By Howard Hills
A rehashed version of a separate “Commonwealth” status option for Puerto Rico is included in yet another referendum bill, seemingly trolling for low information supporters of the territorial status quo in Congress. In multiple votes on status a majority of voters rejected continuation of any version of the current territorial status and instead approved statehood. As introduced by the non-voting member of Congress from Puerto Rico, H.R. 9246 seems a desperate gambit to revive the sterile status debate in the period before Congress required referendum ballots options to be “compatible with the Constitution, laws and policies of the United States” in the 2014 Consolidated Appropriations Act. That act of Congress expressly mandated future status votes on options to “resolve the status of Puerto Rico” based on a constitutionally permanent rather than temporary statutory territorial status.
As long as a territory is a territory, it can always become a state or a nation, so continuing as a territory does not resolve the political status of the territory at all. It will always be a temporary status.
Prior to that 2014 democratically restorative political status measure by Congress, the local political party favoring the status quo and opposing both statehood and independence demanded that each status vote include a “Commonwealth” option. It was territorial but referred to on the ballot as “free association” in Spanish. Yet in English the ballot referred to a “commonwealth” definition not consistent with the status quo or any statutory territory status, and instead purporting to confer vested guarantees of constitutionally impossible special economic and cultural “rights” not enjoyed by states or other territories.
The false promises of “commonwealth”
The false promises of “commonwealth” included “binding” terms and “mutually agreed” statutory measures that Congress could change only with consent of Puerto Rico. In every case, including H.R. 9246, the politically unfeasible, legally invalid definition of “commonwealth” has combined features of both statehood and independence. That fake status option was included on status plebiscite ballots as a spoiler option to prevent a majority vote for statehood or true sovereign nationhood.
Including the so-called “commonwealth” option contained in the bill would not accomplish the purpose of putting the “current status” on the ballot. The definition of “commonwealth” in the bill does not even come close to describing the current status. As noted, continuing the current status was rejected by over 54% majority over voters in a 2012 legally certified referendum. That historic vote was attained during a series of lawfully conducted votes leading to the sustained majority vote for statehood in democratic acts of self-determination that culminated in the 2024 vote for statehood by a 58% majority.
Democratic self-determination
That 2024 vote was a more definitive and decisive act of democratic self-determination than the votes in several former territories previously admitted to statehood. There is no doubt in anyone’s mind, no doubt including the sponsor for the bill, that a legally accurate definition of the current status will be defeated if it is ever again placed on a plebiscite ballot. Proposing that “commonwealth” be revived in H.R. 9246 has no purpose other than to prevent a vote between constitutionally valid options for statehood or real nationhood.
After the current status was defeated as a spoiler option voters rejected as a hoax, it would be anti-democratic to include the historically and constitutionally dishonest fake “commonwealth” option on any ballot. Even without that anti-democratic farce, requiring Puerto Rico to vote yet again on status arguably constitutes a redundant self-determination hurdle never imposed on any other territory previously admitted to the union. If another vote is required it should be yes or no on statehood, or a choice between statehood and independence.
Defining “commonwealth”
The definition of commonwealth under the bill does not meet the Congressionally determined test of validity for a status option, because it does not describe the existing status. The status set forth in the bill does not, will not and cannot exist under the U.S. constitution. As the U.S. Department of Justice, Office of legal Counsel, confirmed in a formal legal opinion dated July 28, 1994, rejecting a Guam proposal mimicking the Puerto Rico fake “commonwealth” model, there can be no “vested right” to a “commonwealth” political status based on binding “mutual consent” between a territory and the federal government.
What’s more, the definition of “commonwealth” under H.R. 9246 misrepresents the “autonomy” of the territory as having some equivalence to the sovereignty of states under the 10th Amendment. The bill also misleadingly purports to secure permanent federal benefits of statutory citizenship rights that in reality cannot be made binding on Congress in the future. Desperately seeking ideological relevance, the sponsor of H.R. 9246 absurdly wants Congress to turn back the clock 30 years, hoping to revive the failed and democratically rejected proposal to create a new political status for Puerto Rico that does not exist under the American system of constitutional federalism.
Yet, it is simply and incontrovertibly dishonest to suggest that there is any vested right to any “cultural” identity “economic” rights, or political “autonomy” or even special citizenship features of a binding territorial “commonwealth” status. A real definition of commonwealth is the current territorial status with statutory U.S. sovereignty and citizenship, and whatever features Congress chooses to provide under the territorial powers clause in the U.S. Constitution. The terms of H.R. 9246 that explicitly or implicitly indicate overtly or subliminally that there can be a vested right to those features in the future is not compatible with the Constitution and laws of the U.S. regardless of any policy the bill’s sponsor might propose.
Of course, the sponsor and any supporters of the bill know this proposal is DOA legally. But the sponsor would gladly drag out fake “negotiations” over a fake “mutual agreement” to promote a fake “commonwealth” model that ultimately would continue the current status. That is because the real goal is to prevent statehood or independence, which is an ideological obsession of a shrinking faction that echoes the political illusions of a distant past.
Howard Hills is author of “Citizens Without A State,” and served as a territorial affairs attorney under Presidents Carter, Reagan (Legal Counsel, Executive Office of the President) Bush (41), Trump (45) and Biden (Senior Advisor, Special Presidential Envoy for Free Association negotiations).
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