A Constitutional Framework for Puerto Rico Self-Determination Dick Thornburgh See Related Articles   KIRKPATRICK & LOCKHART LLP 1800 Massachusetts Avenue, N.W. Washington, D.C. 20036 February 9, 1998 Congressman Don Young Chairman, House Committee on Resources 1324 Longworth House Office Building Washington, D.C. 20515 RE: Constitutional Framework for Puerto Rico Self-Determination Dear Mr. Chairman:         When I had the honor of serving as Attorney General and Chairman of the Domestic Policy Council, I closely followed Congress' struggle to develop a more sound federal legal policy to resolve Puerto Rico's political status. The issue was very important to President Bush, as I know it is important to members of Congress on both sides of the aisle, the people of the States of the Union, and, of course, the people of Puerto Rico. I am writing you now because I am concerned that certain fundamental facts about the relationship between Puerto Rico and the Congress have been distorted in a way that may undermine any proposal for informed self-determination. The democratic process requires that the people of Puerto Rico and in the States of the Union obtain accurate information to make important decisions about the nature of their relationship.         Informed self-determination requires that certain fundamental constitutional issues be clarified. First and foremost, Congress must confirm for the people of Puerto Rico that Puerto Rico is still governed ultimately by the Congress pursuant to the Territory Clause of the U.S. Constitution, and that the Supremacy Clause guarantees that federal law controls in Puerto Rico, as in the States and all territories of the United States. In 1991, I testified before Congress on legislative proposals to provide a framework for informed self-determination, and at that time I urged that the process also be based on clear direction from Congress as to what options should be presented for a vote by the Puerto Rico electorate.         The political status legislation which emerged in Congress in 1990 and 1991 did not receive the support needed for enactment into law during my tenure as Attorney General. In addition, the status referendum conducted in Puerto Rico under local law in 1993 without Congressional support or recognition failed to clarify Puerto Rico's status for reasons which included a confused and misleading ballot. Because I believe it is time to resolve the issue of Puerto Rico's political status, I have been following the development of H.R. 856 and companion legislation in the Senate with keen interest. In my view, this legislation represents significant progress in establishing the principles which must be respected in any legitimate self-determination process to resolve the status question.         I note with concern, however, that it continues to be the position of some that the present "commonwealth" arrangement should be "improved" (or "enhanced") and made permanent. Some advocates of permanent commonwealth in Puerto Rico also seek separate nationality and powers of consent over federal law, powers that even States of the Union do not have under the U.S. Constitution. These individuals would present Congress and the people of Puerto Rico with a definition of "commonwealth" that cannot be implemented. Specifically, Congress is not able to transform the current commonwealth status for Puerto Rico as created by statute into a permanent status guaranteed by the U.S. Constitution.         There is an irreconcilable constitutional conflict that prevents the establishment of a permanent, fixed commonwealth status for Puerto Rico. Only States have a permanent, constitutionally guaranteed status under the federal system, and, without a constitutional amendment, nothing done by this Congress can bind future Congresses in the treatment of Puerto Rico.         The need for a permanent status resolution approved by Congress is made even more clear to me because of my experience as a former Under-Secretary-General of the United Nations. As the highest ranking American official in the United Nations organization, I came to understand thoroughly that the national constitutional processes of the member states define the status of territories under their sovereignty. As discussed in the attached paper, those in Puerto Rico who assert that the U.N. decolinization process determines Puerto Rico's status in a way that is binding on the United States are simply incorrect.         I have been asked to advise on these matters by the Citizens Educational Foundation of Puerto Rico, a non-partisan, not for profit education foundation dedicated to the full enjoyment of the rights and privileges of U.S. citizenship for all the people of Puerto Rico. In that capacity I have prepared the attached brief discussion of the legal and constitutional framework that should guide the resolution of the issue of Puerto Rico's status. I include the discussion here in the hope that it will be helpful to the Committee in its work on H.R. 856.         