In a letter dated April 13, 2017, the U.S. Department of Justice (USDOJ) denied certification of a political status plebiscite ballot adopted pursuant to the local territorial constitution by the government of the Commonwealth of Puerto Rico (P.R. Act No. 7-2017). Certification of the ballot as consistent with federal law applicable in Puerto Rico was required by the U.S. Congress in the federal law sponsoring the status plebiscite (U.S. PUBLIC LAW 113-76).

DOJ denial of certification arguably was based on issues clearly outside the scope of the certification criteria specified by Congress in the federal plebiscite enabling act. Rather than a counterproductive debate about what critics regard as errors in the DOJ letter, there may be merit in clarifying one DOJ explanation for denial of ballot certification, regardless of when and under what terms DOJ gives federal recognition to status options defined by local law.

Specifically, the DOJ letter concludes definition of the statehood option on the ballot was “misleading” and “inaccurate” because it informed voters statehood was the only status that “guaranteed” U.S. citizenship for people born in Puerto Rico. Instead the DOJ letter states that “under current law” people born in Puerto Rico have an “unconditional statutory right to birthright citizenship.”

That’s confusing because current law confers birthright citizenship as a discretionary policy that exists and continues only at the pleasure of Congress (8 U.S.C. 1402). It creates a “right” to citizenship only in the past and present, and only as long as the statute is in effect. It does not create a right to U.S. citizenship in the future. Congress can impose conditions on acquisition as well as retention of U.S. citizenship based on birth in Puerto Rico any time it chooses to do so.

The only birthright U.S. citizenship that generally is “guaranteed” and “unconditional” in the future is acquired exclusively under the National Citizenship Clause, added to the U.S. Constitution by Section 1 of the 14th Amendment. In 2016 the U.S. Court of Appeals in Washington D.C. confirmed once again that the 14th Amendment birthright citizenship clause does not apply in Puerto Rico and other unincorporated U.S. territories, but rather only to persons born in a State of the Union and under the jurisdiction of the U.S. for that purpose (Tuaua v. U.S. 788 F.Ed 3d).

Indeed, it is precisely because citizenship at birth is not guaranteed by the U.S. Constitution in “unincorporated” territories that Congress enacted 8 U.S.C. 1402 to confer citizenship at birth in the territory of Puerto Rico by federal statute. If Congress repealed 8 U.S.C. 1402 there would be no legal remedy or basis for challenging termination of birthright citizenship in Puerto Rico.

Similarly, if Congress approves legislation that places conditions on first acquiring and later keeping U.S citizenship based on birth in Puerto Rico, there would be no legal remedy unless the conditions were unconstitutionally discriminatory (Rogers v. Bellei 401 U.S. 815). In Bellei the U.S. Supreme Court recognized that even a law ending conferral of citizenship based on U.S. citizenship of parents who acquired it under federal statute instead of the U.S. Constitution’s citizenship clause would be valid.

Like citizenship in the territory under 8 U.S.C. 1402, for all U.S. citizens the ability to pass on citizenship derived from parents based on birth outside a State is enabled not by the U.S. Constitution, but by the general statutory derivative citizenship provisions of the 8 U.S.C. 1401. That is the umbrella derivative citizenship provision for children of U.S. citizens born overseas, followed by the territorial citizenship provisions starting with Puerto Rico under 8 U.S.C. 1402.

All these provisions originated in the same chapter of the U.S. Immigration and Nationality Act, as amended, to provide statutory citizenship for those who do not acquire constitutional citizenship by birth in a State under the 14th Amendment. Once granted it is protected from being taken away based on invidiously discriminatory federal action, but like all rights it can be regulated for legitimate federal purposes, including establishment of separate national citizenship for the U.S. and Puerto Rico if it becomes a separate sovereign nation.

But with or without being regulated or taken away from living persons who acquired it in the territory, there is no question Congress can end the future acquisition of derivative citizenship at any time. For purpose of this discussion, the future can begin the day after a statute is enacted repealing 8 U.S.C. 1402, or the day after a statute is enacted ending derivative citizenship in Puerto Rico under 8 U.S.C. 1401.

This means the statement on the ballot defining statehood was accurate and not misleading by stating that citizenship based on birth in a state is the only “guaranteed” way to become a citizen at birth. Indeed, the difference between past, present and future constitutional citizenship in states and statutory citizenship conferred outside a state is that constitutional citizenship is guaranteed and the latter is not.

There is no federal policy to the contrary. The fact that Congress passes a law conferring citizenship or any other statutory right or privilege does not mean it is guaranteed in the future because it exists in the present. Repealing a statutory right as it applies to all persons affected does not raise due process and equal protection issues.

It is in the nature of statutory law that it is constitutionally temporary and not part of the permanent law of the Constitution. The terms and application of statutory law are subject to constitutional rights to equal protection and due process, but that does not make statutory rights constitutional rights, or even guaranteed rights.

So the DOJ letter of April 13 was correct that persons born in Puerto Rico under the current provisions of 8 U.S.C. 1402 have a current statutory right to U.S. national citizenship. However, if Congress repeals or puts conditions on citizenship under 8 U.S.C. 1402, any person born in Puerto Rico after the effective date of a federal law ending that right or modifying conditions of citizenship would be excluded from current automatic or unconditional citizenship.

The ballot DOJ declined to certify was correct in stating that the current status does not guarantee U.S. citizenship, at least in the future, which should have been made more explicitly clear. That’s true because only birth or naturalization in a State triggers the 14th Amendment’s guarantee of birthright citizenship, putting the acquisition of constitutionally guaranteed citizenship beyond the reach of Congress in all but a few rare cases of jurisdictional exclusion.

In contrast, current statutory rights to citizenship are not binding on Congress. That is reflected in the fact that in 1998 the Chairman of the U.S. Senate Committee with jurisdiction over territories sponsored a substitute to the Puerto Rico political status legislation known as the Young Bill, which had been passed in the House and a version of it had been introduced in the Senate.

In the substitute the Chairman personally insisted on a provision ending the conferral of U.S. citizenship in the territory effective upon certification of a majority vote in a local plebiscite under federal law for separate sovereign nationhood. That is what the people of Puerto Rico should expect if they reject statehood once it has been offered by the United States, and choose nationhood instead. It is not punitive, it is respect for the choice of the people.

But that is not going to happen, at least not if the 2012 vote for statehood is any indication.



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