This is a guest post by Willie Santana, Esq.
It is imperative that all members of the Puerto Rican Diaspora in the mainland vote as a block and on the single issue of statehood for Puerto Rico during this presidential election and each federal election thereafter. It is imperative that we do so because our livelihood, our liberty of movement, and our pursuit of happiness for our families are at stake. It is imperative that we go to the polls thinking forward, or we may wake up to find ourselves stripped of our identities as Americans, made immigrants in our own nation, and find our families facing uncertain futures. For this reason, if for no other, this is a critical election for Puerto Ricans.
Legal issues concerning Territorial Americans generally, and Puerto Ricans specifically, have been enjoying attention the past couple of years. This is a welcome and long overdue conversation. These issues were even momentarily in the popular national dialogue thanks to John Oliver’s scathing take-down of the legal rationale that legitimizes the second-class treatment of Americans living in the territories. Harvard Law School even held a symposium on the subject titled “Reconsidering Insular Cases.” The Insular Cases is a collective moniker given to a series of cases decided at the turn of the 20th Century that created the legal foundation for the current status of territorial law.
Many Puerto Ricans, for a number of reasons, believed that Puerto Rico was different than the other territories. That Puerto Rico’s unparalleled autonomy under the Estado Libre Asociado meant that the island relationship with the mainland was of a special nature. It is important to note here that ELA is directly translated as “Free Associated State” from Spanish, but is referred to in the mainland as the Commonwealth of Puerto Rico. Many of us, however, have noted time and time again that just because Congress had not chosen to exert authority over Puerto Rico, did not mean that they did not have the power to do so (see “Could Congress Give Puerto Rico Away?” and Incorporating the Lonely Star: How Puerto Rico Became Incorporated and Earned a Place in the Sisterhood of States ). The Supreme Court eviscerated any doubt that Puerto Rico was under the plenary (or supreme) power of Congress in its Sanchez-Valle, and Franklin California decisions and to a lesser extent in its refusal to hear the Tuaua case (see “Puerto Rico’s debt woes left to Congress”).
As if on cue, Congress exerted authority over Puerto Rico when it passed the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”) which, among other things, establishes a “Financial Oversight and Management Board.” The President signed it into law on July 1st. The PROMESA board is charged with approving the governor’s fiscal plans and the island’s annual budget, enforcing the island’s budgets and ordering any necessary spending cuts, and with reviewing the island’s laws, contracts, rules, regulations or executive orders to put them in compliance with approved fiscal plans. PROMESA even includes the following “Supremacy Clause”: “The provisions of this [law] shall prevail over any general or specific provisions of territory law, State law, or regulation that is inconsistent with this [law]” (see text). There should remain no doubt in anyone’s mind that Puerto Rico’s political relationship with the US is not now, nor has it ever been, as was often described by the ELA’s supporters, “special.” If it was ever special, by the influence of PROMESA and the resulting loss of autonomy, Puerto Rico’s status now reflects the norm for regular states or, at worst, a subjugated territory – special still, but not to the benefit of Puerto Ricans.
In 2017, Puerto Ricans should rightly celebrate 100 years of becoming American citizens. It appears that, at the same time, the island of our birth and heritage is at a crossroads. I believe that road leads to either independence or statehood. Either option has immediate and important repercussions to those living in the island, but one option also has important repercussions for those of us living in the mainland. Should Puerto Rico become independent, all of us stand to lose our American citizenship and may find ourselves classified as immigrants in our own nation. That is a risk that we cannot take because we’ve seen this before in 1934.
In 1934, Congress acting under its plenary power over the territories passed the Philippine Independence Act. It provided a transitional “commonwealth” government that culminated in independence for the Philippines (see the text of the bill). The bill also reclassified (formerly American National) Filipinos living in the mainland as aliens for immigration law purposes and imposed quotas on admission. These Filipinos were no longer allowed to work legally in the country and faced deportation.
We, the Puerto Rican Diaspora, have an advantage that the Filipino Diaspora did not have. Because of a federal law, we are citizens by birth and can vote in all elections in the mainland. There are more of us now living in the mainland than in the island and, perhaps most importantly, a majority of Puerto Ricans moving to the mainland has moved to the presidential battleground state of Florida. We are not powerless.
My abuelita used to say that “el que parte y reparte, se queda con la mejor parte” (the one who parts the lot, keeps the best parts). If we let Congress partition Puerto Ricans without our involvement, we will not like the result. We have political power. We need only use it.
Mr. Santana is a lawyer, writer, and GOP political activist living in Tennessee who frequently writes on Puerto Rican issues.