Feasibility of “Commonwealth”

THE “COMMONWEALTH” PROPOSAL IS “UNREALISTIC,”[1]  “DECEPTIVE,”[2] “UNACCEPTABLE,”[3] AND AN “UNATTAINABLE MYTH”[4]

Legislative Branch Statements

Op-Ed by Resident Commissioner Pedro Pierluisi, “Statehood Is the Only Antidote for What Ails Puerto Rico,” The New York Times, July 2015: From a constitutional perspective, Puerto Rico belongs to the United States. The federal government has almost absolute power over Puerto Rico, but has delegated to Puerto Rico about the same authority over local matters that the states possess.  Perhaps in an effort to be polite, certain commentators refer to Puerto Rico as a “commonwealth,” implying that Puerto Rico has a special status. But this word has no practical meaning, as demonstrated by the fact that several states call themselves “commonwealths.”

Statement of Hon. Pedro R. Pierluisi, Resident Commissioner to Congress, Puerto Rico, And President of the New Progressive Party Statement before the Senate Committee on Natural Resources, August 1, 2013, S. Hrg. 113-76, page 16.  Territory status should not be an option because it has failed. An enhanced Commonwealth cannot be an option because it is fiction.

Representative 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.  The Puerto Rico Democracy Act does not include the misguided “enhanced Commonwealth option.”’ An enhanced Commonwealth, as envisioned by the bill’s critics, perpetuates the false hope that Puerto Ricans can have the best of both worlds: they can have U.S. citizenship and national sovereignty; they can receive generous Federal funding and have the power to veto those laws with which it disagrees. . . .

It is no surprise that this proposal has been soundly rejected as a viable option by the U.S. Department of Justice, the State Department, the Clinton administration, and the Bush administration. It is time that the people of Puerto Rico are given real options for the future political status of their homeland and not false promises.

Resident Commissioner Luis G Fortuno (R-PR), Statement before the House Natural Resources Committee, March 22, 2007, pp. 6-7.  Governor Acevedo’s proposal for enhanced commonwealth, as included in his party’s 2004 platform, provides, among other things, number one, that Puerto Rico would be a sovereign nation but in permanent union with the U.S. as part of a covenant to which the United States will be permanently bound. Read more

Representative Jose Serrano (D-NY), Statement before the House Natural Resources Committee, March 22, 2007, p. 14.  [N]o one in Puerto Rico supports the present status.  When they say they support commonwealth, they support a new commonwealth, which I call a letter to the Three Kings or a letter to Santa Claus.  Because it says let me be a state, but let me be an independent nation; let me change, but not change. Read more

Representative Don Young (R-AK), Statement, Subcommittee on Insular Affairs Legislative Hearing, March 22, 2007, p. 55.  [M]y goal here is to really try to allow Puerto Rico to advance.  And I do not believe you can advance as a commonwealth.  I say that from my heart.  Because we [Alaska] were not able to advance as a commonwealth.  We were a territory.  And my goal is to listen to the Puerto Rican people, listen to witnesses like we have today.  But my ultimate goal is to try to give the Puerto Rican people a choice.  And my bill, H.R. 900, does give them a choice.  And if they decide to be an independent nation, God bless you. If you decide to be a state, God bless you.  If you decide to be a commonwealth, you are not going to grow.

Committee on Natural Resources Report, Puerto Rico Democracy Act of 2007 (H.R. 900), Report No. 110-597, April 22, 2008, p. 8.  In 1959, PDP [Popular Democratic Party, not affiliated with the U.S. Democratic Party] representatives began to seek national government powers, with the United States continuing to grant domestic programs and citizenship.  This effort has continued to the present day and is [a] major reason why Puerto Ricans have yet to determine their preference with respect to the Island’s ultimate political status.  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.  A bill that Puerto Rico’s representatives proposed in 1959 which incorporated the “commonwealth” theme was rejected in committee.  But, notwithstanding the failure of that bill and other “commonwealth” proposals, the PDP still contends that the full Congress has not provided a definitive response to their ideas.

Senator Mary Landrieu (D-LA), Statement before the Senate Energy Committee, November 15, 2006, p. 37.  Puerto Ricans cannot, on the one hand, keep their U.S. citizenship, income-tax-free status and access to federal funding while on the other hand be able to enter into trade agreements with foreign countries or choose which laws passed by Congress to follow.  There is no such thing as a free lunch.  Puerto Ricans should have full representation in Congress and all of the rights – and responsibilities – that such representation entails.

