JURIST Guest Columnist Pedro Pierluisi, Resident Commissioner of Puerto Rico, representing the territory in the US House of Representatives, argues that the coming Puerto Rico status referendum is historic because it is the first to include only the viable status options and will be taken seriously by the federal government…

In December 2011, Puerto Rico’s legislature approved, and Governor Luis Fortuño signed, Law 283. This legislation provides for a referendum — alternatively referred to as a plebiscite — to be held on the US territory’s political status. The plebiscite will take place on November 6, 2012, the same day as the US general elections and Puerto Rico’s local elections.

The plebiscite ballot will consist of two questions. Voters will first be asked whether they want the current territory status to continue. Regardless of how voters answer that question, they will then be asked to express their preference among the three alternatives to the current status: statehood, independence and nationhood in free association with the US.

If a majority of Puerto Rico voters in November cast their ballots in opposition to the current status, and in support of one of the alternatives, Puerto Rico’s local officials can be expected to petition the federal government to act upon that choice. For example, if statehood obtains majority support, then Puerto Rico’s single representative in the US Congress — known as the Resident Commissioner, a position I have held since January 2009 — will likely introduce legislation that would place Puerto Rico on the path to statehood, phasing in equal treatment for the island under federal law. As with other bills, this legislation would be subject to amendment and require the approval of Congress and the signature of the president.

To fully comprehend the merits of Law 283, some legal and historical background is in order. Article IV, Section 3, Clause 2 of the US Constitution, known as the Territory Clause, gives Congress the power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” In 1789, the first Congress adopted the Northwest Ordinance, which provided a template for the future treatment of US territories. As former US Attorney General Dick Thornburgh has observed, the Northwest Ordinance “assumed that a geographic area’s designation as a ‘territory’ of the United States was a temporary status that would ultimately lead” to that territory becoming a state. For over a century, the Northwest Ordinance prototype was followed, with many jurisdictions evolving from territories to states over time.

However, the Northwest Ordinance model was set aside for Puerto Rico, Guam and the Philippines, which the US acquired from Spain in the 1898 Treaty of Paris that ended the Spanish-American War. Article IX of the Treaty stated: “The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress.” Under the treaty, Spain also relinquished sovereignty over Cuba. However, because the federal government had previously disclaimed any intent to exercise permanent sovereignty over Cuba, the treaty provided that the US would temporarily “occupy” the island until its independence.

Debate raged in turn-of-the-century America as to how the US should treat its newly-acquired territories. In Puerto Rico, after a brief period of military government, the federal government enacted an “organic act,” the Foraker Act of 1900 [PDF], which created a civilian government on the island. The government was led by a governor appointed by the US president. Two legislative chambers were established: a non-elected Executive Council and a popularly-elected House of Delegates. The Foraker Act also authorized the election of a Resident Commissioner (who, two years later, was given a seat in the US House of Representatives). The law did not confer US citizenship upon residents of Puerto Rico.

Between 1901 and 1922, the US Supreme Court decided a series of controversial cases regarding its island territories, known as the Insular Cases. Two of the most important decisions in the series are Downes v. Bidwell in 1901 and Balzac v. Porto Rico in 1922. In Downes, the Court held that Puerto Rico had been acquired by the US but not “incorporated” as part of the US. Thus, the Court conceived — out of thin air, critics have charged — a binary world of “incorporated” and “unincorporated” territories. An incorporated territory was one on the path to eventual statehood in the well-worn Northwest Ordinance tradition. By contrast, an unincorporated territory like Puerto Rico was one whose ultimate status — statehood or nationhood — Congress had yet to decide.

The distinction between classification as an incorporated territory and classification as an unincorporated territory has additional significance, because the Court in the early Insular Cases held that only those rights in the Bill of Rights that are found to be “fundamental” apply automatically (that is, even in the absence of federal legislation conferring such rights) in unincorporated territories. For example, the Court has held that the Sixth Amendment right to trial by jury is not fundamental and therefore does not need to be furnished to criminal defendants in unincorporated territories.

