Congressional Research Service on Puerto Rico Status

The respected Congressional Research Service usually can be counted on to enable and empower Members of Congress, Congressional staff and the public to make well-informed judgements about national policy issues pending before Congress. It is not clear why CRS reports on Puerto Rico’s self-determination and political status resolution process suffer from chronic analytical deficiencies, despite having all the optics and appearance of being meticulously documented rigorously researched scholarly treatment of the topic.

In part this uncharacteristic CRS failure to better inform Congress and the public is due to reliance on outdated reference materials. Even more pronounced is the tendency of the CRS reports on Puerto Rico self-determination to reflect an intellectual enmeshment in the tortured ideological narrative of local political party platforms promoting an anti-statehood agenda. Instead of providing balanced background information and insight to give readers a better understanding of the current internal political discourse on the relative benefits and burdens of territorial status quo and alternatives of statehood and nationhood, the CRS reports tend to focus on the state of play in the local political debate about 15 years ago.

Backfilling on the history of political status debate is justified, but the latest CRS report (CRS Report R44721, December 28, 2016) repeats the conspicuous anachronisms of past reports that confuse readers with a subtle and nuanced but unmistakably revisionist rendition of the historical record. Although plausible and erudite on the surface, to erudite and informed readers the discrepancies are not hyper-technical, and in the hyper-ideological local political status context have political meaning that matters to partisan advocates.

For example, the most recent CRS report incorrectly states that “political status” is a term of art that refers to federal relations with territorial governments. To the contrary, federal territorial relations are defined by federal statutory law organizing territorial government, commonly known as organic acts. The term “political status” is most commonly used to refer to the constitutional condition of the territory. Statehood is a political status, incorporated territory is a political status, as is unincorporated territory status.

In contrast, the CRS report asserts that the organic act creating a local territorial government given the name “commonwealth” is also a political status. Indeed, this latest CRS report incorrectly states that Congressional amendment and approval of the local territorial constitution in 1952 constituted “alteration” and a “major change” of the territory’s political status.

Yet, the exercise of local sovereign powers that has been allowed by Congress under commonwealth was by statutory permission not by right under the U.S. Constitution, and the commonwealth constitution as well as all local law is null and void to the extent of any inconsistency with federal law. Indeed, it is merely a form of territorial government under an organic act that as a matter of federal statutory policy provides for local administration of purely internal civil affairs by a regime instituted under a locally ratified constitution. That form of local territorial government does not define a political status under the U.S. constitution different from unincorporated territory status.

While pretending to put the Puerto Rico status question in historical context of federal territorial practice in the last century, the CRS pointedly fails to inform Congress in a meaningful and relevantly analytic way that unincorporated territory of the Philippines also was authorized by federal territorial organic law in 1934 to establish a “commonwealth” form of territorial government. This included a local constitution ratified by the people and with internal autonomy leading to nationhood in 1946.

Similarly, the CRS report fails to explicate the implications in the Puerto Rico political status process of the fact that the unincorporated territory of the Northern Mariana Islands was authorized by federal territorial organic law in 1976 to establish a “commonwealth” form of local government under an internal territorial constitution ratified by the people. As in the cases of Puerto Rico and the Philippines, for CNMI “commonwealth” is unincorporated territory status with an organic act pursuant to which a local territorial constitution is adopted, but still subject to supremacy of federal law. As such, the local government has powers that are “purely local” and valid legally only if the subject matter is not otherwise governed by superseding federal law.

In all three cases where the “commonwealth” term for territorial government was allowed, the local constitution did not change the “political status” of the territory, even it it was a step toward s change of status, as in the case of the Philippines and the CNMI. The Philippines became a nation and the CNMI which had been part of a U.S. administered U.N. trust territory became an unincorporated U.S. territory.

Ironically, of the three “commonwealth” territories, Puerto Rico is the only one in which “commonwealth” in fact has not led to a change of political status. Yet, the CRS asserts the same view holding there was a change of status in 1952 espoused by the pro-commonwealth status quo Popular Democratic Party (PDP). That is the foundation of the PDP’s anti-statehood position that “commonwealth” is permanent constitutionally fixed new status that needs to be “enhanced” by “mutual consent” to avoid the difficult choice between statehood and nationhood.

