Balkinization: The Battle Over Puerto Rico’s Future

The Battle Over Puerto Rico’s Future

Guest Blogger

Christina D. Ponsa-Kraus

Puerto Rico’s future is on the agenda in Congress. Last week, the House Committee on Natural Resources held a contentious hearing on two competing bills addressing Puerto Rico’s status. The first, the Puerto Rico Statehood Admission Act, responds to a referendum on the island last November in which statehood won with 52.5 percent of the vote. It provides for Puerto Rico’s admission into the Union as a state, but makes admission contingent on a second referendum. Were statehood to prevail again, the Act would require the President of the United States to issue a proclamation declaring Puerto Rico a state of the Union within one year of the vote.

It seems straightforward, but when it comes to Puerto Rico’s status, nothing is ever straightforward. A second bill, the Puerto Rico Self-Determination Act, ignores Puerto Rico’s November referendum. Instead, it recognizes Puerto Rico’s “inherent” right to call a constitutional convention to determine its political future and lays out a detailed plan. The plan is elaborate, but in a nutshell, it directs convention delegates to “debate and draft definitions on self-determination options for Puerto Rico” along with “at least one” transition plan per option; creates a “Congressional Bilateral Negotiating Commission” to provide “advice and consultation to the delegates” on matters such as culture and language; provides for a referendum at the conclusion of the convention among the options it produces; and requires Congress to enact a joint resolution ratifying the result of the referendum.

Each bill was introduced by Representatives of Puerto Rican descent with large Puerto Rican constituencies. Darren Soto (D-Fl) introduced the Admission Act. Nydia Velázquez (D-NY) introduced the Self-Determination Act. The latter has a larger group of co-sponsors than the former, but the former has the support of Jenniffer González-Colón (R-PR), Puerto Rico’s nonvoting Resident Commissioner who serves in the House, and of the island’s Governor, Pedro Pierluisi, a Democrat. Both of them strongly oppose the Self-Determination Act.

Why two competing bills? Why the dramatically different alternative to the one backed by Puerto Rico’s sole representative in Congress? Understanding the profound divide these bills embody requires understanding the constitutional controversy that has long been at the core of Puerto Rico’s status debate—and the crisis of identity that drives it.

Puerto Rico has been a U.S. territory, subject to Congress’ plenary power under the Territory Clause (Art. IV, §3, cl.2), since 1898. Today, it is one of five: the others are the U.S. Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and American Samoa. Territorial status is subordinate in two basic ways. First, U.S. territories are subject to U.S. sovereignty and federal laws, and their people are U.S. citizens (or in the case of American Samoa, U.S. nationals), but they are denied voting representation in Congress and the presidential vote. Second, Congress’s plenary power under the Territory Clause gives it unlimited unilateral control over how much self-government the territories enjoy: What Congress gives, Congress can take away. In short, territorial status is colonial.

No one wants to live in a colony. That includes Puerto Ricans, most of whom reject the island’s territorial status. They have two further points of consensus: By an overwhelming majority, they wish to ensure U.S. citizenship for their posterity. And they wish to maintain some form of permanent union with the United States. But the consensus ends there. While most Puerto Ricans now embrace statehood (which would of course guarantee both U.S. citizenship and permanent union with the United States), many resist it. A small but powerful segment of the population profits economically from the status quo, but anti-statehood sentiment primarily finds its voice among those who fear what they see as full absorption into the United States. This, they believe, would pose an existential threat to Puerto Rico’s culture and language—to their identity as Puerto Ricans.

In the early 1950s, a group of Puerto Rican political leaders and their allies in Washington devised what seemed like the perfect solution. Puerto Rico adopted its own constitution, thus achieving full local self-government, but instead of becoming a state, it became a state-like entity known as the “Commonwealth of Puerto Rico.” The architects of this novel arrangement claimed that the island had ceased to be a U.S. territory, become a separate sovereign, and entered into a mutually binding bilateral compact with the United States. The compact, they said, meant Congress no longer had unilateral control over Puerto Rican self-government. The arrangement was superior to Puerto Rico’s other decolonization options, they argued, because it preserved U.S. citizenship for Puerto Ricans and their posterity and secured a permanent union with the United States, while simultaneously protecting Puerto Rican culture, language, and identity.

Wordplay has always had an outsized role in the political success of “commonwealth” status. The federal statute authorizing Puerto Rico to adopt a constitution described the arrangement with the suggestive but misleading phrase “in the nature of a compact.” The Constitution of Puerto Rico enshrined the union between Puerto Rico and the United States in its unenforceable preamble. Puerto Rico’s official name in Spanish became Estado Libre Asociado de Puerto Rico, which literally translated means “Free Associated State of Puerto Rico,” yet its official title in English became “Commonwealth of Puerto Rico,” because Puerto Rico had not become a free associated state—an arrangement under international law in which two separate sovereigns enter into a compact of free association. To its supporters, commonwealth status came to be known as “the best of both worlds.”

