In 1998, the Senate Energy and Natural Resources Committee held a widely anticipated hearing on two bills (H.R. 856, S. 472) to determine the political status of Puerto Rico. It was as it has remained to this day a U.S. territory, a status quo that has failed to reach political resolution for the people of Puerto Rico.
Under these bills, the people of Puerto Rico would have had the chance to choose one of three paths: continuation as an undemocratic territory (or, as it was called at the time, “ Commonwealth”), statehood with full voting representation in Congress, and separate sovereignty in the form of traditional independence or with a compact of free association. Today, Congress is faced with similar legislation, and the debate has not changed much in 24 years.
No guaranteed citizenship…
The hearing featured a rotating cadre of witnesses from Puerto Rican elected officials to political figures to Members of the U.S. House of Representatives with ties to Puerto Rico. There was plenty of back-and-forth about the history of referenda in Puerto Rico, the language and technicality of it, and the need for decisive congressional action. This included a contentious question, which continues to be relevant in the debates today: the ability of Puerto Ricans to retain U.S. citizenship regardless of the outcome of the referendum. Concerns amongst the committee rang particularly clear and salient on the issue.
Senator Larry Craig, a conservative Republican representing Idaho, as well as the likes of Sens. Frank Murkowski (R-AK) and Mary Landrieu (D-LA) refuted this notion that Puerto Rico could choose a status of separate sovereignty from the United States while still retaining American citizenship for its people. As Sen. Craig stated, “It also must be made clear that if Puerto Rico elects separate sovereignty, Congress will end U.S. nationality and citizenship for people born in Puerto Rico in the future. […] The notion of universal dual citizenship with guarantees, not even available under current status, must be dispelled before informed self-determination will be possible.”
Given the territorial status of Puerto Rico, the U.S. citizenship of Puerto Ricans is statutory and not guaranteed by the Constitution, but rather by the Jones-Shafroth Act of 1917. Therefore, the citizenship of Puerto Ricans is subject to the political whims of Congress and the president, which constantly fluctuates ideologically with new partisan majorities and presidents.
…except under statehood
However, should Congress pass such aforementioned legislation and the people of Puerto Rico vote for statehood, then their U.S. citizenship would be guaranteed by the 14th Amendment of the Constitution. Political proponents of separate sovereignty for Puerto Rico are making a political argument for dual citizenship for Puerto Ricans and not a legal one, or as Sen. Craig put it, “some may not believe a future Congress will change the current status or citizenship […], but that goes to the subjective question of intent and opinion about policy.”
A key function of this debate had been and continues to be language and giving an honest account to the people of Puerto Rico as to what their options are for the future of Puerto Rico and themselves. Congressman Luis Gutierrez (D-IL), who testified at the hearing, pleaded the Senate to “tell the people of Puerto Rico that their citizenship is guaranteed.” However, that plea is all that it is, a plea not based in constitutional grounding or precedent. Here we are more than 24 years later, and the Senate has never made this guarantee – because it can’t. A future congress or president could very well repeal the provisions of the Jones-Shafroth Act that give Puerto Ricans citizenship, especially if Puerto Rico achieves separate sovereignty. As Senator Craig then stated:
“This principle is not complicated, but is made so because some want to have it both ways, insisting on separate sovereignty but also retaining the same citizenship people have who are born in a state of the union. Those of us who want to sort out the real options are not the ones raising these issues, but we must respond when others misinform the public in Puerto Rico that commonwealth and current citizenship are constitutionally permanent and guaranteed in a way that a future Congress cannot change the present Federal law.”
To put it simply, only statehood can guarantee U.S. citizenship for Puerto Ricans in the long term, which includes U.S. rights and liberties, voting representation in Congress, the ability to immigrate freely throughout the U.S., and access to many jobs and welfare benefits. This has always been and will continue to be the truth.