by Howard Hills
A recent scholarly legal commentary in a prestigious law journal by Puerto Rico Federal District Court Judge Gustavo Gelpi helps clarify Puerto Rico’s political status dilemma. Distilled to its essence, Puerto Rico and Congress must make a choice between statehood or independence, because the current status is not fair or mutually beneficial to the territory or the nation.
The judge is not alone in seeking to sort out the “idiosyncratic historicity” of the island’s political status in the context of highly ambiguous and contradictory federally as well as locally adopted territorial laws and policies. Indeed, the judge’s comparatively brief essay is actually a generally favorable review of a more in-depth study in the Yale Journal of International Law by legal scholars Blocher and Gulati entitled “Puerto Rico and the Right of Accession.”
Judge Gelpi competently confirms the findings of Blocher and Gulati that the so-called “commonwealth” regime of local territorial government established by the U.S. Congress in 1950 has culminated in failure. These scholars, two professors and a federal judge writing as a legal historian, correctly describe “commonwealth” as a 68 year experiment in autonomy without accountability.
The historical effect of “commonwealth” has been to delay the real choice Congress and Puerto Rico must now make between statehood and separate nationhood. Local political ideology holding out “commonwealth” as a permanent status has been exposed as a fallacy from its inception.
Of course, that merely states the obvious, since Congress suspended the “commonwealth” constitution in 2015 as needed to enable a federal financial control board to restore fiscal order in the territory. The financial insolvency of the territorial government led to de facto bankruptcy even before two hurricanes further catastrophically impacted the island’s economy and standard of living.
Juggling fallacies of “commonwealth”
Gelpi politely glosses over any direct disagreement he may have with the professors regarding the viability of autonomist doctrines that caused “commonwealth” to fail in its purported potential to become an alternative to statehood or nationhood. Instead, Gelpi finds enough common ground to dance an academic fandango with the professors, confirming the “commonwealth” regime of territorial government was based on a hoax.
The load bearing pillar of the “commonwealth” hoax was the misconception and misrepresentation by the local “autonomist” party that Congress somehow had irrevocably transferred federal sovereignty to Puerto Rico’s “commonwealth” regime of territorial government. This gave rise to the invented deception that local but not national self-government under “commonwealth” was a sufficient substitute for full democracy through statehood or nationhood.
Specifically, the “commonwealth” party platform grandiosely declared Puerto Rico’s local government had acquired permanent powers of inherent sovereignty when Congress approved a local territorial constitution in 1952. In reality the statutory policy of territorial “autonomy’ fell far short of permanent or vested constitutional ascension, and was instead was a revocable delegation of Congressional power over territories to a local constitutional process. This delegation was permissive not by any right possessed by the territory, and was expressly limited to mechanisms for administration of local internal civil affairs not otherwise governed by federal law.
Even the over-stated U.S. notification to the U.N. in 1953 that Puerto Rico was no longer a “colony” was accompanied by a legal memo confirming Puerto Rico remained a U.S. territory subject to supremacy of federal over local law. This did not stop the “ commonwealth” party from propagating the ideological myth and false promise that “commonwealth” was a permanent political status giving Puerto Rico control of its destiny.
A wishful autonomist party rank and file suspended disbelief and embraced “commonwealth” based on the uncritical presupposition that it it was a viable status in lieu of statehood or independence. Party leaders even conjured up the illogical political doctrine that powers of “autonomy” could be vested in a local government, even if its very existence and power to retain or alter its features remained subject to the supreme sovereign power of Congress.
The tertiary and provisional delegation of powers under the local constitution was exaggerated and fraudulently promoted as a binding “pact of mutuality” unalterable without local consent. The autonomists promised gullible party followers “commonwealth” restrained federal powers sufficiently to create a permanent “autonomous bilateral association” of two sovereign nation-states.
Rationalization of this hoax became increasingly challenging as federal courts went along with the charade that “commonwealth” was a new autonomous status, only to rule in every case seeking relief from federal supremacy that local law was null and void to the extent inconsistent with federal law. To defend “commonwealth” from incursions by Washington the local “commonwealth” party ever more stridently indoctrinated its followers that consent by island voters in 1952 to the territorial constitution created a “compact” making Puerto Rico a “ sovereign free associated state.”
