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Federal Law On P.R. Status Is Not Ambiguous

by Herbert W. Brown, Esq.
President, Citizens' Educational Foundation, Inc.

May 5, 2000
Copyright © 2000 CITIZENS' EDUCATIONAL FOUNDATION. All Rights Reserved.

For decades those who assert that commonwealth is a non-territorial and non-colonial status have exploited perceived ambiguities in Federal law and policy as evidence to support their arguments. As the proposition that commonwealth is non-territorial and non-colonial is debated in Washington, the ambiguity is ending.

The notion that Puerto Rico somehow could achieve a non-colonial status without being faced with the difficult choice between statehood and separate sovereignty was never taken seriously in Washington. But no one really cared if Puerto Ricans wanted to enshroud the status question in legal and political ambiguity, and pretend that an indefinite colonial status was the best of both worlds.

For this charade also let Congress off the hook, so that it did not have to make any difficult choices regarding completion of the decolonization process, which began for Puerto Rico in 1950 but remains incomplete. If ambiguity was acceptable to Puerto Rico, leaving unfettered the power of Congress to have its way with Puerto Rico under the territorial clause, why shouldn't Congress encourage ambiguity?

That is exactly what Congress did in 1950 by sponsoring a referendum to establish commonwealth, without including statehood or independence on the ballot. This was not a status vote at all, but Congress acquiesced in the half-truth, later embodied in U.N. resolution 748, that approval of commonwealth somehow constitutes consent of the governed. In truth, commonwealth is a territorial status that allows consent of the governed only to the extent permitted by a Congress in which we are not represented.

However, since ambiguity on these points tended to preserve the status quo during the Cold War period, Washington tended to favor ambiguity. This was the political salvation of those who pretended commonwealth was a non-territorial status. Ambiguity about status culminated in the U.S. Supreme Court's decision in the case of PDP v. Rodriquez, which described Puerto Rico as an "autonomous political entity" sovereign in matters not governed under the federal constitution. Of course, under both the federal statute establishing commonwealth and under the territorial clause of the federal constitution itself, all matters in Puerto Rico are governed under the constitution, laws and treaties of the United States if Congress so chooses.

The debate over the Young bill ended the era of ambiguity and laid the foundation for a post-Cold War policy on the status of Puerto Rico. Significantly, President Clinton supported passage of the Young bill, and he let Congress know he would sign it into law. Even though the Senate passed Resolution 279 instead of joining the House in approving the Young bill, on a bipartisan basis Congressional leaders have gone on record clarifying that Puerto Rico remains subject to Congressional power over territories. Now, the federal courts are beginning to respond to developments in the political branches of the federal government by confirming well-established jurisprudence which unambiguously rejects the notion that commonwealth is non-territorial and non-colonial status.

A list of recent measures ending ambiguities about Puerto Rico's status includes:

  • On November 19, 1999, a bipartisan report by the Republican and Democratic leadership of the Congressional Committee in the U.S. House of Representatives with jurisdiction over Puerto Rico's status concluded that "Congress retains the plenary authority under article IV, section 3, clause 2 of the United States Constitution to determine the ultimate disposition of the political status of Puerto Rico and the United States citizens residing therein." This report demonstrates that continued application of the territorial powers clause to Puerto Rico is unambiguous, and this will not change regardless of the outcome of local or national elections this year.
  • On February 8, 2000, a three-judge panel of the First Circuit Court of Appeals in Boston issued an opinion in the case of Davilla v. Lockheed, written by Chief Judge Torruella, which recognized the 1980 case of Harris v. Rosario as the controlling U.S. Supreme Court case confirming -- as did the Young bill and Senate Resolution 279 -- that Puerto Rico remains subject to the plenary power of Congress.
  • On April 5, 2000, four Congressional leaders who chair panels with jurisdiction over Puerto Rico's status transmitted a formal response to Resolution 90, adopted by the Legislative Assembly of Puerto Rico less than a month earlier. This letter reminds Congress and Puerto Rico that the only legitimacy commonwealth can claim is acceptance five decades ago in a Congressionally sponsored island-wide referendum requiring majority approval (Section 2 of P.L. 600). Thus, majority vote is the self-determination standard under federal law, rather than the plurality standard under local law in 1993. Since commonwealth has received less than majority approval in the last two locally sponsored votes, the Congressional leaders conclude that a federally sponsored vote on the terms for continued commonwealth, statehood or independence is "legally and morally" necessary to restore the legitimacy of the status quo until permanent status resolution is achieved.

These historic developments represent a "harmonic conversion" of federal law and policy, if you will, ending the ambiguity that has helped make possible a fifty year disinformation campaign about the legal and constitutional nature of U.S. citizenship and Puerto Rico's status under commonwealth. It is in this new political and legal environment that those who assert that commonwealth is or can be transformed into a non-colonial and non-territorial status must be prepared to defend their ideology.

Finally, while some may think Judge Torruella and his two fellow senior judges went too far in their ruling in Davilla case, he actually showed considerable restraint in limiting his decisions to the applicable statutes and the facts. If he had wanted to go further, he could have adopted the position of the 11th Circuit Court of Appeals in the 1993 case of U.S. v. Sanchez, in which the judges concluded that "Congress may unilaterally repeal the Puerto Rican Constitution or the Puerto Rico Federal Relations Act and replace them with any rules of regulations of its choice."

Nothing ambiguous about that!

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