The US-Puerto Rico Political Status Act ("H.R. 856") was just passed by the U.S. House of Representatives (a companion bill, S. 472, will soon be acted on by the Senate). Its passage represented a milestone in the history of Puerto Rico’s relationship with the United States. A relationship borne of conquest, embellished by benevolent stewardship, marked by mutual admiration, suffused with sacrifice and, yet, still unconsummated.

The Young Bill, (named after its author Don Young, R-AK - Chairman, House Resources Committee) provides a process by which the Puerto Rico United States relationship will finally, in this the 100th anniversary of their courtship, be determined. Under its auspices the 3.8 million US citizens of Puerto Rico will vote in a status plebiscite before the year’s out, choosing among three options: commonwealth or the territorial status quo, independence and statehood.

Although the plebiscite is non-binding, the bill provides a mechanism for Congress and the president to provide transition and implementation stages for an independence or statehood choice reached by a majority of the electorate over a ten year period. Puerto Rico’s voters must approve each of the two successive stages leading to independence or statehood.

At any one of the three stages of the process, the initial vote or the two subsequent re-affirmations, failure to attain a majority in favor of change will cause the island’s status to remain as it has been for a century: an unincorporated territory of the United States subject to Congress’ plenary or full powers under the Constitution’s Territorial Clause (Art. IV, Sec. 3, Cl. 2 "The Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States.").

What adds drama to the Young Bill and raises expectations on all sides of the status issue that the US-Puerto Rico relationship will once and for all be resolved is that, for the first time since July 25, 1898, when American soldiers first landed in Puerto Rico and claimed the island for America, Congress is defining the terms of the options. In so doing, Puerto Rico’s voters will get a clear signal from Washington that the ballot option they select is constitutionally and politically viable.

This is in marked contrast to past plebiscite practices. Traditionally the three political parties in Puerto Rico representing the alternative status options defined their own ballot language. Often the promises represented more wish list than reality, aimed at winning the plebiscite but totally incapable of congressional implementation.

In fact, the genesis of the Young Bill can be traced directly to the results of just such a plebiscite and the wining formula upon which the commonwealth option prevailed. The 1993 status plebiscite produced a narrow plurality for the commonwealth status quo, the first time since its inception in 1952 that it did not receive a majority of the votes cast.

The Puerto Rico legislature (December 14, 1994) then requested Congress to interpret and or implement the plebiscite’s results.

  • "[I]t is requested that Congress express itself on the redefinition of Commonwealth, and should the Congress fail to accede to the changes proposed, that it states the specific status alternatives it is willing to consider, and the measures it recommends that the People of Puerto Rico should take as part of the process to solve the problem of their political status."
  • What followed was an historic letter (February 29, 1996) from the chairmen of the four U.S. House of Representatives’ committee’s with jurisdiction over the island.

    Chairman Young, joined by chairmen Ben Gilman, (R-NY, International Affairs) Elton Gallegly, (R-CA, Subcommittee on Native American and Insular Affairs), and Dan Burton, (R-IN-Subcommittee on the Western Hemisphere), responded that the winning commonwealth formula was incapable of congressional implementation and that "there is a need for Congress to define the real options for change and the true and political nature of the status quo, so that the people of Puerto Rico can know what the actual choices will be in the future."

    Citing the results of the plebiscite (48.6 percent for commonwealth, 46.3 percent for statehood and 5.1 percent for independence) in which a majority rejected the status quo, the chairmen found "that it is the preference of those who cast ballots to change the present impermanent status in favor of a permanent political status based on self-government." Saying that it was incontrovertible that Puerto Rico’s present status is that of an unincorporated territory they identified independence or free association and statehood as the only options for permanent and fully self-governing status.

    They concluded that "Congress must determine what steps the Federal government should take in order to help move the self-determination process to the next stage, so that the political status aspirations of the people can be ascertained through a truly informed vote in which the wishes of the people are freely expressed within a framework approved by Congress."