Senator Larry Craig (R-ID), Statement before the Senate Energy Committee, November 15, 2006, p. 12.  [I]t is the responsibility of the federal and local government to ensure that commonwealth proposals the U.S. Department of Justice has labeled “illusory” and “deceptive” are not allowed to appear on self-determination ballots. Read more

Governor Anibal Acevedo-Vila, written Responses to Questions submitted by Senator Craig (R-ID), Senate Energy Committee, November 15, 2006, pp. 49-51.

Q:  Can you identify any Member of congress or other federal official who has said that the “Development of the Commonwealth” proposal is viable? Read more

Resident Commissioner Luis G. Fortuno, Response to Written Questions Submitted by Senator Mary Landrieu (D-LA), Senate Energy Committee, November 15, 2006, p. 59The fundamental problem with the Governor’s proposal is that it would invite Puerto Rico to choose a status proposal that is incompatible with the Constitution and basic laws and policies of the United States and, thus, is not a status option. Read more

Resident Commissioner Romero-Barcelo, Testimony before the House Natural Resources Committee, October 4, 2000, p. 46.  [The reason why Enhanced Commonwealth proponents rejected our invitation to appear before the Committee] is because they realize that their proposal is indefensible.  They can only propose this new enhanced commonwealth, as they call it, publicly from a platform and speaking to their own people and do it on the radio and the television [in Puerto Rico].  But to come into a place where they are going to be asked hard questions about all of these things that they propose, they would be very, very hard – in a very difficult position to answer in a serious, logical and enlightened manner.  So that is why they shy away from coming here to testify and they refuse to confront the issue.

Rep. Kildee (D-MI), Statement before the House Natural Resources Committee, October 4, 2000, p. 29.  I think this proposal is legal fiction, at best, and a hoax, at worst.  I do not see how it can be done. Read more

Rep. Donna M. Christensen (D-VI), Testimony before the House Natural Resources Committee, October 4, 2000, p. 6.  On face value, while [the Enhanced Commonwealth proposal] looks like a bill that would define a status the majority of persons in Puerto Rico seem to support, it appears more likely instead to set up a train wreck which I think will sabotage the efforts of the people of Puerto Rico to freely and fairly determine their future status and their destiny.

Rep. Jim Saxton (R-NJ), Testimony before the House Natural Resources Committee, October 4, 2000, p. 7.  Now, it seems to me that if something looks like a duck and it acts like a duck and it talks like a duck, we all know that it is probably a duck.  But if something would look like a territory, act like a nation, and walk like a State, I think we know what it is, too.  It is unconstitutional and legislatively unattainable. Read more

Rep. Dan Burton (R-IN), Testimony before the House Natural Resources Committee, October 4, 2000, p. 9.  Maybe [Enhanced Commonwealth] is the result of pure ignorance or maybe it is the brainchild of political opportunists seeking to confuse or complicate the issue.  Regardless, it is our duty to clarify these statements that have misled millions of U.S. citizens and that have been perpetuated by the lack of Congressional action. Read more

Rep. John Doolittle (R-CA), Testimony before the House Natural Resources Committee, October 4, 2000, p. 47.  I think we close this hearing with a very solid record that [Enhanced Commonwealth] cannot be implemented as proposed by the PDP.  First, there is no political will in Congress to give a territory a status that is based on permanent disenfranchisement of U.S. citizens.  I think there is bipartisan agreement on that much.  I also do not think we want the U.S. to govern another nation within our nation or to give a territory special constitutional rights that are unfair to U.S. citizens within the States.

Senator Jeff Bingaman (D-NM), Colloquy with Puerto Rico Governor Pedro Roselló before the Senate Energy and Natural Resources Committee, May 6, 1999.  Governor, thank you very much for your very strong statement. Let me sort of give you my paraphrase of a point you’re making there.  It seems that this [Enhanced Commonwealth option] was sort of the free beer and barbecue option, where everybody got everything and there was no pain involved. Is that essentially your view of it? That’s why it was so strongly supported by people [in the 1998 plebiscite]?

Governor Rosselló: I think, Senator, you’ve put it most eloquently.

