Will Congress Listen to Judge Torruella?

Puerto Rico Status Is Not Just Academic

A new territorial political status study by a respected federal jurist, Judge Juan Toruella, could influence and enhance the deliberations of the U.S. Congress, and even the federal courts, in dealing with the crisis in Puerto Rico. Torruella’s comprehensive assessment of Puerto Rico’s political status saga appears in the current edition of the Harvard Law Review Forum. This authoritative examination of Puerto Rico’s political development in the past and present is a road map for the public, Congress and the courts, leading to a fully democratic political status with equal rights, duties and opportunity for the island’s people in the future.

Unfortunately, Congress so far has failed to recognize that a clear federal policy on the future political status of Puerto Rico is the single most imperative step Washington can take to support recovery from current crisis conditions in the political economy of a 118 year old American territory that is home to 3.5 million U.S. citizens. The increasingly conspicuous combination of failed federal territorial policy and Puerto Rico’s current conditions of societal distress may render even the best legal and historical scholarship too complex and seemingly esoteric for Congress to grasp, much less act on.

The question now is whether the intractable political status debate has become so idiosyncratic that it’s lost in translation to the language of politics and economics spoken in Congress. Is academic inquiry about what went wrong in federal and local territorial governing models too hyper-sociological to have political relevance? As the nation and island communities face stark political and economic realities, will Congress recognize the need not to  just restore the territorial regime, but re-invent Puerto Rico as a nation or a state?

Will the U.S. once again balk on political status, perpetuating developmental arrest and a standard of living even lower than the last two decades? That is exactly what the anti-statehood and anti-independence factions hope Congress will do. After all, they got away with it for 65 years, until the territorial regime went bankrupt.

In addition to the territorial regime’s insolvency, decades of federal and local public sector standards lower than the 50 states or even poor nations left the island unable to survive a tropical hurricane. Outed as a failed governing model, the political party faction profiting from the status quo is repackaging its discredited “autonomy” doctrine in a series of staged academic symposiums and journals. The goal is to make change seem too complicated to manage, so the status quo becomes the course of least resistance.

Congressional aversion to status change backfires

The 2015 fiscal and economic collapse of the “commonwealth” regime of territorial government ended a 65 year Congressional experiment in “local political autonomy without federal accountability.” The two hurricanes that demolished the island in 2016 ended Puerto Rico as we knew it. Historical and legal debates now must give way to recognition that the only path forward to a future better than the past is to re-invent Puerto Rico through statehood or nationhood.

Simply stated, the federal and local governments do not have enough money to rebuild Puerto Rico even to pre-hurricane quality of life. Only the certainty of a stable political status Puerto Rico has never had will unleash private sector led development that can make the island’s future better than its past.

Even before the hurricanes struck, it was impossible to sustain the legal and political fiction that it had an “autonomous” status under a local constitution that could continue indefinitely. That legal illusion and political myth was deconstructed in 2016 when Congress and the federal courts suspended the local constitution. Three historic U.S. Supreme Court rulings in 2016 on territorial status and rights ended decades of institutionalized ideological denial that the “commonwealth” regime remains a federal territorial reservation without vested political rights, governed at the discretion of Congress under Article IV of the U.S. Constitution.

Those federal court rulings also confirmed that as a territorial “commonwealth” Puerto Rico is not an “associated free state” under United Nations resolutions defining an autonomous political status. Nor is Puerto Rico a “sovereign” dependency with a political status constitutionally akin to that of Native American tribes. Finally, after failed attempts at linkage, it is clear that Puerto Rico’s status also is constitutionally distinct and unrelated to the status of the federal district serving as the nation’s capital.

The political status of these other federal reservations and subdivisions under U.S. national sovereignty are governed under applicable provisions of Articles I and II of the U.S. Constitution, not the territorial powers clause in Article IV that applies in Puerto Rico. The more Congress abdicates its duty to address status the worse the crisis will become, ultimately forcing Congress to address the status issue under the worst possible scenario.

Harvard strikes again

Veteran federal judge Torruella is from Puerto Rico, still lives there, but sits on the U.S. Courts of Appeals for the Federal Circuit. Plain spoken lucidity is his trademark as a legal historian. As a judge he must show judicial impartiality and restraint, but in his private writing as a U.S. citizen exercising his rights to free speech he is passionate and outspoken about democratization for Puerto Rico.

Torruella’s brilliant new political status narrative begins by condemning the legal scholarship of law professors at Yale and Harvard in 1900. The scholarly works from Ivy league law schools provided Congress with political cover for what Torruella aptly describes as “experimental” doctrines of U.S. federal territorial law and policy applicable to Puerto Rico.

Those early Harvard academic works espoused U.S. “imperial” rule of newly acquired overseas territory with unnaturalized alien populations, leaving the application of democratic principles and the U.S. constitution to the discretion of Congress. As first fully analyzed in an earlier study by former U.S. Attorney General Thornburgh (CSIS 2007), the policy Harvard promoted in 1900 declared that non-citizen territorial populations could be governed outside direct application of the U.S. Constitution.

