On July 28, 1994, the U.S. Department of
Justice stated in a legal opinion that Congress is not bound by
the current relationship with Puerto Rico or the current status
of the territory created under federal statute. With respect to
the concept of a binding pact based on the "mutual
consent" principle the DOJ memo addressed the Puerto Rico
questions as follows:
"The Department revisited
this issue in the early 1990's in connection with
the Puerto Rico Status Referendum Bill in light
of Bowen v. Agencies Opposed to Social Security
Entrapment, 477 U.S. 41 (1986), and concluded
that there could not be an enforceable vested
right in a political status; hence the mutual
consent clauses were ineffective because they
would not bind a future Congress."
In Puerto Rico, it is argued that P.L. 81-600
created an "unalterable bilateral pact" since the local
constitution adopted pursuant to that law was approved with the
consent of the people in the territory. The theory is that once
the people consented to the form of local self-government it can
not be altered by Congress. From that premise the leap is made
that as a matter of federal law this constitutes a fully
self-governing status and that Puerto Rico is no longer a U.S.
territory. Consequently, the territorial clause no longer applies
and Congress can not apply even federal laws to Puerto Rico
without its consent.
The PDP definition of "New
Commonwealth" is an attempt to "perfect" this
"bilateral pact" relationship. The 1994 Department of
Justice memorandum is ignored in the testimony of the PDP leaders
which accompanied the new definition when proposed to the House
Committee on Resources on March 19, 1997. Instead of addressing
the constitutional issues, the PDP relies upon the following
statement of Felix Frankfurter in 1914 when he was an official at
the War Department in the days it administered Puerto Rican
"The present day demand upon
inventive statesmanship is to help evolve new
kinds of relationships so as to combine the
advantages of local self-government with those of
a confederated union. Luckily, our Constitution
has left this filed of invention open."
Of course, the field of invention Frankfurter
was alluding to exists under the Territorial Clause of the
Constitution. In contrast, the PDP proposes to convert the
relationship created in 1952 by statute into a permanent form of
union which exists outside the Territorial Clause authority of
In 1980 the U.S. Supreme Court ruled that
Congress acts with respect to Puerto Rico under the Territorial
Clause (Harris v. Rosario, 446 U.S. 651). In U.S. v. Sanchez, 992
F. 2d 1143 (1993) the court stated that Congress retains
authority to determine the status of the territory in accordance
with the Territorial Clause and the Treaty of Paris as it deems
consistent with the national interest.
In Reid v. Covert, 354 U.S. 1 (1957), the U.S.
Supreme Court described territorial clause status as a
"temporary" condition regulated by Congress until
institutions of self-government are established.
The response of the PDP to the Supreme Court
ruling in Harris is to cite various 5th Amendment federal
property rights cases involving commercial disputes and the
enforceability of contract obligations, rather than political
status questions. In addition, the PDP continues to rely on
dictum from federal lower court decisions which actually went
against the "unalterability" theory of commonwealth,
but acknowledged the unique nature of the highly evolved
federal-territorial relationship and the local self-governing
status of Puerto Rico. See, for example, U.S. v. Quinones, 758
F.2d 1143 (1993).
The cases cited by the PDP merely confirm the
ambiguity and confusion in Congress and the courts due too much
"inventive statesmanship" regarding the status of
Puerto Rico over the years. It is time to sort it out through the
deliberative process of our constitutional system.
The fact that Congress can be inventive does
not necessarily mean that it serves the national interest or
redeems the dignity of the concerned territorial population to do
so. This is especially true when some in Puerto Rico and the
federal government have attempted to convert temporary invention
into a permanent extra-constitutional status. The "New
Commonwealth" proposal is the last gasp of that doctrine.