“Commonwealth” Is Unconstitutional

In 1998, the Popular Democratic Party (PDP) of Puerto Rico (not affiliated with the Democratic Party of the U.S.) adopted a blueprint for a new relationship between the United States and Puerto Rico.  This plan, which was re-endorsed in the Party’s platforms in 2000 and 2004, by resolutions of its Governing Board in 2009 and 2010, and is still accepted today, would create an unprecedented status and relationship with the United States that would be a hybrid of incompatible aspects of different statuses and be impossible for constitutional reasons.  The PDP calls this plan its “Developed, Enhanced, or New Commonwealth Status.”

Specific details include:

• Puerto Rico would have authority to select the federal laws that apply within its borders.  Federal laws concerning homeland security, the environment, employment, education, agriculture, energy and virtually every other area could be disregarded.  As much as many states would also like to have this power, it was an idea debated and ultimately rejected by our Founding Fathers, and it is clearly unconstitutional.

• Puerto Rico would have authority to enter into international trade, tax, and other agreements and organizations limited to sovereign nations. At the same time, however, the PDP proposal is explicit that “[a] common market will continue to exist between Puerto Rico and the United States.”  Puerto Rico would therefore become a backdoor route for the entry of unregulated and duty free goods into the United States.  Despite the clear constitutional problems inherent in this proposal, the PDP government has nonetheless attempted to enter into trade agreements as if Puerto Rico were a sovereign nation.  The U.S. State Department has soundly rejected these attempts as unconstitutional and unworkable.

• The proposal would permanently bind the United States to terms of the agreement.  The blueprint calls for a “permanent union with the United States under a covenant that cannot be invalidated or altered unilaterally.”   This concept of mutual adhesion is unconstitutional as it would surrender U.S. sovereign power to Puerto Rico.  The plan would also grant U.S. citizenship to the people of Puerto Rico in perpetuity. In 2011, the White House officially weighed in on – and rejected – this idea, explaining:

“[C]onsistent with the legal conclusions reached by prior Task Force reports, one aspect of some proposals for enhanced Commonwealth remains constitutionally problematic—proposals that would establish a relationship between Puerto Rico and the Federal Government that could not be altered except by mutual consent. This was a focus of past Task Force reports. 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 because a future Congress could choose to alter that relationship unilaterally.”

The Department of Justice emphasized this year that no form of “enhanced commonwealth” could appear on the 2017 plebiscite ballot, either as part of the territorial option or as part of the Free Associated State form of independence.

Authoritative Sources

Although such expanded powers for Puerto Rico may have local popular appeal, “Commonwealth” is clearly unconstitutional. We’ve listed below just a few of the many sources confirming this fact.

Executive Branch Statements

Report by The President’s Task Force on Puerto Rico’s Status, December, 2011, p. 26.  [C]onsistent with the legal conclusions reached by prior Task Force reports, one aspect of some proposals for enhanced Commonwealth remains constitutionally problematic – proposals that would establish a relationship between Puerto Rico and the Federal Government that could not be altered except by mutual consent.  This was a focus of past Task Force reports.  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 because a future Congress could choose to alter that relationship unilaterally.

Report by the President’s Task Force on Puerto Rico’s Status, December, 2007, page 6-7.  The U.S. constitution would not permit the “new commonwealth” proposal because land under United States sovereignty must either be a State or a territory.  As the Supreme Court stated over a hundred years ago, if land is “not included in any State,” it “must necessarily be governed by or under the authority of congress.”  First Nat. Bank v. Yankton County, 101 U.S. 129, 133 (1879).  Thus, although Congress is free to allow a territory to exercise powers of self-government (as congress has done with respect to Puerto Rico), it may not restrict the authority of a future congress over that territory…

Accordingly, the “new commonwealth” proposal that some have proposed contemplates a political status for Puerto Rico that is not permitted by the United States Constitution.

 Report by the President’s Task Force on Puerto Rico’s Status, December, 2007, page 6.  The U.S. constitution would not permit the “new commonwealth” proposal because land under United States sovereignty must either be a State or a territory.  As the Supreme Court stated over a hundred years ago, if land is “not included in any State,” it “must necessarily be governed by or under the authority of congress.”  First Nat. Bank v. Yankton County, 101 U.S. 129, 133 (1879).  Thus, although congress is free to allow a territory to exercise powers of self-government (as congress has done with respect to Puerto Rico), it may not restrict the authority of a future congress over that territory.