    A predecessor bill to H.R. 856, H.R. 3024, was subsequently introduced in the 104th Congress by Chairman Young but was withdrawn as opponents sought amendments that would have redefined the statehood option to require English as Puerto Rico’s official language as a condition for entry into the Union.

    Shortly, thereafter, on January 23, 1997, the Legislature of Puerto Rico adopted Concurrent Resolution 2, requesting the 105th Congress to "...respond to the democratic aspirations of the American citizens of Puerto Rico" by approving legislation to authorize "...a plebiscite sponsored by the Federal Government, which shall be held no later than December 31, 1998."

    Chairman Young again introduced the Puerto Rico self-determination bill garnering, along the way, nearly 90 co-sponsors from both sides of the aisle including Speaker Gingrich, Majority Whip DeLay, Minority Leader Gephardt and Puerto Rico’s Resident Commissioner Carlos Romero-Barcelo.

    Support for the bill came once again from the pro-statehood New Progressive Party ("PNP") and the Puerto Rico Independence Party ("PIP"), both of whom accepted the definitions and procedures laid down in the proposed legislation.

    Just as the predecessor legislative offering met with resistance in some quarters, H.R. 856 was also not entirely welcomed. Opponents of the legislation, led mainly by the pro-commonwealth Popular Democratic Party of Puerto Rico ("PDP") objected to the need for the legislation, the definition provided for their status option and other aspects of the bill.

    Responding to critics, Chairmen Young and the Resources Committee held exhaustive hearings in Washington, DC, and San Juan and Mayaguez, Puerto Rico, in 1997. Over 50 witness were called in Puerto Rico alone, giving all sides equal and lengthy opportunities to address the issues raised by the proposed legislation.

    These efforts culminated on May 21, 1997, when, by a vote of 44-1, the Resources Committee reported H.R. 856 to the full House of Representatives. With few modifications, H.R. 856 closely resembled both the earlier 104th Congress bill and the new legislation introduced at the outset of the 105th Congress.

    The Committee’s report addressed commonwealth objections specifically finding that the legislation was needed because the ballot definition in 1993 was constitutionally defective requiring implementation through measures never before adopted by Congress. Further, the commonwealth option having obtained only a plurality left the island in a situation where a majority of the electorate sought to change the current status.

    Addressing definitional matters, the Committee reiterated the findings of the Four Chairmen’s Letter that Puerto Rico remained an unincorporated territory subject to the Territorial Clause of the U.S. Constitution. The change to limited local self-government accompanying the 1952 commonwealth legislation did not affect the island’s impermanent status. H.R. 856 sought to replace that temporary status through a process leading to full self-government. Permanent, full self-government defined as either independence or free association or statehood.

    However, during the bill’s debate by the full House, opponents raised objections to the legislation seeking either to kill it altogether or, in the alternative, load it with enough ‘poison pills’ to adversely affect the outcome of the proposed 1998 status plebiscite.

    Commonwealth Definition

    Having failed to sway the Committee, the PDP and its allies in Congress tried to amend the legislation to incorporate their views on commonwealth’s definition. Particularly important were definitional references to the nature of the commonwealth relationship with the United States, namely that something new occurred in 1952 that couldn’t be changed without the mutual consent of both the United States and Puerto Rico.

    However, such a definition flies in the face of legislative history surrounding the passage of commonwealth in 1952. Here, two of its most ardent founders and proponents explode the myth of mutual consent in testimony on the 1952 commonwealth legislation:

  • "As already pointed out, H.R. 7674 would not change the status of the island of Puerto Rico relative to the United States. It would not alter the powers of sovereignty acquired by the United States over Puerto Rico under the terms of the Treaty of Paris." ((Dr. Fernos Isern, Hearings Before Committee on Public Lands, H. of Rep., 81st Cong., 2nd., p.63)

    "You know, of course, if the people of Puerto Rico should go crazy, Congress can always get around and legislate again." (Gov. Munoz Marin, Hearings Before Committee on Public Lands, H. of Rep., 81st Cong., 2nd., p.33)

