Some are still dazed and confused by the “commonwealth” hoax.
There have been 38 territories inhabited by American nationals and/or citizens with territorial governments organized under federal law. Today there are only five such territories left: Puerto Rico, USVI, CNMI, Guam and American Samoa. Despite past and present political and economic success stories, all of these last 5 territories have gone through various forms of crisis in recent years.
These crises arise from excessive spending and debt, unpredictable federal and local tax policies, military base closings, chronic economic recession with high unemployment, natural disaster, immigration and labor issues, international tensions, and government corruption, to major political protests and civil unrest.
All territories experienced similar challenges. Still, it is a fact of life in the territories that it too often takes a crisis for the federal government to give priority or even a response consistent with federal commitments and responsibilities.
No wonder, since the U.S. Constitution allocates voting representation in Congress and the Electoral College to citizens of the states that form the Union. That means Americans who live in our nation’s territories do not have voting power in federal elections, thereby disempowering the disenfranchised.
Like a state
Every time there is a crisis or unplanned federal cost the question arises whether to treat that territory “like a state” or differently, including treatment like a federal reservation or even a foreign place. Less than “state-like” treatment is constitutional because territories are not on an equal footing with states.
The temporary and unpredictable nature of territorial status perpetuates the cycle of crisis, as well as the lack of measures to prevent, prepare for and manage crisis. The solutions to the cycle of crisis include or relate to political status resolution.
The options are statehood or integration into an existing state; nationhood with separate sovereignty, nationality and citizenship; or territorial status without full or equal rights of citizenship.
In the absence of crisis, the U.S. Congress focuses on political accountability to the states, and complacently abdicates its duty to resolve the status of U.S. territories based on democratic self-determination.
Puerto Rico is home to 3.3 million U.S. citizens
Among the five territories that currently call America home, Puerto Rico is the elephant in the house. Congress has conferred a less than equal form of U.S. nationality and/or citizenship for 3.7 million Americans in the territories, of which 3.3 million are residents of Puerto Rico.
Only Puerto Rico has voted to end territorial status in favor of fully equal citizenship rights that come only with statehood. Once majority rule for statehood is confirmed and Puerto Rico begins the transition to admission, the choices for small and far less populous territories will become clearer.
“Commonwealth” myth is a problem, not a solution
Status resolution for Puerto Rico and smaller territories based on balancing of national and local interests requires clarity not confusion, realism not ideological mythology.
While the political composition in each of the territories is unique, inevitably there are some who favor statehood, some who favor the status quo (or a version of it), and some who favor independence.
The anti-statehood and anti-independence faction in each territory that favors the status quo responds to each crisis or disaster by proposing more “state-like” local powers and benefits. Ironically, the demands for state-like treatment for territories populated by U.S. citizens by these anti-union political factions do not include calls for full-equality that comes only with statehood.
Instead, the anti-statehood factions insist that they want more “autonomy” from U.S. under the ambiguous banner of “Commonwealth.” In other words, they want to be treated like citizens of the states with equal entitlement to benefits, but without equal state-like rights and responsibilities of citizenship in a state.
This has been exemplified prominently in the case of Puerto Rico, where demanding more federal powers and benefits without equal rights and responsibilities has become the true definition of “commonwealth.” Unfortunately, the myth that “commonwealth” can offer a significant and lasting solution to the cycle of neglect and crisis in the territories persists even though all of the evidence demonstrates that it is not a new path, but a dead end.
What is the “Commonwealth” myth?
To better understand this dynamic, lets unpack the term “commonwealth.” The anti-statehood faction in Puerto Rico and some factions in other territories seeking “autonomy” under the status quo claim “commonwealth” is a political status different than territorial status.
But the same “commonwealth” term was applied to the Philippine Islands under U.S. rule when its political status was that of a U.S. territory. Similarly, Kentucky and Pennsylvania are both referred to as “commonwealths,” but no one thinks that means the political status of Kentucky and Pennsylvania is anything other than statehood.