Report by The President’s Task Force on Puerto Rico’s Status, December, 2007, p. 6-7.  [T]he “New Commonwealth” proposal that some have proposed contemplates a political status for Puerto Rico that is not permitted by the United States Constitution.  As long as Puerto Rico remains a territory of the United States, Congress may not impair the constitutional authority of later Congresses to alter the political powers of the government of Puerto Rico by entering into a covenant or compact with Puerto Rico or its residents.

C. Kevin Marshall, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, Testimony before the House Committee on Natural Resources, April 25, 2007, page 132.  [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.

[T]he new commonwealth position, as the task force understood it, is not consistent with the Constitution.  Any promises that the United States might make regarding Puerto Rico’s status as a commonwealth would not and could not be binding.  Puerto Rico may remain in its current status indefinitely, but it would remain subject to Congress’s authority under the Territory Clause of the Constitution “to dispose of and make all needful Rules and Regulations respecting the Territory…belonging to the Untied States.”

Report by The President’s Task Force on Puerto Rico’s Status, December, 2005, page 6.  Some have proposed a “New Commonwealth” status.  Under this proposal, the island would become an autonomous, non-territorial, non-State entity in permanent union with the United States under a covenant that could not be altered without the “mutual consent” of Puerto Rico and the federal Government.  The U.S. Constitution, however, does not allow for such an arrangement.  For entities under the sovereignty of the United States, the only constitutional options are to be a State or territory.

Ruben Barrales, Deputy Assistant to President George W. Bush and Director of Intergovernmental Affairs, and Kevin Marshall, Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, Press Briefing on Puerto Rico’s Status, December 22, 2005. Mr. Marshall:   I just want to comment on the legal question a little bit. The primary issue is whether the Constitution allows for some commonwealth status that couldn’t be altered without the consent of Puerto Rico. And we conclude that it — the Constitution does not. In reaching that conclusion, we’re reaffirming the position that the Justice Department has taken for the last 14 years in both the first Bush administration and the Clinton administration and in the current administration.

But I appreciate the importance of the question for Puerto Rico and for the United States. We have in the Office of Legal Counsel done a thorough reconsideration of [the] issue, and concluded that that position is correct. And as part of that, I have met with several superb lawyers representing various interested parties and I’ve also received excellent written material from them, including from the former head of the office where I work and the former attorney general.

Robert Raben, Assistant Attorney General to President Clinton, letter to Sen. Frank H. Murkowski, January 18, 2001, pp 5 – 14 (citations omitted).  The threshold point to consider is what type of status the [“Enhanced” or “New” Commonwealth] proposal contemplates for Puerto Rico.  Parts of the New Commonwealth proposal appear to contemplate Puerto Rico’s becoming an independent Nation, while others contemplate Puerto Rico’s remaining subject to United States sovereignty to some degree.  To the extent that the proposal would thereby create for Puerto Rico a hybrid status, it runs afoul of the [established premise that the Constitution recognizes only a limited number of options for governance of an area – sovereign nationhood, statehood, or being subject to the authority of Congress under the Territory Clause].

[R]egardless of whether the New Commonwealth proposal contemplates full Puerto Rican independence or continued United States sovereignty over Puerto Rico, the proposal’s mutual consent provisions are constitutionally unenforceable.  Article X of the proposal specifies that the New Commonwealth will be implemented pursuant to an “agreement between the people of Puerto Rico and the government of the United States,” and provides that the agreement will have the force of a “bilateral covenant. . . based on mutual consent, that cannot be unilaterally renounced or altered.”  If the proposal is read to maintain United States sovereignty over Puerto Rico, then, since the “enhanced” Commonwealth it contemplates would not be a State, it would necessarily remain subject to congressional power under the Territory Clause.  It follows, then, that Congress could later unilaterally alter the terms of the covenant between the United States and Puerto Rico.

