The Evolving Definition of the Puerto Rican “Commonwealth”

The Enactment of the Commonwealth Constitution:  The Confusion Begins

Puerto Rico is often called a commonwealth, but “Commonwealth” is actually just a word in the formal name of its insular government.   In 1950, the Federal government authorized Puerto Rico to draft a local constitution for Federal approval (Public Law 81-600), specifying that any new local autonomy would not change Puerto Rico’s status as a territory of the United States.  A convention was held in which Puerto Ricans produced a constitution that named their insular government the “Commonwealth of Puerto Rico.” The U.S. Congress reviewed and rejected this document, but did, however, specifiy changes that, if made, would increase the odds of Congress ultimately approving a new Puerto Rican constitution.  The Puerto Rican convention accepted those required changes, Puerto Rico resubmitted its constitution to Congress, and Congress approved the new document in 1952 (Public Law 82-447).

Some people claim that the passage of the 1952 law ushered in a new era of Puerto Rican autonomy.  They say that the title of the “Commonwealth” constitution moved Puerto Rico outside of Congressional oversight as required under the U.S. Constitution’s territorial clause.  This is simply not true.  The process by which Congress approved the document – prohibiting Puerto Rico from moving forward until it was totally satisfied with the terms – demonstrates that, despite giving the island new local autonomy, Congress never relinquished authority over  Puerto Rico.  Statements made during consideration of the new law, as set forth below,  confirm that Puerto Rico did not gain new power under its constitution and that it still remains a territory of the U.S.

Legislative History of PL-81-600 and PL 82-447, Providing for and Approving
the Constitution of the Commonwealth of Puerto Rico

Quotations from the House Committee on Public Lands Report on Public Law 81-600, Providing for the Organization of a Constitutional Government by the People of Puerto Rico, Report No. 2275, June 19, 1950.
 
It is important that the nature and general scope of S. 3336 be made absolutely clear.  The bill under consideration would not change Puerto Rico’s fundamental political, social, and economic relations to the United States.  (p. 3)
Puerto Rico is “unincorporated Territory.” (p. 4)
The extent and nature of the political, economic, and social development of Puerto Rico warrants the advancement in self-government which S. 3336 would make possible.  Such action by the Congress would be a clear expression of our esteem for the people of Puerto Rico.  It would be a fundamental contribution to the art and practice of the government and administration of Territories under the sovereignty of the United States. (p.4)

Quotations from Senate Committee on Interior and Insular Affairs on Public Law 81-600, Providing for the Organization of a Constitutional Government by the People of Puerto Rico, Report No. 1779, June 6, 1950.
The measure would not change Puerto Rico’s fundamental political, social, and economic relations to the United States.  (p. 3)

Letter in support of PL 81-600 by Oscar L. Chapman, Secretary of the Interior, May 19, 1950
The bill merely authorizes the people of Puerto Rico to adopt their own constitution and to organize a local government which, under the terms of S. 3336, would be required to be republican in form and contain the fundamental civil guaranties of a bill of rights.  (Senate and House Report, p. 5)
It would permit the substitution, by action of the people of Puerto Rico, of a constitution of their own choosing for the present “constitution”, the organic act, which was handed to them by the Congress.  (p. 5)
The bill under consideration would not change Puerto Rico’s political, social, and economic relationship to the United States.  (Senate and House Report, p. 5)
Enactment of [P.L. 600] would be a reaffirmation by the Congress of the self-government principle which has been the cornerstone of United States policy toward its Territories. (Senate and House Report, p. 6)

Letter in support of PL 81-600 by Jack K. McFall, Assistant Secretary of State, April 24, 1950
[S]uch action by our Government would be in keeping with the democratic principles of the United States and with our obligations under the Charter of the United Nations to take due account of the political aspirations of the people in our Territories and to develop self-government in them. (Senate and House Reports, pp. 8-9?)