“The Results of the 1998 Puerto Rico Plebiscite,” Report by Chairman Don Young (R-CA) and Senior Democratic Member George Miller (D-CA) to Members of the Committee on Resources, November 19, 1999, Serial No. 106-A, p. 6.  [T]he Popular Democratic Party, which has been the long-standing advocate of commonwealth, did not support the Commonwealth ballot definition [on the 1998 plebiscite ballot].  Instead, the PDP officially adopted and advocated an alternative commonwealth definition that did not appear on the ballot and contained principles rejected on a bipartisan basis by the Committee on Resources during consideration of H.R. 856.

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 (oral remarks).  I was very distraught at the beginning of this process because I felt that those who support commonwealth were not able to present their definition to the Congress, to the committee.  I worked very hard so that that definition could be offered.  I offered that definition.  It was turned down overwhelming[ly] on a bipartisan basis.  It was something called “enhanced commonwealth.”  It was sort of a make-believe status of commonwealth. Read more

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 H775 (written remarks).  The definition of Commonwealth supplied by [the PDP political] party, which is similar in many respects to the definition on the ballot during the 1993 referendum in Puerto Rico, is not accurate and is not acceptable to the Congress.  It is not acceptable that Puerto Rico would be eligible for full participation in all federal programs without paying taxes; it is not acceptable that Puerto Rico would pick and choose which federal laws apply on the island; it is not acceptable that Puerto Rico would be free to make its own foreign treaties.

I appreciate that this is what the supporters of “Enhanced Commonwealth” want.  But the Congress is not prepared to give such unprecedented rights to Puerto Rico while denying them to every state in the Union.  Nevertheless, I offered [the “Enhanced Commonwealth” proposal] in the Resources Committee so that it would be clear what is and is not acceptable to the Congress.  It was overwhelmingly, and bipartisanly, defeated.  And Congress should not offer an option to the voters of Puerto Rico that we are not prepared to embrace.

Rep. Peter Deutsch (D-FL), House Floor Debate on H.R. 856, United States-Puerto Rico Political Status Act, March 4, 1998, Congressional Record, page H783.  The U.S. has a free association relationship with three Pacific island nations, and this status is very different from the free association espoused by the so-called “autonomists in Puerto Rico” – who want to be a separate sovereign nation but also keep U.S. national[ity] and citizenship.  That “have it both ways” approach to free association was attempted in the case of the Micronesian Compact of Free Association, but the State Department, Justice Department and Congress rejected that model as unconstitutional and unwise.  It was an attempt to “perfect” the legal theory of the Puerto Rican commonwealth as a form of permanent self-government, a nation-within-a-nation concept that has always failed and always will because the U.S. constitution does not allow a Quebec-like problem in our Federal system.

Rep. Patrick Kennedy (D-RI), House Floor Debate on H.R. 856, United States-Puerto Rico Political Status Act, March 4, 1998, Congressional Record, page H832.  I heard this commonwealth definition.  I said, “This commonwealth definition sounds pretty good.”  I said, “It sounds so good I want Rhode Island to have commonwealth status.”  I bet every Member in this place would like to have commonwealth status the way the commonwealth party in Puerto Rico wants it to be defined.

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.22-23 and 26.   [I]n the case of “commonwealth” it quite clearly was a conscious decision of PDP leaders to define it as they would like Congress to change and improve it, rather than it actually is at this time. Read more

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. 30-31.  On May 21, 1997, the Committee met to mark up H.R. 856. . . . Congressman George Miller (D-CA) offered an amendment substituting the `commonwealth’ definition with the `commonwealth’ definition submitted by the Puerto Rico political party advocating commonwealth. The amendment failed[.]

Representative Jose Serrano (D-NY), Statement before the House Resources Committee, March 19, 1997, pp. 79-80. I don’t have a problem with a new commonwealth.  I have a problem with a new commonwealth being presented in the ballot as the old commonwealth, because the old commonwealth is not the new commonwealth.   

Committee on Resources Oversight Plan for the 105th Congress, Adopted February 5, 1997.  Puerto Rico held a referendum in 1993 with locally defined status options in which an enhanced “commonwealth” received a plurality of 48 percent, statehood 46 percent, and independence 4 percent.  The Committee on Resources considered and overwhelmingly rejected on a bipartisan basis the enhanced “commonwealth” ballot definition as unconstitutional and fiscally and politically inviable.  [Puerto Rico’s] permanent disenfranchisement is unacceptable, and that the U.S. must define the political status options of a final relationship of dignity to both parties.

