Officials Push “Commonwealth” Proposals Without Pushing A “Commonwealth Status”

Nine members of the Puerto Rico House of Representatives’ “Commonwealth” party majority Friday proposed a resolution asking the U.S. Congress for four measures consistent with their party’s “Commonwealth” plan that would conflict with the U.S. Constitution and major Federal policies.

The measures were recently recommended by a task force appointed by “Commonwealth” party Governor Alejandro Garcia Padilla co-chaired by his chief aide, Secretary of the Governorship Ingrid Vila.

The measures also have roots in “Commonwealth” plans for a “Commonwealth” political status to replace Puerto Rico’s current territory status sometimes misleadingly also called “Commonwealth” due to the formal name of the territorial government. The task force recommendations and the resolution are consistent with a strategy of obtaining “Commonwealth” through proposals that are not labeled as parts of a “Commonwealth” plan.

Garcia Padilla called for action on one of the proposals in his State of the Commonwealth Address Tuesday evening. It would exempt Puerto Rico from the laws requiring the use of American built, owned, crewed, and flagged vessels for shipping ocean freight between U.S. ports.  These cabotage laws are popularly called the Jones Act.

While addressing the Legislative Assembly, the Governor publicly asked that the territory’s representative to the Federal government, Pedro Pierluisi who heads the rival statehood party, work with Garcia’s Federal Affairs Administration (PRFAA) staff on the issue.

In a meeting with Resident Commissioner in the U.S. Pierluisi, who sits in the U.S. House of Representatives but can only vote in committees, PRFAA Director Juan Hernandez Mayoral Thursday agreed to recommend to Garcia that he try to gain congressional support for Pierluisi’s bill to exempt Puerto Rico from the Jones Act for shipping of bulk goods, such as liquid natural gas and agricultural commodities.

Pierluisi’s exemption bill was limited because of a U.S. Government Accountability Office (GAO) report a year ago. It did not substantiate the “Commonwealth” party claim that the U.S. shipping laws harm Puerto Rico’s economy.  The finding of the independent congressional agency was consistent with the view of leading independent economists in the territory.  The GAO did, however, suggested deficiencies in current shipping service for bulk goods. .

The U.S. Departments of Transportation and Defense opposed legislation for an overall Puerto Rican exemption in 1996. The Congress, instead, exempted Puerto Rico from the Jones Act requirement that ships be U.S. built in the case of carrying liquid natural gas on vessels built before the exemption became law.  The exemption from one Jones Act requirement only for one product only for a known number of ships was consistent with the narrow exemptions that Congresses have been willing to grant in other cases.

President Obama’s Task Force on Puerto Rico’s Status rebuffed a “Commonwealth” party request for a study of the impact of the laws on the territory a little more than three years ago. Obama, like many congressional leaders of both national political parties, is a supporter of the Jones Act.

Pierluisi was able to get the GAO to do the study only because the senior Democrat on the House subcommittee with general jurisdiction over most territories matters, the Delegate from the Commonwealth of the Northern Mariana Islands, joined him in requesting an assessment of the economic impact of the application of the laws to Puerto Rico. More senior congressional committee leaders declined to join in the request because of their support for the laws.

The Jones Act is strongly backed by U.S. shipping unions and businesses.  They responded to the GAO report by saying that they could provide additional service if there were customers for it.

Although exemption from the Jones Act is a staple of “Commonwealth” plans, States could be exempted as well as territories.

One measure that would run directly counter to the U.S. Constitution would give the Commonwealth government the power to enter into trade agreements and organizations with foreign countries. International trade arrangements are foreign policy matters exclusively within Federal authority, according to the Constitution.

Additionally, the U.S. Government would be responsible internationally for fulfilling foreign trade commitments made by Puerto Rico if the Commonwealth were allowed to make such pledges — an obviously unacceptable situation.

Federal officials said that this proposal was a constitutional impossibility during a congressional hearing on the “Commonwealth” party’s current “Commonwealth” plan in the year 2000.  The State Department also weighed in against the idea of Puerto Rico entering into international agreements that require nationhood during the administration of President George W. Bush.

Another proposal that raises constitutional questions would ask the Federal government for a study of the effects of the application of the Constitution’s Commerce Clause to Puerto Rico. The constitutional provision gives Congress the power to make laws in matters with a relation to commerce.

The Courts have accepted Congress using the Commerce Clause as the authority for making Federal laws — some with only a very slight connection to doing business.

Federal courts have also ruled that that Congress’ authority through the Clause applies to Puerto Rico.

A study of the effects on Puerto Rico of the congressional power would cover a wide range of Federal laws. If the study were to lead to a request to exempt Puerto Rico from the power, it would also raise the question of whether an exemption law would be constitutional.

The fourth proposal would authorize Puerto Rico to use Federal program funds in ways it determines that are different from how States and territories are permitted to use the monies under the laws establishing and governing the programs.

There would seem to be little chance that the Federal government would let Puerto Rico use Federal funds in ways that States, other territories, and the District of Columbia cannot.

The “Commonwealth” party’s “Commonwealth” plan calls for the territory to be able to nullify the application to Puerto Rico provisions of Federal law.