Governor’s New ‘Commonwealth’ Proposals are Old; Were Rejected in the Past by the Federal Government

Puerto Rico Governor Alejandro Garcia Padilla yesterday proposed a new definition of “Commonwealth” that resurrects some of the ‘Commonwealth’ party’s old, rejected proposals for changes in Federal law and an unprecedented change in the territory’s political status.

Garcia Padilla wants the party to adopt the proposal for a plebiscite under a Federal law enacted in January.

But the proposal calls into serious question whether there will be a plebiscite under the law during Garcia’s term of office ending at the beginning of 2017 because it would not meet the law’s requirements.

The law requires that plebiscite options 1) be able to resolve the question of the territory’s future political status and 2) not conflict with the Constitution, laws, and policies of the United States. The law makes the U.S. Department of Justice responsible for enforcing these requirements.

The proposal would not be able to resolve the question of the territory’s future status because it proposes that Puerto Rico become a nation with at least one national government power, equal funding with the States in Federal social programs, and exemptions from some Federal laws: a unprecedented, contradictory combination of aspects of nationhood, statehood, and the current unincorporated territory status similar to ‘Commonwealth’ proposals that the Federal government has rejected in whole or in part in the past.

Additionally, some of the party’s members of the Commonwealth’s Legislative Assembly and mayors want a proposal based on the party’s different definition of “Commonwealth status,” making it unclear that the party can unite behind Garcia’s proposal.

The current proposal also combining incompatible aspects of nationhood, statehood, and unincorporated territory status advocated by the legislators and mayors has been rejected by the Obama, George W. Bush, and Clinton Administrations and congressional committee leaders of both national political parties as conflicting with the Constitution of the U.S. as well as Federal laws and policies.

So, neither ‘Commonwealth’ party proposal would meet the requirements of the law.

Garcia’s proposal was recommended by former Governor Rafael Hernandez Colon, who previewed it a week ago at a party leadership assembly. One of Hernandez Colon’s sons heads the party’s Federal affairs committee under Garcia. Another heads his offices in the States.

Garcia’s proposal calls for Puerto Rico to be a nation but most aspects of its unincorporated territory status to continue except for the following —

• Congress would no longer be able to exercise its constitutional Territory Clause power to make laws for Puerto Rico in areas in which States have exclusive authority.
• Puerto Rico would be treated equally with the States in Federal social programs. The territory is currently treated unequally in Medicaid, Medicare, healthcare insurance subsidies for middle-income individuals, Supplemental Security Income (SSI), nutrition assistance programs, Temporary Assistance for Needy (unemployed) Families,the Refundable portions of the Child and Earned Income Tax Credits, and a few other programs.
• Income that companies in the States claim from manufacturing in Puerto Rico would be exempt from Federal taxation.
• Duties and/or quotas would be imposed on the importation into Puerto Rico of foreign agricultural products.
• Puerto Rico would be exempt from the laws requiring that ocean shipping between U.S. ports be on vessels that are U.S. built, owned, flagged, and crewed.
• Puerto Rico would determine international airline routes involving the territory.

Hernandez Colon’s preview of the proposal included the Government of Puerto Rico contributing to the cost of Federal social programs but Garcia made no mention of that.

The U.S. Supreme Court, the Department of Justice under successive administrations, and both houses of Congress have determined that Puerto Rico is subject to Territory Clause authority. The provision of the Constitution empowers Congress to govern territories in all matters except that fundamental rights of individuals cannot be violated. President Obama’s Task Force on Puerto Rico’s Status reported in 2011 that Puerto Rico would be subject to Territory Clause authority under any “Commonwealth” arrangement.

Equal funding with the States in Federal social programs would inject up to $8 billion a year more into Puerto Rico’s economy but is inconceivable without equal taxation. The ‘Commonwealth’ party’s “Commonwealth” proposal for a 1993 plebiscite under local law, which obtained a plurality of the vote, proposed equal treatment in SSI and Food Stamps. The proposal was rejected by President Clinton and Republican congressional committee leaders.

An exemption from taxation of income that companies in the States claimed from manufacturing in Puerto Rico was reduced by Clinton’s 1993 economic plan and phased out under a 1996 law enacted by a Republican Congress. Three proposals under three governors of Puerto Rico to replace it with similar exemptions have been rejected by congressional committees and the Federal Executive branch. Clinton and congressional leaders also rejected a similar proposal after it was a part of the 1993 plebiscite “Commonwealth” option. Additionally, the proposal conflicts with current tax reform plans of both national political parties and the world’s major economies.

Trade protection for Puerto Rican agricultural products was also proposed through the 1993 plebiscite — and rejected by Federal officials. It conflicts with international free trade agreements, which have been growing in scope.

In 2011, Obama’s Puerto Rico Status Task Force turned down a ‘Commonwealth’ party proposal to exempt Puerto Rico from American ocean freight shipping requirements. Leaders of both national political parties of the U.S. House of Representatives committee with jurisdiction over the requirements later refused to consider the issue. The Departments of Transportation and Defense in the Clinton Administration opposed legislation for a Puerto Rico exemption.

A proposal to require Commonwealth involvement in U.S. international airline route negotiations failed under Hernandez Colon.

Under the party’s current “Commonwealth” proposal, Puerto Rico would become a nation but the United States would be permanently bound to it and to an arrangement under which Puerto Rico could veto the application of Federal laws and Federal court jurisdiction and enter into international agreements and organizations. Additionally, the U.S. would be obligated to grant the Commonwealth a new subsidy and all of its land in the territory as well as continue to grant U.S. citizenship, all current assistance to Puerto Ricans, and free entry to any goods shipped from Puerto Rico.

Garcia will probably win the fight within the ‘Commonwealth’ party over the definition of “Commonwealth” because of his power as Governor — which includes a greater ability to try to obtain U.S. Justice Department approval of the proposal. But it is unclear whether he will be able to unite the party behind a definition.

He pled for party unity on the question yesterday, as he had during last week’s party assembly, but some party leaders made their dissatisfaction known, primarily focusing their ire on Hernandez Colon.

During last weekend’s assembly, Hernandez Colon made a similar unity plea, asserting that Puerto Rico would be granted statehood if Puerto Ricans vote for it a second time.

In a plebiscite under local law held along with the November 2012 elections, Puerto Ricans rejected the current territory status and chose statehood by 61.2% over nationhood in an association with the U.S. that either nation could end or full independence.

Garcia and the ‘Commonwealth’ party majorities in each house of the Legislative Assembly elected at the same time have worked to prevent the Federal government from accepting the statehood petition.

The Obama White House, which had supported the plebiscite and hailed its results, proposed the Federal plebiscite law because it was concerned that lobbying by ‘Commonwealth’ party government officials would result in congressional inaction on Puerto Rico’s self-determination decision.

A plebiscite under Federal auspices would be more difficult for ‘commonwealthers’ to dispute than one under local law.

The Republican Party-controlled U.S. House of Representatives led congressional approval of the Federal plebiscite law.

Puerto Rico’s representative to the Federal government, Pedro Pierluisi, who heads the statehood party and was re-elected to the Commonwealth’s non-voting seat in the U.S. House in the 2012 elections, has led 131 other House members and three U.S. senators in proposing that the plebiscite under the Federal law be on statehood.

Their bills would also require the president of the United States to submit legislation to change laws needed to enable Puerto Rico to become a State over a multi-year period if statehood wins a plebiscite under the legislation and pledge congressional approval of the transition legislation.

Thursday, the chairman of the Republican National Committee also suggested that the plebiscite be on statehood.