The “commonwealth” party junta platform promised the U.S. citizens of the territory that consent to “commonwealth” was a sufficient substitute for consent of the governed under statehood through equal representation in Congress and the Electoral College. That promise has been broken by Congress, the White House and the federal courts a hundred times, making it clear that for U.S citizens government by consent through voting rights and representation in the federal political process comes only with statehood and state citizenship.
Confusion over statutory citizenship in territories
The renditions of Puerto Rico’s past and the collapse of the “commonwealth” hoax by the judge and the professors are generally consistent. That said, some of Gelpi’s assertions and conclusions about the findings by professors Blocher and Gulati are surprising.
For example, Gelpi argues that U.S. citizenship was granted by Congress to all “persons born in Puerto Rico” under the 1917 territorial organic act, but somehow did not become “natural born citizenship” until adoption by Congress in 1941 of the U.S. Immigration and Nationality Act, which codified citizenship based on birth in the territory of Puerto Rico.
Even more difficult to understand is the judge’s theory that the citizenship provisions of the 1941 statute had a constitutionally transformative effect in Puerto Rico, conferring on persons born in the territory “the same birthright citizenship as their stateside-born brethren.”
There is no escaping the import of Gelpi’s statement as other than a bald assertion that there is no constitutional differentiation between birth in Puerto Rico under the 1941 citizenship statute and birth in a state of the union under the U.S. Constitution. Yet, this assertion is made in the same context as the judge’s statement that the 1917 organic act had already granted U.S. citizenship to persons “born in Puerto Rico.”
If both the 1917 and 1941 statutes confer citizenship for persons born in Puerto Rico, that is a form of statuary naturalization conferring citizenship at birth, also known as birthright citizenship. But this is naturalization of persons born outside a state under statutory federal territorial law.
That is not the same as U.S. citizenship granted under the national and state citizenship clause in Section 1 of the 14th Amendment to the U.S. Constitution. Before that constitutional citizenship provision was adopted in 1868 all U.S. citizenship law was adopted by Congress and enacted into federal law under the uniform naturalization clause in Article I, Section 8 of the Constitution.
As a result, current statutory law creating U.S. citizenship applies to persons deemed eligible by Congress, but who are not born or naturalized in a stats of the union under the constitutional citizenship clause in Section 1 of the 14th Amendment.
There is no explanation given by Judge Gelpi as to how or why statutory citizenship for persons born in the territory under the 1917 territorial organizing law for Puerto Rico is constitutionally different from the citizenship at birth continued in the territory by operation of federal statutory law under Section the 1941 Immigration and Nationality Act.
Yet, Gelpi asserts the 1941 act elevates citizenship of those born in the territory to the same constitutional citizenship conferred under the 14th Amendment based on birth in a states of the union. That is not consistent with conventional understanding of U.S. citizenship based on birth in Puerto Rico under the 1917 territorial organizing act, as well as the 1941 federal nationality statute that codified statutory citizenship in Puerto Rico and other the territories.
Understanding statutory and constitutional citizenship
To clarify these issues, it is necessary to go back to earlier territorial organic laws and applicable federal court rulings that preceded the 1917 and 1941 acts.
Specifically, the citizenship granted by Section 5 of the 1917 territorial organic act of Puerto Rico applied to the same population classified as U.S. nationals under Section 7 of the first federal territorial organic act in 1900. The term “U.S. nationals” was not used in the 1900 organic act for Puerto Rico, but the status of persons born in the territory under that 1900 act was classified as that of nationals by the U.S. Supreme Court in the 1904 case of Gonzales v. Williams.
In that case the court ruled inhabitants of Puerto Rico were not aliens, nor citizens, but rather under the national protection of the United States. At least until Congress decided to grant citizenship and incorporate the territory into the union, as in the case of Hawaii and Alaska at the time. In contrast, if Congress denied citizenship the people would remain nationals until granted independence, as it turned out in the case of the Philippines at that time.
In the case of Puerto Rico, the U.S. national population under the 1900 organic act included former Spanish nationals residing in Puerto Rico, and the children of that population born in Puerto Rico to parents who remained residents of the island. By 1917 thousands of children had been born in Puerto Rico, and that entire population was naturalized as U.S. citizens under the 1917 organic act.
Under the 1900 and 1917 acts the population of Puerto Rico owed a duty of allegiance to the United States, unless they chose continued allegiance and citizenship of Spain. That ensured that after 1917 none could claim U.S. citizenship or application of federal laws (including military conscription statutes) was forced against their will, or that they were stripped of Spanish nationality without having a choice to retain it.