Quotations from Senate Committee on Interior and Insular Affairs Report on Public Law 82-447, Approving the Constitution of the Commonwealth of Puerto Rico, Report No. 1720, June 10, 1950.
Public Law 600 was so drawn that the constitution to be drafted superseded those sections of the Organic Act of Puerto Rico, the present basic law under which the island is governed, which related exclusively to local government of the island.  (emphasis added) (p. 3)
The provisions of the organic act which will be repealed are the bill of rights; the directive that the capital shall be at San Juan; the organization of the executive, legislative, and judicial branches of the territorial government, the manner in which each shall be appointed or elected, and the scope of authority entrusted to each; the manner in which laws shall be enacted; and other provisions of like character.  Each of these relates wholly to matters which are the concerns of local government and which may be found in the constitutions of the States.  (emphasis added) (p. 6)
The provisions of the present organic act which will remain in force and effect as the Puerto Rican Federal Relations Act, however, relate to matters affecting not the internal affairs of Puerto Rico but the relationship of Puerto Rico to the United States. . . . The enforcement of the Puerto Rican Federal Relations Act and the exercise of Federal authority in Puerto Rico under its provisions are in no way impaired by the Constitution of Puerto Rico, and may not be affected b y future amendments to that constitution, or by any law of Puerto Rico adopted under its constitution. . . . Any act of the Puerto Rican Legislature in conflict with [P.L. 600] or the Constitution of the United States or United States laws not locally inapplicable would be null and void.(p. 6)

Letter in support of PL 82-447 by Jack K. McFall, Assistant Secretary of State, May 13, 1952.  
The Department considers that the action of the United States Congress in inviting the people of Puerto Rico to organize a constitutional government in accordance with their own freely expressed wishes was one of the most farsighted steps Congress has taken in reshaping the relationship between the United States and its Territories. (p. 10 of Senate Report 1720)

The Promise of an “Enhanced Commonwealth” – The Confusion Builds

In 1998, the Popular Democratic Party (PDP) of Puerto Rico (which is not affiliated with the Democratic Party of the U.S.) adopted a blueprint for a new relationship between the United States and Puerto Rico.  (insert link to original copy of this blueprint somewhere around here.) This plan, which was re-endorsed in the Party’s platforms in 2000 and 2004 and by resolutions of its Governing Board in 2009 and 2010 would create an unprecedented status and relationship with the United States that would be a hybrid of incompatible aspects of different statuses and be impossible for constitutional, structure of government, and basic policy reasons, according to Federal officials.  The PDP calls this plan its “Developed, Enhanced, or New Commonwealth Status.”  Specific details include:

• Puerto Rico would have authority to select the federal laws that apply within its borders.  The proposal envisions a covenant between the U.S. and Puerto Rico “which will include a mechanism to approve the application of legislation approved by the U.S. Congress.”  Federal laws concerning homeland security, the environment, employment, education, agriculture, energy and virtually every other area could be disregarded.
• Puerto Rico would have authority to determine the jurisdiction of the Federal courts in the islands.
• Puerto Rico would have authority to enter into international trade, tax, and other agreements and organizations limited to sovereign nations. At the same time, however, the proposal is explicit that “[a] common market will continue to exist between Puerto Rico and the United States.”  Puerto Rico would therefore become a backdoor route for the entry of unregulated and duty free goods into the United States.
• The U.S. would commit to “provide the Commonwealth an annual block grant adjusted for inflation” for social assistance and socioeconomic development. Programs of direct aid to individuals will continue as they are at present.
• The proposal would permanently bind the United States to terms of the agreement.  The blueprint calls for a “permanent union with the United States under a covenant that cannot be invalidated or altered unilaterally.”   This concept of mutual adhesion is unconstitutional as it would surrender U.S. sovereign power to Puerto Rico.  The plan would also grant U.S. citizenship to the people of Puerto Rico in perpetuity.

 
The Enhanced Commonwealth proposal is not Constitutional

While there might be benefits for Puerto Rico if this blueprint were put into place, it is in conflict with the Constitution of the  United States. Everyone from constitutional scholars to Presidents of the United States have said explicitly that the idea of an enhanced Commonwealth is unconstitutional and would not be accepted by the United States.

