Some Truths About U.S. Nationality and Citizenship for Puerto Rico


Dick Thornburgh*

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        During a recent visit to Puerto Rico, my conversations with island residents convinced me that the misconceptions which have encumbered Puerto Rico in its quest for complete decolonization finally are being dispelled. In both Washington, D.C. and San Juan a new honesty about the political status dilemma is replacing the vestigial colonial mentality that has lingered all too long in this relationship. This new honesty is essential if the people of Puerto Rico are to participate in a meaningful debate about the future political status of the island and its residents.

        Both in Puerto Rico and Washington, now is the time to clarify what the real status options are and to educate all concerned about the effects of each option. Long overdue reforms in federal and local policies have laid the groundwork for new opportunities for Puerto Rico and the United States once we resolve the status issue. Moreover, the end of the Cold War and a changing world economic and political order make it all the more important for Puerto Rico to secure a permanent status.

        The most immediate task at hand is for Congress to define status options in a clear and politically realistic way that reflects how each status alternative relates to the U.S. national interest. If Congress does its job in this regard, the residents of Puerto Rico will be empowered to act in their own self-interest and express their future political status aspirations accordingly.

        Unfortunately, that task has been complicated by the fact the ballot definition of commonwealth status in the 1993 plebiscite may have led many voters to believe there is some sort of "super status" with special rights that Congress somehow can bestow permanently on Puerto Rico. The idea that a mutually agreed political relationship can be put beyond the reach of a future Congress is alluring because it avoids the hard choices required to achieve a permanent status. The idea is alluring, but misleading.

        That is precisely why in the next referendum it must be clear that Congress cannot create by statute a constitutionally guaranteed "super-status" which does not exist under the U.S. Constitution. The self-determination bill passed by the House of Representatives on March  4 accurately describes continuation of the current political structure and U.S. citizenship as a Congressional policy rather than a constitutional guarantee. Ironically, that simple statement of truth caused the bill's sponsors to be accused of using anti-commonwealth scare tactics.

        Instead of generating either unnecessary alarm or a false sense of security regarding these fundamental issues, the best course is to empower people with the truth. That is why it is imperative to clarify that the current U.S. citizenship policy, like the previous "citizen of Puerto Rico" status under the Foraker Act, constitutes nothing more than a statutory form of citizenship based on birth in the territory. By definition, such statutory citizenship is conferred permissively at the discretion of Congress under the territorial clause and other powers enumerated in the U.S. Constitution.

        That is why Congress was, in fact, able to end "citizenship of Puerto Rico" under the Foraker Act and replace it with statutory U.S. citizenship, even requiring an election between these two forms of territorial citizenship under the Jones Act in 1917. For purposes of both federal and local law, "citizenship of Puerto Rico" was essentially a domicile status for persons born in the territory with U.S. nationality and U.S. citizens residing in Puerto Rico.

        Congress has never recognized so-called "dual Puerto Rico and U.S. citizenship", because there is no underlying dual nationality. Currently there is only one nationality in Puerto Rico, that of the United States. All forms of statutory territorial citizenship are derived from that single U.S. nationality, and nationality is governed by the federal rather than the local constitution. If one loses U.S. nationality, all forms of statutory territorial citizenship under federal and local law are lost as well. To have a recognized separate nationality and citizenship there must be two separate nations under two separate constitutional systems.

        Consequently, permanent and constitutionally guaranteed status with separate Puerto Rican nationality and citizenship, can come about only if Puerto Rico undergoes succession to separate nationhood with its own sovereignty and constitutional citizenship. In that event application of the U.S. constitution in the independent nation of Puerto Rico would end, along with U.S. sovereignty, nationality and citizenship.

        The administrative mechanics for succession of nationality in such a case would be set by Congress through a transition process, but there should be no illusion that any mass dual citizenship will result. U.S. law may allow U.S. citizens individually to acquire a dual nationality under foreign laws, but – as I testified before the Senate in 1991 in my capacity as U.S. Attorney General – for Congress to create by law universal dual citizenship for the entire population of a foreign country is politically implausible and legally problematic.

        In my view, there is no "creative fix" or "innovative statesmanship" through which to circumvent the structure of U.S. federalism and national sovereignty in these matters. Even if there were, Congress is more likely to fall back on the historical decolonization options of statehood or independence before it would contort U.S. nationality law just to avoid the difficult choices required to resolve the status of Puerto Rico.

        That is why, with optimism instead of fear, all those who want to see Puerto Rico's status resolved should seek the truth about each option, including the upside and the downside of each. That foundation of truth will empower the people of Puerto Rico to make an act of informed self-determination for themselves and their following generations.

*        Dick Thornburgh, former Attorney General of the United States under Presidents Reagan and Bush and two term Governor of Pennsylvania, now practices law in Washington, D.C. with the firm of Kirkpatrick & Lockhart, LLP.


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