PR-U.S. “Dual Citizenship” Doomed

As a June 11 political status vote in Puerto Rico nears, anti-statehood factions are telling voters their children can have all benefits of statehood by voting against statehood! It is a sign statehood is winning the hearts and minds of the voters when the independence party and the “commonwealth” party favoring the status quo are claiming U.S. citizenship, equal footing in the U.S national economy, and other advantages of statehood, all can be secured under separate sovereign nationhood.

The biggest hoax of all is the claim that “dual” Puerto Rico and U.S. national citizenship is possible if Puerto Rico chooses separate sovereign nationhood, which means independence with or without a voluntary non-binding free association status treaty. The “commonwealth” party even claims there already is a form of “dual citizenship” because Puerto Rico is a virtual sovereign nation already!

For seven decades the U.S. Congress, White House and U.S. Supreme Court have humored but politely rejected the false claim that Puerto Rico’s territory status has morphed into a form of national sovereignty. In the 2016 case of Sanchez Valle v. Puerto Rico the U.S. Supreme Court slam dunked the notion of de facto or virtual sovereignty once and for all.

Now as the 2012 vote to end the current territorial status in favor of statehood looks likely to be repeated, in anticipation of that result the anti-statehood parties are both boycotting the status plebiscite. But in doing so the sovereign nationalists are urging voters to stay home by insisting “dual Puerto Rico and U.S. national citizenship” has been established during the territorial period and can’t be taken away.

Not so fast. Any voter who thinks “dual citizenship” is waiting for a sovereign Republic of Puerto Rico to claim it should read the ruling of the U.S. Supreme Court in the case of Rogers v. Bellei. In that case the federal high court ruled that Congress can give U.S. citizenship to people in a U.S. territory under federal territorial law, but that whatever Congress can give it also can take away.

Only people born in a State of the Union have a permanent constitutionally defined right of U.S. citizenship. Persons born in a U.S. territory or in other locations outside the States of the Union only get U.S. citizenship at the pleasure of Congress under a federal citizenship statute.

Once statutory citizenship is granted it can’t be taken away without “due process.” That means Congress must pass another law ending its conferral in the future, but that is not where the power of Congress over statutory citizenship ends.

The Rogers v. Bellei ruling confirms that Congress can regulate terms and conditions of statutory citizenship for legitimate and reasonable federal purposes. That includes requiring U.S. citizens in Puerto Rico to make a choice between U.S. and Puerto Rico citizenship if Puerto Rico chooses to become a separate sovereign nation.

Even independence with a treaty of free association requires Puerto Rico to have full sovereignty, nationality and citizenship so it can become fully independent when free association ends, so “dual citizenship” cannot be promised or guaranteed once the constitution Puerto Rico is the supreme law of the sovereign nation of Puerto Rico.

Preventing “dual citizenship” that undermines true separate sovereignty and allegiance to a separate nation is one of the reasons cited by the U.S. Supreme Court in the Bellei explanation of why ending future U.S. citizenship is constitutional. The potential problems of “dual citizenship” explain why the court upheld the power of Congress to require those who acquired U.S. citizenship during the territory to chose allegiance to one nation or the other, consistent with “due process” of law.

To understand why “dual citizenship” is doomed if Puerto Rico chooses sovereign nationhood, voters should be made aware of the following explanation the court in the Bellei case:

“The Congress has an appropriate concern with problems attendant on dual nationality…These problems are particularly acute when…The child is reared, at best, in an atmosphere of divided loyalty. We cannot say that a concern that the child’s own primary allegiance is to the country of his birth and of his father’s allegiance is either misplaced or arbitrary…The duality also creates problems for the governments involved…’We have recognized the entanglements which may stem from dual allegiance.’ …'[o]ne who has a dual nationality will be subject to claims from both nations, claims which at times may be competing or conflicting’… that one with dual nationality cannot turn that status ‘into a fair-weather citizenship,’ and that ‘[c]ircumstances may compel one who has a dual nationality to do acts which otherwise would not be compatible with the obligations of American citizenship,’ There are at least intimations in the decided cases that a dual national constitutionally may be required to make an election… the Court noted that a dual national, ‘under certain circumstances,’ can be deprived of his American citizenship through an Act of Congress… the Court took pains to observe that there was no statute in existence imposing an election upon that dual nationality litigant…These cases…concerned persons who were born here, that is, persons who possessed Fourteenth Amendment citizenship; they did not concern a person…whose claim to citizenship is wholly, and only, statutory…by itself and without reference to the underlying legislative history, committee reports, and other studies, reveals a careful consideration by the Congress of the problems attendant upon dual nationality…Congress has no ‘power, express or implied, to take away an American citizen’s citizenship without his assent,’ Afroyim v. Rusk, 387 U.S. 257…But, as pointed out above, these were utterances bottomed upon Fourteenth Amendment citizenship and that Amendment’s direct reference to ‘persons born or naturalized in the United States.’ We do not accept the notion that those utterances are now to be judicially extended to citizenship not based upon the Fourteenth Amendment and to make citizenship an absolute. That it is not an absolute is demonstrated by the fact that even Fourteenth Amendment citizenship by naturalization, when unlawfully procured, may be set aside. A contrary holding would convert what is congressional generosity into something unanticipated and obviously undesired by the Congress.”

It is remarkable that the federal high court’s judicial temperament forged such a deliberate and stark judgment both anticipating and pre-emptively embracing in principle the reasonableness of a federal act by Congress requiring an election of allegiance rather than “dual national citizenship” for persons not born in a State of the Union.  We do not need to speculate too much in order to imagine how much more abjectly Congress will reject any “transnational” duality of allegiance for the people of Puerto Rico after they have chosen separate national sovereignty over statehood.

The Bellei decision makes it abundantly clear that amending the U.S. Immigration and Nationality Act to exclude persons born in Puerto Rico from federal statutes granting U.S citizenship of parents to children born outside the States of the Union.  That would meet the test of reasonableness and due process as a necessary measure in the process for transition of Puerto Rico to its own separate sovereignty, nationality and citizenship under its own supreme national constitution.
It is simple logic that retention of U.S. citizenship acquired by parents during the territorial period for children born in a new foreign nation would prevent the succession to true independent nationhood.  That would make the new status independent, sovereign, or a sovereign free association in name only, while continuing a de facto colonial status.

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