Just a few of the many sources confirming this fact:

Executive Branch Sources
Report by The President’s Task Force on Puerto Rico’s Status, December, 2011, pages 26.
Report by The President’s Task Force on Puerto Rico’s Status, December, 2007, pages 6-7.
C. Kevin Marshall, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, Testimony before the House Committee on Natural Resources, April 25, 2007, p. 132.
Report by The President’s Task Force on Puerto Rico’s Status, December, 2005, page 6.
Ruben Barrales, Deputy Assistant and Director of Intergovernmental Affairs, and Kevin Marshall, Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, Press Briefing on Puerto Rico’s Status, December 22, 2005.
Robert Raben, Assistant Attorney General to President Clinton, letter to Sen. Frank H. Murkowski, January 18, 2001, pp 5 – 14.
William M. Treanor, Deputy Assistant Attorney General for President Clinton, Office of Legal Counsel, U.S. Department of Justice, Testimony before the House Natural Resources Committee, October 4, 2000, pp.17-18.
Testimony of Robert Dalton, Assistant Legal Advisor for Treaty Affairs, U.S. Department of State, Testimony before the House Natural Resources Committee, October 4, 2000, pp. 19-21.
Teresa Wynn Roseborough, Deputy Assistant Attorney General, Office of Legal Counsel, Administration of President Clinton, Memorandum:  Mutual Consent Provisions in the Guam Commonwealth Legislation, July 28, 1994, as included with approval in the Report by the President’s Task Force on Puerto Rico’s Status, Administration of President George W. Bush, 2005 and 2007 reports (appendix F).
Attorney General Richard Thornburgh, Testimony before the Senate Energy Committee, February 7, 1991.
United States Department of State unclassified memorandum, submitted to the Senate Energy Committee, February 11, 1991.
Mary V. Mochary, Department of State Principal Deputy Legal Adviser, Testimony before the Committee on Energy and Natural Resources, July 11, 1989, pp. 153-54.

Former Executive Branch Officials
Dick Thornburgh, Attorney General for George H. W. Bush (1988-92), Testimony before the House Natural Resources Committee Hearing, October 4, 2000, pp. 21-22, 37.
“Understanding Free Association as a Form of Separate Sovereignty and Political Independence in the Case of the Decolonization of Puerto Rico”, Ambassador Fred M. Zeder, President Ford’s Director of Territorial Affairs and President Reagan’s Personal Representative for Micronesian Status Negotiations  and Chief Negotiator of the historic compact of Free Association, as presented by Rep. Peter Deutsch (D-FL) on the House Floor, during debate of H.R. 856, March 4, 1998, Congressional Record, page H 784.
 
Congressional Resources
Kenneth Thomas, Congressional Research Service (CRS), House Subcommittee on Insular Affairs: Legislative Hearing on the Puerto Rico Democracy Act of 2007” and the Puerto Rico Self Determination Act of 2007, March 22, 2007, pp. 25-26, 50, 53 and 60.

Legislative Branch Statements
Committee on Natural Resources Report, Puerto Rico Democracy Act of 2007 (H.R. 900), Report No. 110-597, April 22, 2008, pp. 8, 10-11.
Senator Jeff Bingaman (D-NM), Testimony before the Senate Energy Committee, November 15, 2006, p. 2.
Resident Commissioner Luis G. Fortuño (R-PR), Testimony before the Senate Energy Committee, November 15, 2006.
Rep. John Doolittle (R-CA), before the House Natural Resources Committee, October 4, 2000, pp. 8, 47.
Rep. George Miller (D-CA), House Floor Debate on H.R. 856, United States Puerto Rico Political Status Act, March 4, 1998, Congressional Record, page H774.
Committee on Resources Report on the United States-Puerto Rico Political Status Act (HR 856), June 12, 1997, Report Number 105-131, Part 1, pp. 22-26.
House Committee on Resources, Report on the United States-Puerto Rico Political Status Act (HR 3024), July 26, 1997, Report Number 104-713, Part 1, p. 19.
Chairmen Don Young (R-AK, Resources Committee), Elton Gallegly (R-CA, Native American and Insular Affairs Subcommittee), Ben Gilman (R-NY, International Relations Committee), and Dan Burton (R-IN, Western Hemisphere Subcommittee) Letter  to The Honorable Roberto Rexach-Benitez, President of the Puerto Rican Senate and The Honorable Zaida Hernandez-Torres, Speaker of the Puerto Rican House, February 29, 1996.