If Puerto Rico is to become an independent nation under the New Commonwealth proposal, then the relationship between the United States and Puerto Rico would necessarily be subject to subsequent action by Congress or the President, even without Puerto Rico’s consent.  As a general matter, a treaty cannot, for purposes of domestic constitutional law, irrevocably bind the United States.  In particular, because the power to make and unmake treaties is “inherently inseparable from the conception” of national sovereignty, it can not be contracted away.  Thus if Puerto Rico were to become independent, the New Commonwealth proposal’s mutual consent requirements would be constitutionally unenforceable against the United States.

The New Commonwealth proposal also provides for the election of a Resident Commissioner to “represent Puerto Rico before the Government of the United States and who will be considered a Member of the U.S. House of Representatives for purposes of all legislative matters that have to do with Puerto Rico.”  The applicable provision of the Constitution – Article I, Section 2, Clause 1 – provides that the House of Representatives “shall be composed  of Members chosen every second Year by the People of the several States.”  On its face, that provision would seem to mean that the Resident Commissioner from Puerto Rico could not be “considered a Member” of the House because, under the New Commonwealth proposal, Puerto Rico would not be a “State.”  While Congress has the ability to permit participation by representatives of the territories, there are constitutional limits to the participation that would be permitted.

The New Commonwealth proposal contains a number of other provisions that may raise particular constitutional concerns if the proposal contemplates Puerto Rico remaining subject to United States sovereignty.  The proposal authorizes Puerto Rico to “enter into commercial and tax agreements, among others, with other countries,” and to “enter into international agreements and belong to regional and international organization.”  The Constitution vests the foreign relations power of the United States, which includes the power to enter into treaties, in the federal government.

Finally, if Puerto Rico remains subject to United States sovereignty, the provision that Puerto Rico would “retain[] all the powers that have not been delegated to the United States” rests on a constitutionally flawed premise.  This provision appears to attempt to create for Puerto Rico an analogue to the Tenth Amendment.  But the legislative powers of a non-State region under the sovereignty of the United States are entirely vested in Congress.

William M. Treanor, Deputy Assistant Attorney General for President Clinton, Office of Legal Counsel, U.S. Department of Justice, Testimony before the House Natural Resources Committee, October 4, 2000, p. 17-18.  I will begin by discussing the framework of the Department’s analysis.  That framework embodies two premises.  The first is that the Constitution recognizes only a limited number of options for the governance of an area.  Puerto Rico could constitutionally become a sovereign nation, as the Republic of Philippines did.  Alternatively, it could remain under United States sovereignty.  It could do so in either of two ways.  It can be admitted into the Union as a State, and the applicable constitutional provision is in Article 4, Section 3, Clause 1, or it can be governed pursuant to the Territories Clause, and the applicable constitutional provision is Article 4, Section 3, Clause 2.

The terms of the Constitution do not contemplate an option other than sovereign nationhood, Statehood, or territorial status.  Currently, despite the great degree of autonomy and self-government in local matters that Puerto Rico enjoys as a commonwealth, it is from a constitutional point of view governed under the Territories Clause.  The Supreme Court’s 1980 decision in Harris v. Rosario makes that clear, and that is also the longstanding view of the Department of Justice.

The second premise of our Constitution analysis is that, as a general matter, one Congress cannot bind a subsequent Congress.  The proposition is a well-established proposition of constitutional law and it traces back to the decisions of Chief Justice Marshall in the early 19^th century, including Marbury v. Madison and the 1810 decision, Fletcher v. Peck.

Because of these two premises [the Enhanced Commonwealth’s mutual consent provisions] are constitutionally unenforceable.  The requirement of mutual consent appears a number of times in the [Enhanced Commonwealth proposal].

Although the United States unquestionably has the power to make contracts and give consents bearing upon the exertion of governmental power, including contracts in the international field with other national sovereigns, the United States may not contract away its power to revoke such an undertaking or to suspend its operation.

Robert Dalton, Assistant Legal Advisor for Treaty Affairs for President Clinton , U.S. Department of State, Testimony before the House Natural Resources Committee, October 4, 2000. p. 19-21.  [T]here are constitutional issues posed by [the Enhanced Commonwealth proposal] with respect to executive branch prerogatives in the conduct of foreign relations.

Under our system of government, the conduct of foreign affairs is constitutionally vested in the Federal Government. . . . [T]he Federal Government is responsible internationally for the affairs of all its territories and for the affairs of territories and commonwealths in the same way as it is for the States of the Union.  It is responsible for meeting commitments and ensuring that obligations to other nations are met and that rights of the United States under treaties are formed by other countries.  So the efficacy of U.S. international relations depends on the foreign activities of territories and commonwealths as well as the States fitting into the framework of an overall United States foreign policy.

