The Orlando Sentinel
Congress Confronts Loch Ness Monster Over Puerto Rico
by Thomas L. Jipping, Special to The Sentinel
September 25, 2000
The 2000 Republican platform states, "Congress has the final authority to define the constitutionally valid options for Puerto Rico ." Both as a matter of constitutional law and sound policy, the Grand Old Party platform gets it exactly right.
Article IV of the Constitution is clear that Congress alone has the authority to make "all needful rules and regulations" for the territories. That includes Puerto Rico.
The GOP platform also is right to demand that Congress consider only "constitutionally valid" proposals for Puerto Rico 's future.
Realizing that the only valid options for Puerto Rico are its current status as a territory, statehood or independence, Republican Rep. John Doolittle of California said Congress should take one invalid option off the table by rejecting the radical arrangement proposed by one of Puerto Rico 's most powerful political factions. In an unorthodox but commendable move, he has even introduced a bill that embodies the unconstitutional plan so Congress can vote it down and make its opposition unmistakably clear.
Though often called a commonwealth, Puerto Rico has been an unincorporated territory of the United States since 1898. Congress' grant of U.S. citizenship to Puerto Ricans in 1917, and its approval of internal self-government and a local constitution in 1952, did not change Puerto Rico 's territorial status . For more than 30 years, efforts have been made within Puerto Rico to determine its ultimate political status . But because the U.S. Constitution gives Congress exclusive jurisdiction over U.S. territories, Congress alone must guide that process.
Instead, it has allowed plebiscites on the island's future to become contaminated and devalued by the allure of false choices. The Popular Democratic Party (PDP), which had previously backed the so- called commonwealth status quo, has in recent years pushed an option that is neither a territory, nor a state nor a sovereign nation. Instead, it would incorporate features of all three constitutional options to create something the Constitution simply does not recognize.
As approved by the PDP on Oct. 15, 1998, this radical plan would create an entity that, although neither a state nor a territory, would be in permanent union with and continue to receive welfare and other benefits from the United States. Indeed, this misguided plan would provide that the United States must furnish Puerto Rico with an annual block grant, adjusted for inflation, with which to finance social programs, public-works projects and other government functions. Under the Constitution, however, states and territories are the only legitimate political subdivisions of the United States.
The PDP's scheme also calls for Congress to give Puerto Rico the authority to reject federal laws to which it does not want to submit. States and territories, of course, have no such authority. Congress cannot give Puerto Rico this nullification power, because, under the Constitution's Supremacy Clause, federal law governs where it conflicts with the laws of states of territories.
The PDP plan also contemplates for Puerto Rico the authority to control its own trade with foreign nations. This grant of power runs afoul of America's founding charter. Just recently, the Supreme Court confirmed that states have no such constitutional authority to regulate trade. The same principle applies to territories, and Congress may not create a different kind of political subunit that has independent power over its commerce with foreign countries.
In sum, then, the hybrid entity proposed by the PDP would not be a territory, but the United States would be responsible for its defense and welfare as if it were. It would not be a state but would be in permanent union as if it were and could exert itself independently in international affairs as no state may. It seemingly would be considered a nation with its own distinct nationality, but its people would be United States citizens and use United States currency. Like the Loch Ness monster, this proposal is very frightening, but the entity it proposes simply does not exist.
Our Constitution recognizes no such arrangement. As a result, in defining the legitimate options for Puerto Rico 's future, Congress should follow Rep. Doolittle's lead and take this constitutionally reckless option off the table.