by Howard Hills
Puerto Rico’s democratization process was disrupted during turbulent high level management changes at U.S. Department of Justice in April of 2017
Shortly after President Trump was inaugurated, the Acting U.S. Attorney General left in place by the outgoing Obama administration ordered the Department of Justice (DOJ) not to defend or enforce an executive order on restricting U.S. entry visas for applicants from elevated threat nations. Dana Boente, a U.S. Attorney in Virginia, was appointed Acting Attorney General and ended DOJ non-compliance with the President’s executive order.
Subsequently, Boente served as Acting Deputy Attorney General during the installation of Trump administration leadership, performing the functions of U.S. Attorney General on matters from which incoming Attorney General Session recused himself. After the Trump administration’s current Deputy Attorney General, Rod Rosenstein, was appointed, Boente left DOJ and was appointed FBI General Counsel.
During his provisional and tertiary tenure at the helm of DOJ, a little known but deeply controversial official action by Boente effectively scuttled a federally sponsored plebiscite on the future political status of 3.5 million U.S. citizens in Puerto Rico. Only later would it be revealed that Boente made the decision to deny federal recognition and funding for the Puerto Rico status vote in the midst of crisis surrounding the Sessions recusal.
Indeed, we now know Boente spiked the Puerto Rico self-determination vote during the same window of weeks when he was at a minimum preoccupied writing memos for-the-record to protect himself. Those memos reportedly were being written by Boente regarding his own discussions with James Comey prior to being removed by President Trump.
Boente later was questioned about his role in Comey’s final days at the FBI by Special Counsel Robert Mueller. It has been reported by the Washington Post that Boente had also signed off on controversial DOJ applications for FISA Court warrant for surveillance of a Trump campaign adviser.
In the midst of those crises, on April 13, 2017, Boente approved and signed the controversial but largely ignored DOJ denial of Congressionally authorized federal certification allowing a status vote in the U.S. territory of Puerto Rico. Ten days later his two-month tenure ended and he was reassigned.
The nation and world now know the results of that breakdown in legitimate leadership at DOJ in other well-publicized matters. This is an accounting of what Boente and DOJ actions at that time meant for 3.5 million U.S. citizens seeking full democratization that Americans in the 50 states are able to take for granted.
DOJ excludes Puerto Rico from anti-colonial self-determination polices that led to statehood for 32 U.S. citizen populated territories
As Puerto Rico moves forward in the transition to statehood, it is only a matter of time before Republicans and Democrats in Congress begin competing to get political credit for delivering on equal rights of U.S. citizenship to Puerto Rico. Equality includes federal voting rights for full representation in the U.S. Congress and the Electoral College that chooses the President.
Both parties have strategies in place to compete for votes among the 3.5 million Americans in Puerto Rico when it becomes the 51st state. But far more immediate importance is attached to the increasingly pronounced pro-statehood vote among 5.5 million Americans of Puerto Rican ethnicity in the 50 states who will be voting in the 2018 mid-term elections.
Voters from Puerto Rico in the states finally are embracing the reality that full dignity of equal citizenship rights is attainable in Puerto Rico under the U.S. Constitution only through admission as a state. That’s why the scramble by Republican and Democratic Party candidates to support a federally sponsored democratic vote on statehood for Puerto Rico already has begun in local, state and national elections in Florida, New York, Illinois and across the country.
Of course, in the transition to statehood Puerto Rico will follow modern historical precedent, and vote on approval of whatever terms Congress adopts defining conditions for admission to statehood. Accordingly, it also is only a matter of time before Congress adopts a statehood enabling and admissions act for Puerto Rico.
That statehood enabling process would already be underway and well-advanced if the federal DOJ in Washington had not issued Boente’s letter to the Governor of Puerto Rico dated April 13, 2017. By doing so DOJ derailed a Congressionally authorized plebiscite consistent with federal law.
Almost two years later Puerto Rico is once again seeking Congressional hearings to put the Puerto Rico status resolution process sidetracked by DOJ back on the mainline. In doing so, it is important to understand the fallacies and disingenuous manipulation of law underlying DOJ’s refusal in 2017 to comply with a Congressional mandate for a federally sponsored political status vote.
