Puerto Rico Governor Alejandro Garcia Padilla Sunday expanded just a little on his personal vision of a “Commonwealth status” for the territory.
His major proposal was the one that he cited during the August 1 hearing on Puerto Rico’s status plebiscite last November by the U.S. Senate committee with jurisdiction over the status of territories.
One of Garcia’s main arguments in support of his contention that the plebiscite was unfair was that it did not include the “Commonwealth” that his “Commonwealth” party wants.
The plebiscite rejected Puerto Rico’s current territory status, sometimes also misleadingly called “Commonwealth,” by 54% and chose statehood among the possible alternatives by 61.2%.
During the Senate hearing, Garcia failed to answer repeated questions from Energy and Natural Committee members as to what the “Commonwealth status” he wants would entail — even to identify a single provision.
But when Senator Martin Heinrich (D-New Mexico) asked whether the new governing arrangement would empower Puerto Rico to determine the application of Federal laws to the islands, Garcia said that it would not.
Garcia then went on, however, to contradict himself by saying that the application of Federal laws would require the mutual agreement of the Federal and insular governments. If the Commonwealth government would have to agree to the application of Federal laws, it would, of course, empower that government to determine whether the laws would apply.
Garcia also said that the “Commonwealth status” would exempt ports in Puerto Rico from the Federal laws requiring that ocean freight shipping between U.S. ports be on ships that are U.S. built, owned, flagged, and crewed.
A decision by the Federal government to exempt a jurisdiction from a particular Federal law would not define a political status. Instead, it is the political power of a jurisdiction and who determines its relationship to another jurisdiction that defines statuses.
Also, the U.S. Constitution requires that revenue laws apply equally to all States but permits different treatment under other laws. So, Puerto Rico could be exempted from the shipping laws under statehood.
In fact, it might be more likely to be exempted if it had two senators, five voting representatives in the U.S. House of Representatives, and seven Electoral Votes in the election of the president and the vice-president of the United States: more political power than many existing States.
There seems to be no prospect of the flat exemption from the shipping laws Garcia wants under Puerto Rico’s current territory status. Leading members of Congress on the issue have agreed with U.S. ship builders, owners, and worker unions that the laws should apply to Puerto Rico.
And, as President Obama’s Task Force on Puerto Rico’s Status reported in 2011, Puerto Rico would remain subject to the broad powers of Congress to govern territories under any “Commonwealth” arrangement. Territories cannot have votes in the Federal government. So, Puerto Rico cannot have substantial power as a “Commonwealth” to get exempted from the shipping laws.
As a territory, it can only have its sole representative to the Federal government, who has a seat in the U.S. House with only a vote in committees on which he or she serves, to propose an exemption. In fact, Resident Commissioner and statehood party president Pedro Pierluisi has proposed a limited exemption for Puerto Rico from the laws.
Further, because Congress would have Territory Clause power over Puerto Rico under any “Commonwealth”, even if the Federal government exempted Puerto Rico from the shipping laws at one point, it could unilaterally reapply the laws at another.
It is, additionally, not clear that Puerto Rico would benefit from an exemption. That was the finding of the most comprehensive, authoritative, and independent study of the question, released by the U.S. Government Accountability Office this year.
The third definition of a new “Commonwealth status” that Garcia gave Sunday was that the Spanish language would be used in Puerto Rico. Spanish is the predominant language in Puerto Rico but both English and Spanish are its official languages.
In a 1991 referendum, Puerto Ricans rejected a “Commonwealth” party-proposed amendment to the territory’s constitution that sought to limit Puerto Rico’s status options to those under which Spanish would be the official language by 53% of the vote. The amendment was seen as an effort to rule out statehood as an option for the territory.
In fact, both a Republican majority U.S. House of Representatives in 1998 and a Democratic majority House in 2010 defeated amendments to require the exclusive use of English by the government of a State of Puerto Rico.
The “Commonwealth” party’s proposal for a “Commonwealth status” (which it calls the “Development of the Commonwealth,” suggesting a “Commonwealth status” now) would permanently bind the U.S. to Puerto Rico and to an arrangement under which —
- Puerto Rico would have the power to nullify the application to the islands of Federal laws in most areas.
- The Commonwealth government would have the power to limit the jurisdiction of the Federal courts in Puerto Rico.
- The Commonwealth government would have the power to enter into international agreements and organizations except to the extent that U.S. security would be compromised.
- The U.S. would have to grant the Commonwealth government an additional subsidy.
- The U.S. would have to continue granting all current assistance and U.S. citizenship to Puerto Ricans.
- The U.S. would have to continue granting free access to any goods shipped from Puerto Rico, although the Commonwealth government could allow goods into Puerto Rico that the U.S. would not otherwise let into the States.
- The U.S. would have to give all Federal land not needed for its security to the Commonwealth.
The “Commonwealth” party adopted this proposal in 1998, has embraced it several times since, and has not changed it.
The Obama, George W. Bush, and Clinton Administrations have said that the proposal is impossible for constitutional and other reasons. The leaders of both parties of the committees of both houses of Congress with jurisdiction over the status of territories have said the same. So has the American Law Division of the non-partisan Congressional Research Service.