[Senate Hearing 111-666]
[From the U.S. Government Publishing Office]
S. Hrg. 111-666
U.S. VIRGIN ISLANDS, REPUBLIC OF THE MARSHALL ISLANDS, PUERTO RICO, AND
POLITICAL STATUS PUBLIC EDUCATION PROGRAMS
=======================================================================
HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
TO
RECEIVE TESTIMONY ON THE PROPOSED CONSTITUTION OF THE U.S. VIRGIN
ISLANDS; S. 2941, THE REPUBLIC OF THE MARSHALL ISLANDS SUPPLEMENTAL
NUCLEAR COMPENSATION ACT OF 2010; H.R. 3940, AN ACT TO AMEND PUBLIC LAW
96-597 TO CLARIFY THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO
EXTEND GRANTS AND OTHER ASSISTANCE TO FACILITATE POLITICAL STATUS
PUBLIC EDUCATION PROGRAMS FOR THE PEOPLES OF THE NON-SELF-GOVERNING
TERRITORIES OF THE UNITED STATES; AND H.R. 2499, THE PUERTO RICO
DEMOCRACY ACT OF 2010
__________
MAY 19, 2010
Printed for the use of the
Committee on Energy and Natural Resources
U.S. GOVERNMENT PRINTING OFFICE
61-779 PDF WASHINGTON : 2010
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
BYRON L. DORGAN, North Dakota LISA MURKOWSKI, Alaska
RON WYDEN, Oregon RICHARD BURR, North Carolina
TIM JOHNSON, South Dakota JOHN BARRASSO, Wyoming
MARY L. LANDRIEU, Louisiana SAM BROWNBACK, Kansas
MARIA CANTWELL, Washington JAMES E. RISCH, Idaho
ROBERT MENENDEZ, New Jersey JOHN McCAIN, Arizona
BLANCHE L. LINCOLN, Arkansas ROBERT F. BENNETT, Utah
BERNARD SANDERS, Vermont JIM BUNNING, Kentucky
EVAN BAYH, Indiana JEFF SESSIONS, Alabama
DEBBIE STABENOW, Michigan BOB CORKER, Tennessee
MARK UDALL, Colorado
JEANNE SHAHEEN, New Hampshire
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
McKie Campbell, Republican Staff Director
Karen K. Billups, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS
Page
Bingaman, Hon. Jeff, U.S. Senator From New Mexico................ 1
Bordallo, Hon. Madeleine Z., Delegate of Guam, U.S. House of
Representatives................................................ 5
Cedarbaum, Jonathan G., Deputy Assistant Attorney General,
Department of Justice.......................................... 50
Christensen, Hon. Donna M., Delegate of the Virgin Islands, U.S.
House of Representatives....................................... 45
Rios, Hector J. Ferrer, President, Popular Democratic Party...... 15
Fortuno, Hon. Luis G., Governor of Puerto Rico................... 12
James, Gerald Luz Amwur, II, President, Fifth Constitutional
Convention of the Virgin Islands............................... 47
Martinez, Ruben Angel Berrios, President, Puerto Rican
Independence Party............................................. 25
Murkowski, Hon. Lisa, U.S. Senator From Alaska................... 4
Pierluisi, Hon. Pedro R., Resident Commissioner of Puerto Rico,
U.S. House of Representatives.................................. 9
Pula, Nikolao I., Director, Office of Insular Affairs, Department
of the Interior................................................ 74
Silk, John M., Minister of Foreign Affairs, Republic of the
Marshall Islands............................................... 67
APPENDIXES
Appendix I
Responses to additional questions................................ 83
Appendix II
Additional material submitted for the record..................... 95
U.S. VIRGIN ISLANDS, REPUBLIC OF THE MARSHALL ISLANDS, PUERTO RICO, AND
POLITICAL STATUS PUBLIC EDUCATION PROGRAMS
----------
WEDNESDAY, MAY 19, 2010
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 9:30 a.m. in room
SD-366, Dirksen Senate Office Building, Hon. Jeff Bingaman,
chairman, presiding.
