Puerto Rico’s Resident Commissioner, Rep. Pablo Jose Hernandez, has introduced a new Puerto Rico status bill, called the “Puerto Rico Democratic Self Determination Act.” The big difference between this bill and most of the status bills so far in this century is that it includes “commonwealth” status.
The goal of the Puerto Rico Democratic Self Determination Act
The findings of the bill, the explanation of why the bill is needed, express the goals of the act.
- The people of Puerto Rico are entitled to a status resolution process that is democratic, credible, inclusive, and capable of producing clear guidance to Congress.
- A legitimate act of self-determination must allow voters to express their preference across the full range of status options with meaningful public support, including both continuation of the current relationship with the United States and alternatives to that relationship.
- Congress has a responsibility to establish a fair and inclusive process that allows the people of Puerto Rico to express, in a clear and informed manner, whether they wish to continue their current relationship with the United States or pursue a different status, and, if a change is preferred, which option they choose.
The biggest difference between this bill and the Puerto Rico Status Act, which was passed by the House of Representatives in 2022, is that this bill will include the option of continuing as a territory. Since previous bills since 2012, when Puerto Rico voters said no to continuing as a territory regardless of what alternative they preferred, status bills have generally been decolonization bills. This legislation allows voters to choose to continue in the current colonial relationship.
Another plebiscite
The bill calls for “a plebiscite to resolve Puerto Rico’s political status” to be held on March 14, 2027. However, choosing continued unincorporated territory status cannot resolve Puerto Rico’s status. A territory can always become state or an independent nation.
The choices on the ballot would be as follows:
- Independence.
- Commonwealth (Estado Libre Asociado).
- Statehood.
- Sovereignty in Free Association with the United States.
The winning option would have to have a majority of valid votes cast. There is a bit of irony here, since the resident commissioner has refused to accept the four status ones in which statehood has won a majority of valid votes cast, claiming that counting blank ballots makes “commonwealth’ the winner. However, it is good to see that this statement is included.
If none of the four options gets a majority on the first vote, there will be a run-off between the top two choices.
Definitions
The definitions of the non colonial options are familiar, as is clear from the portions of each option, shown below:
- Independence: “Puerto Rico is a sovereign nation that has full authority and responsibility over its territory and population under a constitution of its own adoption which shall be the supreme law of the nation…birth in Puerto Rico or relationship to persons with statutory UnitedStates citizenship by birth in the former territory shall cease to be a basis for United States nationality or citizenship, except that persons who have such United States citizenship have a right to retain United States nationality and citizenship for life, by entitlement or election as provided by Federal law.”
- Statehood: “The State of Puerto Rico is admitted into the Union on an equal footing with the other States in all respects whatever and is a part of the permanent union of the United States of America, subject to the United States Constitution, with powers not prohibited by the Constitution to the States and reserved to the State of Puerto Rico or to its residents…United States citizenship of those born in Puerto Rico is recognized, protected, and secured under the United States Constitution in the same way such citizenship is for all United States citizens born in the other States.”
- Sovereignty in Free Association with the United States: “Puerto Rico is a sovereign nation that has full authority and responsibility over its territory and population under a constitution of its own adoption which shall be the supreme law of the nation…persons who have United States citizenship have a right to retain United States nationality and citizenship for life by entitlement or election as provided by Federal law.”
We have already seen that Congress has worked to amend the citizenship descriptions of both forms of independence, with members of Congress objecting to the idea of a nation of Puerto Rico maintaining U.S. citizenship for its subjects. However, these claims have been made before in status laws for Puerto Rico.
The definition of “commonwealth” is new. Here it is in its entirety:
- “(A) Puerto Rico is a self-governing Commonwealth of the United States. As a Commonwealth, Puerto Rico has a measure of autonomy comparable to that possessed by the States, and is governed in accordance with Public Law 600 of 1950, Public Law 447 of 1952, and a constitution ratified by the people of Puerto Rico.
- (B) Persons born in Puerto Rico are citizens of the United States, enjoy the protections of the United States Constitution, and are eligible for federal programs, including Social Security, Medicare, Medicaid, and nutrition assistance. Federal law applies in Puerto Rico, and the Government of the United States exercises authority over matters of national interest similar to the States.(C) Puerto Rico exercises autonomy over fiscal and economic policy and is not subject to the uniformity clause of the United States Constitution. Residents of Puerto Rico generally do not pay federal income tax on income earned within Puerto Rico, but pay Social Security, Medicare, Self-Employment, Unemployment, and customs and excise taxes.
- (D) Puerto Rico has a distinct cultural identity, history, and language, which the United States recognizes and affirms as an integral part of Puerto Rico’s character within American federalism. This distinct cultural identity manifests through participation in international events, including the Olympic Games, under its own name and flag.
- (E) The United States-Puerto Rico Commonwealth Development Commission shall be created to examine, propose, and negotiate reforms to the current Commonwealth relationship. Those reforms may include measures that strengthen self-government; preserve, protect and promote Puerto Rico’s distinct cultural identity; identify ways of participation in Federal decision-making affecting Puerto Rico; and strengthen participation in Federal programs. Any change proposed by the United States-Puerto Rico Commonwealth Development Commission must be approved by the people of Puerto Rico and Congress. ‘
“Commonwealth”
This description is a combination of current reality and wishful thinking. Here are a few statements which are not true of the current ELA territory:
- “Puerto Rico is a self-governing Commonwealth of the United States. As a Commonwealth, Puerto Rico has a measure of autonomy comparable to that possessed by the States.” The Supreme Court decision on Sanchez-Valle and the imposition of the PROMESA board are just two examples of evidence that Puerto Rico does not have autonomy comparable to the states. Puerto Rico is an unincorporated territory belonging to the United States. That’s all.
- “Persons born in Puerto Rico are citizens of the United States, enjoy the protections of the United States Constitution, and are eligible for federal programs, including Social Security, Medicare, Medicaid, and nutrition assistance.” People born in Puerto Rico are indeed U.S. citizens under statute, they are not fully protected by the U.S. Constitution, and they are eligible for some but not all the programs listed, in limited forms compared with the states.
- “This distinct cultural identity manifests through participation in international events, including the Olympic Games, under its own name and flag.” Participation in the Olympic Games is not ruled by Congress, but by the International Olympic Committee. While Congress could object to Puerto Rico’s participation, it is the Olympic Committee, not Congress, that makes the decision. It can’t really be included in U.S. legislature.
- “Any change proposed by the United States-Puerto Rico Commonwealth Development Commission must be approved by the people of Puerto Rico and Congress.” This is part of the law, and if the law were to pass and the majority were to vote for “commonwealth,” then it could well be true for all changes proposed by the commission. However, it is important to note that the “commonwealth” would still be a territory and subject to the Territory Clause of the U.S. Constitution. Congress could change the rules at any time, since no Congress is bound by decisions made by an earlier Congress. And Congress could make changes without the agreement of the people of Puerto Rico. Leaving those facts out seems deceptive.
What would be different under the “commonwealth option”?
If the law passed and the commonwealth option won the vote, nothing would change. Puerto Rico would continue to be a territory of the United States which calls itself a commonwealth. The United States-Puerto Rico Commonwealth Development Commission would be created, and they could attempt to negotiate an “enhanced commonwealth” just as “commonwealth” supporters have been doing for the past three quarters of a century. The Commission would have five years. If they could not hammer out a new deal, nothing at all would change.
Regardless, Puerto Rico would continue to be an unincorporated territory belonging to the United States.
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