In 1917, the federal government extended US citizenship to residents of Puerto Rico in the Jones-Shafroth Act. The legislation also established a bill of rights for the territory and provided for a popularly-elected Senate. Five years later, the Supreme Court decided the case of Balzac v. Porto Rico. Many critics of the earlier Insular Cases had taken a measure of comfort in the assumption that Puerto Rico’s status as an unincorporated territory would be temporary, lasting only until such time as the federal government granted Island residents US citizenship (which would presumably set Puerto Rico on the path to statehood) or granted the island’s independence. In Balzac, however, the Court held that the grant of citizenship in the Jones Act did not demonstrate intent by Congress to incorporate Puerto Rico as part of the US. Balzac is exceedingly difficult to reconcile with the Supreme Court’s 1905 decision in Rassmussen v. United States, where the Court interpreted the grant of citizenship to residents of Alaska as the key evidence that Congress intended to incorporate that territory into the Union. Thus, to the chagrin of many, the Insular Cases made clear that Puerto Rico’s judicially-created status as an unincorporated territory could last indefinitely.

As has been noted, during the first two decades of the twentieth century the federal government took successive steps to grant the government of Puerto Rico increased authority over local matters. This process continued over time. In 1947, for example, federal law was amended to provide for the territory’s governor to be popularly elected. In 1950, the federal government authorized the island to draft a local constitution, which took effect in 1952 (after Congress required certain modifications). All told, Congress has now delegated to Puerto Rico roughly the same degree of authority over local matters that the states possess. Nevertheless, these measures have not altered Puerto Rico’s fundamental status. Rather, the island remains an unincorporated territory of the US, subject to Congress’s plenary power under the Territory Clause.

The Spanish-language version of the Puerto Rico Constitution named the territory the “Estado Libre Asociado de Puerto Rico” — which translates literally as the “Freely Associated State of Puerto Rico.” However, since Puerto Rico was not a freely associated state as that term is defined by international law, the delegates to Puerto Rico’s constitutional convention resolved that the English-language name of the polity would be the “Commonwealth of Puerto Rico.” As federal authorities have emphasized, this term — Commonwealth — “does not describe or provide for any specific political status or relationship.” This is evidenced by the fact that four US states — Kentucky, Massachusetts, Pennsylvania and Virginia — and one of Puerto Rico’s sister territories — the Northern Mariana Islands — are also self-designated as “Commonwealths.”

Territory status has inherent and indisputable defects. Puerto Rico’s 3.7 million residents lack the most basic right in a democracy: the ability to elect voting representatives in the government that makes their national laws. Although island residents participate in the presidential nomination process, which is governed by party rules, they cannot vote for president in the general elections. Puerto Rico has no representation in the US Senate. And the territory’s lone representative in the US House, the Resident Commissioner, can introduce legislation and vote in committee, but cannot vote on the final disposition of legislation. On a daily basis, the three branches of the federal government make decisions that have a direct impact on Puerto Rico, where federal law is supreme, but the Island has little voice (and no vote) in that decision-making process.

Beyond denying Puerto Rico full self-government, territory status enables the federal government to enact and administer laws that treat island residents less favorably than residents of the states. To take one of many possible examples, consider the Supplemental Security Income (SSI) program, which provides monthly cash assistance to blind, disabled or elderly individuals who have limited or no income. SSI applies in the states, the District of Columbia, and one territory. Despite efforts by numerous Puerto Rico officials, Congress has chosen not to extend the program to the island, leaving its most vulnerable residents without an adequate safety net.

The courts uphold federal laws that treat Puerto Rico unequally as long as the federal government can demonstrate that there is a rational basis for the disparate treatment, the lowest level of constitutional scrutiny. The federal government can satisfy this test by asserting that equal treatment would be expensive or that, pursuant to an act of Congress, residents of Puerto Rico are not required to pay federal taxes on income they earn on the island. This income tax argument has carried the day in court even though island residents are required to pay federal taxes on income earned outside of Puerto Rico and all federal payroll taxes. In 2010, the US Internal Revenue Service collected $3.6 billion in individual income taxes, employment taxes and business income taxes in Puerto Rico, which is more than the IRS collected in one state and not significantly less than it collected in at least four other states. The income tax rationale for disparate treatment also disregards the fact that over half of all households in the 50 states — including most if not all households that benefit from federal aid programs like SSI — do not earn enough to pay federal income taxes, yet still receive equal treatment from their national government.