OPENING STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM NEW
MEXICO
The Chairman. OK, why don't we get started. The committee
meets this morning to receive testimony on 4 matters related to
U.S.-affiliated islands.
First is H.R. 2499, the Puerto Rico Democracy Act of 2010.
I don't know if we have some protests, or what.
At any rate, the second item is the proposed constitution
of the U.S. Virgin Islands.
Third is S. 2941, the Republic of the Marshall Islands
Supplemental Nuclear Compensation Act.
The fourth item is H.R. 3940, to Clarify the Authority of
the Interior Secretary to Provide Grants for Political Status
Education Programs.
First, with regard to H.R. 2499, this legislation would
authorize the Government of Puerto Rico to hold a 2-round vote
on political status. The first vote would be on whether the
People of Puerto Rico wish to continue the current relationship
with the United States, or to change this relationship. If a
majority favors continuing the current relationship, then a
vote would be held again every 8 years.
If, however, a majority favors change, then there would be
a second vote for the people to express their preference. That
preference would be among 4 options: independence, sovereignty,
an association with the United States, Statehood, or continuing
the present Commonwealth relationship.
Puerto Rico's status is a topic of keen interest to 4
million U.S. citizens living in the islands, and to 4 million
citizens of Puerto Rican ancestry living in the mainland. I
believe this bill advances the status process by identifying
the 4 status options available to Puerto Rico under U.S. law,
however, there's a long way to go. Congress has faced
significant challenges in the past when considering Puerto
Rico's status legislation, and there are additional challenges,
now, as Congress enters the mid-term election season.
The second item before the committee is the proposed
constitution for the Virgin Islands. On March 1 of 2010,
Congress received from the President a proposed constitution
drafted by the 5th Constitutional Convention of the Virgin
Islands. The current law provides Congress with a 60-day review
period, and the opportunity to approve, modify, or amend the
draft before it is presented to the people for approval or
rejection in a plebiscite.
In his message to Congress, the President included an
analysis by the Justice Department which describes several
concerns with the draft.
The third item before us is S. 2941, it would modify
several U.S. programs that respond to the health and
environmental effects of the U.S. nuclear testing program
conducted in the Marshall Islands in the 1940s and 1950s. This
bill is identical to legislation introduced in 2007 at the
request of the President of the Marshall Islands, however,
there was a change in the Islands' government before the
committee could complete consideration of amendments that were
under discussion with the former Marshall Islands' government
and with the previous U.S. Administration.
The final item before us is H.R. 3940, it would clarify
that the Secretary of the Interior is authorized to provide
technical assistance from the Department's existing technical
assistance program to the Governments of Guam, Virgin Islands,
and American Samoa to, quote, ``Facilitate public education
programs regarding political status options.''
I want to start by thanking all of the witnesses for coming
before the committee, I look forward to hearing their
contributions, and at this point I'll recognize Senator
Murkowski for any opening statements she would like to make.
[The prepared statement of Representative Velazquez
follows:]
Prepared Statement of Hon. Nydia M. Velazquez, U.S. Representative From
New York, on H.R. 2499
Thank you, Chairman Bingaman, for holding this important hearing.
As one of the four Puerto Rican Members of Congress, I am personally
invested in the status of Puerto Rico. I appreciate the opportunity to
provide my view on H.R. 2499 and its impact on Puerto Rico and the
United States.
I oppose this bill. I have stated before that I believe that the
best process to determine the will of the people regarding status is
through a Constitutional Assembly. However, if the process for self-
determination should be through a plebiscite, it is my firm belief that
Puerto Ricans should, at minimum, have all the options available from
which to choose.
Whenever the debate about the status of Puerto Rico occurs, it
still amazes me that the same old issues keep resurfacing. The tactics
and actions taken by interested parties continue to be a disservice to
the people of Puerto Rico and an affront to the democratic concept of
self-determination.