House Committee on Resources, Report on the United States-Puerto Rico Political Status Act (HR 3024), July 26, 1996, 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.

Letter from Representatives Robert Torricelli (D-NJ), Lee Hamilton (R-NY), Bill Richardson (D-NM) and Dale Kildee (D-MI) to Senator Charlie Rodriquez, Majority Leader, Puerto Rico Senate, June 28, 1996.  We believe that the definition of Commonwealth on the 1993 plebiscite ballot was difficult given Constitutional, and current fiscal and political limitations.  Through numerous Supreme Court and other Federal Court decisions, it is clear that Puerto Rico remains an unincorporated territory and is subject to the authority of Congress under the territorial clause.  [One] aspect of this definition called for the granting of additional tax breaks to [certain] companies and an increase in federal benefits in order to achieve parity with all the states without having to pay federal taxes.  It is important that any judgment on the future of Puerto Rico be based on sound options that reflect the current budgetary context in the United States.

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.  Congress may consider proposals regarding changes in the current local government structure, including those set forth in the [Enhanced Commonwealth definition] on the 1993 plebiscite ballot.  However, in our view serious consideration of proposals for equal treatment for residents of Puerto Rico under Federal programs will not be provided unless there is an end to certain exemptions from federal tax laws and other non-taxation in Puerto Rico, so that individuals and corporations in Puerto Rico have the same responsibilities and obligations in this regard as the states.  Since the “commonwealth” option on the 1993 plebiscite ballot called for “fiscal autonomy,” which is understood to mean, among other things, continuation of the current exemptions from federal taxation for the territory, this constituted another major political, legal and economic obstacle to implementing the changes in Federal law and policy required to fulfill the terms of [Enhanced Commonwealth].

Sen. Paul Simon (D-IL), Senate Floor Statement upon the Introduction of S. Con. Res. 75, Relating to the Commonwealth Option in Puerto Rico, September 30, 1994.  In the interests of comity, the Legislative Assembly of Puerto Rico permitted each of the three political parties represented in the plebiscite–the Statehood Party, the Commonwealth Party, and the Independence Party–to draw up its own definition of its status option for inclusion on the plebiscite ballot. This attempt to be fair, however, led to the formulation and appearance of completely unrealistic status options on the November 14 ballot. Read more

Rep. Don Young (R-AK), House Floor Statement upon the Introduction of H. Con. Res. 300, Expressing the Sense of Congress Regarding the Commonwealth Option Presented in the Puerto Rican Plebiscite, Friday, Sept. 30, 1994.  [On the November 14, 1993 plebiscite ballot], [t]he people were presented a mythical commonwealth option which proposed significant changes to the current relationship between Puerto Rico and the United States Read more

Rep. Don Young (R-AK), Statement in the Congressional Record, November 10, 1993.  It is ridiculous to suggest that the United States would ever agree to a commonwealth with permanent union between Puerto Rico and the United States.  Only by being incorporated into the body politic of the United States can Puerto Rico be considered to be in permanent union.  We are a democracy united by a Constitution which extends equal protection, rights, and privileges to all.  The United States will not set aside over two centuries of reliance upon this near-sacred document to be “bound by a bilateral pact that could not be altered, except by mutual consent.”  Even the North America Free Trade Agreement (NAFTA) allows a member to end the agreement with a 6-month notice.

Legislative Branch Resources

Congressional Research Service (CRS), Political Status of Puerto Rico:  Options for Congress, Report Number RL32933, May 29, 2008, p. 25.  Some support an enhanced or “new” commonwealth status and seek changes in the current relationship to increase the autonomy of Puerto Rico.  Aspects of enhanced commonwealth considered by rejected by congress in 1991 and 2001 included providing the government of Puerto Rico authority to certify that certain federal laws would not be applicable  to the commonwealth, mandating that the President consult with the governor on appointments to federal offices in Puerto Rico that require Senate approval, recognizing a permanent relationship between Puerto Rico and the United States that cannot be unilaterally changed, and establishing economic relationships with other nations.


Executive Branch Statements

Report by the President’s Task Force on Puerto Rico’s Status, December, 2007, page 6-7.  The 2005 Task Force Report also explained why existing constitutional principles foreclose the so-called “new commonwealth” status, which would purport to adopt a covenant between Puerto Rico and the United States that could not be altered without the “mutual consent” of both entities.  Although the executive Branch had once taken a different view, the Task Force endorsed the constitutional understanding that the executive Branch has maintained across administrations since 1991… 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.

