In debates over possible changes to the relationship between Puerto Rico and the United States, one issue always seems to rise to the top: the fate of U.S. citizenship.
People in Puerto Rico are U.S. citizens by birth and travel freely to and from the mainland – no passport required.
Puerto Ricans value U.S. citizenship. They want to keep it. Polls show that over 90% of the people of Puerto Rico deem U.S. citizenship to be important. They don’t want their citizenship to be taken away, for themselves or future generations.
Puerto Rico is not one of the 50 states, nor is it a country with its own laws. Under U.S. law, Puerto Rico is a territory. It is also a colony with expansive – but not complete – local authority.
There is increased recognition that for Puerto Rico to end its current territorial status, there are two directions it can take: get full rights and responsibilities as a state, or sever current U.S. ties and become a foreign country.
If Puerto Rico were to become a state, its residents would have Constitutionally-protected U.S. citizenship by birth. The law is clear on this point. There are, after all, 50 precedents.
If Puerto Rico were to become a foreign country, the fate of U.S. citizenship is questionable at best. No residents of former U.S. territories that became foreign countries were granted U.S. citizenship. The only situation close to precedent is the Philippines, whose residents lost their status as U.S. nationals upon independence. Even Filipinos who lived in the U.S. suddenly became undocumented aliens.
Of course there are individual laws that secure U.S. citizenship by birth when U.S. citizens live overseas, but this one-off situation has never applied to an entire new nation of three million people. To the contrary, the U.S. State Department has called U.S. citizenship for an entire new Republic of Puerto Rico “wholly incompatible with the notion of sovereignty.”
The analysis over the fate of U.S. citizenship in a new nation of Puerto Rico boils down to three considerations: (1) what the U.S. constitution says, (2) what U.S. laws say, and (3) what U.S. policy says.
If the Constitution renders impossible continued U.S. citizenship for the three million people of Puerto Rico, the analysis ends there. If the U.S. Constitution cannot guarantee U.S. citizenship for the Republic of Puerto Rico’s residents and ex-pats, there’s not much more to say about it.
So let’s start our analysis.
Our nation’s top attorneys have confirmed repeatedly that U.S. citizenship is guaranteed under statehood, under the 14th Amendment to the Constitution. The follow up question is: can U.S. citizenship ever be guaranteed in a foreign country? Former U.S. Attorney General Richard Thornburgh was among the first to say no. As he explained in 2000, “statutory guarantee of U.S. citizenship in the future without Statehood” would be “constitutionally unavailable,” and efforts to achieve such an arrangement “would frankly be a waste of time for Puerto Rico and for the Congress.”
Legal Experts Today Confirm: Only Statehood Guarantees U.S. Citizenship
More than 20 years later, in 2021, a collection of letters from constitutional scholars once again considered the possibility of citizenship in a Republic of Puerto Rico and came to the same conclusion as former Attorney General Thornburgh.
The first letter in the collection, posted on the Columbia Law School website and signed by 47 experts on the faculty at other institutions including Harvard, Yale, and Cornell, states the situation succinctly: “Despite longstanding political division within Puerto Rico, Puerto Ricans have long shared an overwhelming consensus on two key points: They reject territorial status and they wish to remain U.S. citizens. But while both statehood and independence would fulfill the goal of self-determination, only one of those options would guarantee U.S. citizenship: statehood.”
A response to this letter, from a dozen faculty members at law schools in Puerto Rico, admits that “[h]ow to reconcile that separate identity with the desire to keep US citizenship has been a legal and historical conundrum.” Rejecting the first letter’s claim that only statehood and independence are possible non-territorial status options, this letter endorses a third option: “what may be loosely called the status of free association,” which the authors state “would require a freely agreed covenant between a sovereign Puerto Rico and the United States regarding whatever aspects of the relationship the two entities deem appropriate to submit to mutual agreement, including such things as citizenship[.]”
Responding to the critics
Christina D. Ponsa-Kraus of Columbia Law School, one of the signatories on the original letter, responded to the letter from her fellow law professors in her native Puerto Rico. “To be clear,” she wrote, “our letter states that as between statehood and independence, only statehood guarantees citizenship. This is a correct statement of basic constitutional law.”
“The United States has three compacts of Free Association: with the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau. Each of these is an independent country with a compact of free association with the United States,” she continues in a footnote referring to a thread in an online legal discussion. “None of these compacts provides for birthright U.S. citizenship. Free association does not guarantee permanent union or birthright U.S. citizenship prospectively.”
She goes on to explain why free association does not guarantee citizenship. “It does not guarantee permanent union because the parties to a compact of free association are independent sovereigns who retain the power to withdraw from the relationship,” she writes. “It does not guarantee birthright citizenship prospectively because even if the United States were to agree to grant it (which is unlikely, though theoretically possible), the United States would always have the power to stop granting it. In short, although free association status has been described as a ‘third’ option, it is nevertheless a version of independence.”
In other words, as Professor Ponsa-Kraus subsequently tweeted, “free association with the United States does not and cannot include a prospective guarantee of US citizenship.”