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A New COFA Proposal for Puerto Rico?

On March 8, 2020, Antonio J. Fas Alzamora, former President of the Puerto Rico Senate and a 40-year member of the Puerto Rico legislature, issued an update to his proposed 2010 Compact of Association between “the governments of a Free Associated State of Puerto Rico and the United States.”

The U.S. has signed Compacts of Free Association (COFA) with three Pacific Island nations:  the Federated States of Micronesia (FSM), the Republic of Palau and the Republic of the Marshall Islands (RMI).

The three current COFA nations – commonly referred to as the Freely Associated States (FAS) – are former territories administered by the United States after World War II. The strategically significant land and water in what was then called the Trust Territory of the Pacific Islands became a critical asset for U.S. military power.

Read more about Free Association

The Marshall Islands also became the site of the largest nuclear weapons testing program in history, with over 67 weapons detonated between 1946 and 1958, vaporizing entire islands and rendering many remaining islands uninhabitable today.

How the U.S. Betrayed the Marshall Islands,” L.A. Times, Nov 2019

Reluctant to sever all ties with the strategically located Pacific Islands in the 1980’s, the U.S. instead signed the compacts.  With distrust between the U.S. and China growing, the FAS remain a key component of U.S. national security.

The COFAs were signed in 1986 (RMI and FSM) and 1994 (Palau).  They were then renewed roughly 20 years later with some changes and are scheduled for renegotiations again by 2024.

None of the COFAs grant U.S. citizenship to citizens of the Freely Associated States.  In addition, none of the islands qualify for the federal programs of Medicaid, Medicare or Social Security, and federal law is clear that even COFA residents who move to the U.S. do not qualify for Medicaid coverage.

Recognizing these differences, Fas Alzamora explains in his proposal that he is ‘“Puerto Rican-ing” the experiences of association already approved by the United States, a detail, he explains, that he is “sure will facilitate the negotiation and approval of it between both countries.”

His list of U.S. government benefits to Puerto Rico is expansive and has never been approved by the U.S.

In fact, Congress has rejected similar proposals from Puerto Rico during its consideration of the “Enhanced Commonwealth” platform over many years.

Enhanced Commonwealth: A History of Rejection by Congress

Among the many elements previously considered under “enhanced commonwealth” and included in the new Pact is the principle that federal laws will no longer apply to Puerto Rico – but that federal programs authorized by federal laws, such as Medicare, Medicaid and Social Security, will extend to Puerto Rico.

The proposed compact requires the U.S. to assume all of Puerto Rico’s debt, an idea that Congress has soundly rejected as evidenced in the passage of the PROMESA law.

In addition, the compact envisions continued U.S. citizenship to current U.S. citizens in Puerto Rico as well as unlimited generations of offspring.  There is no U.S. citizenship in current Freely Associated States, and U.S. citizenship of Puerto Rico nationals could not be guaranteed now or in the future.

What Will Happen to US Citizenship in a New Nation-of-Puerto Rico: The Word from Washington

The new compact would also grant Puerto Rico full authority to impose customs fees, duties, and tariffs on items that enter Puerto Rico from countries other than the U.S., but holds that any goods that Puerto Rico then sends to the U.S. can generally enter free of tariff or tax.  The U.S. has long rejected this scenario as a loophole to U.S. trade law.

Finally and perhaps most significant, the proposed Compact states that it “will be binding and final” on both parties and that the U.S. and Puerto Rico “may only terminate the permanent union provided by this Compact of Association by mutual agreement.”

This mutual consent provision has been soundly rejected by the White House and Congress for decades and by both U.S. political parties.  It is difficult to envision a scenario in which the U.S. is forced to remain in a bilateral agreement against its will.

The 2011 White House Task Force on Puerto Rico issued a report explicitly explaining that “The Obama Administration has taken a fresh look at the issue of such mutual consent provisions, and it has concluded that such provisions would not be enforceable.”

Republican administrations have concluded the same.  Deputy Assistant Attorney General Kevin Marshall of the George W. Bush Administration made the following statement to Congress in 2007, which still rings true today:

[T]he primary question [faced by the Task Force] regarding options was whether the Constitution currently allows a “Commonwealth” status that could be altered only by “mutual consent,” such that Puerto Rico could block Congress from altering its status.  Since 1991, the Justice Department has, under administrations of both parties, consistently taken the position that the Constitution does not allow such an arrangement.

Mutual consent agreements have been ruled unconstitutional and unrealistic by both Democrat and Republican administrations repeatedly over many decades, and Congress has uniformly agreed.

Fas Alzamora specifies that the “transformation” of the compact rests on “the political will of both parties, rather than due to legal limitations.”

A former Puerto Rico Senate President, Fas Alzamora served from 1976 to his retirement in 2016 in the Puerto Rico legislature and member of the Governing Board of the Popular Democratic Party.

Fas Alzamora used to believe that the Puerto Rico Constitution changed the relationship of Puerto Rico with the United States, allowing a non-territorial relationship, but observes that “since the end of the last decade of the last century and the first years of the 21st century, a series of events have occurred that have been unilaterally imposed by the United States. Those events have exposed the deceit that the United States committed against Puerto Rico and the international community.”

Read the full text of the Compact in English.


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