Senator Roger Wicker’s version of the Puerto Rico Status Act includes the sentence, “The Commonwealth of Puerto Rico  shall be united to the United States by a formal compact of political autonomy.” The phrasing should sound familiar if you know much about Puerto Rico history, because the “commonwealth” party has been talking for decades about the compact between Puerto Rico and the United States.

The U.S. government also used to use the phrase. For example, a letter from the Acting Secretary of the Interior to the Secretary of State in 1952 said, “That law, unique in the history of United States’ territorial administration, expressly recognized the principle of government by consent, and, declaring that it was adopted in the nature of a compact, required that it be submitted to the voters of Puerto Rico in an island-wide referendum for acceptance or rejection.”

The letter began, “My Dear Mr. Secretary: I am pleased to report to you that with the establishment of the Commonwealth of Puerto Rico on July 25, 1952, the people of Puerto Rico have attained a full measure of self-government, consistent with Puerto Rico’s status as a territory of the United States.” That is, the letter said first and foremost that Puerto Rico’s new name and constitution did not change the fact that it was a territory belonging to the United States and subject to the Territorial Clause.

The law in question, 64 Stat. 319, said, “Fully recognizing the principle of government by consent, sections 731b to 731e of this title are now adopted in the nature of a compact so that the people of Puerto Rico may organize a government pursuant to a constitution of their own adoption.” It was an update to the Puerto Rican Federal Relations Act, which Sen. Wicker’s bill also mentions. The new bill plans to replace the Puerto Rican Federal Relations Act with its new definition of “commonwealth,” which is essentially the proposal made by Jose Luis Dalmau.

Where else do we see “compact” used?

“Compact,” in this context, means a contract or agreement, particularly between two sovereign states.   The U.S. Constitution and the Supreme Court have both used the term to refer to a written agreement between nations or states — that is, between sovereign entities.

A relevant example is the Compact of Free Association between Palau and the United States. The U.S. also has compacts of free association — written, signed documents detailing the relationships between United States and these independent nations — with two other Pacific nations: the Federated States of Micronesia and the Marshall Islands.

Interestingly, the discussion of free association in the Wicker bill does not use the term “compact” but speaks only of “articles of free association.”

Does Puerto Rico have a compact with the United States?

You’ll notice that the uses of “compact” in relation to Puerto Rico and the United States quoted at the beginning of this article. say “in the nature of a compact.” This is a very special phrase. Google it and you will find that it is only used to describe the relationship the U.S. has with Puerto Rico.

It reminds us of the phrase “like a state,” which is also often used about Puerto Rico.

Just as Puerto Rico is a territory, not a state, Puerto Rico’s relationship with the United States might have had the nature of a compact, but there never was a compact. Some scholars have suggested that Puerto Rico leaders believed they had a compact when Congress approved the Puerto Rico constitution. Certainly, more recent leaders have spoken about “a compact” as though such a written, signed agreement existed somewhere.

In fact, Puerto Rico had a law that was described as being “in the nature of a compact.” That is not the same thing.

How would the commonwealth compact work?

Dalmau and Wicker want to change that. They specify that a new commonwealth status would include “a formal compact.” That would be a different kettle of fish. If Congress were to pass Wicker’s bill and Puerto Rico voters were to choose commonwealth status, the Bilateral Negotiating Committee would have to negotiate a compact defining a new relationship between Puerto Rico and the United States. Wicker’s bill (and Dolman’s definition of “commonwealth”) include permanent U.S. citizenship and the right to reject federal laws.

As we have seen before, one Congress cannot bind a later Congress. The bill does not say whether a commonwealth would still be a territory. The U.S. Constitution only includes states and territories; there is no other relationship foreseen by the Constitution. The commonwealth would not be a state, and Wicker sometimes speaks of maintaining the current commonwealth relationship. Puerto Rico’s current relationship with the United States is that it is a territory. We assume that the “commonwealth status” would therefore still be officially a territory.

If so, under the Territory Clause Congress would still have the right to “make all needful rules.” Congress has changed treaties (including Compacts of Free Association) before, and could do so again.

Clearly, these questions must be resolved before “commonwealth status” under the Wicker act could be implemented.



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