If voters choose independence/free association over statehood in the June 11 plebiscite, another vote will be held on October 8 between free association and full independence without free association. If free association wins the October 8, vote the local government will appoint a Transition Commission to consult with the federal government on implementation of the plebiscite results.
Based on certification and transmission of the plebiscite results, the Transition Commission would seek timely consultation with officials of the Executive Branch of the federal government and Congress designated to manage Puerto Rico political status matters. For the Transition Commission, the purpose of this consultation would be to reach agreement on general terms and a framework for negotiations on transition to separate sovereign nationhood with a compact treaty of free association.
In that context, the U.S. approach will take into account and will be substantially based on precedents of law and policy established by free association treaties approved by Congress for other former U.S. governed territories by 1986. Also relevant will be the record of past Congressional oversight and deliberations on free association as a status option for Puerto Rico.
Could Puerto Ricans in a Free Associated State keep their U.S. citizenship?
Based on those precedents and the record in Congress, the structure and nature of a free association government-to-government relationship with separate sovereignty is well established under U.S. law and international law recognized by the U.S. federal government. However, on the central and crucial matter of transition from American national citizenship to Puerto Rico national citizenship there is no precedent for free association with continued U.S. citizenship, and there are legal as well as policy reasons why the U.S. will be limited to negotiation of terms to end U.S. citizenship in Puerto Rico, not continue it.
Thus, it can be anticipated that instead of free association with U.S. citizenship it is more likely that the U.S. would propose to begin the phase-out of U.S. citizenship in anticipation of independence with or without agreement on free association. Congressional leaders in the past have proposed that conferral of new U.S. citizenship could end even before territorial status is terminated and free association begins. In other words, babies born in Puerto Rico after a vote for Free Association would not be U.S. citizens.
While negotiations on terms of free association could begin during the territorial period, the international agreement on free association would not enter into force until Puerto Rico ceases to be a territory and has a new status based on its right to independence. Unlike the free association compacts previously adopted, in the case of Puerto Rico there is no known reason at this time the federal government would to require free association to begin immediately upon termination of territorial status in favor of independence, but Puerto Rico might want free association status to commence with at most a “scintilla moment” of independence in order to ensure the U.S. immediately would assume its obligations under the treaty.
Comparing the domestic and international contexts, if Puerto Rico were to “hold out” for a “better deal” than the small free associated micro-nations in the Pacific, it is probable that the U.S. will be less able to accommodate unprecedented features for affiliation under free association status than it was in 1986. The small size and unique history of U.S. relations with those micro-nations gave the U.S. a relatively greater range of choices in constitutional, legal and policy arrangements that could not be duplicated in dealing with the large population and history of Puerto Rico as a U.S. territory.
What if Puerto Rico and the U.S. can’t agree on a Compact of Free Association?
It is possible that agreement could not the reached on terms for moving forward with implementation of independence with a treaty of free association, based on the democratic act of self-determination approving independence/free association. In that case, Puerto Rico or the U.S. could propose terms for independence, and Puerto Rico or the U.S. even could unilaterally declare Puerto Rico independent, and continue negotiations on future relations, in this case including free association. That is what other administering powers have done in the past when territorial governments did not agree to terms for transition based on the right of both governments to independence.
The Puerto Rico Transition Commission is also authorized to take whatever “political and legal” actions it determines necessary to implement the self-determination of the voters in the plebiscite, and could seek federal court relief or propose that the territorial government institute other measures to end the current status and seek separate sovereign nationhood.
If free association is achieved, whether it lasts decades or is terminated sooner by agreement or unilateral action, the parties can agree to fulfill some or all obligations under the treaty during the transition to independence for both nations. However, the territory has no claim or right to return to any status under U.S. sovereignty or to recover U.S. citizenship once terminated. Puerto Rico could not become either a state or a territory — the only constitutional relationships between the U.S. and a possession — after declaring independence.
2 Responses
Non-permanent Statutory US Citizenship-FACTS
The Facts presented (attached and below), to include US Supreme Decisions, Federal Court decisions, sitting Federal Judges, Presidential, GAO, and other reports– disputes the contentions that the source of statutory (by Law) US Citizenship is fully protected by the 14th Amendment…; that a Statutory US Citizenship is, most likely, not permanent and irrevocable, unlike the Hunter’s College-Center for Puerto Rican Studies “VOICE” mentions….
