KIRKPATRICK & LOCKHART LLP
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036
April 9, 1998
Senator Frank Murkowski
Committee on Energy and Natural Resources
364 Dirksen Senate Office Building
Washington, D.C. 20510
Re: Constitutional and other parameters of Puerto Rican status legislation
Dear Mr. Chairman:
In 1991, I testified before the Committee on Energy and Natural Resources on previous legislation to resolve the status of Puerto Rico. As Attorney General and Chairman of the Domestic Policy Council, I was personally involved in the formulation of the Bush Administration's policy on Puerto Rico's status, as was President Bush himself.
Because I believed H.R. 856 as reported to the House by the Resources Committee effectively would address some of the definitional and procedural issues which were not resolved successfully in either the House or Senate status bills in 1990 and 1991, I wrote the attached letter to Chairman Don Young on February 9 of this year to express my support for the current House bill. As you know, it passed the House on March 4, despite the very effective effort of its opponents to characterize it as a self-executing statehood bill.
To the contrary, one of the principle reasons I supported H.R. 856 in the House is because it does not make any promises that cannot be kept with respect to the results of the first referendum to be held in Puerto Rico. Rather, the bill expressly recognizes and reserves the authority and responsibility of Congress under the Territorial Clause of the Constitution to act in the national interest in prescribing the terms of any Federal response to the results of a vote held under the bill.
S. 472 is a less complicated but compatible companion measure to the House bill, and by this letter and the attached statement I wish to present as persuasively as I know how the fundamental arguments in support of timely Senate action on S. 472.
Much has been made about opposition of commonwealth party leaders to the definition of the status quo in S. 472. The truth is that in the House those party leaders simply would not agree to any definition which recognizes the supremacy of provisions of the Constitution, laws and treaties of the U.S. over local law in Puerto Rico. Nor would they accept a definition which recognizes one national citizenship under the U.S. flag, or that Congress can not by statute amend the Constitution to cede permanent separate sovereignty, nationality and citizenship to Puerto Rico while at the same time retaining the benefits of U.S. sovereignty, nationality and citizenship for Puerto Rico.
Since the bipartisan supporters of H.R. 856 in the House would not agree to "compensate" Puerto Rico for the disenfranchisement of residents of the territory in the Federal political process, by giving Puerto Rico a status in certain respects superior to that of the States of the Union -- with a veto power over acts of Congress thrown in for good measure, the commonwealth party claims that the bill favors statehood! This forced the House to write a definition based upon the commonwealth party proposal, but consistent with constitutional requirements. While the House definition should be considered as an effective compromise, in my view the Senate should go no further than the House in giving credence to the separatist "nation-within-a-nation" proposals of the commonwealth party.
The 3.8 million loyal and patriotic Americans of Puerto Rico are not asking to be admitted to membership in the U.S. national body politic as citizens. They have had that since 1917. Instead, the residents of Puerto Rico seek the first opportunity in 100 years of the American experience to express their will as to the three options available under the Constitution -- independence, statehood or continued territorial status.
The residents of Puerto Rico, acting through their elected and duly-constituted representatives in the Legislature of Puerto Rico, have made it clear that they are prepared to have their will as expressed in a status vote tested by Congress in the context of the national interest, and to have answered the question of whether full and equal citizenship can be achieved as we enter the second century of U.S. sovereignty over the territory and its American citizen population. Indeed, in the Resolutions of the Legislature of Puerto Rico discussed in the attached paper, the U.S. citizens of Puerto Rico have asked Congress to define the choices Congress is willing to consider realistically, so that an informed process of self-determination can begin.
It is objective fact that independence, statehood or territorial status are the three options which the U.S. and Puerto Rico have available under the U.S. Constitution and international law recognized by the United States. Only when the people of the territory have expressed their preference between those three existing options can Congress respond, by giving the Puerto Rican born Americans of the territory the information they need in order to decide to accept or decline the terms Congress will prescribe to achieve that status.
S. 472 provides for two votes by Congress and two votes by the residents of the territory before a transition to a new status would even begin. The people get their say, then Congress gets its say, and then the people get their say, and only if there is mutual acceptance of the terms does the transition process even begin. Then a third vote is required to determine if the transition process is completed and the people are prepared for the final implementation of a new status on the terms Congress and the voters approved.
If Congress or the voters do not approve the change to a new status, the current status continues. Thus, if anything the bill favors the status quo, and makes no demands that continuation of commonwealth be justified to or by Congress as consistent with the national interest.
