Former White House legal advisor on territorial status, Howard L. Hills, author of “Citizens Without A State,” congratulates National Puerto Rican Equality Coalition (NAPREC) for its recent Message to the People on the nature and meaning of constitutional and statutory citizenship.
TO: National Puerto Rican Equality Coalition (NAPREC) FROM: Howard Hills
I was impressed and knew National Puerto Rican Equality Coalition (NAPREC) is a serious ‐minded organization when I read the citation in your message to the U.S. House of Representatives on Report 105‐131 as a legal reference regarding Puerto Rico’s quest for equality! It is a historic document on the political status of Puerto Rico.
We also were grateful that you honored former U.S. Attorney General Thornburgh, who sadly passed away last year, by quoting his seminal works on Puerto Rico’s status. He was a great scholar and just man who loved the people of Puerto Rico and yearned for equal citizenship in our lifetime.
With just a few comments to emphasize and clarify issues of importance, all of us who support self‐ determination on real status options for Puerto Rico want to add our voices to this NPREC narrative. It sustains a valid message that is also very consistent with Chapters 7‐9 of the book Citizens Without A State, for which former U.S. Attorney General Thornburgh so kindly wrote such a brilliant foreword.
The message you are sending is that the 14th Amendment secures the right to constitutionally conferred birthright citizenship that is beyond the reach of Congress, but only for persons born in a state subject to U.S. jurisdiction. Under the 14th Amendment, citizenship and nationality have the same meaning. In contrast, statutory nationality and citizenship can have the same meaning or different features as defined by Congress (currently, 8 U.S.C. 1401‐1408).
In addition, Congress can confer U.S. citizenship by statute enacted under the naturalization clause in Art. I, Sec. 8, Clause 4. Thus, persons who do not acquire U.S. citizenship by operation of the 14th Amendment may acquire it by statute enacted under the naturalization clause.
Statutory nationality and citizenship conferred under the naturalization clause was the only source of citizenship and nationality law before the advent of the 14th Amendment. That pre‐existingpreexisting naturalization power remains the source of citizenship for persons born overseas to U.S. parents, and those born in U.S. territories regulated by Congress under the territorial clause in Art. IV, Sec. 3, Cl. 2.
However, in the case of naturalization clause statutory citizenship, Congress can attach conditions precedent such as birth overseas to a parent who is a U.S. citizen. Under the Rogers v. Bellei case cited in the NPREC message, Congress also can attach conditions subsequent, such as a period of residence in the U.S. in order to prevent citizenship from being nullified or revoked for failure to comply with such statutory conditions.
One area of clarification
Under the Afroyim v. Rusk ruling also cited in the NPREC memo, the U.S. generally will not rescind, revoke, or nullify nationality and citizenship. That is true whether the citizenship is conferred by direct application of the 14th Amendment citizenship clause in a state, or by statute enacted under Sec. I, Sec. 8, Cl. 4 of the Constitution (8 U.S.C. 1401‐1408)).
By amendment or repeal Congress can terminate or modify conferral and features of statutory citizenship. What Congress gives by statute it can take away by statute, one Congress cannot bind another, only the Constitution itself is permanent law. Any U.S. nationality or citizenship conferred by statute in Puerto Rico under current territorial status or under any other political status can be amended or repealed, at least as to all persons born after the effective date of the repealing or amending statute.
The one exception recognized under U.S. and international law is that upon change of political status from one sovereign to another, the population of a territory can be required to make a choice between retaining the nationality and citizenship status of the receding sovereign or the nationality and citizenship of the succeeding sovereign.
Under U.S. law there is a legitimate non‐discriminatory purpose in requiring such a choice, including to prevent the receding sovereign from retaining the allegiance of the population of a foreign nation. That is one of many reasons why the U.S. does not create or formalize dual citizenship by operation of U.S. law.
Similarly, there would be a legitimate purpose in adopting a necessary statute preventing those in a new foreign nation electing to retain U.S. nationality and/or citizenship from passing along derivative U.S. citizenship to children born in a former U.S. territory. The transition of the Commonwealth of the Philippines from U.S. nationality for 46 years to independence without U.S. nationality is one example.
The U.S. Supreme Court upheld federal law ending derivative U.S. nationality for post‐territorial period children of parents who acquired U.S. nationality based on birth in the U.S. territory known as the Commonwealth of the Philippine Islands.