PUERTO RICO HERALD: Dick Thornburgh Interview Part II

OCTOBER 11, 2002
Copyright © 2002 PUERTO RICO HERALD. All rights reserved.

Former U.S. Attorney General Dick Thornburgh & Puerto Rico’s Constitution

This week, the Herald presents Part II of a recent interview with former U.S. Attorney General Dick Thornburgh, conducted by Lina Younes, former Washington Bureau Chief of Puerto Rico’s El Vocero. In it, Thornburgh explores issues raised by current interpretations of Puerto Rico’s 1952 Constitution. Does that document establish a "bilateral compact" between Puerto Rico and the United States? Is it the instrument by which Puerto Rico may gain sovereignty by the enhancement of local government power? What is the nature of the American citizenship of nearly four million residents of Puerto Rico, now living in an unincorporated territory of the United States of America?

In Part I of the interview, published in last week’s Herald, Thornburgh tackles the "bilateral compact" issue, carefully defining each word of that phrase from a U.S. Constitutional perspective. He expresses the view that, since Puerto Rico is a political subdivision of the United States with no constitutionally defined sovereignty, there could exist no bilateral relationship. "The powers of (Puerto Rico’s) government … derive from (U.S.) federal law … and once Congress acts on any issue it is no longer a local issue because it is governed by federal law," he concludes. The word "compact," he explains, refers only to the process by which the Puerto Rico constitution was promulgated and "does not address the legal or political status of Puerto Rico."

Dick Thornburgh is a former Attorney General of the United States under Presidents Reagan and Bush and two-term Governor of Pennsylvania. He now practices law in Washington, D.C. with the firm of Kirkpatrick & Lockhart, LLP. Since reentering private practice, he has lectured on the subject of the U.S. government’s relationship to its territories and has frequently advised the U.S. Congress on Constitutional aspects of its responsibilities to Puerto Rico.

What do you make of the use of the term "allies" in describing the relationship between Puerto Rico and the United States?

The term "allies" implies much the same thing as the term "bilateral", and for many of the same reasons mentioned above it is similarly inaccurate as a descriptive term for federal-territorial relations in the case of Puerto Rico.

In addition, the term "allies" refers to nations that have a strategic partnership or military alliance on the plane of international mutuality. However, the local constitution in Puerto Rico does not establish a government with authority and responsibility for military operations or strategic affairs.

In this context, use of the term "allies" implies in a false way that Puerto Rico is a sovereign nation that provides for its national defense by delegating that function to the United States. This borders on delusion.

Rather, the local constitution is a federally authorized and approved structure for local administration of the civil affairs of the territory. The local territorial commonwealth government does not have the legal or political capacity to assume, exercise, or regulate, much less delegate, military powers on the plane of sovereign-to-sovereign mutuality.

Therefore, as used in the case of Puerto Rico the term "common defense" means the U.S. provides for the defense of Puerto Rico as part of the U.S. national defense system, and Puerto Rico’s local government has no role in defense matters different than states or other political subdivisions of the United States.

Can the current relationship of "commonwealth" be enhanced so that Puerto Rico may have the authority to enter into trade and other agreements with foreign countries? What about membership in international organizations?

On the question of international agreements and international organizations, there is no basis under federal law for Puerto Rico to act in the international arena in any capacity different from the states, counties, cities, which also constitute political subdivisions of the United States. Puerto Rico does not have an international legal personality or capacity to act in its own name and right, any more than the state of Oklahoma, Dade County, the City of Los Angeles or the territory of Guam.

From time-to-time states and other political subdivisions of the U.S. attempt to act on the international plane in a way that infringes upon the powers reserved by the U.S. Constitution to the federal government. In some cases the U.S. State Department may not know, or may not do anything about it. Sometimes the State Department approves local government participation in international proceedings on the basis that it does not infringe on federal powers, since the political subdivision involved is recognized as a U.S. entity rather than a sovereign party in the international sense.

While local governments may get away with stepping over the line now and then, when there is a dispute or conflict, or the international activities of a political subdivision become "inconvenient" for the federal government, the constitutional power of the U.S. to regulate and restrict locally conducted international activities incompatible with American foreign policy is well-established. That power is even more absolute in the case of a territory like the Commonwealth of Puerto Rico than it is in the case of a state, county or city, due to the plenary power of Congress under the territorial clause.

It must be emphasized in connection with proposals to "enhance" commonwealth that Congress cannot cede to a territory powers reserved to it by the U.S. Constitution. Nor can the President relinquish reserved powers to a territory. The form of local self-government in a territory is a territorial clause issue reserved to Congress, and, similarly, international agreements are at the heart of the foreign policy power reserved to the President.

As a matter of statutory policy, Congress could permissively allow a territorial government to have a degree of autonomy, but historically that has been allowed only as part of the transition to independence. This was the case in regard to the Commonwealth of the Philippines. Such statutory autonomy can be terminated by Congress unilaterally and at will.

This is because Congress does not have the power to amend the U.S. Constitution by statute or treaty in order to make a statutory policy permanent. This is true not only as to expanding or restricting autonomy over trade; it applies as well to all forms of autonomy allowed by statute. For that matter, the inability of one Congress to bind another also applies to the statutory features of commonwealth that are based on domestic state-like treatment, including political union and U.S. citizenship.