Not everyone was persuaded. Critics of the “compact theory” denied both the existence and the desirability of the compact. As to its existence, they argued that Congress’s power, though plenary, did not include the power to bind the United States to a territory except by admitting it into the Union as a state; that even after its transition to commonwealth status Puerto Rico remained a U.S. territory subject to Congress’s Territory Clause powers; that what Congress had given, Congress could take away. As to its desirability, they pointed to an obvious flaw: even under the purported compact, Puerto Rico was still subject to federal laws yet still denied voting representation in the federal government.

For nearly seventy years, Puerto Ricans were mired in this debate over not only what Puerto Rico should be but what it was: a separate sovereign bound by compact to the United States or a U.S. territory with a fancy name. By the 1990s, islanders were split down the middle, with half supporting commonwealth and the “compact theory” and half supporting statehood (while independence consistently polled in the single digits). Decade after decade the debate dragged on. Deadlocked, Puerto Ricans failed to exert effective pressure on the United States to end Puerto Rico’s territorial status. Meanwhile, U.S. politicians deflected the imperative to decolonize Puerto Rico by, ironically, citing their respect for Puerto Rican self-determination.

And then the compact theory fell apart.

Two events in 2016 and one in 2020 dealt the death blow. The first was the U.S. Supreme Court’s decision in Puerto Rico v. Sanchez Valle (2016), which held that the Double Jeopardy Clause bars successive prosecutions in federal and Puerto Rican courts because the island is not a separate sovereign but rather a U.S. territory. The second came weeks later with Congress’s creation of the Financial Oversight and Management Board for Puerto Rico (FOMB) to handle the island’s financial crisis. The FOMB wields significant powers over Puerto Rico’s government—including the power to veto laws passed by the island’s legislature. In other words, what Congress had given, Congress took away. The third was the Court’s decision in Financial Oversight and Management Board v. Aurelius LLC, et al. (2020). There, the Court spelled it out, explaining that Puerto Rico is a U.S. territory subject to Congress’s plenary power under the Territory Clause, which includes the power to create the FOMB.

Yet the death of the compact theory did not put an end to the debate over Puerto Rico’s future. On the one hand, we now have clarity on the constitutional conundrum that had been at the center of the status debate: Congress does not have the power to bind the United States to a non-state entity except by admitting it into statehood. We can now say definitively that Puerto Rico’s decolonization options include statehood and independence (with or without a compact of free association), and that’s it. On the other hand, even though most former commonwealth supporters still reject independence, they cannot bring themselves to embrace statehood.

Enter the Self-Determination Act. It calls upon convention delegates to define options “outside the Territory Clause,” which, to the uninitiated, sounds unobjectionable, if not laudable: We all agree that Puerto Rico’s territorial status must end. But its unstated yet obvious goal is to delay, and therefore defeat, an offer of statehood, while resuscitating some version of the discredited commonwealth option. For one thing, by ignoring the referendum, declining to offer statehood, and proposing a deadline-free, multi-year process, it not-so-subtly seeks to squelch the momentum created by the combination of a majority vote for statehood on the island and current Democratic control in Washington: It is widely assumed that Puerto Rico, at least in the near term, would be a blue state, and therefore widely understood that only a Democratically-controlled government would admit Puerto Rico into statehood, and therefore widely accepted that the next two-year window is absolutely critical for getting statehood done.

For another, a summary of the bill on Representative Velázquez’s website explains the purpose of the convention as that of defining “self-determination” options including “statehood, independence, a free association or any option other than the current territorial arrangement.” The phrase “or any option other” defies the hard-won lesson Puerto Ricans just spent the better part of a century learning: there are no “other” non-territorial options. To invite Puerto Ricans to define such options is to offer them false hope—again. Then there’s Section 6 of the Act, which makes the unenforceable, and therefore illusory, promise that “[i]f the referendum under this Act is approved by the people of Puerto Rico, Congress shall approve a joint resolution to ratify the preferred self-determination option approved in that referendum vote.” As its drafters should know, Congress cannot bind itself, let alone a future Congress, to approve a joint resolution: It always has the power to reject, pass, or simply ignore proposed legislation. In short, what appears to be the Self-Determination Act’s respectfully neutral stance toward the wishes of the Puerto Rican people actually ignores their will, sends them back to the drawing board, and lures them with empty promises into yet another endless and futile debate.

For too long, commonwealth supporters have forestalled a consensus in favor of statehood by convincing too many Puerto Ricans that they could decolonize with a non-territorial option other than statehood or independence: the vaunted but mythical “compact.” Now that the FOMB and the Supreme Court have debunked that myth, their only option is to convince Congress that offering statehood to Puerto Rico would somehow demean Puerto Rican self-determination. If that sounds like a contradiction, that’s because it is. The painful reality, though, is that statehood opponents don’t even need the Self-Determination Act to pass in order to get their way. All they need is for Congress not to pass the Admission Act. If they sow enough confusion, chances are it will fail. The Constitution does not foreclose that unbearable non-result. But fairness and equality should. Puerto Rico has been a colony of the United States for 123 years. Congress should take clear and concrete action to put an end to Puerto Rico’s colonial nightmare. In the wake of a majority vote for statehood, the way to do that is to pass the Admission Act.

Christina D. Ponsa-Kraus is the George Welwood Murray Professor of Legal History at Columbia Law School. You can reach her by email at cponsa at law.columbia.edu.

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