Report by the President’s Task Force on Puerto Rico’s Status, December, 2011, page 25.  The use of terms like “status quo” and “enhanced Commonwealth” do not provide a complete picture for the people of Puerto Rico.  Some have commented that the notion of “status quo” suggests that the laws affecting Puerto Rico cannot or will not be changed.  But that is not the case; indeed, Congress enacts laws every year that have profound effects throughout the country, including on the Island.

Jeffrey L. Farrow, Co-Chair of President Clinton’s Interagency Group on Puerto Rico, Testimony before the House Natural Resources Committee, October 4, 2000, p. 15-16. The proposal includes a combination of aspects of different statuses.  Many people may find the combination attractive.  As stated, though, the combination is an incompatible mixture of benefits of national sovereignty and benefits of a U.S. status.  Many of the individual elements would be appropriate under one status or another, but others are impossible or unacceptable. Read more

Robert Dalton, Assistant Legal Advisor for Treaty Affairs, U.S. Department of State, Testimony before the House Natural Resources Committee, October 4, 2000, pp. 19-21.  [The Enhanced Commonwealth proposal] would purport to make the Commonwealth a nation legally and constitutionally and provide it with many trappings of a sovereign nation.  Yet at the same time, the legislation would retain or create links to the United States that are inconsistent with sovereignty as that term is understood in international law.  It is this hybrid nature of the arrangement contemplated in the legislation that renders it untenable as a functional matter. Read more

Mary V. Mochary, Department of State Principal Deputy Legal Adviser, Testimony before the Committee on Energy and Natural Resources, July 11, 1989, pp. 153-155.  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. Read more

Edward S.G. Dennis, Acting Deputy Attorney General, Department of Justice, Testimony before the Senate Energy Committee, July 11, 1989, p. 18.   So long as Puerto Rico remains under the sovereignty of the United States, it is essential that this fact be made clear beyond peradventure.  Any statements that the island is autonomous . . . must make clear that this autonomy is limited to internal affairs, and that as a commonwealth Puerto Rico remains under the sovereignty of the United States. Read more

James W. Brennan, Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration, Department of Commerce, Testimony before the Committee on Energy and Natural Resources, July 13, 1989, pp 320-321, 323.  Enhanced Commonwealth includes several provisions which give us great concern[.]  The Commonwealth, for example, [could] impose fees and restrictions on U.S. vessels….[Another] provision raises questions about the application of the Marine Mammal Protection Act of 1972 and the Endangered Species Act, and all of the other environmental and marine resource programs for which we are responsible, and which provide vital protection to important resources.

Brigadier General M. J. Byron, Acting Deputy Assistant Secretary of Defense (Inter-American Affairs), Department of Defense, Testimony before the Committee on Energy and Natural Resources, July 11, 1989, pp. 141-42.  Under the Enhanced Commonwealth option, the Governor of Puerto Rico may take any official action to promote the international interest of Puerto Rico that is not prohibited by law; however, the President may determine within 30 days that such action would imperil U.S. foreign relations or national defense, in which case the governor’s authority for that action would be withdrawn.  This procedural requirement for a presidential determination is unduly cumbersome, and could cause serious delay under critical circumstances.  This provision could also be politically costly since it could put the U.S. and Puerto Rican governments at odds with each other.  The exemption from any future military draft is inconsistent with U.S. responsibility for national defense.  Additionally, Puerto Rico would immediately acquire title to all lands ceded by Spain to the U.S. by the 1898 Treaty of Peace.  This would require us to relinquish several smaller properties.

Kenneth W. Gideon, Assistant Secretary, Department of the Treasury, Testimony before the Energy and Natural Resources Committee, July 13, 1989, p. 222.  [Enhanced Commonwealth] would provide that the Commonwealth of Puerto Rico may “continue” to enter in its own right into international cultural, commercial, educational, and sports agreements, and other agreements of like nature. In addition, the same amendment would authorize the Governor of Puerto Rico to take “any official action” to promote the international interests of Puerto Rico that requires the consent of the United States Government and is not expressly prohibited by law.  The amendment appears to contemplate that U.S. consent would be implicit unless the President objected to the action on foreign relations or national defense grounds, after being notified of the proposed action by the Governor.  Currently, Puerto Rico does not have the authority to negotiate or enter into international double taxation or similar agreements in its own right, and it is unclear how the [Enhanced Commonwealth proposal] would affect that issue.  It is certain, however, that the grant of independent tax treaty authority to Puerto Rico would significantly complicate the negotiations of United States treaties and quite possibly undermine several existing conventions.

