US Justice Department Analyzes Puerto Rico Political Status Bills

Rep. Raul Grijalva, (D-AZ), chair of the House Natural Resources Committee, asked the Department of Justice (DOJ) to clarify the constitutionality and feasibility of the two bills on Puerto Rico status being considered by Congress this year.

The Department of Justice responded to the request, and Grijalva has released the Department’s analysis and scheduled a new hearing.

Department of Justice responds to HR 1522

In its analysis of HR 1522, the DOJ expressed its support for “providing the people of Puerto Rico the opportunity to vote on whether to become a state of the Union, as H.R. 1522 would do.”

The Department expressed concerns with the bill only regarding the “manner of execution” of its various provisions with respect to changes in federal law implicated in transitioning Puerto Rico to statehood if that is the path that Puerto Rican voters choose, most notably on the dissolution of the Federal Oversight and Management Board.

HR 1522, The Puerto Rico Statehood Admissions Bill, calls on Congress to offer statehood as an option to voters of Puerto Rico. The voters of Puerto Rico would then have the chance to vote to ratify the offer, choosing whether or not to accept statehood. This is the same process that Alaska and Hawaii went through.

DOJ response to HR 2070

In its analysis of HR 2070, the DOJ noted that it “agrees that the people of Puerto Rico should be allowed to choose whether to become a nation independent of the United States, become a state within the United States, or retain the current status of a territory. Insofar as H.R. 2070 would facilitate a choice among those three options, which we believe are the three constitutional options available to Puerto Rico, the Department supports the bill.”

The legitimacy of only independence, statehood or Puerto Rico’s current status as a U.S. territory as the only three viable options for Puerto Rico voters is reinforced repeatedly in the DOJ analysis. “As has been the Department’s consistent view since 1991,” the opinion reads, “we continue to believe that the Constitution limits Puerto Rico to three constitutional choices: the current territorial status, statehood, or independence.”

With respect to the increasingly popular option of Free Association, the Department of Justice clarifies: “[i]ndependence is a general term that refers to the possibilities both of full independence from the United States and of a compact of free association, in which Puerto Rico would become a sovereign nation but would continue to have close ties to the United States under the terms of a mutually agreed-upon compact.”

Justice continues, however, on the limits of a “mutually agreed-upon compact,” that is a part of a free association relationship.  The opinion explains that “[i]n the past, Congress has purported to enter into covenants with territories that would be alterable only with mutual consent. But… we believe that these provisions cannot be binding—a view to which the Department has long subscribed.”

The opinion’s coverage of free association concludes in clear terms: “the principle of a current Congress’s not being able to bind future Congresses would…apply to any compact of free association entered into with Puerto Rico if Puerto Rico were to choose that type of independence. As a matter of our domestic law, such a compact would necessarily be revocable or subject to revision by a subsequent act of Congress.”

The DOJ opinion also covers another longstanding issue in the debate over Puerto Rico’s status – the U.S. territory’s inherent authority to govern itself – by emphasizing that the “ultimate source” of Puerto Rico law is an enactment of the U.S. Congress. “Describing Puerto Rico’s authority as “inherent” when in fact that authority derives from Congress,” the opinion notes, “is legally inaccurate.”

Finally, the opinion concludes by providing Congress with a platform to get involved in Puerto Rico’s status by explaining that HR 2070 “could be amended to provide that Puerto Rico’s status shall become whatever the people selected. The Department has concluded that contingent legislation of that type is constitutionally permissible. However, for this alternative approach to be available, it would be necessary for Congress to approve the options presented to the Puerto Rican people ahead of the vote (or to provide a list of acceptable options from which the status convention could choose).”

Witnesses

Grijalva also released the list of witnesses for the second day of hearings.

  • Luis Gutierrez

Former Member of Congress

  • Dr. Rafael Cox Alomar

Professor of Constitutional Law, University of the District of Columbia

  • Annette Martinez-Orabona

Director, Caribbean Institute of Human Rights

  • Rev. Carmen Cabrera

President, League of United Latin American Citizens (LULAC) Faith Council

  • Dr. Christina Ponsa-Kraus

Professor of Constitutional Law, Columbia University

  • Prof. Andrés L. Córdova

Professor of Property Law, Inter American University of Puerto Rico

  • Dr. José Caraballo-Cueto

Professor of Economics, University of Puerto Rico

 

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