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The San Juan Star

Commonwealth-Enhancing Proposals Are Unconstitutional

By David Pláceres

August 18, 2002
Copyright © 2002 The San Juan Star. All rights reserved. 

Editor's Note: This is the first in a series of four columns

This is an excerpt of what experts in constitutional law said on October 4, 2000 before the members of the Committee on Resources of the U.S. House of Representatives during hearings to review H.R. 4751. This was a bill to submit into law the proposals for enhancing the commonwealth as submitted by the Governing Board of the Popular Democratic Party:

Walter E. Dellinger, Professor of Law, Duke University, O'Melveny and Myers, Washington, D.C.:

"Over the 30 years I have been a professor and scholar of constitutional law, I have encountered a number of very difficult and uncertain questions of constitutional law, but this bill is not one of them. The propositions put forth by this bill, in my view, are so clearly unconstitutional that I do have concerns that the propositions put forward here would be misleading to the citizens and the people of Puerto Rico and anyone else who was concerned about this difficult issue. The basic propositions by which these proposals are clearly impossible under the United States Constitution are simply this. Congress has plenary authority under the Constitution to govern the territories of the United States and that is the basis upon which Puerto Rico is presently governed under a statutory framework. Secondly, there is no more fundamental proposition of the American Constitution than the democratic principle that a newly elected Congress is free to alter, revise, amend, revoke, repeal, or otherwise alter legislation passed by a previous Congress."

Therefore, whether this bill creates something more like a separate nation or more like a nation within a nation, the guarantees put forth in this bill, for example, that the United States will provide the defense for Puerto Rico or that Puerto Rico will not have Congress legislate for it without the consent of governing officials there, they are simply not worth the paper they are written on because the next Congress, newly elected, or the same Congress a week later can reach a different judgment and reflect the view of the national constituency in a different way. I mean, this has been clear since the beginning of a republic, that the only way to make a permanent change in legal status us through an amendment to the Constitution or by having one of the territories of the United States become an independent nation, as the Philippines did, or become a State, as so many of our areas did after the first 13 formed the Union.

But the reason these promises are so misleading, and I am afraid so disingenuous, is that they simply hold out something that cannot be done in the face of the continuing constitutional authority of Congress. As long as the area of Puerto Rico is neither a State nor an independent nation, then Congress has plenary authority to legislate as it will and none of the guarantees or provisions can be enforceable on a new Congress. But I think the issue is so dear and simple that the provisions put forward in the Popular Democratic Party provision are simply fundamentally incompatible with the Constitution of the United States that there is really not a lot of elaboration, I think, that is necessary to establish that proposition.

Mr. William M. Treanor, Deputy Assistant Attorney General, Office of Legal Counsel of the U.S. Department of Justice:

"H.R. 4751's mutual consent provisions are constitutionally unenforceable. As I previously discussed, the Constitution contemplates territories and States. It does not contemplate a third status. Since Puerto Rico as an enhanced commonwealth would not be a State, it would necessarily remain subject to Congressional power under the Territories Clause. One Congress cannot prevent future Congresses from exercising a power that the Constitution gives Congress."

Mr. Dick Thornburgh, Kirkpatrick and Lockhart, LLP, and former Attorney General of the United States:

"Congress has no power to implement this formula or any formula based n the central elements of this proposal because it defines a status that is not available under the U.S. Constitution. To mislead people to believe that the only barrier to implementation of this formula is the attitude of Congress, when it is the rule of law that precludes it, merely perpetuates the colonial mentality about status options and self-determination."

We can negotiate forever, but the central elements of this enhanced commonwealth formula remain unconstitutional and, therefore, non-negotiable. The central provisions which are constitutionally unavailable include permanent union other than Statehood, statutory guarantee of U.S. citizenship in the future without Statehood, binding Congress to the terms of this formula as an unalterable pact, a binding right of specific consent to changes in statutory policy or application of Federal laws, exemption of Puerto Rico from the Territorial Clause without Statehood, and exemption of Puerto Rico from the supremacy of Federal law in all matters.

In conclusion, Rep. John Doolittle from California said:" Under the U.S. Constitution, the Congress does not have the power to implement this status formula by statute or by treaty. I think we established that the core elements of this formula in its entirety and in the combination proposed by the PDP are unconstitutional."

David Pláceres is a Puerto Rican CPA and independent writer living in Central Florida

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