One of the terms that comes up frequently in discussions of Puerto Rico’s status – particularly in the bills currently being considered in Congress – is “binding.”
The term is often used in ways that are inaccurate or misleading.
Decisions of voters aren’t binding on Congress
For example, we see observers argue that the votes on status taken in Puerto Rico don’t matter because they have been nonbinding. A binding referendum, columnists say, is what Puerto Rico needs.
However, a referendum or plebiscite is – by its nature – nonbinding. Votes of this kind are intended to tell the government what the people want. But they cannot force the government to take action.
The same is true of votes taken during or following a status convention. A group of people assembled in a convention anyway – and certainly in a U.S. territory – cannot dictate orders to Congress. It’s not the way a representative government works.
That doesn’t mean that these votes are unimportant or that they should be ignored by Congress. It’s just that the United States is not a direct democracy in which voters make definitive decisions. Instead, we have representatives in Congress who speak for the people in their jurisdictions. The voters vote for their representatives and can speak directly to those representatives. But the people do not get to vote directly for most legislative decisions.
Decisions of One Congress Can’t Bind a Future Congress
Not only is it true that the votes taken by Puerto Rico on its political status are not binding, but it is also true that the votes taken by Congress are not binding on Congress itself.
Constitutional scholar Walter Dellinger explained it like this:
[T]here is no more fundamental proposition of the American Constitution than the democratic principle that a newly elected Congress is free to alter, revise, amend, revoke, repeal, or otherwise alter legislation passed by a previous Congress. If the people of the United States do not like the legislation they have, they get to elect a new Congress which passes new laws. Therefore, whether this bill creates something more like a separate nation or more like a nation within a nation, the guarantees put forth in this bill, for example, that the United States will provide the defense for Puerto Rico or that Puerto Rico will not have Congress legislate for it without the consent of governing officials there, they are simply not worth the paper they are written on because the next Congress, newly elected, or the same Congress a week later can reach a different judgment and reflect the views of the national constituency in a different way.
I mean, this has been clear since the beginning of a republic, that the only way to make a permanent change in legal status is through an amendment to the Constitution or by having one of the territories of the United States become an independent nation, as the Philippines did, or become a State, as so many of our areas did after the first 13 formed the Union. So these are the two ways.
But the reason these promises are so misleading, and I am afraid so disingenuous, is that they simply hold out something that cannot be done in the face of the continuing constitutional authority of Congress. As long as the area of Puerto Rico is neither a State nor an independent nation, then Congress has plenary authority to legislate as it will and none of the guarantees or provisions can be enforceable on a new Congress.
Congress can change its mind
Dellinger was talking about a Puerto Rico status bill. One of the provisions in the bill was that Puerto Rico would negotiate a bilateral compact with the U.S. government which could not be changed without mutual agreement by both the federal government and the government of Puerto Rico.
This idea has been proposed once again under a bill currently pending before Congress (HR 2070). Yet this scenario has already been identified as impossible under the U.S Constitution. “I think the issue is so clear and simple that the provisions put forward in the Popular Democratic Party provision are simply fundamentally incompatible with the Constitution of the United States,” Dellinger said.
Congress can change the rules for any territory of the United States at any time. Puerto Rico, for example, did not have the same access to the Child Tax Credit as the States until the American Rescue Plan Act was passed. For tax year 2021, families in Puerto Rico have the same eligibility for that credit. This will be true until and unless Congress changes the rule again.