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 affairs:

"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 Congress.

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.

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