Anatomy of an anti-democratic territorial policy imposed by senior DOJ bureaucrats
In 2014 Congress appropriated $2.5 million for the local government to conduct a follow-up vote, confirming the results of a locally sponsored 2012 referendum in which a majority favored statehood. With 78% voter turnout a 54% majority voted in 2012 to end the current “commonwealth” regime of territorial government, and 61% of voters chose statehood over all forms of independent nationhood.
The only condition imposed by Congress in the 2014 political status enabling act was that the choices on the ballot must be “options that would resolve Puerto Rico’s future political status.” To that end Congress also required that U.S. Department of Justice must certify that “voter education materials, plebiscite ballot and related materials are not incompatible with the Constitution and laws and policies of the United States.”
This federal statutory mandate for DOJ is so unequivocal and unambiguous on its face that there is no need to refer to the legislative history of the terms and conditions prescribed in the law for certification of the plebiscite ballot. It is incontrovertible that both the legislative history and the provisions of the statute leave no room for misinterpretation of the certification criteria.
Yet, incredibly, the normally stabilizing role DOJ plays in coordinating exercise of Executive Branch powers broke down due to the leadership vacuum at the highest level of the Department of Justice in April of 2017. A coherent and cohesive federal deliberative process on Puerto Rico self-determination and plebiscite ballot certification was expected by both Congress and Puerto Rico.
Instead, DOJ engaged in a legally deficient and constitutionally perverse course of action denying certification. This debacle stunned Puerto Rico’s elected leaders and 3.5 million Americans denied a vote authorized by Congress.
The federal statute in question, U.S. Public Law 113-76, did not direct DOJ to certify the ballot based on its preferences or opinions about how best to conduct a federal vote on future political status. Rather, it directed DOJ to determine if the duly-constituted government as established in the territory in 1950 under federal law had properly exercised its powers to frame the ballot options. The only criterion allowed was whether the ballot was in material conflict with applicable federal law or federal policies.
The DOJ certification of ballot compatibility with federal law and policy did not enable DOJ to make new policy, but rather to apply existing policy. As used in the statute, “policies of the United States” means measures adopted under the U.S. Constitution and federal statutory law, promulgated in formal measures duly adopted by Executive Order or Memorandum of the President, Code of Federal Regulations, or otherwise expressed in relevant instruments of federal policy (e.g. formally adopted reports of the White House directed interdepartmental President’s Task on Puerto Rico’s Status).
DOJ’s pre-certification review also could refer to opinions of the U.S. Attorney General, or federal court jurisprudence constituting decided federal territorial law. However, the term “policies” does not refer to deliberative process documents which propose or advocate development of federal policies not in existence prior to the DOJ review of materials for the plebiscite submitted by the government of the territory for DOJ certification.
Instead of applying existing federal policies, DOJ treated its certification role as an invitation by Congress for DOJ unilaterally to make new federal policy on the future political status of Puerto Rico in the course of its review of the plebiscite plans and ballot.
As a transient amid disarray at DOJ, Boente invented implausible legal theories to deny federal certification of the plebiscite vote for Puerto Rico
Here are just some of the anomalous and fatally flawed as well as legally unsustainable core findings of the DOJ findings on the proposed ballot:
1. The first new federal policy materially in conflict with the Congressional plebiscite enabling act was DOJ’s unilateral determination that, “The Department does not believe the results of the 2012 plebiscite justify omitting Puerto Rico’s current status from options on the ballot.”
Discussion: In support of this invented policy DOJ cited an earlier statement in a report by the President’s Task Force to the effect that the current status must be an option in a status vote that seeks to determine if the status quo should continue or a new status should be pursued based on majority vote.
