WHITE PAPER:
RESOLVING PUERTO RICO'S POLITICAL STATUS
(06/17/98, Copyright © 1998 Puerto Rico Herald)
BACKGROUND:
For U.S. territories which became states, the establishment of state-like constitutional governments was a step in the process of incorporation resulting in the equal and irrevocable citizenship and permanent union which comes only with statehood. Typically, once residents of a territory adopted a local constitution statehood was achieved by petitioning Congress and complying with the terms of a statehood act.
One exception was the Philippines, where U.S. citizenship was never extended and establishment of constitutional government in that commonwealth territory was a step to independence in accordance with Congressional policy. The other exception is Puerto Rico, where establishment of constitutional government as a commonwealth territory has led to neither equal rights and duties of citizenship nor permanent union. Instead, Puerto Rico has been establishing a permanent status under the U.S. Constitution.
Specifically, in 1917 Congress extended U.S. citizenship to Puerto Rico, and in 1950 Congress authorized adoption of the local constitution – just as Congress had done in other territories which became states. Unlike those other territories, however, in the case of Puerto Rico citizenship and state-like constitutional government had been made part of an experiment to see if Congress and the people would continue indefinitely to consent to a status of limited rights and benefits conferred by statute at the discretion of Congress rather than establishing a permanent status under the U.S. Constitution.
In a local referendum in 1993, less than a majority of Puerto Ricans consented to continuation of the indefinite status. In 1994 Puerto Rico petitioned Congress to implement the results of the 1993 referendum in which status options based on "permanent union' and "irrevocable" U.S. citizenship received 95% voter approval. However, ambiguity exists in Puerto Rico and Congress because the ballot in that referendum failed for future generation in Puerto Rico could be achieved through commonwealth defined as an "unalterable bilateral pact," or only through statehood.
In 1994 the U.S. Department of Justice rejected as constitutionally prohibited the proposals of both Guam and Puerto Rico for a binding "commonwealth" status within the U.S. constitutional system irrevocable without "mutual consent." In 1996 Congress unilaterally ended tax policies that had been perceived as economic incentives for continuation of the current status in Puerto Rico.
Given this difficult legacy of ambiguity about Puerto Rico's status, Congress now must establish a process to define and implement with the informed consent of a majority of voters in Puerto Rico either "permanent union' and "irrevocable" U.S. citizenship through statehood, continuation of the current impermanent status under the Territorial Clause, or separate sovereign nationhood for Puerto Rico.
PART 1: INTRODUCTION
It has now become clear that if Congress will treat Puerto Rico as it historically has treated other territories, and as the U.S. Constitution clearly contemplates, Puerto Rico will be able to follow the steps other territories have taken to achieve permanent political status. As explained below, Congress alone has the authority and responsibility to prescribe the necessary terms under federal law for resolving the status of Puerto Rico.
Although outcomes for Puerto Rico other than statehood are possible, since the impermanence of the current status under the U.S. Constitution has become clearly understood there is increased interest in the historical and constitutional process for admission of territories into the union. Because this paper addresses the overall question of self-determination for Puerto Rico, materials on admission of states are presented in Part 5, beginning at page 7 of this document.
First, however, it is important to begin this analysis by recalling that in 1990 the House passed a Puerto Rico status bill (H.R. 4765), but it did not contain definitions of status options acceptable to Congress. If it had become the law, that 1990 House bill would have provided little guidance tot he voters of Puerto Rico on the constitutionality of status proposals espoused by the local political parties.
The U.S. Senate deliberated extensively on status legislation in 1991, but when in position to act the Senate balked because the bill was so heavily laden with detailed terms for implementation of a vote for either independence, statehood or commonwealth. As a result, Senate leaders in 1991 urged the government of Puerto Rico to conduct a referendum under local law and then petition Congress to implement the results.
As discussed below, the "permanent union" and "irrevocable" U.S. citizenship terms in the definition of commonwealth placed on the ballot by the commonwealth part made the results difficult to interpret. In addition, lack of majority consent for the current status - even with the commonwealth party's own definition _ raised issues of federal law and policy regarding the legitimacy of the current status.
However, faithful to local law and the expressed will of a plurality of voters, Puerto Rico, acting through its constitutional process, thereupon formally petitioned the 104th Congress to implement the voting results. Concurrent Resolution 62, approved by the Legislature of Puerto Rico on December 14, 1994, requested Congress, should it "fail to accede" to the status definition which received the highest number of votes in the referendum, to "state the specific status alternatives it is willing to consider, and the measures it recommends that the people of Puerto Rico should take as a part of he process to solve the problem of their political status.
