/instruments/declaration-grantingindependence-colonial-countries-and-peoples.

35 Jana María Giles, “Puerto Rico The Disappeared: The World’s Oldest Colony in the World’s Youngest Empire,” Journal of Contemporary Thought, Special Issue on ‘Actually Existing Colonialism’(March 2006), https://www.academia. edu/1788738/_Puerto_Rico_the_Disappeared_The_World_s_ Oldest_Colony_in_the_World_s_Youngest_Empire_Special_ Issue_on_Actually_Existing_Colonialisms_.

Maps by: An Pham