Thank you for your consideration of this information. Please contact me if I may be of any further assistance as you address this very important issue. Sincerely, Dick Thornburgh THE STATUS OF PUERTO RICO A CONSTITUTIONAL FRAMEWORK FOR SELF-DETERMINATION         In any future political status vote in Puerto Rico it will be necessary to ensure that the voters understand each of the options presented to them: statehood, separate nationhood and continued commonwealth status. There generally appears to be an understanding of the statehood and separate nationhood options. Unfortunately, there appears to be a great deal of misinformation about the commonwealth option. The people of Puerto Rico have been told that they may adopt a permanent and apparently self-executing "improved commonwealth" proposal. As with the options of statehood or separate nationhood, commonwealth status however defined could become effective only when Congress responds to the freely expressed wishes of the people of Puerto Rico. Consequently, to resolve the status issue, Congress must vote to accept the terms of any option approved by the voters of Puerto Rico.         Therefore, just as with the status options of statehood and separate nationhood, in an initial referendum on status the definition of "commonwealth" cannot be merely a list of proposals for discretionary benefits that might be possible. Rather, the definitions must inform the voter as to the constitutional structure of each status and the political process through which any option chosen by the people can be realized.         The foundation for all discussions of Puerto Rico's future status and relationship with the United States must rest on an unambiguous understanding of Puerto Rico's current status. Puerto Rico is presently an unincorporated territory of the United States. Puerto Rico is within the national sovereignty of the United States, but is not a State of the Union. Therefore, unlike a State of the Union, Congress exercises sovereignty in Puerto Rico, including application of U.S. laws and treaties, under the Territory Clause of the U.S. Constitution (U.S. Const., Art. IV, Sec. 3, Cl. 2).         The Territory Clause reads, "[t]he Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States" U.S. Const., Art. IV, Sec. 3, Cl. 2). That Clause gives Congress the ultimate authority to govern Puerto Rico. Under the Constitution of Puerto Rico, approved by Congress and the people of Puerto Rico in 1952, Puerto Rico, like a State of the Union, is an autonomous political entity which exercises sovereignty over matters not governed under the United States Constitution. However, this is a statutory delegation of local sovereignty, subject to the Territory Clause authority retained by Congress.         The constitutional structure and political process through which Puerto Rico can pursue improvements to "commonwealth" has been in place for the four decades since the current "Commonwealth of Puerto Rico" structure of local self-government was established pursuant to U.S. Public Law 81-600 in 1952. This does not mean that changes to the present commonwealth structure which may be proposed as improvements are unattainable simply because Congress has failed to adopt those changes in the past. However, any definition of "commonwealth" cannot be adopted unless it is consistent with constitutional principles and informs voters of the following realities. Relevant History The United States exercises sovereignty with respect to Puerto Rico pursuant to the Treaty of Paris proclaimed by President McKinley on April 11, 1899. Article IX of that treaty provided that, as of that date, persons residing in Puerto Rico who either were not eligible for or did not elect to continue allegiance to Spain or any other nation henceforth would be held under the laws of the United States and international law to owe allegiance to and have the nationality of the United States. Article IX provided further that the "civil rights and political status of the native inhabitants" of Puerto Rico "shall be determined by the Congress." Puerto Rico is an unincorporated territory of the United States which is self-governing in its internal affairs and administration. Puerto Rico's self-government structure exists under a local constitution approved by Congress and adopted by the United States citizen residents of the territory in 1952, as authorized by United States Public Law 81-600. On September 27, 1953, the General Assembly of the United Nations approved Resolution 748(VIII), recognizing the establishment of commonwealth internal self-government in Puerto Rico. Section 9 of that resolution, however, expressly recognized that further self-determination would take place in Puerto Rico "in the eventuality that either of the parties to the mutually agreed association may desire any change in the terms of this association." In a political status plebiscite conducted under Puerto Rican law, without Congressional recognition or sponsorship, on November 14, 1993, less than a majority of the voters approved the "commonwealth" option on the ballot. In light of the fact that the current commonwealth