Enhanced, Improved, or Perfected Commonwealth

Puerto Rico’s “commonwealth” party still wants to see a “commonwealth” option on the ballot for the upcoming plebiscite. The ballots are already printed, yet the demand to have “all options” on the table continues to be discussed.

The “commonwealth” party wants some version of “commonwealth” or ELA on the ballot. The problem is, their idea of “commonwealth” has already been rejected by the United States Government. The “commonwealth” party defines their option as a free and voluntary association, neither territorial nor colonial, with specifics negotiated between the U.S. and Puerto Rico. This is fairly vague and open-ended, but it specifies that Puerto Rico will not be a territory.

Neither state nor independent nation?

A state has a permanent relationship defined by the U.S. Constitution. A sovereign nation can negotiate an agreement with the Unites States, and such a treaty will in fact be voluntary and open to change in the future. If the “commonwealth” option is intended to be something different from either statehood or independence, it is imaginary: not a territory, not a colony, not a state, not an independent nation.

It’s the mythical “enhanced commonwealth” that has come up in so many conversations in the past.

What the U.S. government says

Here are just some of the occasions on which the U.S. government has rejected the “enhanced commonwealth” option:

  • In the 1950s, Resident Commissioner Fernós submitted H.R. 5926, the Puerto Rico Federal Relations Act (or the Fernós–Murray bill), to replace Public Law 600 with “Articles of Permanent Association” between the people of Puerto Rico and the United States. He withdrew the bill in the face of resistance from both Puerto Rico and the United States. The full story is available in Puerto Rico: The Trials of the Oldest Colony in the World, by Chief Justice Trias Monge.
  • In the 1960s, Governor Munoz Marin failed to make any “commonwealth” deals with the Kennedy Administration, detailed by former Secretary of the House of Representatives Nestor Duprey Salgado in Cronica de una guerra annunciada..
  • In the 1970s, Governor Hernandez Colon’s Compact of Permanent Union was proposed by Resident Commissioner Benitez as H.R. 11200 in the 94th Congress in the Committee on Interior and Insular Affairs and by the Ford Administration. The bill “Assigns the Commission to help in the perfection of relations between the U.S. and Puerto Rico… this compact, to become effective: (1) be approved by the U.S. Congress; (2) be approved by the Puerto Rican electorate in a special referendum; and (3) be proclaimed approved by the electorate, such proclamation to include the effective date as agreed upon by the President and the Governor.” The bill failed.
  • In the 1980s, Governor Hernandez Colon’s proposals in S. 712 of the 101st Congress were rejected by the Senate Committee on Energy and Natural Resources and the George H.W. Bush Administration.
  • Attorney General Thornburg gave testimony before the Senate Committee on Energy and Natural Resources, saying that, “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.”
  • On February 29, 1996, a letter from four U.S. House Chairman to the Legislative Assembly on the “Commonwealth” option in the 1993 plebiscite stated, “Although there is a history of confusion and ambiguity on the part of some in the U.S. and Puerto Rico regarding the legal and political nature of the current ‘commonwealth’ local government structure and territorial status, it is incontrovertible that Puerto Rico’s present status is that of an unincorporated territory subject in all respects to the authority of the United States Congress under the Territorial Clause of the U.S. Constitution.  As such, the current status does not provide guaranteed permanent union or guaranteed citizenship to the inhabitants of the territory of Puerto Rico, nor does the current status provide the basis for recognition of a separate Puerto Rican sovereignty or a binding government-to-government status pact.”
  • U.S. House Report 105-131 on H.R. 856 in 1997, reported that “Full self-government for Puerto Rico is attainable only through establishment of a political status which is based on either separate Puerto Rican sovereignty and nationality or full and equal United States nationality and citizenship through membership in the Union and under which Puerto Rico is no longer an unincorporated territory subject to the plenary authority of Congress arising from the Territorial Clause” In other words, statehood or independence.
  • H.R. 4751, the Puerto Rico-United States Bilateral Pact of Non-territorial Permanent Union and Guaranteed Citizenship Act, “Sets forth provisions regarding Puerto Rico’s relationship with the United States, including that: (1) the people of Puerto Rico may reaffirm its status as a sovereign Commonwealth in permanent union with the United States; (2) persons born in the Commonwealth of Puerto Rico shall continue being U.S. citizens by birthright; (3) the United States shall maintain its authority and responsibility for matters of defense with respect to Puerto Rico; (4) a common market and currency shall continue to exist between it and the United States; and (5) the Puerto Rican people’s self-government emanates from the Commonwealth, and therefore they retain all the powers not delegated to the United States.” The bill failed.
  • Assistant U.S. Attorney General Robert Raben’s January 18, 2001, report to congressional committees on the status proposals of Puerto Rico’s political parties said, “[R]egardless of whether the New Commonwealth proposal contemplates full Puerto Rican independence or continued United States sovereignty over Puerto Rico, the proposal’s mutual consent provisions are constitutionally unenforceable.”
  • The 2005 Report of the President’s Task Force on Puerto Rico’s Status said, “The Federal Government may relinquish United States sovereignty by granting independence or ceding the territory to another nation; or it may, as the Constitution provides, admit a territory as a State, thus making the Territory Clause inapplicable. But the U.S. Constitution does not allow other options.”
  • The 2007 Report of the President’s Task Force on Puerto Rico’s Status  said, “The commonwealth system does not, however, describe a legal status different from Puerto Rico’s constitutional status as a “territory” subject to congress’s plenary authority under the Territoryclause “to dispose of and make all needful Rules and Regulations respecting the Territory … belonging to the United States.” congress may continue the current commonwealth system indefinitely, but it necessarily retains the constitutional authority to revise or revoke the powers of self-government currently exercised by the government of Puerto Rico.”
  • U.S. House Report 100-597 on H.R. 900 in 2008 said of the “commonwealth” proposals, “The hope that such a ‘best-of-both-worlds’ status can be created has resulted in many Puerto Ricans not expressing a preference between the only constitutionally-valid permanent non-territorial status options:  statehood, independence, and free association.”
  • The December 1, 2010 letter from Chairman Bingaman and Ranking Minority Member Murkowski of the U.S. Senate Committee on Energy and Natural Resources to the President made it clear that “enhanced commonwealth is not a viable option.”
  • The 2011 Report of the President’s Task Force on Puerto Rico’s Status said “Under the Commonwealth option, Puerto Rico would remain, as it is today, subject to the Territory Clause
    of the US Constitution.”
  • The statements of Chairman Wyden and Ranking Minority Member Murkowski of the U.S. Senate Committee on Energy and Natural Resources opening hearing 113-7 on the 2012 plebiscite August 1, 2013 made it clear once again that “enhanced commonwealth” was not an acceptable option.
  • In 2017, the Department of Justice objected to the original ballots because, for one thing, “[v]oters may misperceive this difference to suggest that Free Association is an ‘enhanced Commonwealth’ option, when the reality is that both choices would result in complete and unencumbered independence and both would require an assessment of a variety of issues related to citizenship.”

The upcoming plebiscite will be a yes or no vote on statehood. With the distractions of the imaginary “enhanced commonwealth” out of the way, Puerto Rico will have the chance to give a clear status preference to Congress, opening the way to the end of more than a century of territorial status.

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