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What the U.S. Congress Can’t Give Puerto Rico

Under international law, minority groups have the right to self-determination, a principle defined by the Cornell Law School Legal Information Institute as “a legal right of people to decide their own destiny in the international order.”

After a series of plebiscite votes – as recently as 2020 – confirmed the people of Puerto Rico’s decision to transition from the current status as a U.S. territory to attain the full equality afforded as a U.S. state, many Puerto Ricans argue that their right to self-determination compels Congress to admit Puerto Rico as a State.

The United States Congress can admit Puerto Rico as a State at any time, with a simple majority vote.

There are some members of Congress who are ready to do this. But some are not. Some are still holding out hope of a “best of both worlds” option for Puerto Rico, under which Puerto Ricans could, for example, maintain their U.S. citizenship without being a territory or a State.

There are several well established reasons why such an option would be impossible – legally, politically, and on practical grounds.  Some are explained below.

Congress cannot bind a future Congress

The Territorial Clause of the U.S. Constitution says that “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”

Congress, in other words, can make any law they want about a territory of the United States, as long as it doesn’t contradict the U.S. Constitution.

Yet there is a new Congress every two years. The current Congress is the 117th Congress. The current Congress can make any laws allowed by the Constitution; it can even contradict the 116th Congress and change the laws that Congress made. The 118th Congress will be able to change the laws made by the current Congress.

The way this is usually expressed is to say that Congress cannot bind a future Congress.

International treaties can also be changed

The U.S. can renegotiate and alter its agreements just as Congress can change U.S. domestic laws.

For example, Congress has approved Compacts of Free Association (COFA) with former territories administered by the United States: the Republic of Palau, the Federated States of Micronesia (FSM), and the Republic of the Marshall Islands (RMI).

Each of these nations has negotiated and then renegotiated their COFA arrangements with the United States.  The first COFAs were signed several decades ago – FSM and RMI in 1986, and Palau in 1994. Each COFA was approved by Congress, and each COFA was changed when it was renewed – FSM and RMI and 2003 and Palau in 2012.

US agreements with COFA nations have also changed over time with the enactment of seemingly unrelated federal laws.  For example, U.S. residents from COFA nations became ineligible for Medicaid after Congress removed their eligibility from welfare reform legislation in 1996. They became eligible again in December of 2020, when Congress reinstated Medicaid eligibility for U.S. residents from freely associated states.

The COFAs with the Free Associated States provide some of the clearest examples of international treaties that have been changed many times.

There are other examples as well. President Obama committed the United States to the Paris Agreement on Climate Change. President Trump backed out of the agreement. President Biden brought the United States back into the agreement.

But are there other options?

Yet some US-based groups argue that there must be “other options” beyond Puerto Rico’s current territorial arrangement and independence.  These “options” have historically fallen under the label of “Commonwealth.” The Commonwealth arrangement has said that U.S. citizenship will be irrevocable for people born in Puerto Rico and their descendants. It says that Puerto Rico will govern itself, except for some powers it will delegate to the United States, and that the details of the treaty can’t be changed except by mutual consent between the United States and Puerto Rico.

Those who propose these solutions have said that it requires only “political will” to overlook constitutional impossibilities.

As the late Don Young (R-AK) put it,  “It is ridiculous to suggest that the United States would ever agree to a commonwealth with permanent union between Puerto Rico and the United States.  Only by being incorporated into the body politic of the United States can Puerto Rico be considered to be in permanent union.  We are a democracy united by a Constitution which extends equal protection, rights, and privileges to all.  The United States will not set aside over two centuries of reliance upon this near-sacred document to be ‘bound by a bilateral pact that could not be altered, except by mutual consent.'”

Many more federal officials have made similar points. Indeed, every branch of the U.S. government has stated, repeatedly over the years, that creative attempts to create a permanent new non-territorial option is simply unconstitutional. This idea has been promised in political speeches and even in bills proposed in Congress, but there is widespread agreement that Congress cannot and will not agree to these plans.

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