What seems to be missing from this debate is the realization that
prior processes, in both the House and the Senate, taught us important
lessons. We need to acknowledge these lessons and apply them to today's
efforts.
In the past 15 years, the House has acted on flawed legislation
that eventually, and properly, stalled in this body. The Senate's most
recent experience in conducting a detailed examination of this issue
was the extensive effort undertaken by this committee's chairman in
1989 Senator Bennett Johnston. That process, as comprehensive as it
was, was unable to complete the legislative process. Since then, there
has been no other Congressional effort that has sought to ascertain the
answers to economic, political, social and constitutional questions
that are relevant in any debate on the future of Puerto Rico and the
United States.
So here we are, today, continuing to talk about Puerto Rico, its
past, present and possible future. Still, even with the endless debate,
we do not seem to learn the lessons of the previous efforts on this
matter.
This is especially true if you examine these past two decades. We
have wastefully spent time discussing:
Whether Congress would pre-commit to a status decision for
the people of Puerto Rico;
Should the Senate or the House define for Puerto Ricans
their status options?
What limits our Constitution does or does not have?
Mr. Chairman, we should not place the cart in front of the horse.
Let's take the novel position that Puerto Ricans should first tell us
what they want, before we debate what we want. In order to have a
constructive discussion on how to address the Puerto Rico question, we
must recognize the following lessons:
First, it is for the people of Puerto Rico, including those
communities in the United States, to exercise their right to
self-determination--not Congress.
Second, for a process of self-determination to be accepted
as valid by the people, it must be transparent, fair and agreed
upon by consensus.
Third, proponents of status options that fail to win the
support of the people in Puerto Rico can not circumvent the
will of the people through federal legislation; Congress will
not validate nor sanction legislative schemes used to engineer
an electoral victory.
Two weeks ago, the House had a very spirited debate about this
bill. It is my view that the majority of members saw a flawed bill.
Even the Rules Committee seemed to tell the House that the bill had
troubling issues by allowing debate on 8 amendments, 5 of which dealt,
in one form or another, with the process laid out in the bill. Whether
it was eliminating one round of voting or adding an option to the
ballot or even striking the whole process, the House clearly heard the
message that the bill was unfair.
Today, the Senate has a version of H.R. 2499 that includes the
Commonwealth option in the second round of voting under this bill.
However, the bill is still the byproduct of a process that did not
reach consensus with other status options supporters and tried
unsuccessfully to exclude an option from the ballot. This bill is not
conducive to an informed self-determination decision by the people of
Puerto Rico. Rather, it was conceived with a predetermined agenda in
mind. I strongly urge you to not consider it.
Fairness, transparency and consensus are paramount to this debate.
In examining these issues, the highest priority should be given to what
the people of Puerto Rico want. Congress should not be considering
legislation that would stack the deck to reach a predetermined outcome,
as the original version of this bill sought to do. Puerto Ricans must
be allowed to express their aspirations in a democratic manner that is
not encumbered with convoluted processes designed to undermine one side
or another.
Mr. Chairman, I appreciate opportunity to share my thoughts on this
important issue.
STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR
FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman and good morning
to all. We've got a full house today, and I think that it is an
indicator of the interest that is held, not only, of course,
with the legislation as it relates to Puerto Rico's political
status, but as to our other territories. I think, oftentimes
these areas are part of our government's responsibility that
are often overlooked or even sometimes forgotten.
Again, from the attendance, there's no doubt that the topic
for the first panel, Puerto Rico's political status is a matter
of tremendous interest to the millions of Puerto Ricans that
reside on the island or across the United States.
As someone who was born in Alaska when we were still a
territory, I do have great sympathy for the desire of the
people of Puerto Rico to resolve their political status. It
took Alaska 92 years--92 for us to resolve our political
status. Puerto Rico has been working on it for 112.