It is essential that the component parts of U.S. foreign policy form a consistent and internally consistent whole.  This cannot be accomplished if areas that are within U.S. control are populated primarily by U.S. citizens, conduct their own foreign affairs.  It benefits neither the United States as a whole or the territories and commonwealths if the United States is perceived as speaking with many inconsistent voices internationally.

The Founding Fathers, based on the unhappy lessons learned under the Articles of Confederation, widely recognized this in framing the Constitution.  The conclusion of international agreements, for example, is one of the most basic functions of foreign policy and the framers emphasized the exclusive authority of the Federal Government with respect to foreign policy functions by inserting the provisions of Article I, Section 10, clauses 1 and 3 in the U.S. Constitution.

Finally…I turn to the…question of the unconstitutional delegation of executive, or the unconstitutional interference with executive prerogatives in the negotiating area.  The [Enhanced Commonwealth proposal] appears to dictate the size and structure of the U.S. negotiating team.  It would require that the executive branch sponsor membership for Puerto Rico in international organizations.  We believe that these provisions interfere with executive branch authority and we, therefore, are opposed to them.

Teresa Wynn Roseborough, Deputy Assistant Attorney General, Office of Legal Counsel, Administration of President Clinton, Memorandum:  Mutual Consent Provisions in the Guam Commonwealth Legislation, July 28, 1994, as included with approval in the Report by the President’s Task Force on Puerto Rico’s Status, Administration of President George W. Bush, 2005 and 2007 reports (appendix F) p. 1.  Our conclusion is that these [mutual consent] clauses raise serious constitutional issues and are legally unenforceable.

Richard Thornburgh, Attorney General for President George H.W. Bush, Testimony before the Senate Energy Committee, February 7, 1991, pp. 190 and 194.  [Provisions of “enhanced commonwealth”] are totally inconsistent with the Constitution.

Under the Territory Clause of the Constitution, Article 4, Section 3, Clause 2, an area within the sovereignty of the Untied States that is not included in a State must necessarily be governed by or under the authority of Congress.  Congress cannot escape this constitutional command by extending to Puerto Rico the provisions of the Tenth Amendment, which by its terms provides only to the relationship between the federal government and the states.  We also doubt that Congress may effectively limit, by statutory mutual consent requirement, its constitutional power under the Territory Clause to alter Puerto Rico’s commonwealth status in some respect in the future.  Not even the so-called “enhanced commonwealth” can ever hope to be outside this constitutional provision.

United States Department of State unclassified memorandum, submitted to the Senate Energy Committee, February 11, 1991.  [A]llowing a sub-entity of the United States to pursue its own foreign policy and international agreements derogates from the foreign relations power of the President and inescapably raises constitutional and political issues.

Mary V. Mochary, Department of State Principal Deputy Legal Adviser, Administration of President George H.W. Bush, Testimony before the Committee on Energy and Natural Resources, July 11, 1989, p. 153-54.  The proposal for an enhanced commonwealth …would create an unprecedented political status for Puerto Rico.  It would grant to Puerto Rico significant attributes of sovereignty which would be incompatible with remaining a part of the United States.

Many provisions require important transfers of authority from the Executive to the Puerto Rican Government.  These new powers would extend well beyond those currently enjoyed by the Commonwealth of Puerto Rico or other nonfederated U.S. commonwealths and territories.

Many of these provisions…are open to attack on two different constitutional grounds:  their impact on separation of powers as a result of legislative inroads on the Executive Branch prerogative over foreign policy, and their impact on federalism, owing this time to inroads by the Puerto Rican Commonwealth on this same area.

The Department objects to any delegation to another entity such as a state or territorial commonwealth of the authority vested in the Executive by the Constitution to conduct and oversee U.S. foreign relations.  The Department does not agree to any language which implies a derogation of the President’s power to negotiate for and represent the United States, including Puerto Rico, in the area of foreign relations.