  • And, if that wasn’t enough the Federal courts have also entered the mutuality fray to dispel its existence:

  • "We have no occasion today to interpret the full bearing of the Harris case on the "compact" theory, ante. However, prior judicial pronouncements establishing a binding, bilateral relationship whereby Congress relinquished its Art. IV, Sec. 3, Cl. 2 power over Puerto Rico appear to have been rendered effectless by said decision." Sea-Land Services, Inc. v Municipality of San Juan, 500 Fed. Supp. (DPR, 1980)
  • Clearly, the wish that was born in 1952 remains just that and, consistent with the Constitution the definition of commonwealth contained in H.R. 856, that of an unincorporated territory subject to the Territorial Clause is correct. Needless to say, efforts to amend the bill to incorporate the PDP’s definition of commonwealth failed.


    The PDP’s 1993 ballot definition also conveyed to voters that their statutory U.S. citizenship was irrevocable under commonwealth status. H.R. 856 does not go that far and can’t.

    It reiterates the statutory nature of American citizenship granted under the Jones Act on March 2, 1917, saying that "persons born in Puerto Rico have statutory United States nationality and citizenship as prescribed by Congress." Statutory U.S. citizenship can never be the equivalent of citizenship obtained by birth in the fifty states under the Constitution. By its very nature it is capable of change or revocation.

    Thus, on the matters of both the definition of commonwealth and the irrevocability of U.S. citizenship it would have been disingenuous for Congress to offer the Puerto Rican electorate more than can be delivered. Having already found the 1993 commonwealth ballot misleading, Congress was loathe to lead the Puerto Rican people down that same discredited path once more.

    English Language

    The major effort to kill H.R. 856 or skew the plebiscite’s results was made by English-only proponents. As in 1996, they sought again to require a Puerto Rican state to make English the state government’s sole official language and the language of instruction in the public schools.

    As the bill stands., the statehood definition comports with the Constitution’s Tenth Amendment which, by construction, leaves a state’s official language, if any, up to each state. In other words, since there is no constitutional requirement for an official U.S. language that power, insofar as states are concerned, is reserved to them alone.

    To-date, some 23 states have adopted English as their official language but none has sought to enforce such a requirement among its residents. On the other hand, one state, Hawaii has adopted both English and Hawaiian as its official languages.

    In this respect Puerto Rico is no different than Hawaii. It, too, has two official languages, English and Spanish. With its 500 year old Spanish heritage overlapping a century of American administration such a bow to its major cultural and social roots seems altogether fitting.

    Yet, led by Chairman Gerald Solomon of the House Rules Committee, English-only advocates wanted to impose on a Puerto Rican state an English-only or English educational requirement that they can’t require of the other 50 states. Worse, under the Territorial Clause they could require the territory of Puerto Rico today to have English as its only official language.

    Why then this effort? Clearly, the bills opponents saw the English-only requirements as a means to affect the plebiscite’s outcome. Just enough statehood supporters might be put off by external attempts to force them or their children to give up the use of the Spanish language that they might well abandon their status principles in order to preserve their culture for future generations.

    To make matters even worse, the English-only statehood prerequisites, while offensive and perhaps negatively pivotal to the exercise of a freely determined status plebiscite under H.R. 856, would probably not survive a constitutional test once Puerto Rico became a state.

    Under the Equal Footing Doctrine, enunciated by the US Supreme Court in Coyle v Oklahoma, 1911, the power of Congress under the Constitution to admit new states extends only to their admission on an equal footing with their sister states. Thus, Congress has no power to impose restrictions in admitting a new state which would deprive it of political equality with other states.

    The Oklahoma Enabling Act designated Guthrie as the state’s capitol, but after entering the Union the capitol was changed to Oklahoma City. The Court said that the power to locate a seat of government is a power of each state reserved under the Tenth Amendment. Therefore, the condition in the Enabling Act setting the capitol and proscribing any unilateral change by the state ceased to be a valid limitation on the power of Oklahoma after its admission.

