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Congressional Experts Link Independence and Free Association

Is free association a form of independence? Supporters of the free association option in recently passed federal legislation – the Puerto Rico Status Act – see a big difference. However, the Congressional Research Service (CRS), which provides unbiased, non-partisan factual background for members of Congress, sees things differently.

new report, “Statehood Process and Political Status of U.S. Territories: Brief Policy Background,” explains the position of the current freely associated states:

“The United States currently holds five major, permanently inhabited territories: American Samoa, the Commonwealth of the Northern Mariana Islands (CNMI), Guam, Puerto Rico, and the U.S. Virgin Islands (USVI). After World War II, present-day CNMI chose a closer relationship with the United States than did other areas in the former Trust Territory of the Pacific Islands (TTPI), which the United States administered for the United Nations. The United States maintains free association relationships with three other former TTPI areas. Today, these independent nations are the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau. They are not U.S. territories.”

They are not U.S. territories, but are they independent nations? According to the research arm of the U.S. Congress, clearly, they are. They do not belong to the United States.

Another new report from the CRS provides further confirmation with more detail – noting that a free association relationship between two countries is essentially a close agreement between two independent entities, as the CRS has explained:

“Both free association and independence would entail Puerto Rico becoming an independent country. The former suggests an ongoing, mutually negotiated relationship in which the United States might continue to provide some benefits or services, such as the United States today has with the Western Pacific nations of the Federated States of Micronesia (FSM), the Republic of Micronesia, and the Republic of Palau.”

Misperception and the vote

On page 14 of the recent CRS report on Puerto Rico, the authors write that “DOJ raised concerns in 2017 about the chance that voters could ‘misperceive’ the ‘free association’ option as a constitutionally impermissible form of ‘enhanced commonwealth.’”

Providing a blend of new rights for Puerto Rico under the label of an  “Enhanced Commonwealth” was viewed as a possibility by some in Puerto Rico for several decades after the passage of the 1952 Puerto Rico constitution.

The 2016 passage of PROMESA and recent Supreme Court decisions, however, have made it clear that such “enhanced” rights in Puerto Rico are impossible as a legal and practical matter.  Facing this barrier, some “enhanced commonwealth” proponents are turning to a “Free Association” relationship in an attempt to secure the same impossible mix of rights for Puerto Rico.

It is clear that this misperception is still a danger for voters, recently covered by the Puerto Rico Report.

The details

Because the independence and free association options in the recent Hoyer compromise bill would entail a new, independent Puerto Rico, the details of future relationships between the United States and Puerto Rico in those cases would be subject to future negotiation.

“Real free association is not a power-sharing relationship within a blended sphere of sovereignty and common nationality,” wrote Howard Hills at The Hill. “It’s an alliance between two separate sovereign nationalities.”

Voters will not be able to know the details of a Compact of Free Association before the proposed binding referendum in 2023. Nor will they have any assurance that such a compact would not change over time; the current freely associated states have had many changes in their compact over the years.

However, it is clear that the official position of Congress is that free association is a form of independence. An Associated Republic of Puerto Rico would not be covered by the U.S. Constitution, would not be guaranteed continued U.S. citizenship, and could not return to a position as a territory of the United States.

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