If the people of Puerto Rico and their leaders have the courage and resolve to enter into a process of mutual self-determination by the territory and the nation, knowing that the legislation promises the fairness of the process but does not presume mutual agreement on the terms for achieving the results preferred by the voters in the territory, then I believe the U.S. Congress must answer that call in the name of the national honor.
The only alternative is simply to deny the right of democratic free expression to a body politic which has had U.S. nationality since 1898 and U.S. citizenship since 1917. That is not the manner in which the U.S. can define itself in a new century of success for the American idea.
STATEMENT REGARDING THE STATUS OF PUERTO RICO
Resolutions adopted by the Legislature of Puerto Rico in 1994, 1997 and 1998 urge Congress to establish a process for resolving the question of Puerto Rico's political status. S. 472, a measure to establish such a status resolution process, is based on deliberations in Congress that began in 1989 -- including extensive Senate hearings. House proceedings which also began in 1989 culminated in approval of a Puerto Rico status bill on March 4, 1998.
In 1992 U.S. Senate leaders recommended that Puerto Rico conduct a referendum on status under local law since Congress had failed to pass status legislation after hearings in 1991. Puerto Rico's leaders responded, and in a 1993 plebiscite Puerto Rico's current "commonwealth" -- even with "too good to be true" enhancements included on the ballot by the Commonwealth Party -- received approval by less than a majority of the voters. On the basis of this vote the Legislature of Puerto Rico requested Congress to define realistic status options it will consider.
The urgency of this bill arises from the fact that -- if current spending levels are continued by Congress -- U.S. taxpayers will spend at least $120 billion over the next ten years subsidizing the current territorial status with the "commonwealth" form of local government. If S. 472 is enacted, in ten years Congress should have a basis for either i) integrating Puerto Rico into the U.S. political and fiscal system, or ii) approving succession of Puerto Rico to separate nationhood.
S. 472 enables Congress to manage a process through which Puerto Rico will be able either to pay its own way or go its own way in the foreseeable future. Without S. 472 there will be no long term return on -- or justification for -- the continued open-ended investment of $120 billion in taxpayer dollars every decade in a tax exempt territory, the status of which is not resolved because its 3.8 million American citizens remain politically disenfranchised and Congress will not act.
S. 472 will enable Congress to prescribe the criteria for U.S. agreement to implement any status preferred by the voters in the first referendum. If the voters do not accept the terms prescribed by Congress for their preferred status in the second stage referendum, then continuation of the current status or transition to an alternative other than that chosen in the first vote will be the result of self-determination -- rather than continued failure of Congress to exercise its authority under the Territorial Clause of the Constitution to resolve the status issue.
If Puerto Rico voters prefer statehood, S. 472 reserves to Congress authority to approve a transition plan prior to a second referendum, and if the voters accept the terms of transition determined by Congress there will be a final referendum after the plan has been implemented to approve actual entry into a new status. The transition program may include budget impact targets, phase in of current or alternative federal taxation, and limitation of any additional social spending and tax credits proportionally to per capita income to avoid "windfall" federal transfer payments, with the goal of the earliest possible political and economic integration of Puerto Rico with the rest of the nation. Under any status resolution process, promotion of English in cooperation with local school authorities and parent organizations should begin now.
If the current status continues, or Puerto Rico chooses separate nationhood through independence or free association, Congress must preclude legal gimmicks for "dual sovereignty and nationality" or a "nation-within-a-nation" status creating an enclave of political separatism under the American flag.
HISTORY OF CURRENT STATUS RESOLUTION PROPOSALS
In 1989 the presidents of the principal political parties in Puerto Rico co-signed a letter to the Congress of the United States stating that "...the People of Puerto Rico wish to be consulted as to their preference with regards to their ultimate political status...since Puerto Rico came under the sovereignty of the United States of America through the Treaty of Paris in 1898, the People of Puerto Rico have not been formally consulted by the United States of America as to their choice of their ultimate political status." In response to that letter, an exhaustive series of hearings on comprehensive political status legislation was conducted in the House and the Senate of the U.S. Congress with full participation by the three political parties of Puerto Rico. Even though legislation identifying independence, statehood or continuation of the current status as the three status options available to Puerto Rico was developed in this process of deliberation, in 1991 Congress reached an impasse and abandoned the effort to produce legislation to enable the U.S. citizens of Puerto Rico to freely express their wishes regarding a permanent political status. Thereupon, the local constitutional government in Puerto Rico was urged by leaders in Congress to conduct a status plebiscite under local law and transmit the results to Congress.