Returning to the original question on trade for a final point, it seems to me as a practical matter that Congress would not be able to justify even temporary trade autonomy for any domestic U.S. area, which is included in the U.S. Customs Territory and receiving billions annually in federal subsidies. Thus, loss of U.S. Customs Territory status might be the price of trade autonomy. That is at least something to think about, in the sense that you need to be careful what you ask for because you just might get it.

Can commonwealth be enhanced so that Puerto Rico would have a local power to nullify the application of federal laws in Puerto Rico, since Puerto Rico has no representation in Congress?

The argument that federal laws should not be applicable to Puerto Rico without its consent recently was presented to the U.S. Supreme Court in an appeal in the Acosta-Martinez case. As noted already, the First Circuit Court of Appeals ruled that "…a provision of the Constitution of Puerto Rico does not trump a federal statute", and the Supreme Court rejected the petition to review that ruling.

This goes to the heart of the status problem in Puerto Rico, because U.S. citizens in the territory are not represented in the Congress, and the federal courts have consistently ruled that federal law trumps local law. Even if Congress passed a statutory policy creating a local veto power, Congress could take it away by a later statute.

This is because Congress cannot by statute create a legally vested right to a policy governing a political question, such as the form of self-government in a territory. The federal government can exercise its sovereignty to enter contracts required in order to carry out its powers, but it cannot by statute or treaty "contract away" the sovereignty or powers reserved to it by the U.S. Constitution.

Even though there appears to be a great deal of opposition to the death penalty in Puerto Rico, for example, the lack of voting representation in Congress, or, alternatively, the lack of separate national sovereignty, means the residents of Puerto Rico do not have any meaningful way to give or withhold consent — or even influence the lawmaking process -- on a matter of great legal, political and moral importance to them. This is a very concrete example of why statutory autonomy does not resolve the status problem.

As an independent nation or free associated state in the true legal and political sense (rather than in name only), Puerto Rico could ban the death penalty and make that the supreme law of the land. As a state Puerto Rico could join other states that oppose the death penalty and exercise its sovereignty in support of the national movement to end federal executions. As a territorial commonwealth, Puerto Rico is disenfranchised in the legal and political process through which the supreme law of the land is made.

When the death penalty case was appealed, there was an article in the San Juan Star asking if the federal courts would use the case to rule on status. The answer is yes, and once again the Supreme Court left standing a ruling that upholds an act of Congress that ignores the local constitution’s ban on executions for crimes committed in Puerto Rico. For those in Puerto Rico who argued that the local constitution banned federal executions, or that Puerto Rico had not consented to application of the federal death penalty law, this ruling can mean only one thing — the local constitution did not create an unalterable bilateral pact based on mutual consent.

Some people argue that enhancing commonwealth is a matter of political will, not a legal question. Do you agree?

Suppose we all woke up one day and Congress had summoned forth the political will to approve whatever status policy the Popular Democratic Party of Puerto Rico might propose. Even with all the political will in the world in favor of that statutory policy, you still come back to the legal and constitutional problem that it is only statutory policy. Congress could end it any time it chose to repeal or amend the federal statute creating it.

Congress cannot by statute, treaty, compact or promise convert a statutory policy into a constitutionally guaranteed policy. If Congress could graft permanent rights onto the constitution by statute or treaty, then there would be no need for the amendment provisions of the constitution. Each Congress would simple make its statutory policies "unalterable".

Let’s take statutory citizenship as an example. As I have stated so often, those who already have U.S. citizenship under a federal statute are protected against arbitrary loss of that status under the doctrine of fundamental rights established by the U.S. Supreme Court in the case of Balzac v. Puerto Rico. That was because the U.S. Constitution does not apply outside the fifty states of its own force, and the Court ruled that American principles of justice must govern federal actions in the territories even if the full rights of citizenship are not extend by the constitution itself.

Thus, just as due process must be accorded in judicial proceedings in the territories, and property can not be taken without just compensation, statutory citizenship not guaranteed by the 14^th Amendment as it is in the states can not be taken away from an individual how already has it, unless Congress can show a compelling reason for denial of citizenship. However, a non-discriminatory statutory policy ending conferral of U.S. citizenship in the future, for persons who do not acquire it automatically in a state, clearly is within the discretion of Congress under the uniform naturalization power reserved to it by the U.S. Constitution.

Those who argue that there is no legal issue, and that anything is possible in the development of commonwealth if there is sufficient political will, are missing the point. First, political will must be expressed within the disciplines of the rule of law. Just saying commonwealth can be enhanced to make it constitutionally permanent does not make it so.

In Part III of this interview, to be featured next week’s Herald, former Attorney General Dick Thornburgh answers the question: "Why can’t the U.S. Congress legislate changes in the Puerto Rico Constitution, giving the local government more powers?"

PERSPECTIVE Dick Thornburgh Interview Part II Puerto Rico’s 1952 Constitution: "The federal courts have consistently ruled that federal law trumps local law." -Dick Thornburgh

PERSPECTIVE

Dick Thornburgh Interview Part II

Puerto Rico’s 1952 Constitution: "The federal courts have consistently ruled that federal law trumps local law."

-Dick Thornburgh