Moreover, if Puerto Rico were given broader power, however limited, to conduct an independent foreign policy while remaining part of the United States, the functions and authorities of the Department of State and other Executive agencies with foreign operations and responsibilities, would be significantly impaired….Under our system of federalism and in keeping with the sovereignty of the United States it is the Federal Government which must be responsible for undertaking and implementing international obligations.

Former Executive Branch Officials

Dick Thornburgh, Attorney General for President George H. W. Bush (1988-92), Testimony before the House Natural Resources Committee, October 4, 2000, pp. 21-22 and 37.  The fallacy is that there is somehow a third path to a non-territorial status other than Statehood or independence that can be achieved within the framework of our Federal system of national government under the United States Constitution.  Let me be direct and make it very clear.  Under U.S. constitutional law and our system of federalism as a form of domestic government, there is no third path to a non-territorial status.  There is Statehood and there is territorial status.  Congress can be creative in how it administers a territory and Congress can grant significant levels of autonomy to a territory. However, Congress does not have the power by statute to create a new form of permanent union or political status within the union that is binding on a future Congress.

Simply put, Congress has no power to implement this formula or any formula based on the central elements of this proposal because it defines a status that is not available under the U.S. Constitution.  To mislead people to believe that the only barrier to implementation of this formula is the attitude of Congress, when it is the rule of law that precludes it, merely perpetuates the colonial mentality about status options and self-determination.

We can negotiate forever, but the central elements of this enhanced commonwealth formula remain unconstitutional and, therefore, non-negotiable.  The central provisions which are constitutionally unavailable include permanent union other than Statehood, statutory guarantee of U.S. citizenship in the future without Statehood, binding Congress to the terms of this formula as an unalterable pact, a binding right of specific consent to changes in statutory policy or application of Federal laws, exemption of Puerto Rico from the Territorial Clause without Statehood, and exemption of Puerto Rico from the supremacy of Federal law in all matters.  Trying to make these central provisions acceptable legally or politically without changing their meaning to conform to territorial status would frankly be a waste of time for Puerto Rico and for the Congress.

[I]f [Enhanced Commonwealth] were to find its way into our constitutional regimen, it would be quickly availed of by every one of the 50 States.  The point here is the Federal Supremacy Clause with regard to matters that relate to overall national policy, and by providing that no taxes could be imposed or a particular class could be imposed in a territory, you run smack into the provisions of the Constitution that relate to the governance of territories, in essence by the Congress of the United States.  And to require an additional approval of a fiscal measure by the governing body of the territory does not compute.  It is not allowed for under the Constitution.  I think that is manifestly clear.

“Understanding Free Association as a Form of Separate Sovereignty and Political Independence in the Case of the Decolonization of Puerto Rico,” Ambassador Fred M. Zeder, President Ford’s Director of Territorial Affairs and President Reagan’s Personal Representative for Micronesian Status Negotiations and Chief Negotiator of the historic compact of Free Association, as presented by Rep. Peter Deutsch (D-FL) on the House Floor, during debate of H.R. 856, March 4, 1998, Congressional Record, page H784.  There is no right on the part of Puerto Rico unilaterally to define its relationship with the United States.

Congressional Resources

Kenneth Thomas, Congressional Research Service (CRS), House Subcommittee on Insular Affairs:  Legislative Hearing on H.R. 900, “The Puerto Rico Democracy Act of 2007” and H.R. 1230, “The Puerto Rico Self Determination Act of 2007,” March 22, 2007, p. 7 (pp. 25-26, 50, 53 and 60).  The portion of the Constitution which is most relevant to political status relationships is Article IV, §3, which addresses three powers of Congress:  the power to grant statehood, the power to regulate territories, and the power to dispose of territories.  These three powers are consistent with the three status options of statehood, Commonwealth subject to the Territorial Clause and independence.  H.R. 1230 does not specify under what alternative constitutional authority Congress could act to create a Commonwealth not subject to the Territorial Clause[.]

[T]o the extent that the constitutional convention were to provide a “new or enhanced Commonwealth” status option regarding Puerto Rico, it would appear likely that it would need to take the form of a constitutional amendment.

As to whether Congress could bind itself or bind a future Congress … my … essential point is one of locating that constitutional authority.

[T]here may well be nothing in the Constitution that prohibits the enhanced commonwealth; however, the Constitution is a document of both limits and powers. And the perhaps more relevant question is where does that power come from in the Constitution.  [A]t this point I can’t confidently say that there is a place in the United States Constitution that would provide the authority for a mutual binding agreement between the Federal government and a territory.