On November 14, 1993, a status plebiscite was conducted in Puerto Rico under local law in which the options for independence, statehood and continued "commonwealth" were presented to the voters as defined by the local political parties supporting each option. The results of the vote were: independence 4.4 percent, "commonwealth" 48.6 percent, and statehood 46.6 percent. Since the "commonwealth" structure of local self-government was established in 1952 as authorized by Congress based upon approval of a majority of the U.S. citizens residing in Puerto Rico, the failure of a majority of the residents of Puerto Rico to consent to continuation of the commonwealth status raised serious questions about the legitimacy of the form of government under which the American citizens of Puerto Rico now exist. This result was especially significant because the definition of "commonwealth" which appeared on the ballot included proposed "enhancements" which Congress has never approved when previously proposed. These enhancements were attached to the commonwealth definition in order to make it more attractive to the voters, including permanent exemption of individuals and corporations in Puerto Rico from Federal income taxes, full participation in all federal entitlements and benefits, the same permanent and binding membership in the Federal union as the several states, irrevocable grant in perpetuity of same full constitutional citizenship provided under 14th Amendment only to persons born or naturalized in the states, and veto power over Acts of Congress.
The results of the 1993 vote trigger serious constitutional responsibilities of the Congress. Specifically, in enacting Public Law 81-600 (48 U.S.C. 731 et seq.), authorizing the establishment of the "commonwealth" structure of local government in 1952, Congress expressly recognized that internal self-government for Puerto Rico under United States national sovereignty would be based upon "the principle of government by consent." Since the U.S. citizens of Puerto Rico remain disenfranchised in the Federal constitutional process to which they are subject as to the form of government and law under which they exist, and the majority of the citizens so governed withdrew their consent to the current status in the act of self-determination conducted under local law in the 1993 status vote, Congress has a responsibility under the Territory Clause to take appropriate measures to restore a state of self-government in Puerto Rico consistent with the principle of consent of the governed based on clearly defined and realistic choices. Accordingly, on December 14, 1994, the duly-constituted Legislature of Puerto Rico adopted and transmitted to Congress a Resolution of that body requesting Congress to indicate its acceptance of the definition of "commonwealth" which received the highest number of votes in the 1993 vote, or in the alternative to define the options it would be willing to consider as a basis for resolving the political status of Puerto Rico. Based on introduction in the House and Senate in the 104th Congress of legislation which would authorize a more informed self-determination process in Puerto Rico based on plausible and realistic definitions which Congress would be willing to consider, on January 23, 1997, the Legislature of Puerto Rico adopted another Resolution requesting that Congress approve legislation authorizing a political status vote in 1998. Based on approval by the House on March 4, 1998, of H.R. 856, both Houses of the Legislature of Puerto Rico adopted Resolutions requesting the Congress and the President now to complete the Federal legislative process to enable the status of Puerto Rico to be resolved in a manner consistent with historical U.S. constitutional practice.
STATUS RESOLUTION PROCEDURES
The current sovereignty, nationality and citizenship of the United States in Puerto Rico exists under Federal statutes which implement the authority of the United States in Puerto Rico under the Treaty of Paris (1899) and the Territorial Clause (Article IV, Section 3, Clause 2) of the United States Constitution. The authorization in 1952 under P.L. 81-600 for establishment of internal self-government, with a local constitution approved by the U.S. citizens residing in Puerto Rico, did not convert Puerto Rico to a permanent or fully self-governing status binding on Congress under the United States Constitution. Rather, under the United States Constitution, there are two options for permanent full self-government for Puerto Rico: separate sovereign nationhood or statehood. The third option available to Puerto Rico under the U.S. Constitution is to continue the current status under the Territory Clause with a "Commonwealth" relationship as defined under Federal statute and local law consistent therewith. In any process to resolve the status of Puerto Rico based on self-determination, the United States citizens of Puerto Rico should be enabled to express freely their preferences regarding political status, but the results of any such referendum shall not be binding upon Puerto Rico or Congress except as provided pursuant to further legislative authorization by Congress and subsequent approvals by the residents of Puerto Rico.
Given the lack of resolution in a status process that began in 1989, Congress should act with resolve now. This is not a new issue. S. 472 will enable the residents of Puerto Rico to express a preference between separate nationhood, statehood or continued territorial status. Then there would be a second vote on a transition plan promulgated by Congress which defines the conditions for a change of status. This would inform the voters through a Congressional statement of the terms for establishing a new status or continuing the present relationship. This ensures the voters know what their real options are so they can make a fully informed final decision at some time in the future. A third vote when all conditions have been met is required to ensure that Congress retains authority to prescribe the terms and timing of any status change, consistent with its determination of the national interest.
