New Governor To Press For Exemptions From U.S. Laws… U.S. Constitution Programs Required In All Educational Institutions

December 31, 2004
Copyright © 2004 THE PUERTO RICO HERALD. All Rights Reserved.

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New Governor To Press For Exemptions From U.S. Laws

Puerto Rico’s Governor-Elect said Wednesday that he will seek further territorial exemptions from federal laws.

He also identified one set of laws from which he wants the territory exempted. The laws require the use of U.S. ocean shipping for transporting goods between U.S. ports. The requirements are for the use of vessels that are U.S. built, flagged, and crewed.

Gov.-Elect Anibal Acevedo Vila ("commonwealth" party/D) did not explain why

he had not proposed the exemptions during his tenure as Puerto Rico’s resident commissioner in (supposedly) the U.S. over the past four years. The resident commissioner can propose legislation in the U.S. House of Representatives.

One reason may be that the idea is unrealistic. The laws, known as the coastwise laws and the Jones Act, are a mainstay of the flagging U.S. shipping industry . . . and are ardently defended by the industry. The requirements are also supported by the U.S. military because a U.S. merchant marine can be enlisted into service in time of war.

During the administration of former President Bill Clinton, one of the commonwealth party’s firmest allies in the Congress, Representative Luis Gutierrez (D-IL), proposed Puerto Rico’s exemption from the laws. The bill was opposed by the U.S. Departments of Transportation and Defense and went nowhere in the Congress.

Prior to that, particularly during the presidency of the first President George Bush, the territory of Guam spent $10 million in vain in an effort to win exemptions. It even failed to obtain a limited exclusion for fish only.

Guam and Puerto Rico are the two U.S. territories to which the laws apply. The U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands (which also uses the word "Commonwealth" in the name of its territorial government) are exempt.

An increase in shipping between the Virgin Islands and the States, however, led to an effort in recent decades to extend the laws to that territory. The campaign was led by the AFL-CIO, the nation’s largest labor organization. It was discontinued only when the major shipper between the Virgin Islands and the States, an oil refinery in the islands that is one of the world’s largest, agreed to build six oil tankers in U.S. shipyards.

Exemption is considered critical to the success of a major new port facility being developed on Puerto Rico’s central south coast by the administration of Acevedo’s political mentor and predecessor as governor, Sila Calderon.

During his campaign for governor, Acevedo suggested that he had developed receptivity in Congress to exempting Puerto Rico from the shipping laws. A key House Democratic staffer, however, disputed the claim.

The idea of an exemption is also unlikely to fare well with the chairman of the House committee of jurisdiction over the issue, Rep. Don Young (R-AK). Young has been a supporter of the laws and a critic of "commonwealth" exemptions from federal laws in general.

In addition to exemptions from U.S. shipping laws, Acevedo in the past has suggested Puerto Rico’s exemption from federal environmental laws.

He was elected on a platform that went beyond the idea of Puerto Rico simply obtaining exemptions from many laws: It called for the U.S. Government to cede the power to determine the application of most laws to the Commonwealth government.

U.S. Constitution Programs Required In All Educational Institutions

The law to fund much of the government signed earlier this month (December) requires every educational institution in the country receiving federal; funds to conduct an annual program on the United States Constitution.

The program is required to be conducted each September 17th, the anniversary of the Constitution’s signing in 1787.

The requirement is a relatively unique federal curriculum stipulation.

It was sponsored by Senate Appropriations Committee Chairman Robert Byrd (D-WV) who has emphasized constitutional requirements and intent in his legislative career. Byrd has been concerned about the average American’s lack of knowledge of the Constitution and has previously proposed making September 17th a national holiday.

It will be interesting to see how the Government of Puerto Rico and non-governmental educational institutions receiving federal funds treat one of the most important provisions of the Constitution for the territory: Its Territory Clause.

The Territory Clause empowers the federal government to govern Puerto Rico in local as well as national government matters and to treat it differently than the States in federal programs. The governing power is due to Puerto Rico’s status as U.S. territory. The power to treat the territory differently than the States in programs is due to Puerto Rico’s status as unincorporated territory of the U.S.

The only limits on the federal government’s discretion in exercising its Territory Clause powers are the fundamental rights of individuals also provided by the Constitution, such as the freedom of speech.

Under its Territory Clause powers, the federal government has authorized Puerto Rico’s territorial government, known as "the Commonwealth," to exercise similar authority to that possessed by the States of the U.S. in the Constitution. It has treated Puerto Rico equally with the States in many federal programs but it has also treated the territory less favorably than the States in several programs. Most of the cases of unequal treatment are programs that provide aid to low-income or disabled individuals.

Special tax benefits, however, are another major category of the different treatment of Puerto Rico and the four other unincorporated territories from the States.

Gov.-Elect Acevedo contends that the Territory Clause ceased applying to Puerto Rico when the Constitution of the Commonwealth took effect in 1952. Pursuant to federal law, the territorial constitution replaced some provisions of the federal law that organized Puerto Rico’s local government. (Other provisions of the law dealt with national government matters and were continued as the Puerto Rican Federal Relations Act).

Acevedo’s view is not shared, however, by the federal government. The congressional committees that reported the legislation that authorized and approved the territorial constitution and the presidential administration at the time said that Puerto Rico’s status was not being changed. The U.S. Supreme Court, Office of the President, Justice and State Departments, House of Representatives, Senate committee on territorial affairs, Library of Congress, and Government Accountability Office have all found in recent years that the Territory Clause to apply to Puerto Rico.

The "Washington Update" appears weekly.

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