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PRSA: What is the Elephant in the Room?

Even supporters of the Puerto Rico Status Act (PRSA), a bill pending before Congress, are quick to point out that it is not perfect. The legislation, which calls for another plebiscite vote in Puerto Rico, was developed as a compromise between a proposal calling for a straight statehood-up-or-down vote and a competing bill demanding a constitutional convention to discuss issues that have swirled around the Puerto Rico status debate for decades.

Criticism tends to follow compromises.  After all, no one gets everything they want.  The Puerto Rico Status Act (PRSA) is no exception to this rule.  Critics and supporters alike have been outspoken about the bill’s problems.

Is Political Viability Really the Elephant in the Room?

One PRSA critic complained that the bill “continues to ignore the elephant in the room: the political impossibility of any legislation that could force Congress to grant statehood.”  This is the opinion of Puerto Ricans United in the Diaspora President Alberto Medina.  The Puerto Rico “diaspora” refers to people of Puerto Rican heritage who have chosen to live stateside.  These individuals are not eligible to vote in the plebiscite provided in the PRSA, in which only Puerto Rican residents can vote.

What Mr. Medina is talking about is the political viability of a bill pending before Congress based on its level of popular support. It’s true that the likelihood of passage of any bill pending before Congress is small, including PRSA.  After all, over 6,300 bills have been introduced in the House of Representatives so far this Congress, and more than 3,000 bills are pending in the Senate.  It’s a safe bet that only a small portion of these bills will become law.  Most bills don’t.  Those that do become law often take a long time to get there and are changes substantially along the way.

The daunting political challenges that lie ahead of the PRSA are clear for all to see.  When it comes to the likelihood of any federal bill passing, especially in the current partisan environment, everyone sees it’s an uphill battle.  This dynamic is not hidden.  No one is glossing over it.  Advocates recognize the political difficulties of pursuing full democracy for Puerto Rico and yet many are trying to move forward.

Lessons for Puerto Rico from the the Respect for Marriage Act

 

Or Is the Issue U.S. Citizenship?

The true elephant in the room is the fate of U.S. citizenship in a new nation of Puerto Rico.  There has been a lot of attention on this issue over the years, and many people still continue to want to believe – despite overwhelming evidence to the contrary – that it’s actually possible for an entire population of a foreign country to have guaranteed U.S. citizenship.

It has been said that Puerto Ricans who live in the states have essentially already voted for statehood with their feet.  They have no direct stake in any plebiscite outcome.  They already have voting representation in making the laws they must follow, and threat of losing their cherished U.S. citizenship is not an immediate danger, although they could become stateless if the people of Puerto Rico vote for independence, either with or without a free association compact agreement.

There are a lot of layers to the debate over how U.S. citizenship would play out in a foreign country of Puerto Rico.  There are Constitutional angles, legal dynamics such as required changes to the Immigration and Naturalization Service (INS), policy implications as previously pointed out by State Department officials, and, of course, any “Dreamer” knows the tough political dynamics of securing U.S. citizenship.

But no one is talking about these esoteric legal issues.  They are the real “elephant in the room.”

After all, U.S. citizenship is prized among Puerto Ricans.  As the 2011 President’s Task Force on Puerto Rico’s Status observed:

“U.S. citizenship is an extraordinarily important issue for the people of Puerto Rico. Although there are strong advocates for Independence who do not wish for continued ties to the United States, the Task Force’s engagement with Puerto Ricans demonstrated that most of them value their U.S. citizenship enormously. Any status option that could conceivably result in the loss of U.S. citizenship by current U.S. citizen residents of Puerto Rico would, it seems, be viewed with hostility by the vast majority of Puerto Ricans.”

If the loss of U.S. citizenship would be “viewed with hostility” by Puerto Ricans, supporters of independence – either with or without free association arrangements – have every incentive to try to add U.S. citizenship to their proposals, at least temporarily, and a compromise bill provides such an opportunity, even though no law can secure Constitutional U.S. citizenship.  True to form, the compromise bill does promise current U.S. citizens the chance to possibly keep their citizenship in a new nation of Puerto Rico.  The bill does not totally protect current U.S. citizenship it, but it leaves citizenship hanging as a navigable possibility, particularly under a free association arrangement between the U.S. and a new nation of Puerto Rico.

U.S. citizenship remains such an important issue among Puerto Ricans that PRSA lead sponsor Sen. Heinrich (D-NM) issued a separate two-page briefing document describing the proposed fate of U.S. citizenship under each option on the ballot.  That briefing document is clear in a footnote that, for example, all of the details in any Article of Free Association – including promised U.S. citizenship – would be subject to subsequent negotiation between the countries. But this is just a footnote.

How Do We Know?

The PRSA does not explicitly “recognize, protect or secure” citizenship under any option except for statehood.  It can’t.

As a state, birthright U.S. citizenship would be protected by the U.S. Constitution in Puerto Rico, just as it is in each of the 50 states.

Under independence – either with or without a free association agreement – Constitutional scholars remain skeptical.  As almost 50 of the nation’s top experts wrote last year, “[W]hile both statehood and independence would fulfill the goal of self-determination, only one of those options would guarantee U.S. citizenship: statehood.”  This recent conclusion is consistent with the expertise of leading legal scholars across the political spectrum over the years:

  • Richard Thornburg, Attorney General under both the Reagan and George H.W. Bush Administrations, said in 2000 that “statutory guarantee of U.S. citizenship in the future without Statehood” would be “constitutionally unavailable.” In fact, he said, any efforts to produce such a guarantee “would frankly be a waste of time for Puerto Rico and for the Congress.”
  • Walter Dellinger, widely recognized as a renowned scholar of constitutional law and one of the top legal figures in the Clinton administration, told Congress, that “to obtain genuinely permanent political union defined and protected under the U.S. Constitution, and to ensure for all times that birth in Puerto Rico will confer U.S. citizenship, the commonwealth of Puerto Rico will have to follow the example of other commonwealths like Virginia and Massachusetts and seek admission to statehood.”

The possibility of U.S. citizenship in a foreign country of Puerto Rico is also a legal question outside of Constitutional considerations. As previously covered in the Puerto Rico Report, the experience of the people of the Philippines, a former U.S. territory that became independent, does not bode well for U.S. citizens born in Puerto Rico who seek to keep their U.S. ties:

U.S. citizenship is also a policy question.  There is no U.S. policy supporting U.S. citizenship for the population of a foreign country.  The State Department has been explicitly opposed, citing complications with having an embassy in a nation of three million U.S. citizens and related diplomatic challenges. As Robert Dalton, Assistant Legal Advisor for Treaty Affairs at the the Department of State, said in 2000 congressional testimony “We have concern about the proposal that would legislate dual nationality for residents of Puerto Rico, since it appears to be grounded in the recognition of the conferred citizenship on citizens of another nation, which is incompatible with the notion of sovereignty.”

Although the PRSA is explicit that U.S. citizenship is “recognized, protected and secured” only under statehood, it simultaneously holds out hope that maybe – maybe – if the stars are aligned just so, U.S. citizenship could be an option for people born in a foreign country.  This claim is dubious at best under the U.S. Constitution, related laws, and State Department policy.  Legal precedent does not support this theory. And yet the bill provides a thread of hope to any independista in search of a magic wand.

Continued U.S. citizenship of three million people in a foreign country is not realistic, and it can’t be guaranteed.  That is the real elephant in the room.

 

The Puerto Rico Status Act: The Citizenship Question

 

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