relationship was established in 1952 on the basis of consent by the voters of Puerto Rico, this result underscores the need for a further process of self-determination to resolve the political status of Puerto Rico based on majority consent within Puerto Rico and the approval of Congress. On January 23, 1997, the Puerto Rico Legislature approved Concurrent Resolution 2, which requested the 105th Congress "to respond to the democratic aspirations of the American citizens of Puerto Rico" by approving measures to bring about "a plebiscite sponsored by the Federal Government, to be held no later that 1998." The preceding events constitute the constitutional and legal context in which H.R. 856 properly should be considered by Congress. The U.N. resolution cited above, like the U.N. Charter itself, is not self-executing, and resolution of Puerto Rico's status can only be accomplished through the U.S. Constitutional process. Pursuant to the U.S. Constitution, an area under the sovereignty of the U.S. that is not included in a State "must necessarily be governed by or under the authority of Congress," National Bank v. County of Yankton, 101 U.S. 129, 133 (1880), i.e., pursuant to the Territory Clause of the Constitution. Defining Commonwealth In 1952 Congress approved establishment of the present commonwealth structure of internal self-government and sovereignty over local affairs in Puerto Rico. Congress did this by exercising the authority reserved to it by the Territory Clause of the U.S. Constitution. The Territory Clause remains the source of constitutional authority for Congress to adopt legislation with respect to Puerto Rico, including the authority to approve any proposed change to the existing commonwealth structure. In Puerto Rico, as in a State of the Union, the U.S. Constitution, treaties and laws of the United States are the supreme law, as made applicable to Puerto Rico by Congress and under rulings of the Supreme Court of the United States. U.S. Const., Art. VI, Cl. 2. Unlike the conditions of a State of the Union under the U.S. Constitution, the "Commonwealth of Puerto Rico" structure of government is not a constitutionally guaranteed or fully-self-governing political status. Rather, "commonwealth" in the case of Puerto Rico is a form of local self-government established under a statutory authorization by Congress and instituted under a local constitution approved by Congress and adopted with the consent of the people of Puerto Rico in the manner prescribed by Congress. The political status of Puerto Rico remains that of an unincorporated territory, administered locally under this form of constitutional self-government, limited to internal matters and subject to the plenary authority of Congress under the Territory Clause. Unlike a State of the Union, the form of internal self-government established by Congress for Puerto Rico with the consent of the people in 1952 is not a permanent structure, provision or feature of the U.S. Constitution or the constitutional process of the United States. In contrast, the sovereignty of a State of the Union and the people thereof who have full constitutional citizenship is a permanent feature of the U.S. Constitution. This is expressly recognized in the federal constitution, including the Tenth Amendment. The grant of internal sovereignty for Puerto Rico and a statutory form of citizenship for Puerto Ricans flow from Congress exercising the discretion retained under the Territory Clause. Puerto Rico is thus "like a state" in some respects but does not have a full measure of self-government. Under the current system, U.S. citizens of Puerto Rico are subject to U.S. sovereignty and law but remain disenfranchised in the federal political system. This disenfranchisement is the direct result of Puerto Rico's commonwealth status, for as long as Congress exercises ultimate sovereignty through the Territory Clause, Puerto Ricans will not possess the full panoply of political rights exercised by U.S. citizens in the States of the Union. This is why clarification of the actual nature of commonwealth is so important. Informed self-determination cannot take place, leading to full self-government, as long as the myth of commonwealth as a form of permanent "associated" statehood stands without rebuttal. To empower the people of Puerto Rico, it must be confirmed that territorial commonwealth cannot be "enhanced" so as to "justify" permanent disenfranchisement and less than equal citizenship. Acting under the Territory Clause, Congress has authority to approve statutes which provide for application in Puerto Rico of provisions of the U.S. Constitution, as well as statutory extension of the rights, privileges and immunities of U.S. citizens under the Constitution, laws and treaties of the United States. It is also within Congressional authority under the Territory Clause to provide for Puerto Rico's autonomy and sovereignty over internal matters and local affairs. However, U.S. laws apply to Puerto Rico and are enforceable only as long as such statutes are in effect. Congress retains authority