Top Constitutional & Legal Scholars Voice Support for Puerto Rico Statehood Bill Ahead of House Hearing

FOR IMMEDIATE RELEASE
April 12, 2021
Contact: Comms@prstatehoodcouncil.org

Top Constitutional & Legal Scholars Voice Support for Puerto Rico Statehood Bill Ahead of House Hearing

Washington, D.C. – Today, 47 legal and constitutional experts, including constitutional law scholar and founder of the American Constitution Society Laurence Tribe, sent a letter to the leaders of the U.S. House and Senate voicing their support for the Puerto Rico Statehood Admission Act. The letter, which also opposes the competing Puerto Rico Self-Determination Act, affirms that the statehood bill is constitutionally sound, while the other bill is not. This letter came ahead of a hearing on the topic scheduled for Wednesday in the House Natural Resources Committee.

George Laws García, the Executive Director of the Puerto Rico Statehood Council, explained, “This letter brings together a broad cross-section of leading constitutional and legal experts to reassert what the federal government already has – the only constitutionally viable options for Puerto Rico’s status are statehood or independence, with or without free association. Unfortunately, the proponents of the Puerto Rico Self-Determination Act don’t get that, and instead seek to delay statehood by proposing a convoluted process that invites people to define ‘any option other than the current territorial arrangement’ which simply don’t exist.”

“True self-determination must be a choice by voters among the constitutionally valid status options, and that has already happened in Puerto Rico in 2012, 2017 and 2020. Each time voters have favored statehood over all other non-territory options, yet the Puerto Rico Self-Determination Act ignores this and tries to postpone the advancement of statehood by telling voters that their ballots don’t matter and to go back to the drawing board.”

“The only bill that respects the fact that a majority of Puerto Rico’s voters have already self-determined is the Puerto Rico Statehood Admission Act. Members of the House Natural Resources Committee should reject election denial efforts wrapped in the language of ‘self-determination’ and support the call for full equality, enfranchisement and voting rights for the three million U.S. citizens in Puerto Rico through statehood,” concluded Laws García.

The letter was led by Professor Christina Ponsa-Kraus out of Columbia Law School, who is Puerto Rican, and one of the leading authorities on the Insular Cases and the constitutional relationship between the U.S. and Puerto Rico. She will testify during the hearing on Wednesday. The letter includes top scholars from Harvard, Yale, Princeton, Cornell, NYU, U.C. Berkeley, Duke, U Penn, UT Austin, U of Chicago, etc.

The full text of the letter is below. Download a PDF.

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April 12, 2021

The Honorable Nancy Pelosi
Speaker of the House
U.S. House of Representatives
Washington, DC 20515

The Honorable Kevin McCarthy
House Republican Leader
U.S. House of Representatives
Washington, DC 20515

The Honorable Charles Schumer
Senate Majority Leader
U.S. Senate
Washington, DC 20510

The Honorable Mitch McConnell
Senate Republican Leader
U.S. Senate
Washington, DC 20510

Dear Speaker Pelosi, Majority Leader Schumer, and Leaders McCarthy and McConnell:

We, the undersigned legal and constitutional scholars, write to express our strong opposition to the Puerto Rico Self-Determination Act, H.R. 2070, and its Senate companion bill, S. 865, and to register our equally strong support for the Puerto Rico Statehood Admission Act, H.R. 1522, and its Senate companion bill, S. 780.

Like all Americans, we support self-determination. But unlike the supporters of the Puerto Rico Self-Determination Act, we believe that genuine self-determination requires the United States to offer Puerto Ricans a real choice. By “real,” we mean constitutional and non-territorial. Puerto Rico’s self determination options must be constitutional, for the obvious reason that neither Congress nor Puerto Rico has the power to implement an unconstitutional option. And they must be non-territorial, because a territorial option is not self-determination.