So, while I am also sympathetic, I am also mindful that the
process to determine Alaska's future was driven from Alaska,
not from Washington, DC. I think that that's critical.
I do recognize that Puerto Rico has attempted on a number
of occasions to hold plebiscites to determine the wishes of the
Puerto Rican people but the results have not been conclusive. I
also recognize that outside of the Presidential Task Force on
Puerto Rico's Status the Federal Government has not provided
Puerto Rico with much guidance as to what their options are.
Mr. Chairman, I do agree with the Presidential Task Force
Report and with the text of H.R. 2499 that there are 4 options
available to Puerto Rico: maintaining the current Commonwealth
status; independence; free association; and, statehood. I am
hopeful that this committee can help provide some of that
guidance while at the same time allow those in Puerto Rico to
lead the political effort on political status, and not have it
driven from here, in Washington, DC.
Now, with regard to the proposed constitution for the U.S.
Virgin Islands, I want to echo the concerns that have been
raised by both the Virgin Islands Attorney General and the U.S.
Department of Justice regarding the constitutionality of some
of the provisions as well as potential conflict with Federal
law.
Creating different rights, restrictions, and benefits for
citizens based on when they or their ancestors were born in the
Virgin Islands, particularly with respect to property taxes and
voting rights, appears to be a violation of the U.S.
Constitution's Equal Protection Clause.
I am also concerned about provisions that appear to bestow
greater power to the United States Virgin Island Government
than is provided in Federal statute: the ability to manage
submerged lands out to 12 nautical miles--in contradiction with
the Territorial Submerged Lands Act which conveyed to the
Virgin Islands title to submerged lands out to 3 geographic
miles; and also the ability to set the minimum age for
employment, which has the potential to contradict the Fair
Labor Standards Act which sets the minimum age of employment at
14 years.
I do look forward to hearing from the President of the
Fifth Constitutional Convention on how these provisions are
consistent with the Constitution and Federal law, or how they
may be changed.
I am also pleased that we are considering the Marshall
Islands Supplemental Nuclear Compensation Act. With the Supreme
Court's decision not to hear the petition for changed
circumstances, the ball is here in Congress' court on whether
additional measures with regard to the nuclear testing are
warranted.
I believe that the Chairman and I have introduced a bill
that's a responsible piece of legislation that addresses some
of the concerns put forward. It provides for monitoring of
Runit Island, as well as ensured that those Marshall Islands
citizens who worked on the Test Sites during the Trust
Territory days are eligible for Energy Employees Occupational
Illness Compensation program. Now, this is a fix that should
not be necessary but some Federal agencies apparently disagree
with the Congressional intent in our previous legislation on
this issue.
The bill also calls for a National Academies study to
review all scientific reports and identify if parts of the RMI
outside of the Four Atolls were impacted by U.S. nuclear
testing. This will hopefully allow the U.S. and the Marshall
Islands to resolve our differences on this matter.
Mr. Chairman, I look forward to the testimony that we will
receive this morning, and learning more about all that we have
before us. Thank you.
The Chairman. Thank you very much.
As is customary, the committee will hear, first, from the
House sponsors of the House bills that are being considered
today. Delegate Madeleine Bordallo, who is from Guam, of
course, is the sponsor of H.R. 3940, and Resident Commissioner
Pedro Pierluisi, from Puerto Rico, is the sponsor of H.R. 2499.
Delegate Bordallo, why don't you go right ahead first, and
then Commissioner Pierluisi.
STATEMENT OF HON. MADELEINE Z. BORDALLO, DELEGATE OF GUAM, U.S.
HOUSE OF REPRESENTATIVES
Ms. Bordallo. Thank you very much, Chairman Bingaman and
Ranking Member Murkowski. It's nice to see you again. Of
course, Senator Menendez.
I come before the committee today, both as a representative
from Guam, seated in the House, and as the chairwoman of the
House Subcommittee on Insular Affairs, Oceans, and Wildlife.
