Commonwealth Status: A History of Rejection by the U.S.

Puerto Rico’s pro-“commonwealth” political party is pushing to ignore the results of the plebiscite held on November 3, 2020. Instead, they want to try once again to include a “commonwealth” option on a new referendum following a status convention.

The United States government has repeatedly rejected many reiterations of “commonwealth” over the years, and some elements of rejected “commonwealth” – such as ongoing U.S. citizenship while achieving separate sovereignty – are finding their way into a free association proposal.

“Commonwealth” proposals can take different forms, and the term is often modified by adjectives such as “new,” “enhanced,” “developed,” or  “improved.” Regardless of the label, however, the elements of “commonwealth” have always been viewed as non-starters by U.S. officials, and Puerto Rico remains a U.S. territory, limited by Congress to a narrow scope of local influence.

The U.S. Department of Justice must approve all options on the ballot of the plebiscite as being consistent with U.S. Constitutional law and policy.  Will the federal government diverge from decades of rejection of “commonwealth”?  It appears doubtful in light of the consistency of those rejections and strong terms used when dismissing the various “commonwealth” proposals over the years.

Here are just some of the occasions on which the U.S. government has rejected the “commonwealth” option:

• In the 1950s, Resident Commissioner Fernós submitted legislation (H.R. 5926, the Puerto Rico Federal Relations Act) to create an “Articles of Permanent Association” between the people of Puerto Rico and the United States – essentially attempting to enact a mutual consent agreement between the U.S. and its most populous territory, a key component of many “commonwealth” proposals.  Yet Fernós withdrew the bill in the face of resistance from both Puerto Rico and the United States. The full story is available in Puerto Rico: The Trials of the Oldest Colony in the World, by Chief Justice Trias Monge.

• In the 1960s, Governor Munoz Marin failed to make any “commonwealth” deals with the Kennedy Administration, as detailed by former Secretary of the House of Representatives Nestor Duprey Salgado in Cronica de una guerra annunciada.

• H.R. 5945 was introduced in 1964 “to establish a procedure for the prompt settlement, in a democratic manner, of the political status of Puerto Rico.” The bill passed, creating a commission that issued a report, but there was no follow up and thus no procedure established for the prompt settlement of Puerto Rico’s status in a democratic manner.

• In the 1970s, Governor Hernandez Colon’s Compact of Permanent Union was proposed by Resident Commissioner Benitez as H.R. 11200 in the 94th Congress. The bill would have created a commission “to help in the perfection of relations between the U.S. and Puerto Rico,” but it died in Congress.

• In the 1980s, Governor Hernandez Colon’s commonwealth proposals in S. 712 of the 101st Congress were rejected by the Senate Committee on Energy and Natural Resources and the George H.W. Bush Administration.

• Attorney General Thornburg gave testimony before the Senate Committee on Energy and Natural Resources, saying that, “We also have concerns with some of the provisions that define the commonwealth option . For example, section 402(a) would declare that Puerto Rico ‘enjoys sovereignty, like a state, to the extent provided by the Tenth Amendment,’ and that ‘[t]his relationship is permanent unless revoked by mutual consent .’ These declarations are totally inconsistent with the Constitution.  We consider it imperative that it be made clear beyond peradventure that the Commonwealth is and must remain under the sovereignty of the United States.  This is necessary in order to avoid the continuation of the uncertainties and controversies that have plagued the existing commonwealth relationship.”

• On February 29, 1996, a letter from four U.S. House Chairman to the Legislative Assembly on the “Commonwealth” option in the 1993 plebiscite stated, “Although there is a history of confusion and ambiguity on the part of some in the U.S. and Puerto Rico regarding the legal and political nature of the current “commonwealth” local government structure and territorial status, it is incontrovertible that Puerto Rico’s present status is that of an unincorporated territory subject in all respects to the authority of the United States Congress under the Territorial Clause of the U.S. Constitution.  As such, the current status does not provide guaranteed permanent union or guaranteed citizenship to the inhabitants of the territory of Puerto Rico, nor does the current status provide the basis for recognition of a separate Puerto Rican sovereignty or a binding government-to-government status pact.”