There are two, and only two, real self-determination options for Puerto Rico: statehood and independence. Yet the Puerto Rico Self-Determination Act defies constitutional reality by calling upon Puerto Ricans to define other non-territorial options. There are no other non-territorial options. For many decades, advocates of “commonwealth” status argued that it was non-territorial. They argued that when Puerto Rico made the transition to commonwealth status in 1952, it ceased to be a U.S. territory, became a separate sovereign, and entered into a mutually binding compact with the United States. But they were wrong. Quite simply, Congress does not have the power to create a permanent union between Puerto Rico and the United States except by admitting Puerto Rico into statehood. Lest there be any doubt, the U.S. Supreme Court has repeatedly and recently refuted the controversial “compact theory.” In Puerto Rico v. Sanchez Valle (2016), the Court ended seven decades of debilitating debate over the question of whether Puerto Rico’s commonwealth status created a permanent union between two separate sovereigns with an unequivocal “no”: as the Court made clear, Puerto Rico is, and always has been, a U.S. territory, and Congress retains plenary power to govern the island under the Territory Clause of the Constitution (Art. IV, §3, cl.2). And in Financial Oversight and Management Board of Puerto Rico v. Aurelius Investment LLC. (2020), the Court went on to explain that Congress’s creation of a federal board with substantial powers over Puerto Rico’s local government was a permissible exercise of Congress’s plenary power over a U.S. territory. In short, as long as Puerto Rico is neither a state of the Union nor an independent nation, it will remain a territory. By inviting Puerto Ricans to define non-territorial options other than statehood or independence, the inaptly named Puerto Rico Self-Determination Act disserves its purported goal by perpetuating the pernicious myth that such options exist. They do not.

Despite longstanding political division within Puerto Rico, Puerto Ricans have long shared an overwhelming consensus on two key points: They reject territorial status and they wish to remain U.S. citizens. But while both statehood and independence would fulfill the goal of self-determination, only one of those options would guarantee U.S. citizenship: statehood. Last November, in an unmistakable effort to determine their political future, a clear majority of Puerto Ricans voted “yes” in their own referendum on statehood. Now that Puerto Ricans have publicly and officially asked for statehood, it is time for the United States officially to offer it. The Puerto Rico Statehood Admission Act does just that.

Proceeding respectfully, cautiously, and pragmatically, the Puerto Rico Statehood Admission Act responds to the November referendum with an offer of statehood and sets the terms for admission, but it makes admission contingent on a second referendum in which Puerto Ricans would ratify their choice. Were they to do so, the President would issue a proclamation admitting Puerto Rico as a state within one year of the vote. If they were to reject statehood, then the island would remain a territory with the option to pursue sovereignty at any time in the future—so the Act does not force statehood on Puerto Rico in any way. In other words, the Puerto Rico Statehood Admission Act respects the result of Puerto Rico’s referendum by responding with concrete action, while ensuring that Puerto Ricans have the first and last word on their future.

In the 123 years since the United States annexed Puerto Rico, Congress has never offered Puerto Ricans the choice to become a state. Instead, the United States has allowed Puerto Rico to languish indefinitely as a U.S. territory, subjecting its residents to U.S. laws while denying them voting representation in the government that makes those laws. We strongly support a congressional offer of statehood to Puerto Rico, and we urge Congress to pass the Puerto Rico Statehood Admission Act immediately.

Signed,*
*University affiliations listed for identification purposes only.

Jack M. Balkin
Knight Professor of Constitutional Law and the First Amendment
Yale Law School

Christopher P. Banks
Professor, Political Science
Kent State University

Evelyn Benvenutti Toro
Professor of Law
Inter American University of Puerto Rico School of Law

Jessica Bulman-Pozen
Betts Professor of Law
Faculty Co-Director, Center for Constitutional Governance
Columbia Law School

Kathleen Burch
Professor of Law
Atlanta’s John Marshall Law School

Guy-Uriel E. Charles
Edward and Ellen Schwarzman Professor of Law
Duke Law School

Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law U.C. Berkeley School of Law