The issues being addressed at the hearing today are ones
that have been explored by this committee before, yet they
remain matters under active discussion, and for which
congressional action is most needed to resolve. We have already
acted on each matter in the House in this Congress, and we look
to this committee now for initiating appropriate, complementary
action in the Senate.
This hearing is a good start, Mr. Chairman, and I
appreciate the courtesy you have extended to me to offer a few
points for reflection today. I have submitted my longer
statement for the record.
First, for 111 years, now, and as a result of the treaty
ending the Spanish-American War, Puerto Rico and Guam have been
under the United States flag. The people of the unincorporated
territories long for resolution of status, and release from
being perpetually placed in a state of uncertainty and
inequality with regard to their political rights and full self-
governance. The issue of political status remains an important
point of discussion for Americans residing in Guam, American
Samoa, and the United States Virgin Islands. Most importantly,
in my home district of Guam, the issue of status has been
raised by local leaders in the context of conditioning the
military buildup, and the stationing of additional military
personnel on our island.
Yet, some status options are more suitable and appropriate
for one territory more than they may be for another. There is
no universal, one-size-fits-all approach to resolving this
matter for all of our territories. Each territory is on its own
timeline and path for resolution, but their people must be
afforded the ability to exercise their right to self-
determination and express their desire for a permanent, non-
territorial status.
Two measures, Mr. Chairman, before you today would engender
such progress. H.R. 2499 would Congressionally sanction a
status plebiscite for the people of Puerto Rico. Congressional
authorization is critical for this exercise, just as Federal
resources and guidelines are needed for the status education in
the other territories, as would be provided under the terms of
H.R. 3940.
H.R. 3940 would authorize the Secretary of the Interior to
assist the Governments of Guam, American Samoa, and the United
States Virgin Islands in developing and implementing needed
political status public education programs. These programs
would help our people of these territories in understanding the
various and viable political status options available to them.
With such information they can, in turn, express informed
opinions about their future, in any political status plebiscite
or convention.
I appeal to you today, Mr. Chairman, for your judicious
exercise of the constitutional responsibility of the Congress
under the Territorial Clause to dissolve this inequity for the
territories, and resolve the status issue for the people of the
territories, consistent with their political aspirations.
Puerto Rico is ready for a plebiscite, and Congress should
give it standing. Guam, after spending over a decade pursuing a
Commonwealth arrangement, much along the lines of Puerto Rico
and the CNMI, but which stalled with the Administration, is
ready now for the next stage, and awaits status education
backed with Federal support. This would ensure only viable
options are presented to voters. I stand ready to work with the
committee to ensure the text of H.R. 3940 is constructed such
to address your interests and any concerns that you may have,
or your committee.
Second, the people of the Virgin Islands continue their
journey to enhance self-government. For the fifth time they
have, like the people of Guam, attempted before to adopt their
own constitution. Attempts at drafting and adopting a
constitution locally for Guam and the VI before have been
frustrated by the lack of action by Congress to resolve the
underlying fundamental status question. Thus, the emphasis
remains on resolution of status, and I urge this committee to
look carefully at the views expressed by the leaders.
Last, it is encouraging that the committee is attending to
the legacy of the U.S. nuclear testing in the Pacific, and what
that legacy means for our friends, the people of the Marshall
Islands. The testing, it is argued, brought about strength and
peace in the last decade following the second World War. But a
peace with their contaminated homeland, and a peace for the
Marshallese eludes them without proper action from this
Congress to improve U.S. assistance for addressing the
environmental, resettlement and health challenges. Last month,
the President's Cancer Panel issued its report and dedicated a
specific portion of it to the issues facing the Marshallese.
So, this is a matter of justice, and Congress should do
more to ensure that they are made whole, and their public
health protected.
So, I thank you, in summing up Mr. Chairman, Ranking
Member, and members of the committee, for your leadership and
you staff's support on insular policy. We look forward to
continuing to work with you to advance these bills under
consideration today. I thank you, and as we say in Guam, ``Si
Yu'us Ma'ase.''
