Alberto C. Medina wrote in The New Republic that Congress should have a deadline to settle the status of Puerto Rico.  On the face of it, this seems like a weak idea. After all, if Congress has ignored their responsibility in this matter for 125 years, why would they suddenly jump to attention because they have a deadline? And who would hold them to that deadline? 

Here’s Medina’s proposal:

“Congress should legislate a mandatory change to Puerto Rico’s status in 2030, based on the result of three plebiscites to be held between now and then. As part of the 2024 and 2028 general elections, and once more before the self-imposed deadline, Puerto Ricans would vote for either statehood or sovereignty. A second question would ask for a preference between full independence or free association, an option under which a sovereign Puerto Rico would maintain a relationship with the U.S. through a negotiated compact like Palau, Micronesia, and the Marshall Islands.

“If statehood achieves a supermajority (whether two-thirds or whatever American lawmakers deem sufficient) in the average of all three votes, Congress should be compelled to make Puerto Rico the fifty-first state. If no supermajority is achieved, Congress must initiate a transition to either free association or independence—whichever garnered most votes in the second question. Should Puerto Ricans have chosen free association, but negotiations on a compact prove unsuccessful within a reasonable term, full independence with an economic transition period must immediately follow.”

Independence is the default

Under this proposal, independence is the default. If statehood doesn’t get a supermajority (which has never been required of a territory for admission before), then Congress will cut Puerto Rico off, with or without a Compact of Free Association. Palau, The Federated States of Micronesia, and the Marshall Islands are all fully independent nations with treaties called Compacts of Free Association with the United States. It would be very important for Puerto Rico’s voters to understand this. A vote for sovereignty could never result in “enhanced commonwealth” or any other innovative option.

Voters would be choosing U.S. citizenship and the protection of the U.S. Constitution or independence, without any guarantee of U.,S. citizenship and without the protection of the Constitution. A slim majority of statehood votes would result in independence. “None of the above” would not be an option. A strong commitment to statehood would be the only way to avoid independence.

Independence would be the default.

A supermajority would be required

“Yes, the supermajority threshold for statehood is onerous, but by ignoring plebiscites in which statehood has won by a simple majority, Congress has already implicitly established it,” says Medina. “The requirement should be made explicit.” In other words, the frequent excuse from Congress that they are waiting for consensus from Puerto Rico would no longer be acceptable. Congress would have to admit that they are insisting on a new criterion which has not previously been required for territorial referenda (or for presidential elections or anything else, for that matter). They would have to accept the possibility of losing Puerto Rico entirely if they don’t admit the territory as a state.

They couldn’t continue to hold a colony in the 21st century.

“Wouldn’t it be undemocratic if statehood ‘wins’ but fails to meet the supermajority threshold and Puerto Rico becomes independent against the wishes of a majority of its people?” Medina asks. “In a way, yes—and Americans would have to live with the shame that they held Puerto Rico as a possession for over a century and ultimately denied the wishes of most Puerto Ricans to join the Union. But making independence, not the status quo, the alternative to statehood is the only way to definitively end a colonial condition that is far more undemocratic.”

Puerto Rico would need to give up the fantasy of “enhanced commonwealth” at last. But the supporters of this fantasy could then think seriously about which of the possible non-colonial options they want: statehood or independence. Whichever option gets the most votes from those who have been deluding themselves about having the best of both worlds would have a decisive majority.

The status quo would not be an option

The Puerto Rico Status Act does not include the current territorial status as an option, and that is the right move. Medina agrees, saying, “To its credit, the Puerto Rico Status Act discards the status quo as an option. That’s the right thing to do: No amount of popular support can legitimize a colonial relationship that leaves Puerto Ricans without basic political rights. There should be no such thing as colonialism by consent.”

The dream of the commonwealth has kept many in Puerto Rico from committing to a viable status alternative. Acknowledging that the status quo is a colonial relationship is a necessary step toward the end of the colony.

Will Congress pass a bill like that?

