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"Constituent Assembly: Not Smart Federal Relations Strategy"
By Charlie Rodríguez*
Legislative Assembly leaders supporting a "constituent assembly" on status want to invest taxpayer dollars on what will amount to a futile local political sideshow. Without federal participation at each stage, the result of any status process will be delay without progress. Without engaging the White House and Congress from the outset, a local status resolution process will be little more than an exercise in collective political narcissism by Puerto Ricos ideological elites.
In order to restore dignity, respect and realism to the status process, we need to demonstrate that Puerto Rico understands the rule of law and that we are prepared to engage the federal government on terms that are constitutionally valid. We may not like the limits of the status quo, but we cannot pretend Commonwealth is something it is not and still be taken seriously in Washington.
First, we need to understand that declaration of the "sovereignty of the people of Puerto Rico" in Article I of the Commonwealth Constitution extends only to local affairs. The same is true for the language of Article II, Section 19, regarding rights not enumerated and the power of the local legislature to promote the general welfare. These enabling provisions for local self-government are subject to the reservation of the plenary powers of Congress, as well as full residual sovereignty and supremacy in all federal affairs as defined by Congress.
Thus, it is misleading to argue that a constituent assembly convened under local law would have unlimited powers to determine matters outside the framework of the local constitution. If the powers of our local government are not limited to matters of a purely local nature, the Commonwealth government could raise an army, conduct its own foreign relations and print its own money.
Still, theoretically Puerto Ricos local government can propose an implausible unilaterally developed status formula any time it wants. However, if Governor Sila Calderón wants to establish a constituent assembly under a local statute, it must do so in full recognition that the sovereignty of the people under the local constitution and powers of the local government do not extend to unilaterally resolving our political status.
This is because the question of political status involves federal law and policy with respect to which federal law is supreme. Thus, any local reservation of rights to address status issues is subject to the federal reservation of supreme powers over federal matters. The question of the ultimate status of Puerto Rico is just such a federal issue, belonging to a higher order of constitutional subjects at the federal level.
To be sure, the principle of self-determination as recognized by the U.N. and the U.S. means the residents of Puerto Rico will be given the opportunity to express their wishes as to future status options. However, the U.S. and the U.N. also recognize that the power to define the options and exercise the power to legally institute a new and permanent status is vested solely and exclusively in the U.S. as the supreme "sovereign power". That is the essence of the colonial problem.
That is also why I proposed to the President of the United States the creation of a federally sponsored political status commission in 1999, after Congress failed to enact status legislation and the 1998 plebiscite vote in Puerto Rico under local law failed to produce a clear mandate on status definitions or significant progress toward status resolution. The central elements of my proposal for a federal status commission was accepted by the President Bill Clinton, and culminated in the promulgation of Executive Order 13183, as well as the Memorandum of the President on Resolution of Puerto Ricos status, both dated December 23, 2000. President George W. Bush ratified this initiative by upholding Executive Order 13183.
Under these instruments of Presidential authorization issued pursuant to powers vested in the federal Chief Executive by the U.S. Constitution, there currently is being organized within the White House and the Executive Branch of the federal government what amounts to a federal negotiating team to address the question of resolving Puerto Ricos political status. The Presidential instructions to this federal status policy team are to develop status options based on a consultative process in Puerto Rico and with Congress to produce legally valid definitions of politically and constitutionally acceptable status options.
This is not the time to withdraw into an internal process. The only reason to do that would be to break the momentum that has been building in Washington for the last decades to finally afford the residents of Puerto Rico the opportunity to freely express their wishes on status.
I find it curious that some PIP leaders now claim no need for authority under local or federal law to convene a constituent assembly. During the Young Bill deliberations in Congress the PIP lobbied Congress to include a federal authorization for a constituent assembly. Congress responded to the PIP request by adding a revised provision to the Young Bill leaving the constituent assembly issue to local law. This satisfied no one, but the attempt by the PIP to get permission from our "colonial masters" speaks volumes about the lack of any legal basis to address status in a constituent assembly without federal authorization.
Pretending we are a sovereign republic on Monday, presenting ourselves as "one of the family" seeking domestic economic benefits on Wednesday, and demanding the Congress to accept an internally and unilaterally determined status formula on Friday, is not smart federal relations strategy. We can do better, and the first step is to resume active work with the White House in implementation of Executive Order 13183 in cooperation with the Bush Administration.
That is the orderly, legitimate, open, honest and fair thing to do to promote self-determination and status resolution for Puerto Rico. I hereby call on the leaders in the Legislative Assembly and the Governor to adopt this strategy in order to make progress toward full self-government and a non-territorial status.
*Charlie Rodríguez, the former President of the Puerto Rico Senate, practices law in San Juan.