Puerto Rican Officials
Kenneth D. McClintock, President of the Puerto Rican Senate, Testimony before the House Subcommittee on Insular Affairs, April 25, 2007, p. 3.
Francisco Ponsa Feliú, U.S. Attorney for Puerto Rico and former assistant to the U.S. Attorney, United States-Puerto Rico Commission on the Status of Puerto Rico:  Legal-Constitutional Factors in Relation to the Status of Puerto Rico, Summary of Legal Consultative Committee Panel Discussion, May 18, 1965, p. 561.

Legal Scholars
Thomas C. Goldstein, Lecturer on Supreme Court Litigation, Harvard and Stanford Law Schools, and Partner, Akin Gump Strauss Hauer & Feld,Testimony before the House Subcommittee on Insular Affairs, March 22, 2007, pp. 47 and 52.
Walter E. Dellinger, Professor of Constitutional Law, Duke University; Testimony before the House Natural Resources Committee Hearing, October 4, 2000.

The “Enhanced Commonwealth” proposal  is “unrealistic,” “deceptive,” “unacceptable, and an “unattainable myth”

In case there is some idea that the enhanced Commonwealth could be put in place in spite of its unconstitutionality, here is a list of sources clarifying the overall impossibility of this option, even if the people of Puerto Rico vote for it in November.

Legislative Branch Statements

Resident Commissioner Luis G. Fortuno (R-PR), Statement before the House Subcommittee on Insular Affairs, March 22, 2007, pp. 6-7
Representative Jose Serrano (D-NY), Statement before the House Subcommittee on Insular Affairs, March 22, 2007, p. 14
Representative Don Young (R-AK), Statement, Subcommittee on Insular Affairs Legislative Hearing, March 22, 2007, p. 55
Committee on Natural Resources Report, Puerto Rico Democracy Act of 2007 (H.R. 900), Report No. 110-597, April 22, 2008, p. 8
Senator Mary Landrieu (D-LA), Statement before the Senate Energy Committee, November 15, 2006, p. 37
Senator Larry Craig (R-ID), Statement before the Senate Energy Committee, November 15, 2006, p. 12
Governor Anibal Acevedo-Vila, written Responses to Questions submitted by Senator Craig (R-ID), Senate Energy Committee, November 15, 2006, p. 50
Resident Commissioner Luis G. Fortuno, Response to Written Questions Submitted by Senator Mary Landrieu (D-LA), Senate Energy Committee, November 15, 2006, p. 59
Resident Commissioner Romero-Barcelo, Testimony before the House Natural Resources Committee, October 4, 2000, p. 46
Representative Kildee (D-MI), Statement before the House Natural Resources Committee, October 4, 2000, p. 29
Representative Donna M. Christensen (D-VI), Testimony before the House Natural Resources Committee, October 4, 2000, p. 6
Representative Jim Saxton (R-NJ), Testimony before the House Natural Resources Committee, October 4, 2000, p. 7
Representative Dan Burton (R-IN), Testimony before the House Natural Resources Committee, October 4, 2000, p. 9
Representative John Doolittle (R-CA), Testimony before the House Natural Resources Committee, October 4, 2000, p. 47
Senator Jeff Bingaman (D-NM), Colloquy with Puerto Rico Governor Pedro Roselló before the Senate Energy and Natural Resources Committee, May 6, 1999
“The Results of the 1998 Puerto Rico Plebiscite,” Report by Chairman Don Young (R-CA) and Senior Democratic member George Miller (D-CA) to Members of the Committee on Resources, November 19, 1999, Serial No. 106-A, p. 6
Representative George Miller (D-CA), House Floor  Debate on H.R. 856, United States Puerto Rico Political Status Act, March 4, 1998, Congressional Record, pages H774 – 75
Representative Peter Deutsch (D-FL), House Floor  Debate on H.R. 856, United States Puerto Rico Political Status Act, March 4, 1998, Congressional Record page H783
Representative Patrick Kennedy (D-RI), House Floor Debate on H.R. 856, United States Puerto Rico Political Status Act, March 4, 1998, Congressional Record, page H832
Committee on Resources Report on the United States-Puerto Rico Political Status Act (HR 856), June 12, 1997, Report Number 105-131, Part 1, pp.22-24, 26 and 30-31
Representative Jose Serrano (D-NY), Statement before the House Resources Committee, March 19, 1997, pp. 79-80
Committee on Resources Oversight Plan for the 105^th Congress, Adopted February 5, 1997
House Committee on Resources, Report on the United States-Puerto Rico Political Status Act (HR 3024), July 26, 1996, Report Number 104-713, Part 1, p. 19
Letter from Representatives Torricelli (D-NJ), Hamilton (R-NY), Richardson (D-NM) and Kildee (D-MI) to Senator Charlie Rodriquez, Majority Leader, Puerto Rico Senate, June 28, 1996
Chairmen Don Young (R-AK, Resources Committee), Elton Gallegly (R-CA, Native American and Insular Affairs Subcommittee), Ben Gilman (R-NY, International Relations Committee), and Dan Burton (R-IN, Western Hemisphere Subcommittee) letter to The Honorable Roberto Rexach-Benitez, President of the Puerto Rican Senate and The Honorable Zaida Hernandez-Torres, Speaker of the Puerto Rican House, February 29, 1996
Sen. Paul Simon (D-IL), Senate Floor Statement upon the Introduction of S. Con. Res. 75, Relating to the Commonwealth Option in Puerto Rico, September 30, 1994
Representative Don Young (R-AL), House Floor Statement upon the Introduction of H. Con. Res. 300, Expressing the Sense of Congress Regarding the Commonwealth Option Presented in the Puerto Rican Plebiscite, Friday, Sept. 30, 1994
Representative Don Young (R-AK), Statement in the Congressional Record, November 10, 1993