 

Bipartisan Executive Branch Position on “Mutual Consent”

Teresa Wynn Roseborough, Deputy Assistant Attorney General, Office of Legal Counsel, Administration of President William Jefferson 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), pp. 1, 10.  The Guam commonwealth Bill, H.R. 1521, 103d Cong., 1st Sess. (1993) contains two sections requiring the mutual consent of the Government of the United States and the Government of Guam.  Section 103 provides that the Commonwealth Act could be amended only with mutual consent of the two governments.  Section 202 provides that no Federal laws, rules, and regulations passed after the enactment of the Commonwealth Act would apply to Guam without the mutual consent of the two governments. . . . Our conclusion is that these clauses raise serious constitutional issues and are legally unenforceable.

Congress thus retains the power to amend the Guam Commonwealth Act unilaterally or to provide that its legislation shall apply to Guam without the consent of the government of the Commonwealth.  The inclusion of such provisions, therefore, in the Commonwealth Act would be misleading.  Honest and fair dealing forbid the inclusion of such illusory and deceptive provisions in the Guam Commonwealth Act.

 

Judicial Branch Statements

Levin H. Campbell, Chief Judge, U.S. Court of Appeals for the First Circuit, Boston, MA, Testimony before the Senate Energy Committee, July 11, 1989,  pp. 75-76.  All my fellow judges and I regretfully but unanimously believe the present [Commonwealth] proposal [providing that all the proceedings in the federal court to be conducted in Spanish upon the request of any one party to a lawsuit]  would cause enormous problems of implementation.  We are joined in this position by all seven of the Federal District Judges now sitting in Puerto Rico; all of whom, of course, are themselves native Spanish speakers, but who do not believe that Spanish should be an option, as well as English, in the District Court proceedings.

Our position here is merely that in the very small seven-judge, Article III, United States District Court for Puerto Rico, the language spoken should remain the same as that used throughout the federal judicial system, and throughout our entire Federal Government.

To introduce another language will greatly slow down, and may cripple, the ability of the Federal Courts of Appeal to review the decisions of the Puerto Rico District  Court.  Additionally, the proposal threatens to isolate the Puerto Rico Federal Court and its bar from all other Federal courts.

U.S. District Court for the District of Puerto Rico, Resolution, In the matter of:  Requiring the United States District Court for the District of Puerto Rico to Conduct Judicial Proceedings in the Spanish Language, Signed by Juan M. Perez Gimenez, Chief, U.S. District Judge, Judge Gilberto Gierbolini, Judge Raymond L. Acosta, Judge Carmen Consuelo Cerezo, Judge Hector M. Laffitte, Judge Jaime Pieras, Jr., Judge Jose A. Fusté, June 30, 1989.  Whereas:  It is our strong belief that the introduction of a Spanish language option in the federal district court in Puerto Rico will cause the court to become an isolated entity in an otherwise unified federal system in that it would (1) limit the ability of non-Spanish speaking members of the federal bar in Puerto Rico and elsewhere from practicing in the District Court of Puerto Rico, (2) encourage the appearance at the federal bar of attorneys whose English is inadequate for responsible federal practice, and (3) cause a diminution in the quality of justice and the access to justice available to the people of Puerto Rico[.]

 

Puerto Rican Officials and Representatives

Ruben Berrios Martinez, Testimony before the Senate Committee on Natural Resources, August 1, 2013, S. Hrg. 113-76, page 30.  [N]obody knows what enhanced Commonwealth means.  They’ve been trying to define it for half a century.  Nobody knows.

This is just political hocus pocus, political bull, to put it in plain English.