[The prepared statement of Delegate Bordallo follows:]
Prepared Statement of Hon. Madeleine Z. Bordallo, Delegate of Guam,
U.S. House of Representatives
Hafa Adai and Thank you Chairman Bingaman, Ranking Member Murkowski
and Members of the Committee for the opportunity to testify in support
of H.R. 3940, which is a bill I introduced, to amend Public Law 96-597
to clarify the authority of the Secretary of the Interior to extend
grants and other assistance to facilitate political status public
education programs for the peoples of the non-self-governing
territories of the United States. As the Chairwoman of the Subcommittee
on Insular Affairs, Oceans and Wildlife in the House Committee on
Natural Resources, I worked with my colleagues on H.R. 3940 which
passed the full House on December 7, 2009.
Originally, H.R. 3940 as introduced only addressed political status
public education for Guam. At a hearing held on November 5, 2009, in
the Subcommittee on Insular Affairs, Oceans and Wildlife, Congressman
Eni Faleomavaega of American Samoa and Congresswoman Donna Christensen
of the U.S. Virgin Islands expressed a desire to broaden the
application of the bill to account for the needs of their islands. At
the hearing, the Subcommittee heard supporting testimony from the
Honorable Felix Camacho, Governor of Guam and Mr. Nikolao Pula,
Director of the Office of Insular Affairs in the U.S. Department of the
Interior. At a full Natural Resources Committee markup on November 18,
2009, I offered an Amendment in the Nature of a Substitute which made
changes to H.R. 3940 to include the other non-self-governing
territories, which was adopted by unanimous consent.
Mr. Chairman and members of the Committee, H.R. 3940 is an
important bill for this body because the ``territorial clause'' in
Article IV of the United States Constitution vests with the Congress
the power to dispose of and make all needful rules and regulations
respecting the territories of the United States. Recommendations as to
the exercise of such plenary authority by the Congress rest with this
Committee, and your action on this bill would be a manifestation of the
Constitutional authority and responsibility. As a member of the United
Nations, the United States also assumes by virtue of Article 73 of the
United Nations Charter the international obligation to develop self-
government and to take due account of the political aspirations of the
people of her territories. Mindful of these responsibilities we
continue today a discussion that involves the political history and
future of Guam and other non-self governing territories.
The issue of political status remains to be an important point of
discussion for the Americans residing in Guam, American Samoa and the
U.S. Virgin Islands. More importantly in my home district of Guam, the
issue of status has been raised by local leaders in the context of
conditioning the military build-up and the stationing of additional
military personnel on island. Today Guam continues to be an
``unincorporated territory'' of the United States. It is
``unincorporated'' because not all provisions of the U.S. Constitution
apply to the territory. The relationship of Guam to the United States
is extensive and we have been under the U.S. Flag for 111 years. Guam
was ceded from Spain to the United States, along with Puerto Rico,
under the terms of the Treaty of Paris that ended the Spanish-American
War in 1898. In 1950, Congress passed and President Truman signed into
law the Organic Act of Guam, conferring U.S. citizenship on the people
of Guam and establishing limited local self government. Yet, we remain
unequal Americans in a status where the Constitution does not fully
apply.
Under the Organic Act, the Secretary of the Interior is vested with
administrative responsibility for Guam and Guam is ``organized'' with a
republican form of government with locally-elected executive and
legislative branches and an appointed judicial branch. In 1968,
Congress also passed a law allowing for the Governor of Guam to be
elected by local popular election. Prior to the enactment of that law,
the Governor was appointed by the Secretary of the Navy and later by
the President during the years of Interior responsibility. In 1970,
Congress also passed a law allowing for the election every two years of
a Delegate to Congress to represent Guam.