The conferral of citizenship under the 1917 organic act for Puerto Rico was similar to the citizenship provision in the Louisiana Purchase treaty, the Alaska purchase treaty, as well as the Hawaii annexation act. The conferral of statutory citizenship at birth in Puerto Rico and other smaller territories was codified in the 1941 U.S. Immigration and Nationality Act, as amended, including later in time revisions reflecting conferral of statutory citizenship in other territories, e.g. Guam in 1950.
In the case of Hawaii and Alaska, the U.S. Supreme Court’s rulings in the 1903 Mankichi and 1905 Rassmussen cases, respectively, deemed conferral of citizenship to constitute incorporation of those two territories into the union. That led to statehood for both in 1959.
Anomalously, in the case of Puerto Rico, a deviant and discredited ruling by the U.S. Supreme Court in the 1922 case of Balzac v. Puerto Rico denied incorporation to Puerto Rico notwithstanding the 1917 statute conferring citizenship. Thus, the people of Puerto Rico were the first and most numerous of territorial peoples having had the statutory rather than constitutionally conferred U.S. citizenship status under the 1917 territorial act and the 1941 nationality act.
Unlike Hawaii and Alaska that statutory naturalization for Puerto Rico was not in the context of incorporation under the U.S. Constitution, but rather under federal territorial statutes applicable to Puerto Rico as an unincorporated territory. As a result, conferral of U.S. citizenship in Puerto Rico does not even rise to the level of constitutionalism applicable to incorporated territories like Hawaii, Alaska and 30 other territories that were incorporated into the union prior to statehood.
Sorting nationality apples and citizenship oranges
Statutory citizenship under the uniform naturalization clause in Article I, Section 8 of the Constitution was not repealed in 1868 when the national and state citizenship clause of the Constitution was adopted in the 14th Amendment. This was necessary so Congress could continue to confer U.S. citizenship by statute, for those who were deemed eligible by Congress, even though not acquiring it by birth or naturalization in a state of the union as required by Section I of the 14th Amendment.
But statutory citizenship is discretionary and a future Congress is not bound by statutes adopted by a prior Congress. Any statutory federal territorial policy conferring citizenship at birth in any territory not incorporated under the Constitution can be ended by Congress at any time. Those who acquire U.S. citizenship based on birth in a territory presumably have a protected right and can retain it, subject only to any conditions or restrictions imposed by Congress and upheld by the federal courts.
For example, if Puerto Rico or any other unincorporated territory were to vote against or otherwise acting democratically through elected representatives in the territorial government reject incorporation leading to statehood, or reject statehood under an admissions act, Congress could end conferral of U.S. citizenship as a step toward a separate status resolution option, including independent nationhood.
Even for incorporated territories, a federally recognized democratic rejection of Congressionally prescribed statutory terms for statehood could lead to rescission of incorporation. For example if Hawaii or Alaska had voted against statehood in 1959, Congress could have decided both could remain unincorporated territories until a permanent non-territorial status could be achieved through nationhood.
Or, Congress could have unilaterally declared one or both territories independent. While a territory can not unilaterally declare and attain independence without acceptance by Congress, the U.S. could withdraw sovereignty and recognize a territory as independent on whatever terms Congress might prescribe, with or without agreement of the territory.
Under those scenarios Congress could honor citizenship conferred during the territorial period of incorporation or non-incorporation as long as territorial status continues. Still, the Congress could end future conferral and re-classify children born in the territory as nationals, as currently is the case in unincorporated territory of American Samoa.
Since U.S. citizenship derived from parents is a statutory privilege rather than constitutional right, Congress could exercise its combined power under the uniform naturalization clause in Article I, Section 8 and the territorial clause in Article IV, Section 3 of the Constitution to deny derivative U.S. citizenship based on citizenship conferred on parents under previous territorial statutes.
Again, that is consistent with the legal nature of 1941 federal nationality act codifying citizenship in the territories at birth as a statutory not constitutional source of birthright citizenship. This actually makes it easier in the event of separate nationhood instead of statehood for Congress to end new future citizenship in a territory by simply ending the statutory polices allowing derivative citizenship as well as citizenship at birth in the territory.
In the case of the Commonwealth of the Northern Mariana Islands (CNMI), by statutory policy adopted in 1976 Congress has granted delegation of greater powers of mutual consent and internal autonomy than it did under the 1952 constitution of the Commonwealth of Puerto Rico. The CNMI territorial organic act even states that persons born in the territory have U.S. citizenship as defined in the 14th Amendment of the U.S. Constitution.