• U.S. House Report 105-131 on H.R. 856 in 1997, reported that “Full self-government for Puerto Rico is attainable only through establishment of a political status which is based on either separate Puerto Rican sovereignty and nationality or full and equal United States nationality and citizenship through membership in the Union and under which Puerto Rico is no longer an unincorporated territory subject to the plenary authority of Congress arising from the Territorial Clause” In other words, statehood or independence.

• Legislation introduced in the House of Representatives in 2000 (H.R. 4751, the Puerto Rico-United States Bilateral Pact of Non-territorial Permanent Union and Guaranteed Citizenship Act), contained the core elements of “Commonwealth” and was the subject of a congressional hearing before being thoroughly rejected by the House of Representatives.

• Assistant U.S. Attorney General Robert Raben’s January 18, 2001, report to congressional committees on the status proposals of Puerto Rico’s political parties said, “[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.”

• The 2005 Report of the President’s Task Force on Puerto Rico’s Status said, “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.”

• The 2007 Report of the President’s Task Force on Puerto Rico’s Status  said, “The commonwealth system does not, however, describe a legal status different from Puerto Rico’s constitutional status as a “territory” subject to congress’s plenary authority under the Territory clause “to dispose of and make all needful Rules and Regulations respecting the Territory … belonging to the United States.” congress may continue the current commonwealth system indefinitely, but it necessarily retains the constitutional authority to revise or revoke the powers of self-government currently exercised by the government of Puerto Rico.”

•  U.S. House Report 100-597 on H.R. 900in 2008 said of the “commonwealth” proposals, “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.”

• S. House Report 111-294 on H.R. 2499 in 2009. in 2009. “Such hybrid status proposals have undergone various iterations—and been given various names—over the years….Proposals for such a governing arrangement have been consistently opposed by federal authorities in the executive and legislative branches, including this Committee, on both constitutional and policy grounds. Nevertheless, this hybrid proposal continues to be promoted in Puerto Rico as a feasible status option. Such proposals have resulted in misinformed and inconclusive referenda in Puerto Rico in July 1967, November 1993, and December 1998. Lack of clear understanding in Puerto Rico regarding its viable, non-territorial status options is a chief reason for this legislation. A federal law would clarify the viable status options and thereby ensure that the self-determination process is well-informed and productive.”

• The December 1, 2010 letter from Chairman Bingaman and Ranking Minority Member Murkowski of the U.S. Senate Committee on Energy and Natural Resources to the President made it clear that “enhanced commonwealth is not a viable option.”

• The 2011 Report of the President’s Task Force on Puerto Rico’s Status said “Under the Commonwealth option, Puerto Rico would remain, as it is today, subject to the Territory Clause of the US Constitution.”

• The statement of then-Chairman Ron Wyden, U.S. Senate Committee on Energy and Natural Resources, at a 2013 hearing about the 2012 plebiscite results: “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.”

• A brief stating the position of the United States in Puerto Rico v. Sanchez Valle summarized and confirmed: “The Executive Branch has recognized that Puerto Rico remains a U.S. territory subject to Congress’s authority. A 1994 Office of Legal Counsel opinion explained that Congress may not create a sovereign territory consistent with the Constitution, and since then, the Department of Justice has repeatedly stated the same view to Congress in connection with proposed legislation about Puerto Rico. Presidential task force reports in 2005, 2007, and 2011 have likewise confirmed that Puerto Rico is not a sovereign and that it could become one only if it were to attain statehood or become an independent nation.”

The Department of Justice must approve the status options for the June plebiscite. “Commonwealth” has been repeatedly rejected on constitutional grounds by high level government authorities of both national political parties, but the confusion over “commonwealth” endures.  Current efforts by “commonwealth” proponents do not recognize a long and established history.  Perhaps one more comment from the federal government will settle the matter once and for all.