H.R. 8393 proves no political party can succeed with Puerto Rico voters on status options without securing future U.S. citizenship, and THAT makes future statehood inevitable
How statehood came out ahead in the H.R. 8393 compromise
In a bipartisan 233-191 vote on December 15, 2022, the U.S. House of Representatives passed H.R. 8393, enabling a federally recognized political status referendum in Puerto Rico. The ballot would include the permanent options of statehood or independence, or a third choice of political union called free association that the U.S. or Puerto Rico could terminate in favor of full independence at any time.
It is not insignificant that supporters of all three political status options endorsed the so-called compromise bill. However, the single most significant new political reality embodied in H.R. 8393 is that political supporters of all three status options – statehood, independence and free association – in effect recognized no option would be likely to prevail in a referendum without securing U.S. citizenship in the future.
Achieving a compromise in Congress that kept the status options proposed by independence and free association factions on the status referendum ballot under H.R. 8393 was not the hardest part of this process for opponents of statehood. The real challenge for independence/free association leaders was to define status options that attract voters in the status referendum to anti-statehood options. Seemingly out of desperation to do that, the independence/free association leaders adopted a platform promising continued U.S. citizenship.
What that means, in essence, is the anti-statehood faction embraced U.S. citizenship, which is the primary attraction of the statehood brand, so to speak. That enables marketing the independence/free association brand by hijacking the most popular feature of the statehood brand.
Citizenship under independence
Of course, even if it weren’t historically and constitutionally without precedent, a U.S. citizenship scheme under independence and free association could continue to be provided only by permission of Congress under federal treaty law subject to termination at any time. As such it would be subject to statutory specifications and conditions, as well as the sovereign power of Congress to end its future conferral, even less certain in the future than statutory citizenship under federal territorial law currently.
In contrast, only citizenship under statehood is permanently secured by the U.S. Constitution. The hard truth is that fully equal and permanent citizenship comes only with statehood. Thus, the “compromise” House-passed bill proves the anti-statehood movement recognizes its options are dead on arrival unless independence and free association include U.S. citizenship, even if it is statutory and therefore neither truly equal nor permanent.
It is revealing that Democratic House Majority Leader Hoyer and the Republican House Committee Member from Puerto Rico, Congresswoman Gonzalez Colon, had to take the unprecedented step of including citizenship in non-territorial options other than statehood. That’s apparently what anti-statehood faction supporters demanded for a bill that puts Puerto Rico status on the national agenda to be passed.
This reminds us that the preamble to the Puerto Rico territorial constitution declares U.S. citizenship foundational to the identity of the Puerto Rico body politic. Yet, only statehood secures the full and permanent U.S. citizenship that the Puerto Rico constitution does not and never will secure without admission as a state.
Equal rights of citizenship under the U.S. Constitution come only with admission to statehood. As we have learned again from the U.S. Supreme Court repeatedly in recent years, the federal courts can’t order social equity that only Congress can provide, and courts can’t apply the U.S. Constitution in Puerto Rico the same as in states unless Puerto Rico becomes a state.
There are constitutional, legal and policy questions that arise from these unprecedented and controversial citizenship features of the separate sovereignty status options in H.R. 8393. The opportunity to address those questions and seek approval of final legislation on Puerto Rico status in the House and Senate now presents itself.
Since the House Committee on Natural Resources reported H.R. 8393 to the full House without a hearing, a logical next step would be for the new Committee leadership to hold a hearing on the citizenship provisions of the bill and invite experts from the U.S. government to provide comments and analysis on that topic.