Constitution's Territorial Clause Alone Determines Congress' Authority And Power Over Puerto Rico

By Miriam Ramirez de Ferrer,

President, Puerto Ricans In Civic Action

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Puerto Ricans in Civic Action, a non-partisan organization dedicated to achieving political and economic equality for the 3.7 million United States citizens of Puerto Rico, supports the United States-Puerto Rico Political Status Act, HR 856, which provides a process that will finally give Puerto Ricans the opportunity to achieve that five century old goal.


I want to address two issues that were raised by the pro-commonwealth supporters at the recent House Resources hearings in Puerto Rico on the bill: Congress' power to implement the "new commonwealth" proposal outside the Constitution's Territorial Clause and the extent to which this new entity would be exempt from specific laws affecting all Americans but the 3.7 million United States citizens residing on the island.


First, in response to a question concerning the new commonwealth definition, Mr. Acevedo-Vila said that the United States would retain only those powers over Puerto Rico and its American citizens not delegated to it by that new sovereign entity.


At first I couldn't believe my ears. These folks must be crazy, I said to a friend. But then I realized that the speaker must be thinking about the Tenth Amendment which reserves to the states of the Union those powers not delegated to the United States. He must be saying that a similar arrangement might be made in the case of the new Puerto Rico commonwealth. Not crazy but just misinformed.


In fact, a state's official language is one of those powers retained by the states and, therefore, Congress could not constitutionally require a state of Puerto Rico to have English as its only official language. Yet, in truth, this is one of the few powers that has remained reserved to the states since the Constitution's ratification in 1787.


Over the years Congress has eroded most of the state's other presumed reserved powers through legislation that has gradually shifted authority to Washington. Meanwhile, court decisions have concurrently expanded federal power by broadly interpreting the Commerce Clause and other constitutional clauses to encompass matters once left or reserved to the states but now within the shared or sole purview of the national government.


Taken together with the Constitution's Supremacy Clause few powers, if any, remain entirely reserved to the states under the Tenth Amendment. The reserved powers have withered away.


Therefore, while the analogy to the states and the Tenth Amendment may appear to be apt, the fact remains that Congress, even if could, would not be willing to give powers to Puerto Rico that it has wrested from the states over the last 200 plus years.


Further, court decisions seemingly upholding the 1952 commonwealth creation were nevertheless qualified insofar as they were conditioned on constitutional supremacy. No matter what PL 600 purported to do the Constitution's Supremacy Clause was always interpreted to prevail when in conflict with commonwealth, not to mention any of the states of the Union.


After all, that was what the Civil War was fought over: the Union's preservation and federal supremacy enshrined in American constitutional law.


This brings me to a second point raised by former Governor Hernandez Colon, among others. Namely, that Congress could meet the demands of the new commonwealth through extra-constitutional avenues, i.e., treaties., laws , etc. It is not bound by the Constitution's Territorial Clause in dealing with Puerto Rico.


Examples of this creative view of congressional authority were directed at the Cortes which, prior to American administration of Puerto Rico in 1898, purported to give autonomy from arbitrary Spanish rule through a veto power over laws affecting the island. Britain and its commonwealth were also cited as models of adaptability to changing customs and times in dealing with former colonies.


However, what was missing from this facile analysis was the distinction between the cited examples and the United States.


Unlike Spain and the United Kingdom, the United States has a written constitution that must be adhered to unless otherwise amended or interpreted by the courts. Absent amendment or court findings to the contrary, Congress' latitude for extra-constitutional action is non-existent.


As the Constitution specifically recognizes states, territories and nations and the laws and treaties of one Congress can not bind another, only a constitutional amendment establishing this new commonwealth entity could guarantee its future existence. There is just no wiggle room for congressional creativity when it comes to the new commonwealth definition.


On this point, Federal District Judge Jackson said just a few weeks ago in striking down the presidential line item veto, "[T]he Supreme Court has repeatedly counseled that when the Constitution speaks to the matter, the Constitution alone controls the way in which governmental powers shall be exercised." Byrd v. Raines, 1997.


Since Congress can neither delegate its constitutional duties, responsibilities and powers nor selectively abrogate the Constitution, a new commonwealth fashioned after the PDP definition is just not possible.


It is time that commonwealth supporters recognize that their "wish list" for an enhanced, extended, perfected, culminated or whatever new commonwealth is just not possible. Having been dealt a fatal blow to the commonwealth's effort to find legitimacy within the Constitution's Territorial Clause by Chairmen Young, Gilman, Gallegly and Burton in their letter of February 29, 1996, the PDP now seeks refuge outside the Constitution.


Unfortunately for the PDP, if it looks like a duck, walks like a duck and quacks like a duck, it's still a duck. Similarly, Puerto Rico is a United States territory and no amount of subterfuge or obfuscation will hide or change that reality.


Fortunately, HR 856 presents us with an historic opportunity to get out from under the Territorial Clause in an honest, forthright and constitutional manner. We should and will seize the day.


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