Congress gives itself deadlines all the time. Maybe they would give themselves a deadline on stopping the colony. Maybe they would prefer a bill of this kind with statehood as the default — without a supermajority favoring independence, Congress would be required to admit Puerto Rico as a state. Maybe the decision between those two versions of the bill would force Congress to make a decision, just as the vote would force Puerto Rico voters to make a decision.



One response

  1. The essay on Puerto Rico status resolution by Alberto Medina in New Republic entitled with the question “Give Congress A Deadline?” is thought-provoking and serious-minded. It underscores the need for a structured mechanism under federal law for status resolution. I agree with the purposes and intent, but have concerns about some specific features of the proposed self-determination and legislative implementation protocols.

    Without belaboring the historical and legal issues, I would emphasize that territorial political status resolution is first and foremost a political question for Congress. The President can promote options and outcomes by executive communications, and sign or veto legislation related to territorial status. The courts can define current status by judicial mandate. But resolving future political status of a territory is a power reserved to Congress under the Constitution, subject only to enactment of Congressional will by statute and interpreted but upheld when challenged in courts.

    Yet, as Medina recognizes one Congress can not bind itself or another to carry out the terms of a protocol established by statute. Presidents Bush and Clinton issued instruments of executive authority that advanced important status resolution principles, but those initiatives were precatory. Meanwhile, due to the flawed terms of Article IX of the Spanish cession treaty, the federal courts have done more to obstruct and confuse the status resolution process than enable and facilitate it.

    That was particularly the 1922 ruling in Balzac v. Puerto Rico, in which openly imperialist and racist Chief Justice Taft tried to prevent integration of Puerto Rico under the Constitution by holding that U.S. citizens in the former Iberian colony could be ruled under the same inferior civil status as subjects of national authority under the non-incorporation doctrine of the 1901 case of Downes v. Bidwell, which originally applied only to non-citizens. Congress should have rejected the Balzac ruling, but instead institutionalized it to evade its constitutional responsibility for territorial status resolution.

    In that historical context, the meritoriously intended proposal for a federally directed self-determination process with described options and a super majority requirement seems problematic. Taking the last point first, the supermajority requirement has no precedent. Nor arguably should such a precedent be set simply because of Congressional abdication of responsibility for territorial status resolution. Most particularly, the non-binding requirement could become perniciously anti-democratic at the point there is a clear majority vote that nevertheless does not meet the supermajority threshold.

    More fundamentally, Puerto Rico has a constitution based on U.S. citizenship that has been ratified by the people and Congress, and as such the territory is more statehood-ready than most former territories at the time admitted as states. The greatest obstacle to status resolution for Puerto Rico is the lack of a national policy adopted by Congress that defines its intentions regarding the future status of the territory.

    Thus, declaration by Congress that permanent union under the Constitution and eventual statehood will follow a majority vote for statehood, on fully developed terms to be approved by the people and Congress, would make statehood based on democratic self-determination national policy.

    That also would trigger the investment and motivation for new population growth that ended economic and political stagnation in every territory that became a state, and that contributed to the success of each new state. Under the current judicially invented non-incorporation doctrine in which Congress has acquiesced without moral justification, the developmental arrest caused by the lack of a democratic national policy has been used as an excuse for failure of Congress to treat Puerto Rico with equivalence to other territories less ready for statehood in the past.

    In comparison, consider that in 1916 the Congress declared as the national policy of the U.S. that independence would future status of the U.S. unincorporated territory of the Philippines. The territorial commonwealth constitution was authorized and approved by the people in 1934 as a step to independence, which was recognized in 1946.

    Were Congress to require, as author Medina correctly recommends, a vote on statehood or independence, and declare that whichever option receives a majority will become national policy, subject terms prescribed by Congress and approved by the people, democratic self-determination would be redeemed.

    If the outcomes is statehood, the island would become a permanent extension of the homeland based on historical realities. Then the full potential of the American people of Puerto Rico for social, political and economic development finally could be realized, as it has for the the people of every territory that became state.

    That path forward is clear, as are other pathways, including some version of the pathways that would open under the Puerto Rico Political Status Act. The preceding discussion simply reflected on the worthwhile commentary by Mr. Medina.

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