under the Territory Clause to amend or repeal any or all such statutory provisions. The Territory Clause authorizes Congress to establish procedures for consent by the people of Puerto Rico to the terms and structure of internal self-government under applicable federal statutes. However, a future Congress would not be bound or prevented thereby from changing U.S. law or policy to provide for self-government and self-determination through other means, including statehood or separate sovereignty. In the case of the "Commonwealth of the Northern Mariana Islands" (P.L. 94-241) Congress required that it consent to any proposal by the local government to change the Islands' commonwealth structure. Congress also required the consent of the people of the territory before Congress could impose changes to the local commonwealth structure. Of course, Congress exercised its discretion in the specific context of the Commonwealth of the Northern Mariana Islands, which was an unincorporated territory subject to the Territory Clause. The requirement of consent runs to the form of internal self-government agreed to by Congress and enacted by statute, not the political status of the territory or the form of statutory "union" which exists at this time. Congress retains the power to more fully incorporate any such "commonwealth" territory into the U.S. constitutional system, or to reverse the political integration process by advancing self-government options other than continuation of the current commonwealth form. The U.S. Supreme Court has consistently and explicitly recognized the plenary authority of Congress over non-state areas pursuant to the Territory Clause. Harris v. Rosario, 446 U.S. 651 (1980) (per curiam); Downes v. Bidwell, N.Y., 182 U.S. 267 (1901); Crespo v. U.S., 151 F.2nd 44 (C.C.A. Puerto Rico), cert. dism. 327 U.S. 758 (1945). Such Congressional authority is recognized and limited by U.S. Supreme Court rulings that the federal government must respect "fundamental rights" in exercising its powers in non-state areas under U.S. sovereign control. See Balzac v. People of Puerto Rico, 258 U.S. 298. (1922). Balzac and its progeny require that Congress report due process and equal protection principles in structuring the measures required to resolve the Puerto Rico status question consistent with the national interest. The present statutory U.S. citizenship of persons born in Puerto Rico does not arise from or exist by virtue of the Constitution of Puerto Rico, or the Puerto Rico Federal Relations Act pursuant to which that local constitution was instituted (P.L. 81-600). Eligibility of persons born in Puerto Rico for U.S. citizenship results entirely from an exercise of Congressional discretion. Statutory citizenship initially was prescribed by the organic act of Puerto Rico ("Jones Act", 39 Stat. 461 March 2, 1917). In 1940 Congress amended the territorial organic act by removing the provisions governing the citizenship status of Puerto Ricans and included that statutory citizenship in Section 202 of the Nationality Act of 1940. When the Constitution of Puerto Rico was being approved in 1952, Congress again revised the statutory U.S. citizenship provision for Puerto Ricans in Section 302 of the Immigration and Nationality Act. That revision of U.S. citizenship for Puerto Ricans was codified at 8 U.S.C. §1402, and Congress has chosen not to amend that provision further since 1952. The definition and conferral of U.S. citizenship for persons born in Puerto Rico as described above was not part of the process for establishment of the "Commonwealth of Puerto Rico" structure of constitutional government. U.S. citizenship was conferred by separate statute and was not subject to consent or approval in the process described in Section 1 of P.L. 81-600 (48 U.S.C. §731b) as being "in the nature of a compact." The reference to U.S. citizenship in the Preamble to the Puerto Rico Constitution does not alter the legal nature of citizenship for Puerto Ricans. Nor did approval of the Puerto Rico constitution convert statutory U.S. citizenship conferred under the Territory Clause into the same constitutionally guaranteed citizenship arising from birth in a State of the Union. The history of citizenship for Puerto Ricans confirms beyond debate that the nationality and U.S. citizenship of persons born in Puerto Rico is a matter governed by U.S. laws enacted by Congress unilaterally -- albeit with broad popular support and acceptance among Puerto Ricans. This unilateral exercise of Territory Clause authority to define the citizenship status of persons born in Puerto Rico is consistent with Article IX of the Treaty of Paris. Clearly, the U.S. nationality and citizenship is not within the internal sovereignty exercised by the people of Puerto Rico under the commonwealth structure of local self-government. Congress has the power to alter, regulate or even terminate the current rights, privileges, immunities and benefits of U.S. citizenship for persons born in Puerto Rico. No one can anticipate or predict the circumstances under which Congress would exercise