DOJ Speaks up on Status Bills

The House Committee on Natural Resources held a hearing on the political status of Puerto Rico in April. At that hearing, one very important controversy arose: would HR 2070 create problems by allowing unconstitutional status options to appear on a ballot?

There were other controversies. For example, Puerto Rico’s elected leaders pointed out the HR 2070 disregards the democratically expressed will of the voters of Puerto Rico and ignores the self-determination process which the Island has already conducted.

However, the constitutional issue of what political status options are viable was particularly contentious.

Rep. Raul Grijalva, the chair of the committee, decided to delay the second day of hearings until the U.S. Department of Justice made a ruling on the constitutionality of the bills.

Which status options are viable?

The Department of Justice was completely clear on which status options are possible under the U.S. Constitution:

“[T]he people of Puerto Rico should be allowed to choose whether to become a nation independent of the United States, become a state within the United States, or retain the current status of a territory. Insofar as H.R. 2070 would facilitate a choice among those three options, which we believe are the three constitutional options available to Puerto Rico, the Department supports the bill.”

This is not a surprising conclusion; all three branches of the federal government have made it abundantly clear that these are the only viable options. The DOJ will not accept unrealistic options like “enhanced commonwealth.”

The DOJ analysis of HR 2070 says specifically that “the only constitutionally permissible status options available to the status convention—and thus the only options that Congress could subsequently adopt by joint resolution, see H.R 2070, § 6—are statehood, independence, or Puerto Rico’s current status as a territory.”

Later, they reiterate this point: “As has been the Department’s consistent view since 1991, we continue to believe that the Constitution limits Puerto Rico to three constitutional choices: the current territorial status, statehood, or independence…In other words, there is no constitutionally permissible status ‘outside of the Territorial Clause’ other than statehood or independence (including free-association agreements).”

The DOJ continues to include the current territorial status, which both bills had eliminated from consideration.

“These provisions appear to eliminate the current territorial status as an available choice for the people of Puerto Rico under the procedures in the bill,”the analysis says. “Moreover, these provisions may be read to imply that the United States has determined that the people of Puerto Rico may not decide to retain the island’s current territorial status.”

Binding decisions for Congress

The DOJ also points out that HR 2070 attempts to make decisions that will be binding on Congress, and that this is also unconstitutional. They say, “one Congress cannot irrevocably bind subsequent Congresses.” They also say specifically that mutual consent provisions, another element usually included in “enhanced commonwealth” proposals, “cannot be binding.”

Further, the provision that Congress must ratify the option chosen by vote could only be included if Congress gave Puerto Rico a list of acceptable options — which would be the list of three items mentioned above.

What status convention?

The status convention would therefore be able to arrange a referendum offering the three viable options:

  • statehood
  • independence
  • current territory status

This has of course been done before. Statehood has been the clear choice.

Why should statehood be delayed for a meaningless convention with a predetermined outcome — that is, a choice of three options which have already been presented to the voters more than once?

Analysis of HR 1522

The DOJ also analyzed HR 1522. “The Department’s concerns with the bill relate only to the manner of execution,” they said. “The Department’s primary concerns are (1) providing for an orderly transition of the Financial Managements and Oversight Board for Puerto Rico that was established by the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”), Pub. L. No. 114-187, 130 Stat. 549 (2016); and (2) addressing legal complications that would ensue from application of certain constitutional uniformity doctrines upon Puerto Rico’s transition to a state.”

The analysis goes into some detail on these points.

However, Rep. Jenniffer Gonzalez-Colon said, “I’m glad DOJ did not find any constitutional flaws in my Statehood bill, H.R.1522. We will continue working to enact the will of the people of Puerto Rico.’”

New hearing

With the reports from the Department of Justice, the House Committee on Natural Resources will go ahead and hold the next hearing on Puerto Rico’s status today, Wednesday, June 16th, at 1:00 p.m.

 

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