    Similarly, as the U.S. Constitution does not establish an official national language or language of instruction such an admission requirement if applied to Puerto Rico could not withstand a Tenth Amendment constitutional test. In other words, Puerto Rico could upon admission to the Union revert to English and Spanish as its official languages in school and out.

    Nevertheless, the danger of Rep. Solomon’s English language amendment proposals to the self-determination process prescribed under H.R. 856 could not be easily dismissed. The eventual successful outcome of a sophisticated constitutional test, no matter how assured, would be difficult to convey in a heated plebiscite campaign and a court decision so far distant in the future as to be almost meaningless to today’s voters..

    Solomon’s motives were transparent. As recently noted in the Washington Times, he vowed to defeat the bill. Barring an outright victory, i.e., defeat of the legislation, he tried to use the English-only requirements to skew the outcome of the status plebiscite so that statehood could not attain a majority in order to preserve his favored commonwealth status.

    Among his arguments and those of the English-only movement was to compare Puerto Rico to Quebec decrying that the admission of an Hispanic state would be the first step in creating a divisiveness based on language and culture in the U.S. much like Canada is experiencing today. But the Quebec analogy is inappropriate.

    Unlike Quebec, Hispanic Americans are not confined to one geopolitical entity mostly segregated from the rest of the country. Already 27 million Hispanic Americans reside throughout the fifty states and by 2005 they will comprise the largest minority in the U.S. Moreover, by 2025 such states as Texas will boast a population in which more than half its residents will be of Hispanic descent.

    Unlike Canada, Hispanic Americans are fully integrated into the American culture and their dedication to the defense of the country’s constitutional ideals in war and peace is unparalleled and unquestioned. Puerto Rico may become the first state that is predominantly Hispanic in its heritage but it won’t be the last.

    The bill’s advocates called Solomon’s bluff. Led by Representatives Dan Burton (R-IN), Don Young (R-AK), Bill McCollum (R-FL) and George Miller (D-CA), they countered with an amendment that set an age ten English language proficiency goal for Puerto Rico school children and, in the event that Puerto Rico eventually became a state, "official language requirements of the Federal Government shall apply in Puerto Rico to the same extent as throughout the United States."

    In other words, their counter-proposal retained Puerto Rico’s Tenth Amendment right to determine its official language or languages should it become a state and did not mandate English language instruction in its schools under statehood. Puerto Rico, like the rest of the states, would still be required to use English as the official language in Federal courts and agencies, something it already does.

    In the end, the Solomon initiative was defeated as the bipartisan Burton, Young, McCollum, Miller amendment was passed by the House.

    Voter Approval Threshold

    H.R. 856 requires only a majority vote for a change in status and to approve both the Transition and Implementation Stages effecting the new status. Critics of the bill, opponents as well, argued that such a minimum level of approval is inadequate given the momentous changes that would occur if Puerto Rico chose statehood or independence.

    They contended that with only a majority vote needed to approve statehood, for example, a large plurality would still oppose the new status thereby affecting the new state’s political stability. Furthermore, they said, the United States should not allow a new state to join the Union unless an overwhelming majority of its inhabitants -- 65 percent, 75 percent, etc. -- truly want to take this irrevocable step.

    They pointed to both Alaska and Hawaii where statehood was approved with votes of 83 percent and 94 percent, respectively. Thus, an amendment calling for a super majority to approve a final status change was offered.

    While it is hard to rebut the idea that everyone in a territory seeking statehood should be in favor of such a move, no such requirement has ever been imposed on the residents of any other territory previously seeking admission to the Union. Furthermore, the statehood plebiscites in the other territories were just that: statehood plebiscites. H.R. 856 is not a statehood plebiscite, it is a self-determination bill.

    Unlike the other territories which just had up or down votes on statehood, Puerto Rican voters will be presented with three options: the status quo, statehood or independence. Obtaining a majority among the three in the first plebiscite round will be quite a challenge in itself. In fact, in the last plebiscite in 1993 none of the three options eked out a majority.

