LARRY E. CRAIG
United States Senate
April 3, 1998
The Honorable Trent Lott
Dear Senator Lott:
After reading your March 23 letter to the President of the Puerto Rico Senate, I wanted to clarify issues raised by two statements you made regarding the status of Puerto Rico.
With respect to your statement, "The definition of commonwealth in the bill would conceivably take away the guarantee of American citizenship ," the following points should be considered:
One of the main reasons S.772 is before us is that people born in Puerto Rico have statutory rather than constitutionally derived citizenship. Their "right" to acquire U.S. citizenship by virtue of birth in Puerto Rico is permissive at the discretion of Congress. Congress could terminate the prospective conferral of U.S. citizenship on persons born in Puerto Rico without question. As the constitutional expert for the Congressional Research Service has stated (J. Killian, Senior Specialist in American Constitutional Law, March 9, 1989):
"In Rogers v. Bellei, 401 U.S. 815 (1971), the Court ruled that [its earlier decision in case of] Afroyim was inapplicable because the claimant was not a 'Fourteenth Amendment citizen' Because Bellei had been born outside the United States The case law establishes that Puerto Rico, whatever its exact status and relationship to the United States In that perspective, then, the Fourteenth Amendment would not restrain Congress' discretion in legislating about the citizenship status of Puerto Rico."
While statutory citizenship once obtained may have a measure of Constitutional protection, there is no Constitutional requirement nor guarantee that Congress must maintain the current statutory provision for citizenship based on birth in territory outside the several states. To imply otherwise would be, in my opinion, wrong.
Regarding your statement that " the commonwealth definition would, in effect, return Puerto Rico to the status of a territory without many of the self-governing rights currently afforded ," I would point out the following:
On November 7, 1997, the General Accounting Office issued a report on application of the U.S. Constitution to U.S. territories, including Puerto Rico. The report makes the following statement about Puerto Rico's current status:
"Under what is commonly known as the Territorial Clause of the Constitution in response to local desire for greater political autonomy, the Congress in 1950 approved a process for local self-government for Puerto Rico, under which its residents could establish, subject to Congressional approval, their own constitution In the most recent case to discuss the (United States V. Sanchez, 922 F.2d 1143 (11th Cir. 1993)), the Court of Appeals for the Eleventh Circuit held that the Congress' decision to permit self-governance in Puerto Rico did not remove Puerto Rico from the application of the Territorial Clause. The court concluded that there has been no fundamental alteration in Puerto Rico's relationship with the United States: 'Puerto Rico is still constitutionally a territory, and not a separate sovereign." [Footnote: Id. At 1151-52.] Finding that Puerto Rico still derives its powers from the U.S. Congress, the court said: 'Congress may unilaterally repeal the Puerto Rico Constitution or the Puerto Rico Federal Relations Act and replace them with any rules or regulations of its choice. Despite passage of the Federal Relations Act and the Puerto Rico Constitution, Puerto Rican courts continue to derive their authority from the united States Congress'."
The GAO report also finds that:
"A referendum was held, in November 1993, in which the commonwealth option maintaining the current political status of Puerto Rico did not receive a majority of the votes cast "
The Sanchez case confirms the decision of the U.S. Supreme Court in 1980 (Harris v. Rosario, 446 U.S. 6551) that adoption of a local constitution in 1952 did not alter the status of Puerto Rico under the Territorial Clause.
You should be aware that there is not a single instance of a federal court, despite the dicta about the unique status of Puerto Rico, ever striking down a federal statute as violative of the "Commonwealth" relationship. Provisions of the Puerto Rico constitution have been held ineffective against a federal wiretap, and Congress has enacted legislation to retain a portion of excise taxes on distilled spirits that arguably should be guaranteed to Puerto Rico.
Beyond the case law, however, stand the identical language of both Senate and House Committees of jurisdiction in reporting the legislation that established the present relationship:
"It is important that the nature and general scope of S.3336 be made absolutely clear. The bill under consideration would not change Puerto Rico's fundamental political, social, and economic relationship to the United States."
In short, Puerto Rico was a territory prior to the conferral of authority for local self-government and remained one after. The face that Congress could legislate directly pursuant to the Territorial Clause to alter the present status does not mean that we will. In fact, we treat Puerto Rico as if it were a State and exhort compliance with federal wished the same way we do with States, by conditioning federal assistance. We respect local self-government and in no manner would I suggest that we shouldn't. But, we should also be honest about the demands of the Constitution and our own history in enacting legislation. For it would be wrong to either exaggerate the limitations on rights of territorial citizens, or to suggest that they have constitutionally based rights when this is not the case.
The Senate needs to create a process to clarify and resolve these issues to end the kind of confusion and misinformation that is being given to this body, and S.472 will create just such a process.
Larry E. Craig