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Is an Unconstitutional Choice Still a Choice?

As a U.S. territory, Puerto Rico has no senators, just one non-voting member of Congress (instead of the four voting members it would have as a state), and no representation in the electoral college. With no say in presidential elections, no voice in the Senate, and limited participation in the House, Puerto Rico is treated unequally in federal programs.  Decisions that impact Puerto Rico are not made by people who live in Puerto Rico.

For more than a century, Puerto Rico has had this political status. While most territories in the past have been understood to be on their way to statehood, the Insular Cases of the early 20th century determined that Puerto Rico and its fellow island territories could remain as territories indefinitely. Congress can resolve the political status of Puerto Rico at any time but has not yet taken action.

At present, there are two Puerto Rico status bills in Congress. The first is HR 1522, the Puerto Rico Statehood Admissions Bill. This bill recognizes the three status votes of the 20th century, in each of which a majority voted for statehood. The other is HR 2070, a bill calling for a constitutional convention and another status vote.

The appeal of HR 2070

HR 2070 was presented as a “self-determination” bill, one which would allow the people of Puerto Rico to make their own decision about their political status.

However, HR 2070 does not respect the votes already completed in Puerto Rico. It does not even mention them.  The bill does not allow the voters of Puerto Rico to vote directly for their preferred political status. Instead, it calls for the election of delegates, at least one for each status option (apparently this is required whether all these representatives get the votes or not). These delegates will come up with a slate of status options from which the voters will choose.

Asked by Raul Grijalva (D-AZ), chair of the House Natural Resources Committee, the Department of Justice reiterated that Puerto Rico only has three status options under the U.S. Constitution, one of which is continuing as a territory. HR 2070 explicitly rejects this possibility.

“As has been the Department’s consistent view since 1991, we continue to believe that the Constitution limits Puerto Rico to three constitutional choices: the current territorial status, statehood, or independence,” the analysis states. .”In other words, there is no constitutionally permissible status ‘outside of the Territorial Clause’ other than statehood or independence (including free-association agreements).”

However, HR 2070 holds out hope for an “enhanced commonwealth” option by promoting the exploration into a comprehensive list of options for Puerto Rico’s political status.

Velazquez, when it was pointed out during a Congressional hearing that such a plan would be unconstitutional, insisted that “We hold the pen,” and that Congress could change that.

She did not elaborate on any plans for Congress to do so, nor did she address the long history of rejection of such attempts as unrealistic, deceptive, unacceptable and an unattainable myth.

Click here to review the U.S. Department of Justice’s analysis of the Puerto Rico Self-Determination Act (HR 2070). 

Click here to review the U.S. Department of Justice’s analysis of the Puerto Rico Statehood Admission Act (HR 1522).



4 thoughts on “Is an Unconstitutional Choice Still a Choice?”

  1. It is true that Congress has the ability to propose a Constitutional amendment for other options including this “enhanced commonwealth” option.

    Such a constitutional amendment could also be favorable to the expansion of the USA to encompass other nations which would want to join under the banner of the USA while maintain a degree of independence.

  2. In my opinion, the terms “free association” and “enhanced commonwealth” are just “buzz words” to confuse the people of P.R. and cause a continuing friction within the different parties.
    For me, there are only TWO realistic options for the island; statehood or independence. The third option listed is the territory option. For me that is also not an option.
    I would urge the people of P.R. make a unified decision for the direction of the island for the future.
    I would also respectfully request that the Puerto Rican People living in the states, especially the ones in the political field, to let the people of P.R. make their on decisions.

  3. Who elected Nydia Velazquez in Puerto Rico, that socialist was not elected to represent the island, she enjoy a congresswoman status while denying the same rights to the islanders. Aside from that she is the mentor of AOC. What embarrassment the jellyfish she is

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