The House of Representatives responded to the formal petition of the people of Puerto Rico by conducting a series of hearings in Washington and Puerto Rico in which all parties were heard and provided the opportunity to advance their status policies. The bill that emerged from those hearings, H.R. 856, was reported by the House Resources Committee by 44-1. It included bipartisan compromise provisions clarifying the legal structure of status options available to Puerto Rico under the U.S. Constitution and international law recognized by the United States.
While H.R. 856 passed the House on March 4, the U.S. Senate has never formally responded to Puerto Rico Legislature Resolution 62. That is the prerogative of the Senate, but it does not provide the most persuasive basis to argue in Puerto Rico, as some U.S. Senators recently have, that the residents of the territory once again should hold their own vote and then petition Congress to respond to the results.
Both before and after the 1993 vote, the elected leadership in Puerto Rico consistently has recommended that Congress confirm the Constitutional structure of each status option it is willing to consider for Puerto Rico. Because that recommendation has not been timely adopted, it now has become even more necessary for Congress to establish a long term process that will remain available to ensure that Puerto Rico's status is legitimate and is based on the consent of the governed.
Puerto Rican born Americans know that whatever political will they express in the next vote must be tested by Congress in the context of the national interest. If Congress defines terms for a change of status that are not accepted by majority consent in Puerto Rico the status quo will continue, but it will be no longer due to failure by Congress to provide a process for expression of the political will of the citizenry.
PART 2: UNDERSTANDING PUERTO RICO'S POLITICAL STATUS
Due in significant part to social engineering and command economics experimentation by the local and federal governments in a failed attempt to make territorial commonwealth permanent, Puerto Rico has been diverted from the historical constitutional process through which the status of U.S. territories has been determined since the Northwest Ordinance of 1789. In this Century, for example, among the large and populous non-contiguous territories under U.S. sovereignty (Alaska, Philippines and Hawaii were the others), Puerto Rico alone was granted U.S citizenship as an incentive to accept American rule rather than seeking independence, only to then receive a combination of Federal entitlements and tax exemptions which amount to a program of economic disincentives for seeking incorporation leading to statehood.
In addition, legal and political ambiguities which cloud the current status and impede informed self-determination are embodied in not only local law and policy, but in federal statutes and decisional law of the federal courts. This has been exploited in the political debate and the federal- territorial legal process to seek recognition of a theory of "commonwealth" status described officially by the commonwealth party. Although t here is a trend in recent federal court decisions to clarify these issues, Congress has the primary constitutional authority and responsibility to define federal law and policy so that the rights and status of the people are neither over-stated or under-stated.
PART 3: MEANING OF THE 1993 VOTE
There are few points relating to the 1993 vote in Puerto Rico that are particularly important. For although it was conducted under local law, the 1993 vote has profound ramifications under federal policy that go directly to the question of why Congress should act in 1998 to create a long-term process to address the question of Puerto Rico's status.
First, both the commonwealth and statehood definitions on the 1993 ballot were based upon permanent union and constitutionally guaranteed U.S. Citizenship. These two status options received a combined total of 95% of the vote. The problem of interpretation arises from the fact that the voters were not informed that "permanent union" and "irrevocable" U.S. Citizenship have not been secured under commonwealth, and the U.S. Department of Justice has informed Congress that as a matter of constitutional law there can be no vested right in a political status conferred by statue under the Territorial Clause of the U.S. Constitution.
The record before Congress is now clear that permanent union and irrevocably U.S. citizenship can not be obtained through commonwealth, even if its reformed as proposed in the 1993 commonwealth definition. Since only Statehood provides the constitutionally guaranteed status and citizenship included in the commonwealth definition, the real question arising from the 1993 referendum results is how those who voted for commonwealth with permanent union and irrevocable U.S. citizenship intend to achieve that result if not through statehood.
In addition, a plurality of 48% for commonwealth may have been sufficient under the local law applicable to the referendum to make it necessary for the capitol legislature of Puerto Rico to petition Congress to accept and implement commonwealth as defined on the ballot. However, to implement commonwealth as defined for the voters would require substantial changes and expansion of the existing commonwealth as it is under federal law. Not only did the ballot definition of commonwealth calls for features which currently do not exist, but some key elements of the 1993 definition - such as a mutual consent" veto power over capitol federal laws changing the commonwealth status - constitutionally are not even possible according to the U.S. Department of Justice.
So on one hand Puerto Rico properly petitioned Congress to implement the 1993 referendum vote in favor of commonwealth defined as a proposal to enhance and expand the present relationship from what it is to what a plurality of what the voter approve. On the other hand, Puerto Rico and Congress also recognized that key elements of that definition are either unacceptable to Congress or unconstitutional. Even worse, Congress is now faced with a reality that less then a majority of the voters consented to the continuation of commonwealth defined as the present status - with or without the proposed improvements.