[I]f the Puerto Rican Convention under H.R. 1230 does choose a commonwealth option, and the commonwealth option they do choose is one that would withdraw the Federal jurisdiction] . . . . [t]he question is if then a Congress later came and decided that it was necessary for whatever reason to change some aspect of the commonwealth in a way that the Puerto Rican Convention had decided was inappropriate, I think it would be very difficult to find an argument binding that later Congress from taking that action.

[If a legislative proposal led to an] enhanced commonwealth status that was to be non-alterable, the issue would not be joined until Congress tried to alter it. And at that time I do believe that the courts would find that the Congress still had the power to alter even a solemnly entered-into agreement.

 

Legislative Branch Statements

Chairman Ron Wyden (D-OR),Opening Statement before the Senate Committee on Natural Resources, August 1, 2013, S. Hrg. 113-76, page 2. The new commonwealth option continues to be advocated as a viable option by some.  It is not.  Persistence in supporting this option— after it has been rejected is inconsistent with the U.S. Constitution by the U.S. Justice Department, by the bipartisan leadership of this committee, by the House and by the Clinton, Bush, and Obama Administrations—undermines resolution of Puerto Rico’s status question.

Rep. Ileana Ros-Lehtinen (D-FL), House Floor Debate on H.R. 2499, Puerto Rico Democracy Act of 2009, April 29, 2010, Congressional record, page H3036.  If included as a viable option, an enhanced Commonwealth proposal would permanently empower Puerto Rico to nullify Federal laws and court jurisdiction.  An enhanced Commonwealth option would also set the stage for Puerto Rico to enter into international organizations and trade agreements, all while being under the military and financial protection of the United States.

Letter to the President from Senate Committee on Energy and Natural Resources Chairman Jeff Bingham and Ranking Member Lisa Murkowski December 1, 2010.  In recent years…a consistent Administration and Congressional view has emerged that only four status options are available for Puerto Rico’s future relations with the U.S:

• Continuation of the current Commonwealth status (under Article IV of the constitution);
• Statehood;
• Independence; and
• Free Association (as with the nations of the former Trust Territory of the Pacific Islands)

[W]e note that both the Clinton and Bush Administration supported the analysis and conclusions of the January 18, 2001 letter sent to the Committee by the U.S. Department of Justice.  This analysis of the status options favored by the principal political parties in Puerto Rico concludes that a fifth option, “New Commonwealth,” is incompatible with the Constitution and basic laws of the United States in several respects.

Committee on Natural Resources Report, Puerto Rico Democracy Act of 2007 (H.R. 900), Report No. 110-597, April 22, 2008, pp. 8, 10-11.  The hope that such a “best-of-both-worlds” status can be created has resulted in many Puerto Ricans not expressing a preference between the only constitutionally-valid permanent non-territorial status options:  statehood, independence, and free association.

The Clinton Administration…responded to a request from this Committee and the Senate Energy and Natural Resources Committee that it provide a report on the status proposals of all three of Puerto Rico’s political parties with an accompanying constitutional analysis.  The Clinton Administration found that the proposals of the NPP and PIP were generally acceptable, but that the PDP “Development of the Commonwealth “ proposal violated the Constitution in several respects.

These concerns by the Clinton Administration were expressed to this Committee during a legislative hearing held in 2000 on H.R. 4751, which would have implemented the “Development of the Commonwealth” proposal.  Testimony presented by the Department of Justice stated that the “mutual consent provision [of the Developed Commonwealth proposal] are constitutionally unenforceable” because “one Congress cannot bind a subsequent Congress.”  In addition, with respect to making a “Developed Commonwealth” legally and constitutionally its own nation, the State Department testified that “the exercise of a parallel and co-existing foreign affairs authority by a subfederal unit of the United States would not only be unconstitutional, but retrogressive and impractical as well.”

In December 2005, the Task Force appointed by President Bush, after considering expensive input from political parties in Puerto Rico, as well as the Island’s elected leaders. . . reiterated the U.S. government’s position that Puerto Rico remains an unincorporated territory and rejected the “Developed Commonwealth” proposal, agreeing with previous positions expressed by earlier Administrations.

