Puerto Rico’s new “commonwealth” party Governor, Alejandro Garcia Padilla, is suggesting that he will insist on impossible terms for the plebiscite to resolve the territory’s future political status proposed by President Obama at the same time that he is seeming to embrace the proposal.
Garcia Padilla said yesterday that he “will work to get Congress to approve” the proposal and judged that it “is fair, unlike” the plebiscite conducted last November under a statehood party governor and legislative majority. He argued that status vote was unfair because the ballot described Puerto Rico’s current status as “territorial.”
But the U.S. Supreme Court as well as all other Federal authorities — including President Obama’s Task Force on Puerto Rico’s Status — have determined that Puerto Rico is subject to U.S. Constitution’s Territory Clause. It gives the U.S. Congress the power to govern territories in all matters other than the fundamental rights of individuals (such as freedom of speech).
The Obama Administration, like the past few presidential administrations, has explained that the Constitution would keep Puerto Rico subject to Territory Clause authority under any “commonwealth” arrangement unless the arrangement made Puerto Rico a State or a nation.
So, Garcia will actually have the same objection to a plebiscite under the President’s proposal that he did to the plebiscite held under a statehood party-dominated government.
The President’s Fiscal Year 2014 Budget submission for the Justice Department included legislation providing for a plebiscite in Puerto Rico on options that could include all of those possible. (These are, in addition to continuing the islands’ current territory status, popularly called “commonwealth” and statehood, independence and nationhood in a free – voluntary — association with the United States.) Which of the options would be included would be up to Puerto Rico’s Elections Commission, which has representation from all of the territory’s status-based political parties.
The “commonwealth” party that narrowly won control of the insular government last November, however, wants an unprecedented governing arrangement under which Puerto Rico would have none of these statuses but aspects of all of them.
The initial reaction from the Governor’s Federal Affairs Administration Director, Juan Hernandez Mayoral, was angry.
No happier was Senate President Eduardo Bhatia. He said that a plebiscite without the results being “self-executing” would be “futile.” Self-executing means that whatever option wins a plebiscite would be automatically implemented without congressional action. It is a political impossibility proposed by ‘commonwealthers’ to avoid a Federal-authorized plebiscite because they fear it would be won by statehood.
Recognizing that these reactions publicly suggested that the President had rebuffed the “commonwealth” party’s signature proposal, Garcia’s more politically astute Secretary of Public Affairs, Jorge Colberg Toro, stretched to align the Obama legislation with Garcia’s rejection of the status plebiscite that Puerto Rico held under local law last Election Day. Fifty-four percent of the vote rejected the islands’ current status and statehood won among all of the alternatives to it by more than 61%.
Colberg said that the Obama legislation meant that the White House had rejected the plebiscite, which was designed by statehood party officials in agreement with the Independence Party and was also supported by advocates of free association. Garcia initially took the same tack, welcoming and praising the President’s proposal.
Contrary to the assertions by Colberg and Garcia, however, the White House had congratulated Puerto Ricans on the plebiscite and recognized that it rejected the islands’ current status and chose statehood among the possible alternatives.
Additionally, the Obama Administration proposed another plebiscite in large measure because it recognized that the opposition of a ‘commonwealth’ party-dominated Government of Puerto Rico to the plebiscite’s petition for a beginning of a transition to statehood would doom positive action on the petition in Congress.
Two days after ‘welcoming’ the President’s proposal, however, the Governor tried to add ‘poison pills’ to prevent it from coming to fruition. One was that the “commonwealth” option for the Federal plebiscite should be for an “improved commonwealth.”
He contended that this would give Puerto Rico the “maximum autonomy that is possible within the current relationship with the United States,” suggesting that it would be greater than the authority that the insular government already exercises. In fact, under Federal law, Puerto Rico’s government exercises authority similar to that which States have; proposals for Puerto Rico to exercise greater authority have been consistently rejected by the Federal government; and the Federal government could withdraw any authority it let Puerto Rico exercise.
The Governor also explained that a possible “commonwealth’ option objective would be to have Puerto Rico exempted from the laws requiring the use of U.S. built, owned, registered, and crewed vessels for ocean cargo shipping between U.S. ports. There is no prospect of such an exemption or a legal bar to exempting a State.
Garcia further said he would insist that the plebiscite be accompanied by a release from Federal prison of individuals convicted of crimes committed in the name of Puerto Rican independence — another unreal condition on the plebiscite.
An additional complication that the Governor said he was contemplating would enable citizens of the States and the District of Columbia of Puerto Rican origin to vote in the Federal plebiscite.
Yesterday, Garcia slightly expanded on the autonomy that he said a “commonwealth” option in a Federal plebiscite would include. Without being specific, he said that it would include elements of the “commonwealth” advocated by his party.
These elements include permanently empowering Puerto Rico to nullify the application of Federal laws and court jurisdiction and to enter into international agreements and organizations limited to sovereign nations. Such a permanent arrangement would conflict with Federal authority over Puerto Rico under the Territory Clause, according to the Obama and predecessor administrations. Federal administrations have also cited other constitutional and policy problems with the proposal.
It is because of the “commonwealth” party proposal that the U.S. attorney general would have the final say over plebiscite options and explanatory materials.