The government of Puerto Rico has carried out its roll properly by petitioning for implementation of the 1993 results, and clarification of the options if Congress failed to do so. For its part, the federal government has not yet determined what roll it now must play. As the Congress comes to grips with the situation and Puerto Rico, the results of the 1993 vote did give rise to difficult questions.
Specifically, in authorizing the establishment of the present "commonwealth" in 1950 under the terms of P.L. 81-600, Congress expressly stated in Section 1 of that Act that internal government under a local constitution was being instituted "Recognizing fully the principal of government by consent." This general statement of federal policy was given a more precise meaning by the fact that Congress expressly required in Section 2 of that Act that the form of government which we know today as "commonwealth" must be approved "in an island -wide referendum…by a majority of the voters…"
Thus, by federal statute the legitimacy of the present commonwealth status is predicated on the requirement that a majority of those governed under commonwealth give their consent to this form of self-government. However, in the 1993 vote the "commonwealth" form of self-government was approved by less than a majority of the voters. This raises questions about the legitimacy of the current status, for as a matter of clear federal policy if not law the absence of majority approval arguably means that the people of Puerto Rico have withdrawn their consent to the current status.
In this regard, it is worth noting that the 1993 referendum was conducted throughout the constitutional process established under P.L. 81-600. Obviously, the specific authorization for the referendum conducted in 1952 under P.L. 81-600 does not apply here, but it is significant that the "principal of government by consent" articulated in Section 1 of P.L 81-600 has been codified with respect to the "commonwealth" structure of local government for Puerto Rico at 48 U.S.C. 731.
Similarly, the requirement that the present constitutional structure be consented to by a majority of the voters to establish "commonwealth" is codified at 48 U.S.C. 731c. Not by binding legal operation of those provisions in the contemporary context, but by reference tot he standard of self-determination prescribed by Congress to legitimize "commonwealth" in 1952, the 1993 vote calls upon Congress to take cognizance once again of the question of Puerto Rico's status and the principal of majority consent.
In addition, the U.S. relied upon majority consent in seeking U.N. General Assembly approval of Resolution 748 on September 27, 1953. This resolution is the legal basis upon which the U.S. ceased reporting tot he U.N. on Puerto Rico as a non-self-governing area under Article 73 (e) of the U.N. Charter. Paragraph 9 of resolution 748 preserves the option of further self-determination at the initiative of either the U.S. or Puerto Rico if consent ceases, subject to the U.S. constitutional process.
PART 4: DEFINING FEASIBLE STATUS OPTIONS
Of much greater concern than the state of the U.N. legal practice as it relates to Puerto Rico is the state of territorial policy under American constitutional federalism. Article IV, Section 3, Clause 2 of the U.S. Constitution is never intended to enable Congress to maintain in perpetual disenfranchisement a population of U.S. citizens equal in number to the population of half the states of the union. Local self-government and statutory citizenship under federal laws approved by Congress pursuant to the Territorial Clause is a discretionary and permissive status rather than a constitutionally guaranteed nationality or permanent form of full self-government.
Consequently, if the current status is to continue it must be based on informed consent by the voters, and there must always be available a mechanism for the residents of the territory to seek agreement with Congress on a change to a new status that would be permanent and of right rather than by virtue of a permissive policy of Congress. To the extent Congress views approval of the definition of commonwealth on the 1993 local referendum ballot as a proposal to enhance and continue the present status, the permissive of all such enhancements must be made clear.
That is why the House bill confirms that Congress can not by statute create a constitutional right to permanent union for a territory, or promise that U.S. citizenship will forever be conferred on persons born in Puerto Rico as it is for persons born in a state of the union. Nor can one Congress bind a future Congress to a bilateral pact which can be altered only by mutual consent. The House definition of commonwealth accurately describes features such as these as policies Congress has the authority to establish by statute, but which can not be made constitutionally permanent.
This clarification was not deemed necessary because pro-statehood elements wanted to define "commonwealth" prejudicially. Rather, the need arose from the representation by commonwealth supporters for forty years – with encouragement from allies in Congress – that the current status is constitutionally guaranteed and immutable in perpetuity. Predictably, because the House bill responds to Concurrent Resolution 62 accurately on these matters, it has been labeled a "statehood bill."
