Proposal for a New “Commonwealth” Status Continues to be An Impossible Dream

Last month, the chairman and senior minority party member of the U.S. Senate committee that handles territories political status matters sent a letter to the leaders of Puerto Rico’s three local political parties reiterating that any status proposal similar to the “Commonwealth” party’s cannot be implemented.

Because one Congress constitutionally cannot give up the power of future Congresses over a territory without making the territory a State or a nation, Chairman Ron Wyden (D-OR) and Ranking Minority Member Lisa Murkowski (R-AK) wrote “to stress that non-viable status options such as ‘enhanced commonwealth’ should not be considered” in any future process on the political status preference of Puerto Ricans.

Their letter followed-up on statements made during an August hearing of the Senate Committee on Energy and Natural Resources.  It explains that including a “Commonwealth” proposal that cannot be implemented as a status choice would confuse the process and could prevent resolution of the question of the territory’s ultimate status. Even if Puerto Ricans were to choose such a proposal, it could not be put into effect.

The administrations of both Democratic and Republican presidents, including President Obama, have made the same point, as have other congressional authorities.

“Commonwealth” is a word in the formal name of Puerto Rico’s insular government.  It is not a political status, although Puerto Rico is often misleadingly referred to as “a commonwealth.”  Under the U.S. Constitution, Puerto Rico is a territory of the U.S.

Puerto Rico’s “Commonwealth” party, which claims that Puerto Rico is a “Commonwealth” instead of a territory, has made a number of proposals to limit Federal authority and give the insular government national powers and better Federal benefits, which have been called “perfected, developed, enhanced, and Commonwealth.” The various proposals have been rejected since the 1950s.

The party’s version of the proposal since 1998 calls for Puerto Rico to be recognized as a nation but in a permanent association with the U.S. Under the arrangement, Federal laws and courts would have jurisdiction in Puerto Rico but only as determined by the insular government.  In addition, Puerto Rico would have the powers to enter into international agreements and organizations that require nationhood. At the same time, the U.S. would be permanently required to grant new economic benefits as well as continue current benefits to Puerto Ricans and U.S. citizenship.

Accepting the reality that this proposal is impossible should help resolve the question of Puerto Rico’s ultimate status, the Senate leaders explained.

Puerto Rican advocates of the alternatives to the current territory status — statehood, independence, and nationhood in an association with the U.S. that either nation could end — applauded the Senate leaders’ counsel.  For example, Hernán Padilla, president of a group seeking equality for Puerto Ricans within the nation, wrote the senators, “It helps both political leaders and voters on the Island understand that efforts to resolve the political status issue should only contemplate constitutional realistic and viable options. We are grateful that you have publicly expressed the truth.”

Former “Commonwealth” party Governor Rafael Hernández Colón, however, argued that excluding an empowered Commonwealth status proposal from a future status process would disenfranchise voters. “The policy expressed by Senators Wyden and Murkowski goes against the right of self determination of the Puerto Rican people,” he added. “Exclusion of a developed Commonwealth from the ballot would deprive Commonwealth supporters of their right to vote.”

Hernandez made these assertions in an advertisement in The Hill, a newspaper for the congressional community, written in the form of a newspaper column.  The ‘column’ was also sent to a news service in Oregon by Governor Alejandro Garcia Padilla’s Washington office, which is headed by Hernandez’s son. Wyden represents Oregon in the Senate.

Hernandez’s contention — also expressed by Garcia in the August Senate hearing and more recently — is specious. There is no right to vote for something that cannot come about.

Despite repeated rejections since the 1950s, Hernández contends that “developed Commonwealth” is a possible option. “The developed Commonwealth would include changes in the compact establishing the federal relations to provide for more effective self-government,” Hernández misleadingly offered. “Basic democratic principles require that voters may vote for such changes.”

The Federal government, however, has already allowed Puerto Rico to exercise authority similar to that which States possess.

The governing arrangement that Hernandez and Garcia want would ‘cherry pick’ and combine incompatible aspects of statehood, nationhood, and territory status.

In a 2007 report, the President’s Task Force on Puerto Rico’s Status under President George W. Bush wrote that, “[T]he “New Commonwealth” proposal that some have proposed contemplates a political status for Puerto Rico that is not permitted by the United States Constitution.  As long as Puerto Rico remains a territory of the United States, Congress may not impair the constitutional authority of later Congresses to alter the political powers of the government of Puerto Rico by entering into a covenant or compact with Puerto Rico or its residents.” The Task Force under President Obama wrote in 2011 that, ““[u]nder the Commonwealth option, Puerto Rico would remain, as it is today, subject to the Territory Clause of the U.S.Constitution.”

The Federal government’s position on the current “developed Commonwealth” proposal has remained the same since the Clinton Administration, which issued a legal memorandum that rejected numerous aspects of the proposal.

As noted above, the basic problem with the proposal is that it would permanently bind the Federal government to the arrangement, requiring the ‘mutual consent’ of Puerto Rico as well as the U.S. for changes.  This would effectively make the U.S. a colony of Puerto Rico.  Sovereign nations have the unilateral right to determine whether and how to be associated with other nations.

Obama’s Task Force report explicitly explained that “The Obama Administration has taken a fresh look at the issue of such mutual consent provisions, and it has concluded that such provisions would not be enforceable.”

Republican administrations have concluded the same.  Deputy Assistant Attorney General Kevin Marshall of the George W. Bush Administration made the following statement to Congress in 2007, which still rings true today:

T]he primary question [faced by the Task Force] regarding options was whether the Constitution currently allows a “Commonwealth” status that could be altered only by “mutual consent,” such that Puerto Rico could block Congress from altering its status.  Since 1991, the Justice Department has, under administrations of both parties, consistently taken the position that the Constitution does not allow such an arrangement.

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