Senator Jeff Bingaman (D-NM), Testimony before the Senate Energy Committee, November 15, 2006, p. 2.  [The 2005 President’s Task Force Report on Puerto Rico’s Status] has reaffirmed legal positions which seem to me well founded and that were provided to the committee several years ago by the Clinton administration. [T]wo of those findings in particular I would allude to, the current relationship with Puerto Rico is based on the territorial clause and the second, that the mutual consent provisions in the new [Enhanced] commonwealth proposal cannot be accommodated under the U.S. Constitution.

Resident Commissioner Luis G. Fortuño (R-PR), Testimony before the Senate Energy Committee, November 15, 2006, p. 30.  Under [the Enhanced Commonwealth] proposal, Puerto Rico would be empowered to exercise veto power over Federal laws and to limit Federal court jurisdiction. It would be able to enter into trade and other international agreements and organizations. The United States will be obligated to provide new incentives for investment and to continue to grant all current aid to Puerto Ricans without paying Federal income taxes.
In addition, as if that were not enough, it would have to continue to provide free entry of goods shipped from Puerto Rico or through Puerto Rico, as well as permanent U.S. citizenship to residents born in Puerto Rico.
Congress ultimately will not accept an alternative that is not feasible under the U.S. Constitution, as stated by the Justice Department under the last three presidents. Under the Governor’s [Enhanced Commonwealth] plan, after much aggravation and effort, we would end up exactly where we started.

Rep. John Doolittle (R-CA), Testimony before the House Natural Resources Committee, October 4, 2000, pp 8, 47.  [The “Enhanced Commonwealth proposal] is absurd and unconstitutional on its face and we need to hear today from the experts in constitutional law and in policy and have them give us their seasoned opinions on these issues because the people of Puerto Rico do have American citizenship.  They are entitled, I think, to know what the truth actually is.

[Enhanced Commonwealth] cannot be implemented….[E]ven if we did wish to [enact the proposal], under the U.S. Constitution, the Congress does not have the power to implement this status formula by statute or by treaty[.]

Rep. George Miller (D-CA), House Floor  Debate on H.R. 856, United States Puerto Rico Political Status Act, March 4, 1998, Congressional Record, page H774.  [I]n the exercise of sovereignty, the laws of the commonwealth shall govern Puerto Rico to the extent that they are consistent with the Constitution of the United States.  There is no other way to do business, consistent with the Constitution of the United States, [and] treaties and laws of the United States[.]  [T]he Congress retains its constitutional authority to enact laws that it deems necessary relating to Puerto Rico.

Committee on Resources Report on the United States-Puerto Rico Political Status Act (HR 856), June 12, 1997, Report Number 105-131, Part 1, pp.22- 26.  [T]his expansive and unconstitutional “commonwealth” mythology cannot withstand scrutiny any longer.  While sometimes confusing the issue by trying to accommodate those on all sides of this matter, in relevant formal measures the Congress, the Federal courts and the last several Presidents have exercised their Constitutional powers with respect to Puerto Rico in a manner consistent with the applicability of the Territorial Clause, continued unincorporated territory status and local self-government limited to internal affairs.

[T]he notion that an unalterable, permanently binding mutual consent political relationship can be instituted under the U.S. Constitution between an unincorporated territory and Congress has been discredited and rejected by the U.S. Supreme Court[.]

In addition, the Department of Justice (DOJ) has confirmed that mutual consent provisions are not binding on a future Congress, are not legally enforceable, and must not be used to mislead territorial residents about their political status and legal rights.

House Committee on Resources, Report on the United States-Puerto Rico Political Status Act (HR 3024), July 26, 1997, Report Number 104-713, Part 1, p. 19.   [T]he 1993 definition of “Commonwealth” failed to present the voters with a status option consistent with full self-government, and it was misleading to propose to the voters an option which was unconstitutional and unacceptable to the Congress in almost every respect.