In 1976, Congress afforded the people of Guam an opportunity to
adopt a local Constitution. In 1979, the people of Guam rejected the
proposed Constitution by a referendum held under United Nations
observation. Following this outcome, the Government of Guam through its
laws established a commission for the purpose of working to improve the
territory's political status according to the aspirations of the people
of Guam.
A plebiscite was held in 1982, resulting in a plurality vote for a
``Commonwealth'' status (49%), followed by statehood (26%), status quo
(10%), incorporated territory (5%), free association and independence
(4% each) and ``other'' (2%). Pursuant to that outcome the Guam
Commission on Self-Determination drafted a proposed Guam Commonwealth
Act, which was approved in two 1987 plebiscites. The Guam Commonwealth
Act was introduced by my immediate two predecessors in four consecutive
Congresses--the 100th through the 105th Congresses. A full committee
legislative hearing of the Committee on Resources was held on the Guam
Commonwealth Act during the 105th Congress on October 29, 1997.
Ultimately, the political aspirations of the people of Guam as
represented by the Guam Commonwealth Act were never realized despite
the efforts made by Guam's representatives, previous Administrations,
this Committee and the Congress as a whole.
Thus, we are on a journey to ultimately resolve the political
status of Guam and the unincorporated territories. This relationship
was not meant to be permanent. Our inequality must be addressed, and
H.R. 3940 is one step toward resolution. H.R. 3940 would authorize the
Secretary of the Interior to assist the governments of Guam, American
Samoa, and the United States Virgin Islands in developing and
implementing the needed political status public education programs.
These programs would help the people of these territories in
understanding the various and viable political status options available
to them. With such information they could in turn express informed
opinions about their future in any political status plebiscite or
convention.
Although efforts have been made in the past in each territory
toward improving its status consistent with the right of self-
determination, political status remains ultimately unresolved for them.
In Guam, a local law has authorized a plebiscite to be held that is to
involve a public education program. In American Samoa, the work of a
locally-established commission to assess status options, the third such
commission in the history of the territory, was recently concluded. A
plebiscite on status was also held previously in the Virgin Islands.
Each circumstance, however, demonstrates the importance of a public
education program for resolving status in each territory and for
preparing for future plebiscites or other processes by which their
people can collectively express their political aspirations.
This bill simply clarifies in law that the Secretary of the
Interior can exercise existing authority to provide general technical
assistance to these territories for the purpose of facilitating
political status public education. It is an important step for the
highest legislative body to reaffirm our constitutional commitment to
the non-self governing territories. In closing, I ask that the full
Senate Energy and Natural Resources committee pass H.R. 3940 and work
towards final passage in the full Senate. Thank you again for the
opportunity to testify.
The Chairman. Thank you very much for that excellent
testimony.
Let me go right to Commissioner Pierluisi, why don't you
proceed?
STATEMENT OF HON. PEDRO R. PIERLUISI, RESIDENT COMMISSIONER OF
PUERTO RICO, U.S. HOUSE OF REPRESENTATIVES
Mr. Pierluisi. Chairman Bingaman, Ranking Member Murkowski,
members of the committee thank you for giving me the
opportunity to speak in support of my bill, H.R. 2499.
H.R. 2499 is a bill about democracy, as the title suggests.
It deals with the right of self-determination, and Congress
doing the right thing. It was approved in a strong bipartisan
vote at a time that we all know bipartisanship is in short
supply. It was approved by the House, now it is the Senate's
turn to consider it.
The purpose of the bill is straightforward. What Congress
is doing is authorizing the Government of Puerto Rico to
conduct one or more plebiscites in which the people of Puerto
Rico will be able to express their views regarding the Island's
political status.
The threshold question posed in the first plebiscite is a
key question. It's the essence of democracy. Congress is
authorizing the Government of Puerto Rico to ask the American
citizens living in Puerto Rico, whether they want Puerto Rico
to continue having its present form of political status, or
whether they want Puerto Rico to have a different political
status.
