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The Problem with Mutual Consent and “Binding” Commitments

Puerto Rico voted for statehood in November 2020 — and in 2017 and 2012 as well. These votes, like all other statehood votes in Puerto Rico and every territory that has gone on to become a state, were nonbinding. Such is the nature of plebiscites.

In fact, the “non-binding” nature of virtually all federal decisionmaking is obvious to anyone who wants to change – or retain – any law. Laws can be changed whenever Congress wants.  All that is needed is a voting majority.

The Executive Branch of the U.S. government similarly cannot be bound by previous decisions.  As President Trump has demonstrated over the past four years, international commitments can be – and have been – quickly discarded.

Had the plebiscite vote been binding, Congress would have been mandated to follow the will of the majority and pursue statehood for Puerto Rico. The margin of victory would have been irrelevant, as it is in any election.

Yet the nature of local referendums and plebiscites is that voters can only express their opinions.  No local vote can ever dictate – or bind – Congress to do anything.  That’s simply not the U.S. system of government.

The fundamental question of when an outside decision can bind Congress to do anything also creates a foundational problem with the notion of “mutual consent.”

What does “mutual consent” mean?

Over the years, some advocates have advanced the concept of a relationship between Puerto Rico and the U.S. government that could not be altered except by mutual consent, meaning that  Puerto Rico and the U.S. would come to an agreement regarding their relationship that neither party could ever change unilaterally.

The 2011 report from the President’s Task Force on Puerto Rico’s Status explicitly discounted this idea, noting: “[C]onsistent with the legal conclusions reached by prior Task Force reports, one aspect of some proposals for enhanced Commonwealth remains constitutionally problematic—proposals that would establish a relationship between Puerto Rico and the Federal Government that could not be altered except by mutual consent. This was a focus of past Task Force reports. 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 because a future Congress could choose to alter that relationship unilaterally. (Congress similarly could elect to enact legislation violating a treaty with a foreign country or to legislate over the opposition of one or more States.)”

In other words, Congress can not be bound by a “mutual consent” agreement. Even if a current Congress agreed to such a provision, it could not bind a future Congress to do so.

Can agreements be changed without mutual consent?

President Trump unilaterally ended several international agreements. One example is the Paris Agreement, a legally binding international treaty. The United States entered into the Paris Agreement in 2015, and it went into effect in 2016. President Trump announced his intent to withdraw in June 2017, and under UN regulations that decision is now final.

In addition, as a presidential candidate, Donald Trump pledged to renegotiate NAFTA, which he called “the worst trade deal ever made.” As president, he did so and enacted instead the United States Mexico Canada Agreement (USMCA).

How much power does Congress have?

Congress has the power to make and change laws. As the legislative branch, Congress is the only branch of the federal government that has this power.

Anyone may write a bill proposing a new law, but Congress must take action on every bill before it becomes law.

Congress can also change laws. For example, Congress has made many attempts to repeal the Affordable Care Act. Opponents did not have the votes to do so, but they had the power to try. Congress has also entertained bills to update and strengthen the ACA, but also has not been able to pass those bills.

Specifically for agreements with Puerto Rico, Congress is given the power in the Constitution to make all rules and regulations for territories and is not required to negotiate its decisions with the territories or with anyone else.

An example of this use of power can be found in the 2016 passage of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).  As the U.S. House of Representatives was considering the PROMESA legislation, one Supreme Court analysis pointed out: “Congress is actively considering right now whether to create a new option for settling the island’s debts.  The mere fact that the issue is now being weighed on Capitol Hill shows that Congress clearly understands that what Puerto Rico can do depends almost completely upon what the lawmakers are willing to allow.”

Has Congress changed agreements in the past?

The United States has signed agreements with sovereign nations that used to be territories administered by the United States: the three Freely Associated States of Palau, Federated States of Micronesia, and the Republic of the Marshall Islands.

The U.S. has signed agreements called COFAs (Compacts of Free Association) with these nations. Deals with each nation have been renegotiated, and provisions have in fact been changed over time.

Compacts of Free Association need to be approved by Congress and funded by the U.S. government before they become law in the United States. The compacts that exist today are actually implemented as Congress passed them, and not necessarily as they were originally signed between the two nations.

When Congress considered and then passed the Compacts, the freely associated states had no voting representation. As sovereign nations, they naturally do not have any representation in Congress. They didn’t even have a Resident Commissioner, as Puerto Rico has. Congress can still make decisions about the COFAs, but the people affected by those decisions have absolutely no representation in Congress.

One of the problems this brings up is that the United States can sign a Compact and then take years to honor it.  A Government Accountability Office report shows that the United States does not always provide the amount of funding it promises to the freely associated states.  Referring to a US-Palau Compact, the GAO wrote in 2016, “Congress has not approved legislation to implement the 2010 agreement, which scheduled $216 million in U.S. assistance for fiscal years 2011 through 2024. Since 2011, the United States has provided $79 million in economic assistance to Palau through annual appropriations. However, this amount was less than anticipated under the agreement and has not included trust fund contributions.”

What does this mean for Puerto Rico?

Puerto Rico has never yet been able to negotiate a special “enhanced commonwealth” deal with the United States, and Congress has repeatedly denied the possibility.

It is clear that the “mutual consent” plan – which has been a core piece of proposals to “enhance” the “commonwealth” of Puerto Rico – is not realistic, even if the United States were to agree to some kind of compact for Puerto Rico. “The trust fund agreements between the United States and the [Freely Associated Stateas] allowed for the agreements to be amended at any time in writing with mutual consent of the governments,” the GAO report said. “However, the legislation implementing the amended compacts requires that any amendment, change, or termination of the trust fund agreements shall not enter into force until after Congress has incorporated it into an act of Congress.”

Ultimately, it is Congress that has the last word.

Updated on 12/29/20.

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