Chairmen Don Young (R-AK, Resources Committee), Elton Gallegly (R-CA, Native American and Insular Affairs Subcommittee), Ben Gilman (R-NY, International Relations Committee), and Dan Burton (R-IN, Western Hemisphere Subcommittee) letter  to The Honorable Roberto Rexach-Benitez, President of the Puerto Rican Senate and The Honorable Zaida Hernandez-Torres, Speaker of the Puerto Rican House, February 29, 1996.  [I]t is important to recognize that the existing Commonwealth of Puerto Rico structure for local self-government, and any other measures which Congress may approve while Puerto Rico remains an unincorporated territory, are not unalterable in a sense that is constitutionally binding upon a future Congress.  Any provision, agreement or pact to the contrary is legally unenforceable.  Thus, the current Federal laws and policies applicable to Puerto Rico are not unalterable, nor can they be made unalterable, and the current status of the inhabitants is not irrevocable, as proposed under the “[enhanced] commonwealth” option on the 1993 plebiscite ballot.  Congress will continue to respect the principle of self-determination in its exercise of Territorial Clause powers, but that authority must be exercised within the framework of the U.S. Constitution and in a manner deemed by Congress to best serve the U.S. national interest.  In our view, promoting the goal of full self-government for the people of Puerto Rico, rather than remaining in a separate and unequal status, is in the best interests of the United States.

 

Puerto Rican Officials

Kenneth D. McClintock, President of the Puerto Rican Senate, Testimony before the House Subcommittee on Insular Affairs, April 25, 2007, p. 3.   The current political status is, without a doubt, subject to the Territorial Clause of the United States Constitution.  Some “commonwealth” supporters defend the current status stating that it just needs some development, in the direction of a non-territorial commonwealth status.  Since what they call “Commonwealth” is a territorial status, a non-territory commonwealth status is by definition an oxymoron.

Francisco Ponsa Feliú, U.S. Attorney for Puerto Rico and former assistant to the U.S. Attorney, United States-Puerto Rico Commission on the Status of Puerto Rico:  Legal-Constitutional Factors in Relation to the Status of Puerto Rico, Summary of Legal Consultative Committee Panel Discussion, May 18, 1965, p. 561.  Mr. Ponsa also noted that Puerto Ricans are American citizens who desired a closer rather than looser union with the mainland. . . . He felt that it was necessary to define Commonwealth before submitting Commonwealth to the people of Puerto Rico.  He recommended that the commission should report to Congress that there are three solutions and that the third one, Commonwealth, should be submitted by a necessary constitutional amendment.  This would assure that the problem could be solved without running the risk of reversal many years from now.  A new compact would be no solution, for a new one would bring the charge that it, like the old one, was not permanent and the same debate would start once more.

 

Legal Scholars

Thomas C. Goldstein, Lecturer on Supreme Court Litigation, Harvard and Stanford Law Schools, and Partner, Akin Gump Strauss Hauer & Feld, Testimony before the House Subcommittee on Insular Affairs, March 22, 2007, pp. 47 and 52.  [Congress must] avoid creating any false expectation by the residents of Puerto Rico of congressional recognition of inherent rights or powers not granted to any non-State territories by the Constitution or otherwise.  Without similar protections, a constitutional convention risks harming the status process from both a constitutional and political perspective.  A consequence would be to stymie the status process and invite re-submission to Congress of a proposal to give Puerto Rico a status combining the features of statehood and sovereign independence – commonly referred to as enhanced commonwealth status – that does not exist under the Constitution and, notably, has never been endorsed by Congress as constitutionally or politically viable.

[The ability of Puerto Rico to have veto power over Federal legislation, and to invalidate Federal court jurisdiction] would be in grave constitutional doubt, given . . . the plenary power of the Congress under the territory clause.

If Puerto Rico were to remain in some form of commonwealth status, the plenary power would remain with the Congress. And in addition to the points that were made earlier about the political will to give such a special status to Puerto Rico, I think that it would be highly questionable to give a territory effectively a veto over the application of laws that were passed by Congress.

Walter E. Dellinger, Professor of Constitutional Law, Duke University; Testimony before the House Natural Resources Committee, October 4, 2000.  [O]ver the 30 years I have been a professor and scholar of constitutional law, I have encountered a number of very difficult and uncertain questions of constitutional law, but this [proposal] is not one of them.  The propositions put forth by this [proposal], in my view, are so clearly unconstitutional that I do have concerns that the propositions put forward here would be misleading to the citizens and the people of Puerto Rico and anyone else who was concerned about this difficult issue.

[T]he 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 that there is really not a lot of elaboration, I think, that is necessary to establish that proposition.