In an embarrassing episode that is ongoing, the Director of the Puerto Rico Federal Affairs Administration has started a feud over his wrong interpretation of the recently approved appropriation for a status plebiscite. Juan E. Hernandez Mayoral, who has been ridiculed before for his performance in DC, came out today saying that the language as approved does not necessarily mean that the Department of Justice has to approve the plebiscite options and language before the money is spent.
Hernandez Mayoral claims that the explanatory statement does not contain any instructions to the Attorney General.
This would be fine, except that the explanatory statement concerning the appropriations for the Department of Justice begins with the following statement:
“Report language included in House Report 113-171 (“the House report”) or Senate Report 113-78 (“the Senate report”) that is not changed by this explanatory statement or this Act is approved. The explanatory statement, while repeating some language for emphasis, is not intended to negate the language referred to above unless expressly provided herein.” (emphasis added)
In other words, the explanatory statement is clearly stating that the House and Senate reports language that is not altered, has been approved. It is in House Report 113-171 where the instructions for the Attorney General and the US Department of Justice are included, as we previously reported, being that:
“…The funds provided for the plebiscite shall not be obligated until 45 days after the Department notifies the Committees on Appropriations that it approves of an expenditure plan from the Puerto Rico State Elections Commission for voter education and plebiscite administration, including approval of the plebiscite ballot. This notification shall include a finding that the voter education materials, plebiscite ballot, and related materials are not incompatible with the Constitution and laws and policies of the United States.”
The absurd statement by Hernandez Mayoral prompted a response from both Resident Commissioner Pedro Pierluisi (D-PR) and Representative Jose Serrano (D-NY), each stating that the premise of the statement was incorrect, and that the funds will not be disbursed until the DOJ approves the plebiscite options.
Pierluisi issued a statement “for those who are confused”, stating that “the arguments of the PRFAA Director, Juan Eugenio Hernandez Mayoral demonstrate his lack of knowledge of the federal legislative process, and denote ill intention when informing the people. The supposed support for this appropriation from the government of Garcia Padilla has crumbled. The only reason to not be in favor of the Department of Justice approving the status plebiscite ballots is that they know that their fictitious proposals would not pass muster.”
Point Pierluisi. Serrano joined saying that “the Department of Justice has to follow the instructions given to it by Congress.” And he would know, being one of the highest ranking democrats on the Appropriations Committee of the House. Point Serrano.
Adding to what Pierluisi and Serrano said, an examination of the language in both the explanatory statement and the House report reveal that it is commonplace practice for Congress to issue instructions to agencies through these documents.
From the explanatory statement:
“Each department and agency funded in this Act shall follow the directions set forth in this Act and the accompanying statement and shall not reallocate resources or reorganize activities except as provided herein.” (emphasis added)
How’s that for not having the force of law? Because the accompanying statement references the House report, its instructions have been approved and must be followed, in this case by the DOJ. You can also read on to find instructions like these in the report:
“The Committee directs the Attorney General to report not later than 120 days after the enactment of this Act on Justice Department law enforcement personnel and resources in Puerto Rico and the U.S. Virgin Islands, and how they complement other Federal law enforcement agency efforts, particularly of the Department of Homeland Security.”
But these facts aren’t enough to deter Hernandez Mayoral. When approached by El Nuevo Dia with the comments from Pierluisi and Serrano, the director insisted he was on the right because committee reports “do not have the force of law.” Citing the Congressional Research Service, he went on to state that “what PRFAA did today was explain that the process that will be followed to disburse the $2.5 million did not specify in the appropriation provided in the law that the details will be agreed between the Commonwealth of Puerto Rico and the federal Department of Justice. You have to tell the people the truth and the reality is that a report is not a law.”
The PDP coalesced around Hernandez Mayoral, but may have made things worse when the Secretary General of the party, Senator Jorge Suarez (PDP-At Large) said that reports “aren’t approved in Congress” like bills. See the excerpt from explanatory statement above and you can see how that is not true.
Regardless of these dubious interpretations, the truth is that by starting this fight, the government of Alejandro Garcia Padilla is looking at a face-off against not just Pierluisi and Serrano, but the whole of Congress and the White House, who proposed in the first place that the DOJ first approve the ballot. That’s a fight it simply cannot and will not win.
The sheer pettiness of the issue highlights the thinly veiled political disguise behind the move. Several weeks ago, Hernandez Mayoral scored what some consider to be his only political victory so far over Pierluisi, when the latter erroneously issued a statement announcing a review of the budget of Puerto Rico by the Government Accountability Office. The move to have the GAO conduct the review was defeated, in part because the agency said it lacked the funding to conduct such a review on all the territories. Due to Pierluisi’s office mistake, Hernandez Mayoral was able to begin crafting a narrative of lack of knowledge of how Congress works on Pierluisi’s part. Today was an attempt to perpetuate that notion, however unfounded.
In all likelihood, this was a stunt meant for the local press, and not a serious position. Otherwise any attempt at subverting Congress’ authority by doubting the force of their reports is likely not to end well for the Garcia Padilla administration. To verify we’ve reached out to the House Committee on Appropriations on their position, and we’ll update when we get a response, but you can start guessing what that response will be.
Another possibility behind the statement is that the Popular Democratic Party is indeed planning on insisting on there being a current status option on the ballot, or even an “enhanced commonwealth” one, even when it has been repeatedly stated that such an option is unconstitutional. In addition, most members in Congress take the current status to have been defeated at the ballot last November, when 54% of voters rejected the territorial condition.
Not only is it looking like this is the path the PDP will take, but it apparently thinks it can do so without federal approval. The position comes as strikingly bizarre given how clearly the language is written, and how no one in DC seems to share that interpretation. The plebiscite may have garnered some criticism from the Heritage Foundation and PDP allies like Representative Luis Gutierrez (D-IL) and Senator Roger Wicker (R-MS), but to go as far as alleging the funds can be used as they please without approval is pushing it too far.
The White House should pay attention to this incident. It proposed a plebiscite and through contrived interpretations it seems the PDP is looking to hijack the process likely to stall it and prevent any status change.
Stay tuned for updates as more officials react as they’re likely to do.
