A New Commonwealth?

The current Resident Commissioner for Puerto Rico, Pablo José Hernández, is a supporter of the discredited, unconstitutional idea of “enhanced commonwealth” status. He has said repeatedly that he doesn’t want to focus on status during his time in office. As new legislation for Puerto Rico’s status is being discussed in Washington, he has also said that he wants to “develop” the relationship between the United States and Puerto Rico, which he refers to as “commonwealth.’

Hernandez has been vocal about the need to include “commonwealth” on the ballot in Puerto Rico status votes. In fact, he claims that failure to include the current territorial relationship on the ballot means that statehood did not receive a majority in previous votes which status won. But he doesn’t actually mean that he wants Puerto Rico to continue as an unincorporated territory. “The current relationship is flawed and should be modified to strengthen the island’s economic development and cure its democratic shortcomings,” his website says. “Congress has rejected proposals to broaden the island’s autonomy under the commonwealth, such as the 1975 Compact of Permanent Union and the 1989 Enhanced Commonwealth formula.” This is true. In fact, every attempt to “improve,” “develop,” or “enhance” the territorial relationship into some special arrangement has been rejected not only by Congress but also by the courts and the Executive Branch.

So what does Hernandez mean when he talks about “commonwealth”?

In response to a publicity stunt by separatists who sent a supposed draft of a Trump executive order calling for independence for Puerto Rico to members of Congress, Hernandez created an AI-generated draft of an executive order calling for “enhanced commonwealth.”

Hernandez explained, “I do this with the sole purpose of showing you how, with artificial intelligence, such a draft can be prepared, distributed, and create confusion and unrest.” However, his draft did include some of the characteristics of “enhanced commonwealth” that we have seen in the past. It may not be the law Hernandez would choose to introduce in Congress, but it probably gives some insight into what he means when he talks about developing the commonwealth. 

Enhanced commonwealth by Hernandez

[DRAFT] [PROPOSAL] [FOR EDUCATIONAL PURPOSES ONLY]

EXECUTIVE ORDER

ENHANCED COMMONWEALTH COMPACT WITH THE PEOPLE OF PUERTO RICO

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in recognition of the longstanding relationship between the United States and the people of Puerto Rico, I hereby order the establishment of a Compact for an Enhanced Commonwealth of Puerto Rico, under the following terms:

Section 1. PURPOSE
This Compact seeks to solidify the relationship between the United States and Puerto Rico, guaranteeing permanent union and full respect for the democratic wishes and self-government aspirations of the Puerto Rican people.

Section 2. PERMANENT UNION
This Compact establishes a permanent union between Puerto Rico and the United States, which shall not be altered or revoked except by mutual consent of the people of Puerto Rico and the government of the United States, expressed through democratically recognized procedures.

Section 3. FULL LOCAL AUTONOMY
Puerto Rico shall exercise full autonomy over local and internal governance, including but not limited to fiscal management, education, public safety, healthcare, infrastructure, and internal economic development. The federal government of the United States shall respect and recognize this autonomy in all interactions.

Section 4. POLITICAL PARTICIPATION
Citizens residing in Puerto Rico shall henceforth possess the right to vote for President and Vice President of the United States. Additionally, Puerto Rico shall elect voting members to the United States Congress, with representation determined proportionally in alignment with established constitutional procedures.

Section 5. EQUAL TREATMENT IN FEDERAL PROGRAMS
Puerto Rico and its citizens shall be granted equal treatment under all federal programs, including but not limited to Medicare, Medicaid, Social Security, Supplemental Nutrition Assistance Program (SNAP), and federal education and infrastructure programs. Disbursement and administration of federal funds shall be provided on equal terms as those afforded to states.

Section 6. BIRTHRIGHT CITIZENSHIP
This Compact reaffirms and permanently guarantees birthright citizenship of the United States to all individuals born in Puerto Rico, consistent with the Fourteenth Amendment of the U.S. Constitution.

Section 7. IMMEDIATE DISBURSEMENT OF RECONSTRUCTION FUNDS
All federally appropriated reconstruction and disaster relief funds currently pending or delayed shall be immediately released and disbursed to Puerto Rico. Agencies responsible for such funds shall expedite distribution without delay, ensuring effective oversight and accountability in partnership with Puerto Rican authorities.

Section 8. IMPLEMENTATION
The Office of Intergovernmental Affairs and relevant federal agencies are hereby directed to cooperate fully with the government of Puerto Rico to promptly implement the provisions of this Compact.

Section 9. GENERAL PROVISIONS

(a) Nothing in this Order shall impair the powers vested by law in federal departments, agencies, or their heads.

(b) This Order shall be implemented consistent with applicable law and subject to the availability of appropriations.

Section 10. EFFECTIVE DATE
This Executive Order shall become effective immediately upon signature.

DONALD J. TRUMP
President of the United States
THE WHITE HOUSE,
Washington, D.C.

A closer look

Let’s consider the terms of the “enhanced commonwealth” as described by Hernandez.

The notion of a compact between the United States and Puerto Rico which could not be changed without mutual agreement has been part of the idea of “enhanced commonwealth” since its inception in the 1950s. However, it is not possible for a current Congress to make decisions for a future Congress in this way. The current Congress can make a law and the next Congress can change that law. Because of this, it is not possible for a current Congress to promise that changes will not be made without mutual agreement.

We can see how this plays out in the real world by looking at the Compacts of Free Association that the United States has made with the Freely Associated States. In every case, the terms have been changed and either side can reject those terms or change them unilaterally.

Full local autonomy sounds good, but a territory of Puerto Rico — which is what a “commonwealth” would still be — is under the territorial clause of the U.S. Constitution, which says that Congress makes the decisions for the territory. States, on the other hand, are subject to the Constitution, but otherwise have autonomy under the 10th amendment.

Political participation, in the form of votes in presidential elections and full representation in Congress, is also something states have but territories do not. States, rather than individual voters, vote in presidential elections. Individual voters vote within their states and send electors to vote for the state. Residents of Washington, D.C., are allowed to vote in presidential elections, but it took a constitutional amendment to give them that right. Puerto Rico would need the same action if it continues as a territory.

Equality in federal programs is a given for states, but not for territories. Not only does the Territorial Clause allow Congress to make decisions for territories, the Supreme Court confirmed that Congress can treat territories unequally with states.

Birthright citizenship under the 14th amendment is another right that is available only to people in states, not in territories.

In fact, the document describing “enhanced commonwealth” essentially describes statehood.