The exposed naked ugly truth is: The Congress has the power to differentiate (discriminate) in applying the US Constitution (except for Broad unlisted rights) to US “un-incorporated” Territories (like Puerto Rico); can revoke or amend any laws it makes (per the Territorial Clause; Insular Cases…). Plus, Congress isn’t above the US Constitution…; can’t relinquish any powers given to it by the US Constitution or US Supreme Court…
Until there is a US Supreme Court Decision revoking some of the “Insular Cases” (Bidwell & Balzac)…; the standing Law is that US statutory US Citizens, no matter where they reside, have an un-permanent and revocable US Citizenship…
Thus, based on facts, most born in Puerto Rico have a statutory (by law) US Citizenship not fully protected by the US Constitution’s 14th Amendment–that states: “All Persons born or naturalized thereof, are citizens of the US and of the State wherein they reside…”
Moreover, the 14th Amendment doesn’t mention “Territory” or being born as a statutory US Citizen in an “un-incorporated” US Territory… It mentions you are a US Citizen of the “State” wherein they reside…” Thus protecting those born in the States or Naturalized in the States; and not fully protecting statutory US Citizenship which is at the will of US Congress… Please, see the facts presented below and enclosed.
Thus, most likely, there are no Constitutional grounds to prevent our US Congress from exercising its powers under– the Territorial Clause, and US Supreme Court decisions-Insular Cases… –that permit UC Congress to grant or revoke a Territorial Law, including a statutory (by Law) US Citizenship in the US Territory of Puerto Rico.
Puerto Ricans are included in Code 8 USC CHAPTER 12, but, in a separate State/Code…; not under the General Clause/Statute/Code (§1401) (where US Sen. McCain and others are covered.) Or in Part II: Naturalization (which is under the purview of the US Attorney general). Plus, Congress can amend or revoke the Laws it makes pertaining to an unincorporated US Territory…
AGAIN, please, keep in mind that Laws can be amended or changed or revoked by the Congress. The US Congress is not above the US Constitution or decisions made by the Supreme Courts… Also, based on US Justice Department and GAO Reports; Scholars and others, point out the following connecting points that conclude a Statutory US Citizenship is not permanent…but, revocable, and under the will of Congress.
President W. Bush US Justice Department-Presidential Task Force Reports on Puerto Rico’s Status (2004 and 2007) states: “If P.R. were to become independent “… those…who had U.S. Citizenship only by statute, would cease to be citizens of the United States, unless a different rule were prescribed by legislation or treaty…” (Page 9)
President Obama’s US Justice Department: In a case concerning American Samoa (2016); using the words of the U.S. Supreme Court–explained that 14th Amendment citizenship does not apply in a territory that has not “been “incorporated” into the United States as a part thereof”, but, “is simply held . . . under the sovereignty of the United States as a possession or dependency. (Like PR…)
The 1997 GAO Report-U.S. INSULAR AREAS Application of the U.S. Constitution states: “Citizenship is derived EITHER from the Fourteenth Amendment to the Constitution (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . . .”) OR from a specific statute that confers citizenship on the inhabitants of an area that, although not a state, is under the sovereignty of the United States. Such legislation has been enacted for Puerto Rico (8 U.S.C. § 1402)…” Please, see Enclosure 2-FACTS for details.
• The Federal Relationship with the US Territory of Puerto Rico is mainly based on the original US Constitution (1789) Article 4- (undemocratic Territorial Clause), which states: “The US Congress has the power to dispose of and make all rules and regulations pertaining to the US Territory or Property that belongs to the United States”; the US Supreme Court Insular Cases (especially Bidwell and Balzac) which have not been overturned; other jurisprudence…
• The US Supreme Court in the Insular Cases (1901-1925+) interpreted and established (based on racism and discrimination of the times) that:
• Bidwell (1901); Balzac (1922) decisions: Puerto Rico is an “unincorporated US Territory, more foreign than domestic, belongs to, but is not part of the United States.”
• The US Congress has the power to discriminate (differentiate) in applying the US Constitution to US “un-incorporated” Territories (like Puerto Rico). Even though a later decision added that they had basic un-listed rights… (But, not all Civil Individual Rights…)
• The term “un-incorporated…” is not found in the US Constitution, and was not applied to any US Territory before Puerto Rico. Thus, the discriminatory term “un-incorporated” is a basis for our US Congress to treat Puerto Rico differently, because PR is considered “foreign; not part of the US”. (Sadly, the US Supreme Court has never overturned Bidwell and Balzac…)
• 14th Amendment–that states: “All Persons born or naturalized thereof, are citizens of the US and of the State wherein they reside…” It doesn’t mention “Territory” or being born as a statutory US Citizen in an “un-incorporated” US Territory… It mentions you are a US Citizen of the “State” wherein they reside…” Thus protecting those born in the States or Naturalized in the States; and not protecting statutory US Citizenship which is at the will of US Congress…, per the facts presented below.
