Senior Officials’ Statements on Puerto Rico’s Status

C. Kevin Marshall, Deputy Assistant Attorney General for President George W. Bush, Office of Legal Counsel, U.S. Department of Justice, Testimony before the Committee of Energy and Natural Resources, November 16, 2006.  The Task Force issued its [2005] report last December and concluded that there were three general options under the Constitution for Puerto Rico’s status:  (1) continue Puerto Rico’s current status as a largely self-governing territory of the United States; (2) admit Puerto Rico as a State, on an equal footing with the existing 50 States; or (3) make Puerto Rico independent of the United States.

Secretary of State Colin Powell Memorandum to Belize Embassy concerning “possible Puerto Rican Requests for Recognition” May 16, 2003.  Puerto Rico is an unincorporated territory of the United States with commonwealth status.  The U.S. federal government has full responsibility for the conduct of foreign relations of all areas subject to United States jurisdiction, including all U.S. states, territories, and possessions.  Accordingly, the Department reviews any proposed participation by a U.S. territory or possession in international bodies, or signing of documents (including agreements) with other nations [.]

Robert Raben, Assistant Attorney General to President Bill Clinton, letter to Sen. Frank H. Murkowski, January 18, 2001, pp. 5, 14.   [T]he Constitution recognizes only a limited number of options for governance of an area. . . . The terms of the Constitution do not contemplate an option other than sovereign independence, statehood, or territorial status.  Although Puerto Rico currently possesses significant autonomy and powers of self-government in local matters pursuant to the Puerto Rican Federal Relations Act, that statute did not take Puerto Rico outside the ambit of the Territory Clause.

[T]he legislative powers of a non-State region under the sovereignty of the United States are entirely vested in Congress.

William M. Treanor, Deputy Assistant Attorney General to President Bill Clinton , Office of Legal Counsel, United States Department of Justice, Testimony before the House Natural Resources Committee, October 4, 2000, p. 17.  The terms of the Constitution do not contemplate an option other than sovereign nationhood, Statehood, or territorial status.  Currently, despite the great degree of autonomy and self-government in local matters that Puerto Rico enjoys as a commonwealth, it is from a constitutional point of view governed under the Territories Clause.  The Supreme Court’s 1980 decision in Harris v. Rosario makes that clear, and that is also the longstanding view of the Department of Justice.

Department of State (Administration of President Bill Clinton) Legal Brief in Alberto Lozada Colon v. State, March 19, 1999.  [T]he status of Puerto Rico since the creation of the Commonwealth system is that Puerto Rico’s status remains the same.  Puerto Rico remains a territory subject to the plenary power of Congress.  Cases also indicate that Puerto Rico’s status in relation to the United States remained the same following the establishment of the Commonwealth system.  In fact, the House Report accompanying Public Law 600 specifically states that the bill “would not change Puerto Rico’s fundamental political, social, and economic relationship to the United States.”

Harry H. Flickinger, Assistant Attorney General for Administration under President George H.W. Bush,  U.S. Department of Justice, Letter to the General Accounting Office, April 12, 1991.  [T]here cannot be, as far as any branch or agency of the Federal Government is concerned, any doubt as to the applicability of the Territory Clause to Puerto Rico.

The argument that the Territory clause does not apply is tantamount to a claim that there is no constitutional source for federal lawmaking in Puerto Rico and the Northern Mariana, and that these entities are basically independent sovereigns.

W. Lee Rawls, Assistant Attorney General under President George H.W. Bush, Letter to Senator Malcolm Wallop (R-WY), February 22, 1991.  As a matter of law, Puerto Rico’s present political status is that of an unincorporated territory of the United States, subject to the sovereignty of the United States and congress’ plenary governing power under the Territory Clause of the Constitution.  U.S. Const. Art. IV, § 3, cl. 2.  Congress has allowed the people of Puerto Rico to organize a local government pursuant to a constitution of its own adoption.  This does not, however, alter the fact that Puerto Rico remains subject to Congress’ plenary governing power under the Territory Clause.

Attorney General Richard Thornburgh, Attorney General under President George H.W. Bush, Testimony before the Senate Energy Committee, February 7, 1991, pp. 190 and 210.  Under the Territory Clause of the Constitution, Article 4, Section 3, Clause 2, an area within the sovereignty of the United States that is not included in a State must necessarily be governed by or under the authority of Congress.

We consider it imperative that it be made clear beyond peradventure that the Commonwealth is and must remain under the sovereignty of the United States.  This is necessary in order to avoid the continuation of the uncertainties and controversies that have plagued the existing commonwealth relationship.

Memorandum by the Government of the United States of America (Administration of Dwight D. Eisenhower) to the United Nations Concerning the Cessation of Transmission of Information under Article 73(e) of the Charter with Regard to the Commonwealth of Puerto Rico, 1953, section 21The term “commonwealth” was adopted by Puerto Rico as the official English designation of the body politic created by the Constitution (the official Spanish title is “estado libre asociado”), to define the status of that body as “a state which is free of superior authority in the management of its own local affairs but which is linked to the United States of America and hence is a part of its political system in a manner compatible with its Federal structure”, and which “does not have an independent and separate existence” (Resolution No. 22 of the Constitutional convention).  By the various actions taken by the Congress and the people of Puerto Rico, Congress has agreed that Puerto Rico shall have, under that constitution, freedom from control or interference by the congress in respect of internal government and administration, subject only to compliance with applicable provisions of the Federal Constitution, the Puerto Rican Federal Relations Act and the acts of Congress authorizing and approving the Constitution, as may be interpreted by judicial decision.  (Emphasis added)

Oscar L. Chapman, Secretary of the Interior under President Harry Truman, Letter in support of PL 81-600, authorizing the Puerto Rican “Commonwealth” constitution, May 19, 1950.  It is important at the outset to avoid any misunderstanding as to the nature and general scope of the proposed legislation. . . . The bill merely authorizes the people of Puerto Rico to adopt their own constitution and to organize a local government [.]  The bill under consideration would not change Puerto Rico’s political, social, and economic relationship to the United States.

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