However, that statutory policy does not mean the 14th Amendment applies to CNMI directly or of its own force. It simply means Congress adopted the language referring to the 14th Amendment as the statutory provision on citizenship in the CNMI. Because of the Balzac ruling, that statutory citizenship provision doe not incorporate CNMI into the union based on citizenship, as in the case of Hawaii and Alaska or 30 other territories that became states.
The same is true of Guam and the U.S. Virgin Islands, the other two territories with citizenship at birth under federal territorial statutes.
“Natural born citizen” clause irrelevant to citizenship
The 1941 U.S. Immigration and Nationality Act provisions on nationality and citizenship in territories is now codified at 8 U.S.C. 1402-1408. These provisions adopt and revise various federal territorial organic acts establishing U.S. statutory policy granting U.S. birthright citizenship in territories that include Puerto Rico, Guam, Northern Mariana Islands and U.S. Virgin Islands. By separate statutory provisions U.S. nationality continues for persons born in American Samoa, with reclassification as citizens by application upon establishment of residence in a state.
These statutory citizenship and nationality measures constitute an exercise by Congress of its powers under the territorial clause in connection with the uniform naturalization clause. That is why it is hard to reconcile Gelpi’s assertion that statutory citizenship in territories under the 1941 immigration law is equivalent to or confers a constitutionally defined or protected status.
That seems to ignore the history and reality that Congress can create or rescind statutory conferral of citizenship at birth in a territory. Just as the false claim of Puerto Rico sovereignty was rejected by the U.S. Supreme Court in the Sanchez Valle case in 2016, statutory birthright citizenship does not confer equal power, authority and dignity when compared to constitutional citizenship based on birth or naturalization in a state under the 14th Amendment.
It is equally surprising for Judge Gelpi to randomly introduce the term “natural born citizenship” into this legal narrative. That term applies normatively to U.S. citizenship as a qualification to serve as President or Vice President of the United States under Article II, Section 1 of the U.S. Constitution.
For purposes of the presidential qualifications clause citizenship at birth under federal law in a territory – whether incorporated or not – is sufficient to establish natural born citizenship. There is no basis in law or history to suggest that a distinction must be imposed between birthright citizenship that is statutory or constitutionally conferred for purposes of qualifying to serve as President.
No right of accession
Those vitally important citizenship status and rights aside, Professors Blocher and Gulati as well as Judge Gelpi advance the case and cause of informed democratic self-determination for Puerto Rico.
It is more a domestic legal and political matter than an international law issue, but it is true in both national and international law that Puerto Rico has no right to accession into statehood.
Statehood is an opportunity and a privileged invitation to become equal as a sovereign people in a federation of states with a stake in the destiny of the most humane and successful nation in history. Statehood can be attained only on terms prescribed by Congress that put all states on an equal footing, and secure equal rights and duties of citizenship to all citizens.
The U.S. has the power and right to impose statehood unilaterally or in response to petitions by the people. But in the modern era that would not serve the U.S. national interest, under any realistic scenario one can imagine based on current circumstances in the world order.
There is a better argument that Puerto Rico has a right to independence. But under applicable domestic and global law that must be accomplished through the relevant constitutional processes of the United States as a nation state with a republican form of government.
Unless the Supreme Court declares Puerto Rico sovereign and independent, Congress will prescribe the terms for transition to that non-territorial status as recognized by the U.S. and the United Nations. That could be with or without a treaty of free association based on U.S. practice and precedents in the relations with the formerly U.S. administered U.N. trust territory, now constituted as three independent island nations, the Marshall Islands, Micronesia and Palau.
In the event the U.S. determines that the national interest would best be served by independence with or without a treaty off free association, but Puerto Rico refused to agree to terms offered, the U.S. could simply declare Puerto Rico independent and formally recognize it as such. That reportedly is what Australia did in the case of Papua New Guinea when its legislature balked on terms for transition to independence.
Given the democratically expressed will of the people of Puerto Rico to retain U.S. citizenship and secure its blessings fully, it is argued by pro-statehood leaders, statehood rather than independence is the predictable if not inevitable outcome for the territory. 2012 and 2017 referendum results and petitions of the elected government bodies in the territory support that expectation.
Howard Hills served as constitutional and international law legal advisor on territorial status affairs in the Executive Office of the President, National Security Council and U.S. Department of State