So in reality, the term “commonwealth” is devoid of a definitive constitutional significance because it can and has been used as the formal name for jurisdictions that, for purposes of the U.S. Constitution, are considered states, territories and, in the case of the nations that are part of the British Commonwealth system, independent countries.
No wonder Members of Congress, federal agencies, the public in the territories and across the nation remain dazed and confused about the term “commonwealth,” and how territorial status does and does not serve the local or national interest in each territory.
“Commonwealth” in Philippines, a route to independence
The purpose of the 1934 “commonwealth” constitution in Philippines was to promote “autonomy” and local capacity for self-government. But the purpose was to end U.S. sovereignty as it existed for a non-citizen territorial population that did not have the rights of U.S citizenship in the territory or when residing in a state.
U.S. citizenship was denied to the people of the Philippines by act of Congress in 1916. Independent nationhood was imposed unilaterally by the U.S. without self-determination, other than approval of the constitution as authorized federally and ratified locally for that purpose.
“Commonwealth” a name not a status
The term “commonwealth” as it applies to U.S. citizen populated territories simply gives a name to an unincorporated territory for which Congress authorizes and then ratifies a locally proposed and ratified territorial constitution. The political status of a territory with a constitution named “commonwealth” remains that of a territory under Article IV of the U.S. Constitution.
In the case of the “Commonwealth of the Northern Mariana Islands” (CNMI) the federal organic act establishing local constitutional government it is called a “Covenant.” In Puerto Rico it’s called a “Compact.” However, in both cases these laws do not constitute “sovereign-to-sovereign” arrangements.
Incorporated and unincorporated status not changed by “commonwealth”
“Commonwealth” is a term under federal territorial law for organizing a regime of local territorial government based on a local constitution. Congress can and often has adopted organic acts authorizing a territorial constitution for both unincorporated territories (e.g. Philippines, CNMI) and incorporated territories that became states (e.g. Wyoming, North Dakota, South Dakota, Montana and Washington.)
“Commonwealth” is not a “relationship” that governs “relations” between the local and federal governments. That is, there is no status-based “relationship” between separate sovereigns. Rather, “federal-territorial relations” simply refers to division of functions between federal government departments and agencies and local government departments and agencies.
All federal and local functions of government are provided only as authorized by Congress and subject to supremacy of federal law. Indeed, all forms of territorial government are also a form of agency that substitutes local civic institutions of civil government for direct federal governance, but local government exist only as allowed by and under federal law.
So instead of a federal agency providing all government programs and services, the local government acts as a surrogate for the federal government. But there is no “bilateral” relationship between separate sovereigns, as we know from the U.S. Supreme Court’s ruling in the Sanchez Valle case (2016).
Territorial status does not constitute a not “relationship” but rather is a partial delegation of federal powers to a local entity created by Congress to allow local self-government on matters not otherwise determined by federal law. There may be “state-like” functions of local government, but there is no state-like political sovereignty based on equal consent of the governed, and these territories remain subject to the supremacy of federal law.
If “commonwealth” is not a real solution, then what?
All forms of territorial government created under federal law for both incorporated and unincorporated territories constitute revocable statutory delegations. Local governments have powers of civil administration and local laws are valid only to the extent not inconsistent with applicable federal statutory or judicially decided federal law.
Thus, all “autonomy” and all forms of territorial government are constitutionally temporary. That was expressly stated in the Northwest Ordinance, as it applied to U.S. citizen populated territories, and it continues to be true of all territories since.
For America’s territories to escape the escalating cycle of neglect and crisis the U.S. citizens in the territories and the U.S. Congress must recognize that the myth of more “autonomy” through “commonwealth” is a dead end.
Instead, the U.S. Congress must fulfill its duty to resolve the status of U.S. territories empowering the U.S. citizens living there to exercise democratic self-determination by deciding among the real and valid options of statehood and independence.