In the event the residents of Puerto Rico express a preference for statehood, the Senate should retain the provision in S. 472 which recognizes that in the event Congress approves legislation prescribing the requirements for a transition to statehood it may require a longer transition period than the specified 4 year target. Consistent with this approach, S. 472 should conform with H.R. 856 so that actual admission to statehood will follow implementation of the transition plan approved by Congress and the residents of Puerto Rico, and even thereupon actual admission must be subject to final approval by Congress as well as the residents of Puerto Rico based on free and unfettered consent at the end of the transition process. The Senate also should clarify that in the transition plan that must be prepared Congress will prescribe fair terms for admission of Puerto Rico based on its economic convergence with the nation and its fiscal system, so that budget impact targets can be identified in advance of admission of Puerto Rico to statehood. Without S. 472, there is no plausible strategy for Puerto Rico to pay its own way as long as U.S. sovereignty continues and the residents remain disenfranchised. With commonwealth there is no light at the end of the tunnel because it is a fiscal dead-end. S. 472 will enable Congress to manage a process through which Puerto Rico will be able to pay its own way or go its own way in the next century.
If the current "Commonwealth of Puerto Rico" structure of local self-government is to continue, it should be with the consent of the residents of Puerto Rico, rather than being due to the failure of Congress to define the options it will consider in a process which enables the population of the territory to make informed choices. As reaffirmed by the Department of Justice in a 1994 opinion, commonwealth status for an unincorporated territory such as Puerto Rico is created by statute and can never be made constitutionally permanent in a manner binding on a future Congress. Consequently, a process created by Congress to resolve the status of the commonwealth must allow for periodic referenda so that the residents of the territory will always have available the tools to end their less-than-equal status. In addition, if the current status is to continue, Congress will have to consider phasing in Federal taxation in Puerto Rico to support the current level of Federal outlays ($12 billion annually). Congress should not increase the entitlement of U.S. citizens in Puerto Rico for Federal programs, services and benefits without establishing measures for transition of Puerto Rico into substantially full fiscal integration with the United States -- including current federal income tax or alternatives such as a consumption tax or a flat tax -- as Congress deems equitable. Although this will not resolve the problem of disenfranchisement of the U.S. citizens of Puerto Rico in the federal political process to which they are subject, it will promote fuller participation by the residents of Puerto Rico in the national system and extend further the responsibilities as well as the benefits of continued citizenship. In addition, as long as the current status continues under United States sovereignty, there shall be only one nationality or nationality-based citizenship in Puerto Rico, which shall be that of the United States. The U.S. Senate must not allow a separate or dual Puerto Rican nationality or national citizenship to be recognized as long as United States nationality and citizenship continues to be conferred by statute upon persons born in Puerto Rico. Puerto Rico must not become a nation-within-a-nation under the commonwealth structure if we are to avoid political separatism under the U.S. flag.
If Puerto Rico is to become a separate sovereign nation under independence or free association, the doctrine of succession of state shall govern the process and U.S. sovereignty, nationality and citizenship will end. The U.S. Senate must ensure that the constitutionally protected citizenship of all U.S. citizens born or naturalized in the States of the Union under the 14th Amendment is not confused with the false promise of mass conferral of a "permanent" and "constitutionally protected" U.S. citizenship for inhabitants of an unincorporated territory with statutory citizenship who have exercised their right of self-determination in favor of separate sovereignty and nationality. Any proposal that under separate sovereignty Congress could give persons born in a newly established separate nation of Puerto Rico even greater U.S. citizenship rights than they now have under U.S. sovereignty in Puerto Rico as an unincorprated territory must fail. Specifically, the Senate should support an election of continued allegiance for persons with U.S. citizenship conferred by statute based on birth in Puerto Rico while it has been under U.S. sovereignty, enabling such persons to retain that statutory status for life. However, automatic mass dual U.S. and Puerto Rican nationality and citizenship, or continued conferral of U.S. nationality and citizenship on persons born in Puerto Rico after separate sovereignty is established, would result in succession of Puerto Rico to separate nationhood in name only but not in substance. This would entangle the U.S. in the internal and international affairs of a foreign country, including sovereign protection of the population of a foreign nation.