This erroneous finding by CRS touches upon the central core point of political, historical and legal contention between the statehood and anti-statehood parties in Puerto Rico. Still, the CRS report only vaguely refers to the full implications of its misguided suggestion that “commonwealth” was a change of political status.

Thus, as scholarly as the CRS report may appear, intended or not the CRS assertion that the 1952 amendment and approval of a local constitution defined a new political status for Puerto Rico has the effect of aligning the CRS with the anti-statehood PDP in Puerto Rico. That alignment is reinforced by the CRS report’s elaborate discussion of the PDP platform regarding the legal nature of “commonwealth.” That untoward effect is further exacerbated by the equally elaborate discussion of the 1953 proceedings in the U.N. that led to adoption of UNGA Resolution 748 and cessation of U.S. reporting on Puerto Rico as a less than fully self-governing territory under Article 73(e) of the U.N. Charter.

And yet, the CRS does not explain why the U.S. does not report to the U.N. on the Commonwealth of the Northern Mariana Islands under Article 73(e) either. If the CRS were consistent it would assert that the lack of U.N. reporting on CNMI defines the “political status” of the CNMI as something other than an unincorporated territory. The truth is that the “commonwealth” model of federal territorial relations does not satisfy the criteria of applicable U.N. resolutions defining criteria for cessation of reporting under Article 73(e), but the PDP party junta and now CRS are aligned with the PDP platform hoax that this means Puerto Rico became a “free associated nation state” in 1952.

In contrast to the CRS report’s elaborate and complicated analysis of the PDP platform that reiterates the outworn PDP sloganeering about “enhanced commonwealth,” the CRS document glosses over the unequivocal legal meaning and significance of the U.S. Supreme Court’s Sanchez Valle ruling in 2016. That ruling confirmed that “commonwealth” is not a sovereign status. The CRS report also ignores the merits of the brief field by the DOJ Solicitor General in that Sanchez Valle case. Both the high court’s ruling and the DOJ SG brief make it clear the 1952 commonwealth constitution did not define a “political status” for Puerto Rico any different from CNMI, Philippines, Guam or U.S. Virgin Islands.

The CRS report duly notes the PROMESA law Congress passed to address the current fiscal meltdown in the territory, but once again glosses over the inconvenient truth that PROMESA in effect suspends, supersedes and holds in abeyance some provisions and capacities of local government under the commonwealth constitution. This arguably confirms that Puerto Rico remains an imperial client state in unincorporated territory status.

Coupled with the Sanchez Valle case and DOJ SG brief, PROMESA makes further discussion of “enhanced commonwealth” perversely anachronistic. Thus, while it might be relevant to give a historical rendition of the PDP enhanced commonwealth saga, when combined with the CRS report’s disproportionately narrow and absurdly ambivalent exposition of the Sanchez Valle case, the focus and emphasis of the CRS report overall defies explanation. It most certainly does not constitute a neutral or even handed account of the Puerto Rico status process that is underway.
Instead, perhaps most notably the CRS report anomalously downplays the historical importance of the authorization by Congress in P.L. 113-76 of a referendum to confirm the results of the 2012 status vote. CRS treats the Congressional sponsorship of a democratic act of self-determination that includes statehood as an option as something “possible” in 2017, but not necessarily of immediate importance to Congress. Indeed, the CRS report focuses more on the failure of Congress to approve a referendum bill introduced by Puerto Rico’s non-voting delegate in Congress (HB 727) than the passage of P.L. 113-76. The CRS report even goes so far as to suggest P.L. 113-76 is somehow defective because it does not include “enhanced commonwealth” as a ballot option. Yet, “enhanced commonwealth” has now been rejected by the Department of Justice, Congress, the President and the federal courts!

This undue emphasis on the implausible interpretation of “commonwealth” by the local party opposing statehood and promoting the status quo with “enhancements” that do not exist under federal law is unwarranted and unjustified. This is especially true when the CRS report recognizes that the outcome of the 2016 elections leaves the local statehood party in control of the territorial government as a local political development that may produce internal unity on status question.

Instead the CRS implies the 2016 election results embracing the statehood party does not require Congress to act on status. Again, this imbalanced account is not objective, not impartial, not even deliberate. It resurrects dead PDP ideology and treats the status quo rejected in 2012 as an equal status option along with statehood and nationhood. As such, the CRS report is intellectually deficient and the pattern of inaccuracy in effect if not intent favoring the anti-statehood faction is undeniable.

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