Opponents of statehood often behave as though they need clearer definitions of what it means to be a state, a nation, or a territory. They talk as though there were lots of room for negotiation on these things. In fact, the U.S. Constitution is the supreme law of the land, and it has plenty to say about these subjects. The federal government has to follow the Constitution. The courts interpret the Constitution, and that obviously can be very complex, but they can’t ignore or change the Constitution easily.
The Territory Clause
As a territory, Puerto Rico is covered by the Territory Clause. This is Article 4, Section 3, Clause 2 of the U.S. Constitution:
“The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”
Sometimes called the Territorial Clause, this is what we need to know about territories. Namely, Congress is in charge of them. The territories themselves do not have the power to dispose of themselves or to make needful rules and regulations, except when Congress gives them that power.
Congress has given Puerto Rico the power to make local rules and regulations, but Congress can always overrule those laws. Congress has the last word on lawmaking in a territory.
In 2012, 54% of Puerto Rico voters said that they rejected the current territorial status. Since that time, Congress has been holding Puerto Rico as a territory without the consent of the governed. Government by the consent of the governed is a basic principle of American democracy.
HR 2070, one of the two bills on Puerto Rico status now being considered by Congress, specifically says it will only accept status options outside of the Territory Clause. The Department of Justice says that the only status options available apart from being a territory are statehood and independence.
The Treaty Clause
If Puerto Rico became an independent nation, with or without a Compact of Free Association, the Territory Clause would no longer apply. In fact, the U.S. Constitution would no longer apply to a Republic of Puerto Rico. In that case, the relationship of the United States and Puerto Rico would be covered by the Treaty Clause.
The Treaty Clause is Article 2, Section 2, Clause 2, and the relevant part is this:
“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”
While Congress is in charge of territories, the president is in charge of treaties. The treaty clause goes on to say that the president can appoint ambassadors and other helpers in working on a treaty. Congress approves COFAs (see for example the Compact of Free Association between the U.S. and the Marshall Islands). The Senate also has the power to advise on treaties and to consent to those treaties, and they must have a super majority to do so.
A simple majority is usually enough. For example, a simple majority of Congress can admit a new state, as they did with Alaska, which got approval from 53%.
Currently, the custom of the filibuster can make it hard to pass bills in Congress without a supermajority. But when a supermajority is really required, it says so in the Constitution.
What about states?
The Constitution also lays out what the federal government is in charge of when it comes to states. For example, the federal government is in charge of taxes and the military. States can have their own taxes, but they can’t refuse federal taxes. They can’t declare war on other countries, either, or have their own private armies.
Apart from specific items like these, states have all other powers over their daily undertakings, as stated in the 10th Amendment to the Constitution. They can, for example, have an official language for their states. They cannot declare an official language for the United States, which does not have an official language and never has had one.
As a state, Puerto Rico would no longer be subject to the Territory Clause. It would not be affected by the Treaty Clause, either. It would be on an equal footing with the current 50 states. This will bring equal rights and full U.S. citizenship to the people of Puerto Rico.
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