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PUERTO RICO REPORT
Epitaph For "New Commonwealth"
by Lance Oliver
February 2, 2001
Eager to leave behind as much as possible for historians to use to create a "legacy," Bill Clinton was a busy president in his final days. He even found time to perform a couple of tasks relating to Puerto Rico, such as ordering the Department of Health and Human Services to investigate the allegations that noise from Navy bombing on Vieques was causing health problems among residents.
There was another final act by the Clinton administration that may have more significance, however, both in the long-term historical view and in the short-term political outlook.
One of the administrations final acts was to respond to a previous request by Senate Energy and Natural Resources Committee Chairman Frank Murkowski, who had asked the administration to provide a legal analysis of Puerto Ricos status options as presented by their advocates.
The Justice Department responded in a letter dated January 18, just two days before the inauguration of George W. Bush as president. Signed by Assistant Attorney General Robert Raben, the 14-page opinion, thick with footnotes referring to judicial precedents, commented on the constitutional issues surrounding statehood, independence and the "new commonwealth" model proposed by the Popular Democratic Party.
Nearly 10 of the 14 pages address the "new commonwealth" issue. The other two options are relatively straightforward, according to the Justice Department memo.
Statehood would mean that Puerto Rico would be equal in treatment to the other 50 states. It would also mean that federal taxation would apply equally to Puerto Rico, though there could be temporary transition arrangements.
The Justice Department opinion took minor issue with some statements by the pro-statehood faction, noting that some Puerto Rico laws and constitutional provisions might have to change because of conflicts with the U.S. Constitution. But basically, statehood is uncomplicated.
The same is essentially true for independence. The only issue raised is the question of Puerto Rico citizens retaining their U.S. citizenship following the transfer of sovereignty. The Justice Department found some ambiguity in the language as presented by the independence advocates and also found some conflicts in the judicial precedents on whether Congress could revoke the statutory U.S. citizenship of Puerto Rico citizens.
Having disposed of those two options in four pages, the opinion spends the rest of its space on "new commonwealth." This is where the significance of the document lies.
The Justice Department said little about "new commonwealth" that has not been said before. The difference is that it said so with the official stamp of the government in a well researched, carefully reasoned, documented and footnoted statement. This opinion cannot be dismissed as internal Puerto Rico politics.
The first problem with "new commonwealth" is the oldest, best known one. Puerto Rico must inevitably fall under its own sovereignty (independence) or U.S. sovereignty. Under the latter, there are two options: it can be a state or it can be an unincorporated territory and fall under the territorial clause of the U.S. Constitution.
"The terms of the Constitution do not contemplate an option other than sovereign independence, statehood, or territorial status."
The Constitutions territorial clause gives Congress authority over Puerto Rico. The letter notes that this has been the opinion of the Justice Department and, while noting that some legal opinions have differed, "the weight of appellate case law provides further support for it."
So for "new commonwealth" to exist, we can presume the U.S. Constitution would have to be amended to suit Puerto Ricos desires (try convincing 35 state legislatures to do that!). But then there is another problem.
The Justice Department cites precedents prohibiting the federal government from "irrevocably surrender[ing] an essential attribute of its sovereignty."
The cornerstone of the appeal of "new commonwealth" is that it is "permanent," like independence or statehood. It promises that the agreement between the United States and Puerto Rico cannot be unilaterally changed by either party. The Justice Department declares this impossible.
If Puerto Rico is under U.S. sovereignty, the letter states, then the territorial clause applies and Congress can change the terms as it wishes. If Puerto Rico is under its own sovereignty, then the agreement would be in the form of a treaty, and one Congress can rescind a treaty signed by another.
For the federal government to give up that ability would be to "surrender an essential attribute of its sovereignty," as stated above.
Anyone with a knowledge of U.S. politics knows that "new commonwealth" is a political impossibility. Congress would never approve it and state legislatures would never agree to amend the Constitution to permit it.
The Justice Department letter makes it equally clear that "new commonwealth" is a legal impossibility.
Will that stop the Popular Democratic Party from claiming that "new commonwealth" is not only possible but owed to Puerto Rico? No number of pages printed in Washington could accomplish that task.
Lance Oliver writes The Puerto Rico Report weekly for The Puerto Rico Herald. He can be reached by email at: firstname.lastname@example.org.