Can the Federal Government Sell Puerto Rico?

The New York Times published a claim last weekend that has resurfaced with some frequency over the years, drawing outrage each time:  the notion that the U.S. has the power to sell Puerto Rico or otherwise “divest” its most populous territory, home to over three million U.S. citizens.

New York Councilman and congressional candidate Ritchie Torres responded with an op-ed piece, in the New York Daily News, reviving a popular Puerto Rican slogan from the past: “Puerto Rico Is Not for Sale.”

“How can the United States claim to be fully democratic when it openly denies equal representation to 3 million people who are citizens according to its own laws?” Torres asked. “There are two alternatives to the status quo of colonialism: independence and statehood. I am squarely on the side of statehood. Puerto Ricans are and have long been American citizens. Instead of depriving them of citizenship entirely, make Puerto Ricans equal under the law.”

Equal under the law

Torres points to the reality underlying the comments: the federal government does indeed have the legal right to “dispose of” Puerto Rico. As at least one commenter has pointed out, this is a problem because it’s true, not because the president mentioned it.

The 2005 Report of the President’s Task Force on Puerto Rico stated this unambiguously:

The Federal Government may relinquish United States sovereignty by granting independence or ceding the territory to another nation; or it may, as the Constitution provides, admit a territory as a State, thus making the Territory Clause inapplicable. But the U.S. Constitution does not allow other options.

According to the U.S. Constitution, the unincorporated territory of Puerto Rico can be “granted” independence in spite of the clear fact that the people do not want independence, as demonstrated by the fact that no more than 5% of voters have ever chosen this option.

The government may also “cede” or give Puerto Rico to another country’s government, just as Spain gave Puerto Rico to the United States. Spain sold other territories to the U.S., and the U.S. could legally sell Puerto Rico to the highest bidder now.

These actions are possible because Puerto Rico is a territory of the United States. If Puerto Rico were a State, it would be equal under the Constitution with all the other 50 States. It could not be sold or given away or be forced to become independent. States have rights and sovereignty which Puerto Rico does not have.

Piecemeal solutions?

The underlying problem is not that President Trump has considered selling Puerto Rico; the problem is that the U.S. Constitution allows unequal treatment of the territory of Puerto Rico. Congress can make any decision it chooses about Puerto Rico. Congress can confer statehood with or without another referendum, can give or take away federal funds that the States receive automatically, and can in fact sell Puerto Rico. Any of these actions could be taken with a simple majority vote in the House and Senate. Puerto Rico has no voting representatives in either.

“Inequalities continue to abound to the ever-deepening detriment of Puerto Rico. Unlike the 50 states, the island has substandard Medicare and Medicaid reimbursement rates. Unlike the 50 states, it has no access to the normal protections of a bankruptcy court,” Torres wrote.‎ “Instead of addressing each of these inequalities in isolation, as policymakers are prone to do, we should see them all as symptomatic of a deeper disease: the denial of statehood to Puerto Rico.”

Congress has in fact denied statehood to Puerto Rico. Puerto Rico voted for statehood in 2012 and 2017, and the Puerto Rico legislature has formally requested statehood more than once. The fact that Congress has ignored these clear statements of the will of the people for almost a decade amounts to denial of statehood.

“Indeed, the ultimate solution to inequality is equality itself, which can only be conferred by statehood,” says Torres. “Everything else, like tinkering with reimbursement formulas, is piecemeal policymaking, which surely has its place. But in an age like ours, which demands bold thinking and action, a systemic problem like colonialism calls for a systemic solution like statehood. A comprehensive decolonization of Puerto Rico is long overdue.”

One Comment

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.