A recent article in El Nuevo Dia, one of Puerto Rico’s local newspapers, contained the following politically contrived and legally false question and answer:
“Would Puerto Rico lose U.S. citizenship if Puerto Rico becomes a sovereign country? The answer is no.”
This is a legal, political and ideological falsehood. Yet it’s a fallacy constantly promoted by anti-statehood factions in Puerto Rico as that U.S. territory’s democratic self-determination process is played out.
As a June 11 status plebiscite nears, the anti-statehood editors at the El Nuevo Dia newspaper promote the myth that Puerto Rico can have both sovereign nationhood and dual U.S. citizenship. Instead of an editorial, the newspaper pretended its report on a conference of so-called “legal scholars” at East Carolina University was just routine news coverage.
In reality, that so-called “academic symposium” actually was a staged political stunt by a University of Connecticut professor of Latino studies aligned with the anti-statehood faction in Puerto Rico. The professor is quoted endorsing the unsustainable notion that Puerto Rico has acquired a vested legal right of U.S. citizenship even if it becomes a sovereign nation:
“’The available studies show unequivocally that the U.S. citizens of Puerto Rican origin have the right to permanent citizenship of the United States if Puerto Rico becomes a sovereign republic or a separate nation-state,’ said the professor of political science at the University of Connecticut. Citing the case Afroyim v. Rusk, which established that citizens of the United States cannot be deprived of their citizenship involuntarily, Venator Santiago posited that U.S. citizens born on the Island could claim the protections of civil rights guaranteed by the Fourteenth Amendment of the federal Constitution or laws extended to Puerto Rico.”
Like the 2014 Harvard Law School conference and failed “We the People Project” court cases, there are more than just a few “truth in advertising” problems with press coverage of professor Venator Santiago’s thesis.
To begin with, the national citizenship clause of the 14th Amendment to the U.S. Constitution is not the source of U.S. citizenship for any person born in Puerto Rico. That means the Afroyim case defining constitutional citizenship rights applies only to U.S. citizens born or naturalized under the 14th Amendment as it applies in a State of the Union.
It was not the Afroyim ruling, but rather the case of Rogers v. Bellei in which the U.S. Supreme Court ruled on the legal nature of U.S. citizenship granted at the discretion of Congress by federal statutory law, based on birth or naturalization outside a State of the Union. Puerto Rico is a U.S. territory that has not been “incorporated” under the U.S. Constitution, so the national citizenship clause of the 14th Amendment as interpreted in the Afroyim case is not the source of citizenship in the territory.
Instead, the Bellei ruling confirms that Congress can grant citizenship to persons who don’t acquire it under the 14th Amendment, but all such statutory citizenship laws exist at the pleasure of Congress. That means Congress can make acquisition and retention of statutory citizenship conditional and revocable.
It also means federal citizenship laws remain subject to amendment or repeal as to persons born outside a State of the Union, including those born in “unincorporated” territories like Puerto Rico.
The legal nature of U.S. nationality and citizenship law in “unincorporated” territories was confirmed by the Court of Appeals for the D.C. Circuit in case of Tuaua v. United States in 2016, and the U.S. Supreme Court rejected a petition to review the Tuaua ruling in 2017.
We are forced to consider that the professor and newspaper were knowingly misleading the public to believe that all persons born in the future in Puerto Rico after it has become a foreign nation will have the same right to U.S. citizenship as persons born in a State of the Union.
In reality, even people born in Puerto Rico at this time as a U.S. territory do not have any right to U.S. citizenship under the U.S. Constitution as it applies in a State of the Union. Rather, persons who are not born in a State of the Union do not acquire citizenship unless Congress exercises its discretionary power to grant citizenship by statute.
That is why federal statute law (8 U.S.C. 1401) had to be enacted to provide for naturalization of persons born outside a State of the Union based on relationship to a U.S. citizen parent. Of course, any statutory right of citizenship derived from a parent’s citizenship allowed by Congress can be repealed as to all children born in the future.
That includes persons born in U.S. territories even while under U.S. sovereignty, and certainly upon becoming sovereign. As the court’s ruling in Bellei quoted below makes clear, even the first generation born after territorial status ends can and will be denied derivative U.S. citizenship based on parent citizenship acquired during the territorial period.
This truth is masked in a recent U.S. Department of Justice letter dated April 13 on the June 11 status vote that avoids detailed discussion of citizenship after separate sovereignty is established. White House reports on Puerto Rico’s status also have been somewhat vague, but at least recognize that even sovereignty with a treaty of free association is a form of independence leading to loss of citizenship at some point in future.
But Congressional reports adopted by committees with jurisdiction for territories, as well as Congressional Research Service reports incorporated by reference into those Congressional committee reports, make it clear U.S. citizenship will end if U.S. sovereignty ends in Puerto Rico. See U.S. House of Representatives Report 105-131, Part 1, pp. 13-14; pp. 35-38.
The inapplicability of 14th Amendment outside a State of the Union also explains why for “unincorporated” territories like Puerto Rico Congress had to enact a federal statute (8 U.S.C. 1402) to provide statutory rather than constitutional birthright citizenship based on birth in Puerto Rico.
In Bellei the highest federal court rejected the claim of a person with statutory citizenship that vague notions of “due process” required expansion of constitutional 14th Amendment citizenship to U.S. territory outside a State of the Union.
Here is what the U.S. Supreme Court ruled regarding the legal nature of statutory citizenship for children “born abroad,” which means outside a State of the Union, including territory under U.S. sovereign rule but not incorporated under the U.S. Constitution:
“The first sentence of the Fourteenth Amendment has no application…The claim thus must center in the statutory power of Congress…’naturalization by descent’ was…dependent, instead, upon statutory enactment…’But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.’ …there emerged an express constitutional definition of citizenship. But it was one restricted…The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action…And the Court has specifically recognized the power of Congress not to grant a United States citizen the right to transmit citizenship by descent…This takes us, then, to the issue of the constitutionality of the exercise of that congressional power when it is used…We conclude that its imposition is not unreasonable, arbitrary, or unlawful, and that it withstands the present constitutional challenge…Congress has no ‘power, express or implied, to take away an American citizen’s citizenship without his assent,’ Afroyim v. Rusk…But, as pointed out above, these were utterances bottomed upon Fourteenth Amendment citizenship and that Amendment’s direct reference to ‘persons born or naturalized in the United States.’ We do not accept the notion that those utterances are now to be judicially extended to citizenship not based upon the Fourteenth Amendment and to make citizenship an absolute. That it is not an absolute is demonstrated by the fact that even Fourteenth Amendment citizenship by naturalization, when unlawfully procured, may be set aside…A contrary holding would convert what is congressional generosity into something unanticipated and obviously undesired by the Congress…”
Anticipating that they will lose the June 11 status vote, the anti-statehood “commonwealth” party favoring the status quo and the independence party both are boycotting the democratic self-determination process. That is their choice, but in 1982-1983 the U.S. and U.N. did not count blank ballots in political status votes for free association in the Pacific islands, and will not do so in Puerto Rico’s 2017 status vote.
Claims that Puerto Rico can have the same citizenship rights as states even if it remains a territory or becomes sovereign are just a desperate and deceitful attempt to suppress the pro-statehood vote. It didn’t work in 2012 and it won’t work in 2017.