Legislative Branch Resources

Congressional Research Service (CRS), Political Status of Puerto Rico:  Options for Congress, Report Number RL32933, May 29, 2008, p. 25

Executive Branch Statements

Jeffrey L. Farrow, Co-Chair of President Clinton’s Interagency Group on Puerto Rico, Testimony before the House Natural Resources Committee, October 4, 2000, p. 15-16

Robert Dalton, Assistant Legal Advisor for Treaty Affairs, U.S. Department of State, Testimony before the House Natural Resources Committee, October 4, 2000, p. 19-21

Mary V. Mochary, Department of State Principal Deputy Legal Adviser, Defense, Testimony before the Committee on Energy and Natural Resources, July 11, 1989, pp. 153-155

Edward S. G. Dennis, Acting Deputy Attorney General, Department of Justice, Statement before the Senate Energy Committee, July 11, 1989, p. 18

James W. Brennan, Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration, Department of Commerce, Testimony before the Committee on Energy and Natural Resources, July 13, 1989, pp 320-321, 323

Brigadier General M.J. Byron, Acting Deputy Assistant Secretary of Defense (Inter-American Affairs), Department of Defense, Testimony before the Committee on Energy and Natural Resources, July 11, 1989, pp. 141-42

Kenneth W. Gideon, Assistant Secretary, Department of the Treasury, Testimony before the Energy and Natural Resources Committee, July 13, 1989, p. 222

Bipartisan Executive Branch Position on “Mutual Consent”

Teresa Wynn Roseborough, Deputy Assistant Attorney General, Office of Legal Counsel, Administration of President William Jefferson Clinton, Memorandum:  Mutual Consent Provisions in the Guam Commonwealth Legislation, July 28, 1994, as included with approval in the Report by the President’s Task Force on Puerto Rico’s Status, Administration of President George W. Bush, 2005 report (appendix F) and 2007 report (appendix F), pp. 1, 10

Judicial Branch Statements

Levin H. Campbell, Chief Judge, U.S. Court of Appeals for the First Circuit, Boston, MA, Testimony before the Senate Energy Committee, July 11, 1989,      pp. 75-76