Cornell W. Clayton
C.O. Johnson Distinguished Professor of Political Science Director, Thomas S. Foley Institute for Public Service and Public Policy Washington State University

David S. Cohen
Professor of Law
Thomas R. Kline School of Law
Drexel University

Andrés L. Córdova
Professor of Law
Inter American University of Puerto Rico School of Law

Erin F. Delaney
Professor of Law
Northwestern Pritzker School of Law

Walter Dellinger
Douglas Maggs Emeritus Professor of Law
Duke University

Carlos Días Olivo
Professor of Law
University of Puerto Rico School of Law

Michael C. Dorf
Robert S. Stevens Professor of Law
Cornell Law School

Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law
and Adjunct Professor of Political Science
University of Wyoming

Martin S. Flaherty
Leitner Family Professor of International Law
Fordham Law School
and Visiting Professor
School of International and Public Affairs
Princeton University

Barry Friedman
Jacob D. Fuchsberg Professor of Law
New York University School of Law

Luis Fuentes-Rohwer
Professor of Law, Class of 1950 Herman B. Wells Endowed Professor Maurer School of Law
Indiana University

Lauren Gilbert
Professor of Law
St. Thomas University College of Law

Leslie F. Goldstein
Judge Hugh M. Morris Professor Emerita of Political Science and International Relations University of Delaware

David Golove
Hiller Family Foundation Professor of Law
New York University School of Law

Mark A. Graber
University System of Maryland Regents Professor
University of Maryland Francis King Carey School of Law

Jonathan Hafetz
Professor of Law
Seton Hall University School of Law

Helen Hershkoff
Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties New York University School of Law

Gary J. Jacobsohn
H. Malcolm Macdonald Professor of Constitutional and Comparative Law University of Texas at Austin

Randall L. Kennedy
Michael R. Klein Professor of Law
Harvard Law School

J. Andrew Kent
Professor of Law and John D. Feerick Research Chair
Fordham Law School

Mark R. Killenbeck
Wylie H. Davis Distinguished Professor of Law
University of Arkansas

Stephen R. Lazarus
Associate Professor of Law
Cleveland-Marshall College of Law

Lawrence Lessig
Roy L. Furman Professor of Law and Leadership
Harvard Law School

Sanford V. Levinson
W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government
University of Texas at Austin

Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law Emeritus
George Washington University Law School

Martha Minow
300th Anniversary University Professor
Harvard University

Samuel Moyn
Henry R. Luce Professor of Jurisprudence
Yale Law School

Christina D. Ponsa-Kraus
George Welwood Murray Professor of Legal History
Columbia Law School

David Pozen
Vice Dean for Intellectual Life and Charles Keller Beekman Professor of Law Columbia Law School

Richard Primus
Theodore J. St. Antoine Collegiate Professor
The University of Michigan Law School

Kermit Roosevelt
Professor of Law
University of Pennsylvania Law School

Lawrence Sager
Alice Jane Drysdell Sheffield Regents Chair
University of Texas at Austin

Rogers M. Smith
Christopher H. Browne Distinguished Professor of Political Science University of Pennsylvania

Girardeau A. Spann
James & Catherine Denny Professor of Law
Georgetown University Law Center

Kate Stith
Lafayette S. Foster Professor of Law
Yale Law School

Geoffrey R. Stone
Edward H. Levi Distinguished Professor of Law
The University of Chicago

Nelson Tebbe
Jane M.G. Foster Professor of Law
Cornell Law School

Laurence H. Tribe
Carol M. Loeb University Professor and
Professor of Constitutional Law Emeritus
Harvard Law School

Stephen I. Vladeck
Charles Alan Wright Chair in Federal Courts
University of Texas School of Law

Kenji Yoshino
Chief Justice Earl Warren Professor of Constitutional Law
New York University School of Law

The Puerto Rico Statehood Council is a Washington, D.C. based, non-partisan, 501(c)4 non-profit issue advocacy organization. We are dedicated to advancing the goal of equality for the U.S. citizens of Puerto Rico through statehood.