Luis E. Gonzalez Vales, Official Historian of Puerto Rico, Testimony before the House Subcommittee on Insular Affairs, March 22, 2007.  Puerto Rican proposals for a “Commonwealth” status have been rejected by the U.S. Government repeatedly since soon after the local constitution was adopted in 1952.  Past proposals were made in: legislation in the 1950’s; negotiations between Gov. Munoz and the Kennedy White House; legislation in the 1960’s; legislation in the 1970’s based upon the results of a referendum in 1967 that result[ed] in a majority for a “Commonwealth” with some national government power with continued U.S. jurisdiction benefits; legislation between 1989 and ’91; a referendum in 1993 that resulted in a plurality – not a majority – for a “Commonwealth” immune from federal tax and other laws and for restoration of tax exemptions for the Puerto Rico income of companies based in the States that had just been cut by the President and Congress, trade protection for Puerto Rican products that contradicted NAFTA and GATT, and $1.5 billion a year in additional social programs funding; legislation that passed the U.S. House in 1998; and unsuccessfully arguing before the federal court that the definition of the current status on a 1998 referendum ballot was erroneous.

Veronica Ferraiuoli, Federal Bar Association, Puerto Rico Chapter, Testimony before the House Subcommittee on Insular Affairs, March 22, 2007[I]n the 1998 plebiscite on status, the Popular Democratic Party proposed a new Commonwealth providing that, while Puerto Ricans will continue to be citizens of the United States by birth, the federal court’s jurisdiction will be limited to matters arising from the United States Constitution and whichever federal laws apply in Puerto Rico and not in violation with the laws of the Commonwealth of Puerto Rico.  It would appear that – under this proposal – the federal court in Puerto Rico would be divested of diversity jurisdiction.  In addition, it appears that – under this proposal – the federal court would lack jurisdiction over statutory challenges to Commonwealth law, such as actions under the 1964 Civil Rights Act.  Further, under this proposal, any laws that the Commonwealth might enact in the future would strip the federal court of its jurisdiction under the constitution and federal laws of the United States.

We cannot support a [proposal] which . . . fails to guarantee the continued existence of a federal court system in Puerto Rico with jurisdiction consistent with that of all States so long as Puerto Ricans continue to be United States citizens.

Jose Luis Fernandez, President, Inter-American Entrepreneurs Association, Testimony before the House Subcommittee on Insular Affairs, March 22, 2007.  It would be counter productive – and irresponsible – for Congress to invite Puerto Rico to propose a non-territory “Commonwealth status” when it knows that the intent of the proponents for such a status is a proposal that Congress would not – and cannot – implement.

Governor Pedro Rosselló, Testimony before the Senate Committee on Energy and Natural Resources, May 6, 1999.  [M]y administration made a point of inviting Puerto Rico’s three political parties to define for themselves the political status option that they would endorse in our 1993 plebiscite.

Regrettably, that good faith gesture resulted in inclusion on the ballot of a Commonwealth definition that was utterly unrealistic. And when I say utterly unrealistic, I do so in the context of parameters that this very committee clearly stipulated during its extensive examination of the subject from 1989 through 1991.

Undaunted by that congressional record, the proponents of commonwealth, the Popular Democratic Party, campaigned in 1993 on behalf of a definition which they literally proclaimed was the best of two worlds solution to the status dilemma, a solution that would have imbued Puerto Rico with many of the benefits of U.S. statehood and many of the prerogatives of independence, while exempting Puerto Rico from most of the responsibilities inherent in both of these options.

The 1993 commonwealth ballot definition, in other words, amounted to a wish list. It was both politically unattainable and constitutionally inadmissible. So it is that the 1993 plebiscite failed in its objective. Although commonwealth ostensibly won that plebiscite, polling 48.6 percent of the vote, slightly ahead of U.S. statehood at 46.3 percent, it is worth noting that nobody from the Popular Democratic Party had the audacity to come up here to the Nation’s capital afterwards and argue for congressional enactment of that Party’s best of two worlds platform.

 

International Organizations

 

United National General Assembly, Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, as approved on June 18, 2013, page 4.  Following this result [of the 1993 plebiscite], and a request for clarification of by the Legislative Assembly of Puerto Rico, Congress replied that the definition (of “Commonwealth”) contained expectations that were not viable.

The Guam Precedent

Administration Shelves Plan To Give Guam More Autonomy,” The Washington Post, p. A4, March 7, 1997The White House said yesterday that an administration proposal to grant the territory of Guam broad new autonomy was shelved following vigorous internal opposition, disputing reports that campaign money from the island apparently had swayed government policy.  Officials said the plan to allow the island more authority over immigration, taxes, trade, labor laws and federal land was deemed unacceptable during internal discussions and not endorsed by President Clinton.  Instead, officials have been assigned to rework it and develop a more limited, and therefore more politically salable, plan to present to the president.