Puerto Rico’s political status has been — and remains today — the central issue in the territory’s political life. Although Puerto Rico is a US jurisdiction, the island’s three political parties are not divided along traditional Democratic and Republican lines, but rather based on their views on the status question. One party, the New Progressive Party, favors statehood. Another party — as passionate as, but much smaller than the other two parties — advocates independence, the Puerto Rico Independence Party. The third party, the Popular Democratic Party, prefers the current status over either statehood or independence. At the same time, this party champions a proposal which its members often describe as an “enhanced” version of the current status, but which is in fact fundamentally different than the current status.

In May 2009, HR 2499, the Puerto Rico Democracy Act, was introduced in the US House of Representatives. The bill would have provided for a federally-sponsored, two-step plebiscite process in Puerto Rico where voters would choose among the current status, statehood, independence and nationhood in free association with the US. Statehood and independence are widely understood. Under free association, Puerto Rico would become a sovereign nation, but would have a negotiated agreement with the US that sets forth the terms of the relationship between the two nations. As with any agreement between sovereign nations, the agreement could be unilaterally terminated by either party — as denoted by the “free” in free association. The US currently has compacts of free association with three nations that it formerly administered under the UN trusteeship system — the Republic of the Marshall Islands, the Federated States of Micronesia and the Republic of Palau. Under the compacts, these small Pacific-island countries receive assistance under a limited number of federal domestic programs. Residents of the freely associated states may enter the US without restriction, but they are not American citizens. There is a bloc of voters in Puerto Rico that advocates free association for the island, one that draws its support primarily from a faction within the Popular Democratic Party.

HR 2499 provided for the results of the plebiscite process to be certified to Congress, but — in contrast to Puerto Rico status bills that passed the House in 1990 and 1998 — did not itemize the steps to be taken by Congress in the event that a majority of island residents voted for a change in status. In April 2010, HR 2499 was approved by the House in a strong bipartisan vote. Although the Senate Committee on Energy and Natural Resources subsequently held a hearing on HR 2499, further action on the bill did not take place.

It is important to understand that, while Congress would need to act to change Puerto Rico’s status, the island does not require Congress’s prior approval to hold a plebiscite. The Puerto Rico government has already held three plebiscites authorized under local, as opposed to federal, law — in July 1967, November 1993 and December 1998. Why, then, did the Puerto Rico government first attempt to obtain congressional sponsorship for a plebiscite, rather than move immediately to enact local legislation to provide for a fourth plebiscite organized under Puerto Rico law — which is ultimately what came to pass with Law 283?

There were two primary reasons. First, some island residents are skeptical that Congress would consent to a change in the island’s status if Puerto Rico sought one. When the House voted to approve HR 2499, it strongly reaffirmed that it will take seriously the results of any fair plebiscite held on the island. Accordingly, the November 2012 plebiscite authorized by Law 283 will not be a mere “beauty contest.” To the contrary, it will be a meaningful vote with real implications for Puerto Rico’s political future.

The second reason that Puerto Rico chose to pursue a “Washington-first” strategy is even more fundamental. It was essential for Congress to clarify — once and for all — the possible alternatives to the current territory status, since there was still uncertainty in Puerto Rico on this score. As alluded to above, this confusion stems from the fact that one political party in Puerto Rico has promoted a legally impossible and politically unrealistic status proposal — often called “Enhanced Commonwealth.”

Under the “Enhanced Commonwealth” proposal, Puerto Rico would be treated as a nation, but in an association with the US. Unlike under free association, however, residents of Puerto Rico would be granted US citizenship in perpetuity and the island would continue to receive at least as much federal assistance as it does now. At the same time, Puerto Rico would have the power to nullify application of federal laws (except in certain cases) and to limit federal court jurisdiction (in most cases). In addition, Puerto Rico could join international organizations and enter into international agreements. Finally, the association would be “permanent” — meaning that the US could not withdraw from it or modify its terms without Puerto Rico’s consent.