those powers, but the historical precedents created in the case of the Philippines and other U.S. territories make it clear that this is a matter subject to the discretion of Congress and that such discretion is based primarily on political criteria rather than constitutional or legal factors. Inherent in any definition of commonwealth, the U.S. citizenship of persons born in Puerto Rico is secured by statute and not the U.S. Constitution itself. While the "fundamental rights" analysis of Balzac (cited above) would apply to actions of the U.S. in Puerto Rico, the U.S. Constitution itself is not thereby made applicable to Puerto Rico as in a State of the Union. The people of Puerto Rico need to understand that Congress retains authority to alter the status of Puerto Rico or end U.S. citizenship for persons born in Puerto Rico in favor of some other status. The U.S. Supreme Court, in Balzac and other cases, simply requires Congress to act consistently with due process and equal protection principles. For example, in the event the people of Puerto Rico vote in an informed act of self-determination to continue the current status, Congress, acting unilaterally, may strike a new balance in the territorial relationship. If the commonwealth status continues, Congress will continue to exercise plenary authority over Puerto Rico's governance. Congress could choose to extend federal taxation in Puerto Rico and/or choose to reduce spending levels. Without changing Puerto Rico's internal constitutional government, Congress also could decide to begin to reverse the decades in inclusion in domestic legislation and in federal programs. This form of internal autonomy and "dis-integration" from the Union would have dramatic implications for the people of Puerto Rico. For example, Congress could choose to revert to a citizenship regime similar to that imposed by the Foraker Act in 1900 -- in which U.S. citizenship would end for persons born in the territory and be replaced by an exclusive territorial citizenship with such rights and benefits as Congress deems appropriate. If the local population rejects the option of integration leading to statehood, Congress could logically conclude that such dis-integration is necessary and appropriate. The ruling of the Supreme Court in Rogers v. Bellei 401 U.S. 815 (1970), regarding the nature of statutory citizenship is consistent with the conclusion that even a statutory extension of the Fourteenth Amendment to Puerto Rico could not limit the discretion of Congress to amend or repeal that statutory extension. Thus, the U.S. citizenship created under 8 U.S.C. §1402 does not and cannot offer the permanent or constitutional protection of the Fourteenth Amendment to the people of Puerto Rico. Similarly, the protection of persons born in a State of the Union under Afroyim v. Rusk 307 U.S. 253 (1967), would not prevent Congress from changing laws defining the citizenship of people born in Puerto Rico. Conclusion         The preceding analysis is a brief attempt to sort out fundamental constitutional issues which have become obscured from Congress and the people of Puerto Rico as a result of decades of confusion and misrepresentations about the nature of the current status. The national interest requires that Congress come to grips with the need to resolve the status of Puerto Rico before it becomes even more difficult for the Congress and the people of Puerto Rico to understand the real choices facing them.         Thus, if the definition of commonwealth in a referendum informs voters that the people of Puerto Rico, will be able to propose what they regard as improvements to the current commonwealth structure, that definition also must make it clear that approval of such a ballot by Congress does not constitute a commitment on the part of Congress to approve such changes to commonwealth as may be proposed by Puerto Rico. In addition, it also must be clear that no political status relationship between Puerto Rico and the United States established by statute under the Territory Clause constitutionally binds a future Congress.         The purpose of these observation is not to defend the status quo or the degree of Federal authority over Puerto Rico. Rather, the goal is to illuminate and reveal the inherent difficulties under our Constitution of perpetuating indefinitely a less than fully self-governing territorial status for a large population of U.S. citizens. In America, we believe the rights and status of citizens should be guaranteed, rather than permissive. Basic civil rights should be secured by the Constitution and not subject to the discretion of the Congress. That condition of full empowerment and equal citizenship will not exist in Puerto Rico as long as it is a territorial commonwealth.         Any ballot definition which does not make these truths apparent will lack constitutional legitimacy, as well as simple honesty.   See Related Articles Self-Determination Legislation | Puerto Rico Herald Home Newsstand | Puerto Rico | U.S. Government | Archives Search | Mailing List | Contact Us | Feedback