In late January, officials from across the administration called the plan problematic; criticism came from the Justice, State, Defense and Treasury departments.  Among other things, officials worried that such a change in Guam’s status would set an unwelcome precedent in dealing with Puerto Rico.

William Jefferson Clinton, Letter of response to Chairman Don Young (R-AK), Committee on Resources, January 21, 1997.  I read your letter regarding Guam’s commonwealth status with great interest, and I share many of the positions you expressed in your well-reasoned analysis.

I am aware of Guam’s aspirations for self-government.  At the same time, we must satisfy federal concerns at the policy, legislative and constitutional levels.

Chairman Don Young (R-AK) letter to President William Jefferson Clinton, December 11, 1996For most of the last decade Congress and the Executive Branch have passed the buck back-and-forth without responding to Guam’s proposal for a “Commonwealth of Guam” in a manner that suggests a legally sound, politically feasible and intellectually honest alternative approach to achieving local self-government and defining options for resolving the status question.  At this stage in the process, the only thing worse than further dithering would be to make commitments on behalf of the Federal government that can’t be kept.

Since the [Guam Commonwealth Act (GCA)] would be a Federal statute, a future Congress can not be bound to a political status relationship with an unincorporated territory as contemplated by the GCA.  The “solution” apparently arrived at in the Guam discussions is to create ambiguity about the nature of the mutual consent clause.  Thus, instead of an enforceable right of consent, Guam reportedly is prepared to accept a provision which admits of unenforceability.  This may have some symbolic political value, but in the end it only underscored the disenfranchisement and lack of equal participation or real consent in the Federal political process for U.S. citizens in an unincorporated territory such as Guam.

An agreement that will unravel as soon as the ink dries, or another proposal that simply gathers dust, has no real value for the U.S. or Guam.  Those of us elected to get results for the people we sere need to take responsibility for doing more than “coming to closure” with Guam in form but not substance.  If we believe we can pretend to have a real agreementand then walk away or wash our hands of it, we are really just setting up the people of Guam for another episode of disappointment.

We may have disagreement on some issues, but the Federal government must never risk making a mockery of the decolonization process.  We would do just that by attempting to make less-than-equal citizenship and permanent disenfranchisement seem more tolerable through the legal and political fiction of “mutual consent.”

 [See also, Tab 37 of this document entitled “Bipartisan Executive Branch Position on “Mutual Consent’,Teresa Wynn Roseborough, Deputy Assistant Attorney General, Office of Legal Counsel, Administration of President William Jefferson 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), pp. 1, 10.]

 


[1] Representative Jose Serrano (D-NY), Statement before the House Natural Resources Committee, March 22, 2007; Puerto Rico Governor Pedro Rosselló, Testimony before the Senate Committee on Energy and Natural Resources, May 6, 1999; Sen. Paul Simon (D-IL), Senate Floor Statement upon the Introduction of S. Con. Res. 75, Relating to the Commonwealth Option in Puerto Rico, September 30, 1994; Rep. Don Young (R-AK), House Floor Statement upon the Introduction of H. Con. Res. 300, Expressing the Sense of Congress Regarding the Commonwealth Option Presented in the Puerto Rican Plebiscite, Friday, September 30, 1994; Edward S.G. Dennis, Acting Deputy Attorney General for President George H.W. Bush, Statement before the Senate Energy Committee, July 11, 1989.

[2] Teresa Wynn Roseborough, Deputy Assistant Attorney General, Office of Legal Counsel, Administration of President William Jefferson 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 report (Appendix F) and 2007 report (Appendix F), p. 10.

[3] Jeffrey L. Farrow, Co-Chair of President Clinton’s Interagency Group on Puerto Rico, Testimony before the House Natural Resources Committee, October 4, 2000, p. 15-16;Rep. George Miller (D-CA), House Floor Debate on H.R. 856, United States-Puerto Rico Political Status Act, March 4, 1998, Congressional Record, pages H774-75; 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.

[4] Committee on Resources Report on the United States-Puerto Rico Political Status Act (HR 856), June 12, 1997, Report Number 105-131, Part 1, p. 26.

Memo from Colin Powell

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