The ability of persons born or naturalized in a state of the union to acquire a dual nationality on an individual basis is distinct from continued U.S. nationality and citizenship for a population which under international law owes allegiance to a new and separate nation. If there is no election of allegiance and termination of statutory birth right citizenship upon succession of nationality, then U.S. sovereignty effectively will continue over the population of another nation. This would be yet another attempt to "have it both ways" as a separate nation but with common nationality and selected benefits of statehood, creating a nation-within-a-nation and leading to divided national sovereignty and separatism under the American flag premised on nullificationist doctrine. Though disguised as a bid for greater "autonomy" through the evolution of "commonwealth" into a perfected "free association" with "Puerto Rican nationality and U.S. citizenship," and espoused as a seemingly benign "right of mutual consent" to application of federal law, the Senate must see these "have it both ways" theories for what they are: proposals for "separate nationality with permanent union and common citizenship under the U.S. Constitution." This would enable Puerto Rico to have all the benefits of union with the U.S. and American citizenship in a form superior to that of the States of the Union and American citizens thereof. Ultimately, the "autonomist" doctrine of "dual sovereignty, nationality and citizenship" seeks to gain for Puerto Rico a veto power over federal law and the ability as a body politic within the United States to usurp the supremacy of the national government.
While non-immigrant rights of travel and residence can be granted under free association or even full independence, all arrangements under separate sovereignty shall be by treaty, and must be terminable at will if it is to be anything other than a continuation of colonial status. Congress has the authority under the Constitution to regulate and determine nationality issues, and in the case of Puerto Rico as a territory this is matter which arises under the Territorial Clause. Upon establishment of separate sovereignty through independence or free association the status of persons born in Puerto Rico will be a foreign policy and immigration matter. Thus, granting statutory citizenship to the residents of the territory in 1952 did not convert Puerto Rico into a state of the union for purpose of the citizenship provision of the 14th Amendment of the Constitution. Congress still has the constitutional power and responsibility to ensure that only one national citizenship exists in Puerto Rico as long as the current status continues. If instead separate sovereignty is to be implemented, to complete the succession to separate nationality Congress must end conferral of statutory U.S. citizenship on persons born in Puerto Rico as practiced during the territorial period.
STATUS RESOLUTION AND THE NATIONAL INTEREST
In the post World War II era, Congress has exercised its powers under the Territorial Clause of the Constitution to resolve the political status of three large unincorporated U.S. territories. In 1946 the territorial status of the Philippines was ended in favor of separate nationhood. The territories of Hawaii and Alaska became states of the union in 1959. The only large unincorporated territory which remains in a status which is neither constitutionally permanent nor fully self-governing is Puerto Rico. In 1996 the 104th Congress and President Clinton approved tax reform legislation that ended the tax credit regime in Puerto Rico that had passed the point of diminishing returns for both Puerto Rico and the nation as a whole. However, as noted above the U.S. taxpayers continue to subsidize the territorial status of the "commonwealth" at a cost of $12 billion annually, with no off-setting revenues and no end in sight. Sound tax policy reform now must be followed by sound political reform to complete the self-determination process for Puerto Rico, which began with establishment of internal constitutional self-government in 1952.
For Congress to reform the tax policy that was the basis for continuing the current status, and at the same time exclude Puerto Rico from the historical constitutional process of self-determination dating back to the Northwest Ordinance, only to then withhold from the people the tools to complete the reform process through self-determination, would be unwise. Congress created the current territorial and citizenship status for Puerto Rico under Federal laws implementing the Treaty of Paris, and now has the authority and responsibility to provide a process that can lead to resolution of the status question before a second century of U.S. territorial administration commences.
There are 3.8 million U.S. citizens in Puerto Rico today who do not enjoy equal rights or bear equal responsibilities with their fellow citizens throughout the nation, and who have never been afforded a right to vote on their political status. This anachronism must end. Congress needs to ascertain the aspirations of the residents of the territory, and then determine its response so that a final act of informed self-determination can take place. This must be done if Congress is going to shape the future and define U.S. sovereignty, nationality and citizenship, not just for the American citizens in Puerto Rico, but for all Americans now and in the future.
Under the Territory Clause of the Constitution only Congress can determine the disposition of the territories of the United States, and that authority and responsibility cannot be delegated or abdicated. Nor will the question of Puerto Rico's status simply go away. Consequently, the U.S. Senate should act in a timely manner to redeem in our relationship with Puerto Rico the democratic values which are the foundation of America, and by so doing preserve, protect and promote the long term national interest of the United States.
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