Thornburgh’s 2007 study was the first to shift the focus away from the controversial 1900 territorial policy touted at Harvard to an even more profoundly ill-conceived 1922 ruling by the court on Puerto Rico status. That ruling held the U.S. Constitution did not apply fully and directly in Puerto Rico even after U.S. citizenship was conferred by Congress in 1917. Thornburgh argued in 2007 that the 1922 ruling was “constitutionally flawed” and irreconcilable with U.S. Supreme Court precedents in all U.S. citizen populated territories since 1789.

In his new study Torruella reaches the same conclusions as Thornburgh in 2007. Ironically, the impetus for Torruella’s masterful new work was a 2017 series of articles in the Harvard Law Review Forum, once again espousing the doctrine that “less perfect” union for citizens in the territory should be made permanent, instead of “more perfect” union through statehood. Changing its branding from “autonomy” to “territorial federalism,” a new generation of Ivy League advocates calls for new experimental governance schemes to spare Puerto Rico and Congress from the difficult choice between statehood and nationhood.

This is old wine, known to be spoiled, in old bottles known to leak. The idea behind “territorial federalism” continues to be that each territory should be allowed selectively to combine some but not all rights and some but not all duties of both statehood and nationhood, but never have to choose either status. Instead of a constitutionally defined permanent status, the territories will be allowed to “mimic” (term promoted by Harvard) both states and nations, but only as authorized by Congress under federal territorial statutory law.

As the 2016 federal suspension of the “commonwealth” constitution demonstrates, one Congress can not bind a future Congress by statute or treaty to any territorial status policy. The new Harvard promoted doctrine Torruella repudiates is explicitly one of mimicry that forces the nation to adapt its national citizenship law and constitutional federalism based on a union of states to the less than fully democratic status of territories.

Instead of requiring the territories to adapt to the constitutional nature of citizenship and federalism, the anti-statehood faction wants federalism to be adapted to the local territorial regime. So instead of offering each territory a path to integration into the union as a state or part of an existing state, or a path to independence, the former “autonomists” now rallying under the “territorial federalism” banner want to pursue a dualistic model of divided sovereignty, citizenship and allegiance.

PR51ST is on record exposing Harvard Law School faculty and administration support for perpetual territorial status for U.S. nationals and citizens in the last five U.S. territories.

Does anyone really care?

Like Thornburgh’s 2007 book published by the Center for Strategic and International Studies, the new study by Torruella includes an historically accurate and legally incontrovertible inventory of failed experimental federal and local polices denying both statehood and nationhood to Puerto Rico. Lamentably, these two studies may illustrate the practical political futility of a rigorous scholarly discourse on the topic of the territory’s political status.

Stated simply, Puerto Rico has been treated so differently than any other U.S. territory for so long, any complete examination of its legal nature and existence is too tortured and complicated to explain in normal language. It is simply hard to explain to most people that unlike all other U.S. territories at the time in 1900, the newly acquired distant island territories taken from Spain were not inhabited by U.S. citizens.

Until then, the political status of U.S. federal domain outside states had always been based on the migration of American citizens into the territory, so eventual statehood was presumed. For example, there was no scholarly intellectual ambivalence once the territories of Tennessee and Ohio were admitted to the Union.

After the Louisiana Purchase opened the continent to territorial integration, the only political hurdle to eventual statehood was the imperative of maintaining the political balance in Congress by admitting a free state for every new slave state. But in 1900 the U.S. Congress acknowledged the influence of the Harvard Law Review articles advocating against application of the U.S. Constitution to territories ruled by the U.S. but populated by non-citizens.  Yet both Congress and Harvard were strangely silent when experimentation in territorial government deviating from America’s anti-colonial traditions continued in Puerto Rico even after birthright citizenship was granted in 1917.

Torruella explains each experiment diverting Puerto Rico from the historic path that lead the non-citizens of U.S. Territory of the Philippine Islands to independent nationhood, and led 32 U.S. citizen populated territories to statehood. The early experiments in “enlightened colonialism” then led to the myth of an “autonomic” status labeled “commonwealth,” combining features of statehood and nationhood.

What’s in a title?

The first phrase in the title of Torruella’s 2018 essay for the Harvard Law Review Forum could not be more user friendly for the general public: “Why Puerto Rico Does Not Need Further Experimentation with Its Future.” The second phrase requires expertise in territorial law and policy: “A Reply to the Notion of ’Territorial Federalism.’”

When needing a short catchy phrase to refer to the problem of Puerto Rico’s political status, U.S. Senator Marco Rubio of Florida recently borrowed the phrase “Citizens Without A State” from the 2016 book by that title.  The 2016 book Citizens Without A State has a foreword by former U.S. Attorney General Thornburgh.

For statehood supporters, that simple user friendly phrase sums up the problem of having U.S. national citizenship in a territory without the rights of citizenship that exist only in the states. Supporters of independence in Puerto Rico might find an apt phrase would be “Citizens Without A Nation.” That’s because living in a U.S. territory without full national citizenship is also like living in a foreign nation, legally but without full rights of citizenship.

Hopefully, Judge Toruella, who is quoted in Citizens Without A State, will join Senator Rubio in use of the 2006 book title Citizens Without A State as a distilled statement of the problem facing us in Puerto Rico. Then people who may never read the Harvard Law Review Forum may be better able to understand the Puerto Rico problem too.

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