    However, if a majority for change occurs in the 1998 plebiscite the two subsequent confirming votes on the Transition and Implementation Stages will be straight up and down votes on either independence or statehood.

    As with the many of the other territories that eventually attained statehood, initial voter approvals were not significantly greater than a majority. Only as statehood became a reality and the benefits of a change in status were realized did territorial residents register their support in larger numbers. For example, only 56 percent of Alaskan voters initially supported statehood.

    Puerto Rico can be expected to follow this model. If a majority approves a change in status to statehood most of the skepticism among the electorate towards Congresses willingness to implement the change will evaporate as votes on the Transition and Implementation Stages are held. Moreover, the benefits of statehood will become both better defined and within reach.

    As the self-determination process unfolds it can be expected, even predicted, that increasing numbers of the Puerto Rican electorate will embrace and welcome the new status change. Similarly, an initially large plurality favoring another status or the present status quo will diminish over time as the virtues of the new status become apparent.

    Given the current divisions within the Puerto Rican electorate and the unusual multiple options that will be presented under H.R. 856, a requirement that any change in status win by a super majority is merely a disguised attempt to undermine Puerto Rico self-determination. By placing insurmountable obstacles in the way of the majority from starting a self-determination process that will eventually lead to a change in Puerto Rico’s status., the bill’s opponents hoped to accomplish by amendment what they could not do on the House floor, defeat the bill outright.

    Fortunately, reason prevailed and an amendment to require super majority approval for statehood was defeated.

    Non-Resident Puerto Rican Voter Eligibility

    Finally, even some of the bill’s supporters sought an amendment that would allow all or some of the 2.5 million US citizens of Puerto Rican descent now residing in the 50 states to vote in the 1998 plebiscite. Apart from the technical and logistical problems attendant the implementation of such an amendment, its inappropriateness and questionable legal foundation are sufficient to scuttle the idea in its infancy.

    H.R. 856 requires the plebiscite to be "conducted in accordance with the applicable laws of Puerto Rico, including laws of Puerto Rico under which voter eligibility is determined." As with other US jurisdictions, all the states included, only those meeting Puerto Rico’s residency requirements are eligible to vote.

    Puerto Ricans permanently residing on the mainland are residents of the states in which they live. They are eligible to vote in their home state’s elections. Similarly, Puerto Ricans residing on the island are restricted to voting only in Puerto Rico.

    In point of fact, mainland Puerto Ricans have greater voting rights than their island counterparts. They can help elect the president and their voting members of congress, something which Puerto Ricans in Puerto Rico are unable to do.

    Nevertheless, while there may be some nostalgic, romantic, or social appeal in solidarity to allowing non-resident Puerto Ricans to vote on the island’s future status there is no precedent for just such a dispensation. Mainland Puerto Ricans will not be bound by the results of the plebiscite and therefore should not be permitted to affect the plebiscite’s outcome and the lives of those who have decided to remain on the island.

    Moreover, it can be argued that those Puerto Ricans who have moved to the mainland have already cast their vote for a change in status. Whether to attain their full political rights under the constitution or in search of improved economic opportunities and a better way of life relocation has meant that, to them, the current status was inadequate to meet their needs.

    To allow them to now cast a vote on the island’s future would be superfluous, disingenuous and mischievous. Only those directly affected by the outcome of the plebiscite should vote in it, the residents of Puerto Rico. If others really want a say then let them come back to the island, establish residency and cast their ballots.

    Again, reasoned judgement prevailed and the House voted to exclude Puerto Ricans residing on the mainland from voting in the 1998 status plebiscite.

    H.R. 856 felt the scrutiny of the House of Representatives. The bill was passed and knowledgeable observers believe its companion measure in the Senate, S. 472, will be similarly acted on and signed into law by the president in time to hold the 1998 status plebiscite.

    Puerto Rico’s quest for self-determination is unstoppable. In this the 100th year under the American flag, Puerto Rico and its proud U.S. citizens are confident that they will greet the new millennium as full and equal partners in the American dream or as an independent and sovereign country blessed with an American and Hispanic heritage.

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