To understand why these basic issues have become so contentious, it must be recognized that commonwealth party leaders reject the language of the House bill recognizing that the Supremacy Clause of the U.S. Constitution applies to Puerto. That's not all. The commonwealth party views the "mutual consent" concept as a power of nullification over federal law that conflicts with the statutes – both local and federal – which constitute (and supposedly are beyond the reach of Congressional power to amend or repeal) the so-called "unalterable bilateral pact" of commonwealth. Until the House adopted H.R. 856 on March 4 of this year, neither house of Congress had spoken authoritatively or definitively to the feasibility of this doctrine.
Against this background, it is disconcerting for supporters of a Congressionally prescribed status resolution process now to be told that we once again should go back and hold another vote on status and define the options ourselves. That is precisely what we did in 1993, even allowing the commonwealth party to define the option it endorses for the ballot. It has been acknowledged that this attempt to bend over backwards to be fair to the commonwealth party leaders was unfair to all the people of Puerto Rico, because the misrepresentations made to the voters in that ballot definition of commonwealth must now be corrected.
It is ironic that the attempts to correct the false promises of the 1993 ballot definition of commonwealth are perceived by some as an attempt to create an unfair advantage for statehood in the next vote. If telling the truth about the basic constitutional structure and legal nature of commonwealth makes voters who wan permanent union and irrevocable U.S. citizenship to switch to statehood, as long as the basic constitutional structure and legal nature of statehood also are accurately defined, that is how democracy and informed self-determination are supposed to work.
For example, without detracting from all that Congress may want to do to enhance commonwealth in the future, the following basic realities about commonwealth are all that need be confirmed by Congress in order to advance the status resolution process to the next stage:
- the present "commonwealth" status can be enhanced by statute to the extent Congress determines such enhancements to be in the national interest, but Congress can not by federal law make such statutory arrangements a permanent feature of the U.S. Constitution, and a future Congress can amend or repeal any stature defining the status of the territory and its population;
- as long as the U.S. is sovereign in the commonwealth Federal law will be supreme, and local law may not directly conflict or be inconsistent with the Constitution, laws and treaties of the U.S.; and,
- there is one nationality arising from birth in Puerto Rico under U.S. sovereignty and the federal law of nationality, and local citizenship in Puerto Rico as may be recognized under federal or territorial law is not a separate substitute or dual form of nationality.
If Congress will acknowledge just that much, we will be able to establish a process to resolve the status of Puerto Rico. If there is agreement with at least these last three incontrovertible points, it will be possible to carry out an informed status resolution process.
PART 5: HISTORICAL EXPLANATION OF STATEHOOD ADMISSIONS
PROCESS
This topic bears considerably more analysis than can be presented here. However, it is relevant to an understanding of S.472 to consider certain specific examples of territorial transition to statehood that touch upon some of the issues and questions that have been raised about Puerto Rico's status process.
In exercising its discretionary power to admit states under Article IV, Section 3 of the U.S. Constitution, Congress has adopted no uniform policy, procedure or practice for admission of states or disposition of territories. In addition, more often than not, Congress has played an active role in shaping public sentiment in the territories to end territorial status in favor of statehood.
In this connection, the historical record indicates the following:
- Most territories admitted as states never conducted a referendum on statehood or any other status in a self-determination vote per se prior to admission to the union. Often territorial legislatures simply petitioned Congress for statehood, but more frequently a vote was conducted on the question of whether or not to organize state-like constitutional governments (as Puerto Rico did in 1952). Once the voters approved a constitution, most territories successfully petitioned for admission without ever conducting a separate status referendum. In some cases, however, Congress enacted a statehood enabling or admissions act which defined the terms for admission or even changed the state constitution before final voter approval of state government structure acceptable to Congress as a basis for final admission.
- The territories of Maine, Arkansas, Oregon, Nevada, Nebraska, Colorado, Hawaii and Alaska were among those which held referendums of one kind or another on statehood or other political status options. For example, in a status vote in the Nebraska territory a minority of voters approved statehood (47%_, and so the pro-statehood strategy changed to a process based on approval of a state constitution. Similarly, in the last vote on status in Colorado, 55% of the voters favored territorial status over 45% for statehood. In Colorado too, the pro-statehood strategy then shifted to approval of state government followed by petition to Congress.
- Residents of the Iowa territory twice voted against a statehood constitutional convention, and then after approving a convention twice rejected the proposed constitution, even after Congress passed an authorizing act for a local constitution. In most of these cases, only when the territorial legislature framed the question as one of approval of a constitution did the voters approve by large majorities. Final approval by the voters generally did not occur until Congress in some manner defined the terms for continued territorial status and/or admission. In contrast, Puerto Rico took the first step these other territories took by organizing a state-like constitution with approval of Congress in 1952, but Congress has never clearly defined the terms for admission, continued territorial status or independence.