That expression of policy, however, contemplated a vote that could constitute consent of the governed to remain in a territorial status which did not include equal rights of national citizenship or a permanent constitutionally defined political status. That would not “resolve” the future status question as required by P.L. 113-76. Thus, DOJ relied on a policy that was inapplicable under the 2014 enabling act adopted by Congress to address the 2012 vote. In that vote, continued territorial status was rejected, and it was incontrovertible that more votes were cast for statehood over nationhood than the number of votes cast to continue the current status.
The 2005 report by the President’s Task Force on Puerto Rico’s Status calling for inclusion of the current status as an option contemplated continuation of the status quo only until such time as further self-determination on non-territorial options of statehood or nationhood “resolved” the status of the territory. In contrast, the provisions of U.S. Public Law 113-76 enabling the 2017 plebiscite explicitly did not apply to the policy articulated in the President’s Task Force Report for a vote on all status options, including the constitutionally temporary status quo.
Rather, the federal enabling statute prescribing the scope of DOJ authority explicitly defined the certification criteria to be limited to status options that would “resolve” the status of Puerto Rico, in favor of a new status that was constitutionally permanent and based upon fully equal government by consent of the governed.
DOJ simply ignored the provision of U.S. Public Law 113-76 requiring limitation of options to those that would “resolve” the future political status of Puerto Rico. Indeed, it would be the very ballot option for continuation of the current status demanded by DOJ that would be expressly and materially “inconsistent with the U.S. Constitution and laws and policies of the United States.”
A vote to continue the current unresolved status would be the opposite of what Congress mandated. As such, the DOJ denial of certification on the stated grounds that the status quo should be an option constitutes not a difference of opinion or interpretation, but an obvious and willful failure of DOJ to uphold the laws of the United States.
In support of that legally flawed policy assertion, Boente also asserted the “demographics” of Puerto Rico had changed since the 2012 vote, and that in his mind this somehow made that lawful and duly-certified 2012 vote a less compelling act of self-determination. Setting aside that such abstract subjective speculation was not within his legal authority under applicable law, Boente fails to see the contradiction raised by his argumentative contention that the shelf-life of the 2012 vote results had expired.
That provocative argument by Boente cannot be reconciled with the fact acknowledged in his own statement dated April 13, 2017, noting that the $2.5 million appropriation for the plebiscite was a “no-year” indefinite spending measure. That open-ended spending policy confirmed that Congress did not intend for DOJ to impose an expiration date on the 2012 vote, which was freely and democratically expressing the will of 3.5 million U.S. citizens aspiring to government by consent as guaranteed to states of the union by the U.S. Constitution.
Given explicit provisions embodied in Public Law 113-76 enabling a status vote in Puerto Rico, once again it was not Puerto Rico’s proposed ballot but Boente’s statement that validity of the 2012 somehow was eroded by the passage of time that was “incompatible with the laws and policies of the United States.” Instead of conjecture about “demographics” the simple reality is that the plebiscite authorized in 2014 was delayed by anti-statehood leadership rejected by voters in 2016, after which the new pro-statehood government scheduled the 2017 vote in a timely manner upon taking office.
2. The DOJ statement denying certification of the plebiscite ballot adopted by Puerto Rico rejects its recital that “Statehood is the only option that guarantees the American citizenship by birth in Puerto Rico.” The DOJ denial statement concludes, “This statement is inaccurate when considered in the context of all available status options, as under current law, Puerto Ricans have an unconditional statutory right to birthright citizenship.”
Discussion: This is utter constitutional and legal illiteracy. Citizenship “at birth” in Puerto Rico is a permissive statutory privilege conferred at the pleasure and discretion of Congress in the exercise of its power over territory under U.S. sovereignty but not within a state of the union. The fact that there currently are no conditions imposed by Congress on statutory citizenship acquired at birth in the territory does not mean continuation of the current policy with or without further conditions is “guaranteed.”
If Congress were to repeal the federal territorial statute conferring U.S. citizenship in Puerto Rico there would be no remedy for children born in the territory after the effective date of the repeal statute. Such children would be classified as U.S. “ nationals but not citizens” who could acquire citizenship only if Congress permitted them to do so by moving to a state and applying for reclassification as may or may not be provided by federal law.