As the House Committee on Natural Resources observed in its October 2009 report [PDF] on HR 2499, “proposals for such a governing arrangement have been consistently opposed by federal authorities in the executive and legislative branches … on both constitutional and policy grounds.” The committee report also noted that, as a result of these proposals, the three prior plebiscites in Puerto Rico had been “misinformed and inconclusive.” The committee concluded that HR 2499 would “clarify the viable status options and thereby ensure that the self-determination process is well-informed and productive.”

Through House passage of HR 2499, therefore, Congress confirmed that Puerto Rico has four — and only four — valid status options: the current territory status, statehood, independence and free association. Moreover, in the wake of the successful House vote, the Chairman and Ranking Republican Member of the Senate Committee on Energy and Natural Resources sent a letter to President Obama expressing their view that the status options set forth in HR 2499 are the only choices available to Puerto Rico. And, in March 2011, the President’s Task Force on Puerto Rico’s Status, created by executive order [PDF] in 2000 and consisting of representatives from 18 federal agencies, issued a comprehensive report that reached the same conclusion. The report stated explicitly that the “Enhanced Commonwealth” proposal is not a viable status option, the same conclusion that had been reached by the Clinton administration in 2000 [PDF] and 2001 [PDF] and by the George W. Bush administration in 2005 [PDF] and 2007 [PDF]. While it is inevitable that some Puerto Rico politicians will continue to promote “Enhanced Commonwealth,” it is clear to reasonable observers that this proposal has finally been dealt a knockout blow.

President Obama and the leading candidates for the Republican presidential nomination have all expressed strong support for Puerto Rico self-determination. President Obama traveled to the island in June 2011 and delivered a speech that stated: “When the people of Puerto Rico make a clear decision, my administration will stand by you.” On the Republican side, former Massachusetts governor Mitt Romney, former House Speaker Newt Gingrich, and former US Senator Rick Santorum have all made similar commitments.

For over a century, resolution of Puerto Rico’s status question has proven elusive. Not unreasonably, this has led to a degree of cynicism among island residents, who wonder whether, years from now, their grandchildren will be having the same impassioned, but seemingly fruitless, debates that were taking place 50 years ago. However, in the last two years, we have witnessed important progress on this issue, culminating in the enactment of Law 283. Unlike the three prior status votes in Puerto Rico, the ballot in this year’s plebiscite, like the ballot called for in HR 2499, will include only those options identified as valid by the federal government. Genuine self-determination must be a choice among real options, not an exercise in wishful thinking.

Besides marking the first time that Puerto Rico voters will be given the chance to express their views among just the valid options, the two-step plebiscite also represents the first time that island residents will have the opportunity to answer “Yes” or “No” to the threshold question of whether they support the status they have enjoyed (or endured) since 1898. This question has intrinsic value in a democracy, where a government’s legitimacy derives from the consent of the governed. If a majority of Puerto Rico voters expresses satisfaction with the current status, Puerto Rico’s status would not change at this time. In that case, the answer to the second question, asking voters which of the three alternatives they prefer, will serve to inform officials in San Juan and Washington about where Puerto Rico may be headed in the future.

However, if a majority expresses a desire to change the current status, then the second question takes on greater significance. If none of the three non-territory options obtains a majority, voters have demonstrated that they are dissatisfied with the current status, but cannot yet agree on what should replace it. And if a majority votes against the current status, and then in favor of an alternative, federal action that honors this choice should begin.

Is the two-step process provided for in Law 283 the only possible way to structure the self-determination process? Of course not. But is it a fair, reasonable and historic process whose results will be taken seriously by the federal government? Absolutely.

Congressman Pedro Pierluisi, a member of the US Democratic Party and the New Progressive Party of Puerto Rico, is Puerto Rico’s Resident Commissioner in the US House of Representatives. He is a member of the Judiciary, Ethics and Natural Resources committees. From 1993 to 1996, Pierluisi served as Puerto Rico’s Attorney General. Congressman Pierluisi would like to acknowledge the assistance provided by his Legislative Director, John Laufer, in preparing this article.

Suggested citation: Pedro Pierluisi, Puerto Rico Status Referendum is Historic, JURIST – Hotline, Feb. 17, 2012, http://jurist.org/hotline/2012/02/pedro-pierluisi-referendum.php.