- Of territories admitted based on ratification of "state" constitutions, examples in which Congressional policy contributed to a shift in voter preference include:
Territory of Wisconsin voters approved statehood by only 22% in 1844, but after Congress approved statehood enabling act in 1846 vote for statehood was 83%.
Territory of Washington voters approved proposed convention to promulgate "state" constitution by 47% in 1869 and only 30% in 1871. After Congress restricted local political autonomy in the territory (over political appointment powers and other matters) in 1874, political party platforms recognized possible adverse consequences of delay, and in 1876 60% approved establishment of "state" government as step to statehood. 67% approved first version of "state" constitution in 1878, but after Congress passed statehood enabling act voters approved final constitution by 77%.
Territory of Hawaii voters were required by Congress to vote not simply on statehood, but on the actual provisions of the statehood admission act enacted by Congress, including state boundaries and important land distribution provision. The concept that congress stays out of political process in territory is not supported by these facts.
- Every territory except Texas became an "incorporated territory" with U.S. citizenship and federal taxation on same basis as the states prior to admission. Puerto Rico is the only large and populous territory which was granted U.S. citizenship but remains "unincorporated" eighty two years later. In addition, since 1952 Puerto Rico had had an internal constitutional structure which the U.S. Supreme Court has described as "like a state." The only other large and populous unincorporated territory, the Philippines, was disposed of by Congress in favor of separate nationhood without ever being granted U.S. citizenship. As Ronald Reagan said about this anomaly in 1980, "As a 'commonwealth' Puerto Rico is neither a state nor independent, and thereby has an historically unnatural status."
Puerto Rico now seeks a process that will complete for it in the modern context the same process that has been repeated by Congress since 1789, taking into account as it has in every case the unique circumstances of the territory concerned. In the case of Puerto Rico – as with the Philippines, Hawaii and Alaska – the unique circumstances recognized by Congress have included the fact that in the post WWII era the U.S. recognizes as a matter of international law that the principle of self-determination obligates Congress to consider the freely expressed wishes of the people of the territory in determining status.
In addition, Congress must recognize that the current status is subsidized by the U.S. taxpayers to the tune of $10 billion annually, which creates complex legal and political questions about permanence of the current status and how long the Congress is willing to sustain the status quo. Thus, to require as a prerequisite for Congressional action that Puerto Rico address itself to the status issue in the same manner as earlier American territories, which among other things were paying federal taxes on the same basis as states of the union, ignores the heavy hand of Congress in encouraging economic reliance on the current status.
It is now becoming clear that decades of reliance on a federal tax credit driven economy at a minimum has been a contributing factor impeding Puerto Rico's economic convergence with the rest of the nation. Although Congress reformed federal tax policy in 1996, the work of reforming federal policy on Puerto Rico's political status remains unfinished.
Ironically, the attempts that are being made in Congress now to clarify the legal nature of the current status so the voters can make an informed decision have been misunderstood by some as an effort to "stack the deck" in favor of statehood. Some argue that Congress should not do anything to offer much less encourage statehood, even if that includes failure to inform the U.S. citizens of Puerto Rico as to the actual extent of their civil and political rights under the current status.
Thus, there are those who insist Congress should "stay out of it," and treat Puerto Rico like it did all the other territories by waiting for Puerto Rico to petition Congress based on a strong majority for a new status. As we have seen from the information presented above, there currently is not majority for the status quo and history demonstrates that many territories did not achieve majorities until Congress adopted measures consistent with the national interest in resolving the status of territories – usually making territorial status less attractive and statehood more attractive.
Again if Congress really wants Puerto Rico to act like other territories, it should treat Puerto Rico as it has other large territories populated with U.S. citizens. Specifically, to put Puerto Rico in the same position as other territories Congress would need to incorporate the commonwealth as a territory and extend federal law and the U.S. Constitution in full – including federal taxation. Wisely, S. 472 recognizes that there is a need for a far more gradual process under the Territorial Clause.
The obvious solution is for Congress to establish a process through which the residents of Puerto Rico express their will, Congress then works its will, and if both parties can agree on a transition plan a permanent status resolution becomes possible. If not, at least a mechanism for status resolution will be in place, rather than a status which exists due to the lack of self-determination.
In the first stages of the process, the most critical requirement is for Congress to prescribe definitions of the status options it deems most accurate. The a vote between those options can be held. Only if the voters express a preference for statehood in that vote could legislation comparable to an enabling act, or subsequent to that an admissions act, properly be brought before Congress.
A vote for separate national sovereignty or continued territorial status would require congressional acceptance and implementation as well.
S. 472 provides precisely the process needed to resolve this problem.
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