• Thus, there are no Constitutional grounds to prevent our US Congress (from exercising its powers under the Territorial Clause, and US Supreme Court decisions-Insular Cases…) to grant or revoke a Territorial Law, including a statutory (by Law) US Citizenship in the US Territory of Puerto Rico. Besides, Puerto Ricans are included in a separate Statue in Code 8 USC CHAPTER 12; not under the General Clause or in Part two of Naturalization… Congress can amend or revoke the Laws it makes pertaining to an unincorporated US Territory…
• In Rogers v. Balleri, 401 U.S. 815 (1971), “the Court ruled that (its earlier decision in case of) Afroyim was applicable because the claimant was not a ‘Fourteenth Amendment US Citizen’… because Balleri had been born outside the United States… The case law establishes that Puerto Rico, whatever its exact status and relationship to the United States, is not itself in the United States…In that perspective, then, the limitation of the first sentence of Section 1 of the Fourteenth Amendment would not restrain Congress’ discretion in legislating about the citizenship status of Puerto Rico…”
• In Harris v. Rosario, 446 U.S. 651 (1980), the Court in a succinct per curium order, applied Califano v. Torres, 435 U. S. 1 (1978), to hold that a lower level of aid to families with dependent children to residents of Puerto Rico did not violate the Equal Protection Clause, because in U.S. Territories Congress can discriminate against its citizens applying a rational basis standard. However, Justice Marshall issued a staunch dissent, again noting that Puerto Ricans are United States Citizens and that the Insular Cases are indeed questionable.
• 8 U.S.C. Code 8 USC CHAPTER 12, SUBCHAPTER III: NATIONALITY AND NATURALIZATION-Part I—Nationality at Birth and Collective Naturalization: Part I
• §1401. Nationals and citizens of United States at birth US Citizenship (Covers all US Citizens–including Sen. McCain, but, not statutory US Citizens).
• Code §1402: “All persons born in Puerto Rico on or after April 11, 1899, and prior to January 13, 1941, subject to the jurisdiction of the United States, residing on January 13, 1941, in Puerto Rico or other territory over which the United States exercises rights of sovereignty and not citizens of the United States under any other Act, are declared to be citizens of the United States as of January 13, 1941. All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are Citizens of the US at birth.”
The question here is why wasn’t the statutory US Citizens from the unincorporated US Territory of Puerto Rico included in the amended Part I §1401 that includes all other Citizens of the US at birth and “jus soli” (right of soil)?
Also, former US Attorney General Thornburgh (which under Part-II 8USC is responsible for Part-II Naturalization) states:
• “The ruling of the Supreme Court in Rogers v. Bellei 401 U.S. 815 (1970), regarding the nature of statutory citizenship is consistent with the conclusion that even a statutory extension of the Fourteenth Amendment to Puerto Rico could not limit the discretion of Congress to amend or repeal that statutory extension.”
• “Thus, the U.S. citizenship created under 8 U.S.C. §1402 does not and cannot offer the permanent or constitutional protection of the Fourteenth Amendment to the people of Puerto Rico. Similarly, the protection of persons born in a State of the Union under Afroyim v. Rusk 307 U.S. 253 (1967) would not prevent Congress from changing laws defining the citizenship of people born in Puerto Rico.”
US President W. Bush; US Justice Departments from many Administrations say:
• “…for entities under the sovereignty of the United States, the only constitutional options are to be a State or Territory.”
• “Puerto Rico, for purposes under the U.S. Constitution, is a Territory…it is, therefore, subject to congressional authority, under the Constitution’s Territorial Clause.”
• “If P.R. were to become independent “… those…who had U.S. Citizenship only by statute would cease to be citizens of the United States, unless a different rule were prescribed by legislation or treaty…”
Also, FREE Association is an Independence with a Pact or Treaty: It, most likely would include the loss of US Citizenship! According to the Department of Home Land Security- Fact Sheets on to Compact or Treaty of Free Association–the Status of Citizens of the Freely Associated States of the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), and Palau– who have a Compact of Free Association with the US –ESTABLISH they are Independent Nations, with a special relationship with the United States…
Also, it states—the Citizenship Status of Free Associated States: Palau, RMI or FSM are not citizens or nationals of the United States… There is no Pact of Free Association that maintain a US Citizenship. Because, I say, a Nation can’t be sovereign with the Citizenship of another Nation! Those in Puerto Rico that state: Free Association comes with US Citizenship, are wrong; try to fool People…!
Please, read all the facts (especially enclosure 1-attached)– that point that the Constitutional source of a statutory (by law) un-permanent US Citizenship rest in the US Constitution’s “Territorial Clause” and Insular cases-; not in the Laws made by Congress (which can be changed).
The “unincorporated” US Territory of Puerto Rico is facing a fiscal, status, and humanitarian crisis. Patriots of true Grit must educate; support the local Plebiscite (11 June 2017); and support the need for Congress to take action to finally resolve this un-just situation (that affects everything PR does). Please read, attached. This is a civic action fight for equal individual Civil rights for ALL! Like Dr. ML King said–The time is now!
[…] The biggest question that comes into play with the other option, free association, is that of citizenship. Over the course of Puerto Rican history it has been guaranteed that the citizens of Puerto Rico are also citizens of the United States. Since none of the other countries with free association are granted citizenship under their agreements, the skepticism regarding the lack of citizenship could push many voters to reject the free association and independence choices. […]