Even during a transition from territorial status to separate sovereign nationhood, federal naturalization statutes for children born overseas to U.S. citizen parents, as enacted under the Uniform Naturalization Law power in Article I, Section 8, Clause 4 of the Constitution, would not apply to children born in the territory of Puerto Rico, unless Congress so provided by statute.
Finally, in the recent cases of Tuaua v. U.S. and Segovia v. U.S. the federal courts have confirmed with respect to territorial statutory nationality and citizenship status the broader constitutional doctrine that the National and State Citizenship Clause in Section 1 of the 14th Amendment does not confer U.S. birthright citizenship outside the states of the union. Thus, Boente’s use of both “unconditional” and “guaranteed” with respect to U.S. citizenship for federal territories is dead wrong.
Rather, under the 1904 ruling of the U.S. Supreme Court in the case of Gonzales v. Puerto Rico, all persons born in federal territories not permanently incorporated into the union are “nationals but not citizens” of the United States. In addition, as it did in the case of Puerto Rico by statute now codified at 8 U.S.C 1402, Congress can further classify nationals born in an unincorporated territory as “ U.S. citizens.”
However, there is nothing guaranteed about the future political status and civil rights of persons born in Puerto Rico, including statutory classification as “U.S. citizens.” As long as territorial status continues Congress can place whatever conditions it wants on both status and rights, which is why a vote for territorial status does not “ resolve” the status of Puerto Rico.
DOJ failed to comply with law its bureaucrats were sworn to uphold
As a result of DOJ’s denial of federal certification that Puerto Rico sought and was qualified to attain under the law, the local government chose in 2017 to conduct another locally sponsored vote without federal recognition as mandated by Congress. That created an appearance and perception that DOJ had rejected the plebiscite ballot on the merits, which emboldened the anti-statehood minority factions to boycott the vote.
In contrast to the 78% voter turn out in 2012, turn out in 2017 was 23%. Fully 97% of those who voted in 2017 for statehood, and it was a valid an act of self-determination by U.S. mainland standards for election turnout. Still, the reality is that the DOJ’s irrational, incompetent and arbitrary denial of certification deviated from a clear statutory standard created the perception of federal alignment with the anti-statehood party platform. In doing so DOJ imposed a federal policy suppressing democratic self-determination for 3.5 million U.S. citizens on the options for a non-colonial status.
Only now do we know what we could only speculate about when we read Boente’s ineptly drawn certification denial statement. In April of 2017 the federal bureaucracy at DOJ was wielding authority in the name of a powerful federal agency in considerable disarray if not crisis.
Some DOJ senior officials at that time later would appear before Congress and assert in open testimony a sense of accountability as public servants only to a power higher than elected federal officials. Specifically, senior FBI and DOJ officials actually stated that they answered directly to the U.S Constitution and the American people.
That demonstrates individual and institutional disassociation from both the Constitution and the people of our nation. That is especially true for the people of Puerto Rico, who are U.S. citizens subject to the supremacy of federal law, but without full or equal voting rights or representation in Congress or the Electoral College.
Yet, with a stroke of the pen lending the integrity of his temporary office to a fatally flawed legal document, Boente signed away the first federally sponsored vote on legally valid status options to resolve the future status of the territory ever authorized by national law in the 400 years of Spanish rule and 118 years of American rule over Puerto Rico.
Historically, the U.S. citizens of most territories among the 32 that became states overcame political, legal and natural barriers to statehood far greater than those facing Puerto Rico. The U.S. Constitution cannot sustain less perfect union with a second class state populated by a subclass of U.S. citizens with less than equal civic empowerment.
Congress – not DOJ – is vested with the power and duty to manage a self determination process leading to full government by consent. DOJ denial of status plebiscite certification on terms defined by Congress demonstrates that Congress must define ballot options or authorize a simple up or down vote on statehood, so the political status of Puerto Rico can be resolved democratically.
Howard Hills served as Legal Counsel for territorial law and policy in the Executive Office of the President and National Security Council. He is author of the book Citizens Without A State.