U.S. District Court for the District of Puerto Rico, Resolution, In the matter of:  Requiring the United States District Court for the District of Puerto Rico to Conduct Judicial Proceedings in the Spanish Language, Signed by Juan M. Perez Gimenez, Chief, U.S. District Judge, Judge Gilberto Gierbolini, Judge Raymond L. Acosta, Judge Carmen Consuelo Cerezo, Judge Hector M. Laffitte, Judge Jaime Pieras, Jr., Judge Jose A. Fusté, June 30, 1989

Puerto Rican Officials and Representatives

Luis E. Gonzalez Vales, Official Historian of Puerto Rico, Testimony before the House Subcommittee on Insular Affairs, March 22, 2007
Veronica Ferraiuoli, Federal Bar Association, Puerto Rico Chapter, Testimony before the House Subcommittee on Insular Affairs, March 22, 2007
Jose Luis Fernandez, President, Inter-American Entrepreneurs Association, Testimony before the House Subcommittee on Insular Affairs, March 22, 2007, p. 82
Governor Pedro Rosselló, Testimony before the Senate Committee on Energy and Natural Resources, May 6, 1999

The Guam Precedent

“Administration Shelves Plan To Give Guam More Autonomy,” The Washington Post, p. A4, March 7, 1997

William Jefferson Clinton, Letter of response to Chairman Don Young (R-AK), Committee on Resources, January 21, 1997

Chairman Don Young (R-AK) letter to President William Jefferson Clinton, December 11, 1996

And Yet More Confusion over “Commonwealth”:  Puerto Rico’s Plebiscite History

Three referenda held to provide Puerto Ricans with self determination were inconclusive due to confusion over “Commonwealth” proposals that are different from the current governing arrangement and different from one another and were later determined by Federal officials not to be viable.

The list below summarizes the three status plebiscites that were held in Puerto Rico in the 20th century, and their outcomes.

July 23, 1967

• 60%                 Commonwealth with some national government powers
• 38.9%              Statehood
• 0.6%                Independence

Legislation for this proposed Commonwealth option was rejected by the President and Congress in 1976.

November 14, 1993

• 48.6%              Commonwealth with autonomy from federal tax laws, ans greater tax, trade, and social programs benefits
• 46.3%              Statehood
• 4.4%                Independence

Within a year after this vote, Puerto Rico’s Legislative Assembly petitioned Congress to either: (1) implement the commonwealth status option as defined on the 1993 ballot, or (2) adopt a federal measure to clarify the specific status alternatives Congress is willing to consider.  Congressional committee leaders and the Clinton White House determined that the “Commonwealth” proposal could not be implemented for constitutional and policy reasons and because it had not been supported by a majority vote.

In 1997, the Puerto Rican Legislative Assembly again petitioned Congress but with a more direct request: to pass a federal referendum law clarifying the possible terms by which Puerto Rico could achieve a non-territory status.  The House passed such a bill (H.R. 856) on March 4, 1998.  This legislation would have provided the people of Puerto Rico with a choice among the established, federally recognized options of self determination: the current territorial status, statehood, independence, and nationhood in a free (voluntary) association with the United States.  The legislation was blocked in the Senate, however, which pledged to consider a Puerto Rican choice of a status option other than the present status.

December 13, 1998

• .06%              Current territory status
• .1%                  Free association
• 2.5%               Independence
• 46.5%            Statehood
• 50.3%            None of the Above [supported by voters who supported Enhanced Commonwealth, free association, and independence]

After this plebiscite, President Clinton established a task force to more clearly define Puerto Rico’s options and advise on proposals for a process for a Puerto Rican status choice.  In December 2005, the President’s Task Force on Puerto Rico’s Status – which was by then under the direction of President George W. Bush – announced its recommendations:

1. Congress should provide for periodic plebiscites to provide Puerto Ricans with a choice between the current territory status and a status other than territory.
2.  If a majority opts to pursue status other than territory, Congress should provide for a plebiscite among statehood, independence and, if Congress chooses, nationhood in free association with the U.S.
3. Congress should implement statehood or a nationhood status if chosen.

There have been two plebiscites in the 21st century, in 2012 and 2017. Neither included the “commonwealth” option. In both cases, statehood won.