Now, why is that so important? As Ranking Member Murkowski
mentioned, we've been a territory now for 112 years. By its
definition, it means that Puerto Rico has no voting
representation in Congress, its residents can not vote for the
President and Congress can, at any point in time, treat us
differently than our fellow citizens in the States. It just
happened with health reform.
It is my job to fight for them. But the U.S. Supreme Court
has stated, repeatedly, that Congress can treat us differently,
so long as there is a rational basis for doing so--the lowest
possible Constitutional scrutiny.
Now, if a majority of the people of Puerto Rico want to
remain under this status, so be it. But, shouldn't Congress
know whether the majority of the people of Puerto Rico consent
to this arrangement? That's the purpose of the first
plebiscite. If the majority tells the Congress that they want a
different political status, then Congress is authorizing a
second plebiscite, in which you will have the 4 options before
the people of Puerto Rico--the only valid and available
options.
It's important that Congress, at the very least, give some
guidance to the people of Puerto Rico. True, we've had some
plebiscites in the past, but the problem is, Congress has never
spoken, and that's the least Congress should be doing, in terms
of telling us what options we have. Those options are laid out
in this bill: Statehood, independence, free association, an
association between Puerto Rico and the United States as
sovereign nations that is not subject to the Territory Clause
of the United States Constitution, and the current status.
I should note something. When I introduced this bill
originally, I did not have that fourth option, the current
status. My thinking, as a lawyer, was like--I was being logical
in the sense of, if the majority of the people reject the
current status, why include it in the second time around?
But, I have to say now, on behalf of my fellow colleagues
in the House, the sentiment in the House was, ``Let's make sure
that nobody's left out.'' Nobody who wants to support a valid
option, and the current status, called the Commonwealth, is one
option. We've been through it for a long time now.
It is important to note that this bill is not as ambitious
as previous bills that have been present or pending before the
Congress. It allows Congress to respond in any fashion it
thinks appropriate, once we hear from the people of Puerto
Rico. It is the first step in a process of dealing with the
status issue of Puerto Rico; it is the logical and fair first
step.
Later today, you will hear from leaders in Puerto Rico and
don't be surprised that some will oppose this bill. That's the
very nature of the matter. There are differences in terms of
the options, and there are differences in terms of the process.
My judgment, the judgment of the Governor of Puerto Rico, the
judgment of most--large majority of the elected officials in
Puerto Rico is, we should have a plebiscite. Consult the people
directly, as opposed to a constitutional convention.
It is about time we hear from the people of Puerto Rico.
That is my prayer to this committee. That is my prayer to the
Senate. My people have been patient enough; it is time to act.
I will ask you to report favorably, H.R. 2499 for approval
by the Senate. Thank you very much.
[The prepared statement of Resident Commissioner Pierluisi
follows:]
Prepared Statement of Hon. Pedro R. Pierluisi, Resident Commissioner of
Puerto Rico, U.S. House of Representatives
Chairman Bingaman, Ranking Member Murkowski, and Members of the
Committee:
Thank you for giving me the opportunity to speak in support of my
bill, H.R. 2499, the Puerto Rico Democracy Act.
This legislation, which was approved by the House in a strong
bipartisan vote, would authorize a fair and non-binding plebiscite
process in Puerto Rico regarding the Island's political status. That is
all the bill would do-no less and no more.
Puerto Rico is a U.S. territory. Whatever its merits, territorial
status has severe and inherent shortcomings. The U.S. citizens of
Puerto Rico, four million proud, serve in the U.S. military and their
lives are governed by federal law. Yet they cannot vote for their
president and commander-in-chief, are not represented in the Senate,
and send a single non-voting member to the House.
The sad truth is that, since joining the American family 112 years
ago, my people have never had a meaningful voice in their national
government. Laws enacted by Congress often treat residents of Puerto
Rico worse than their fellow citizens in the states. These laws are
upheld by the courts if there is any rational basis for the disparate
treatment, the lowest level of constitutional scrutiny. Our Founding
Fathers, and generations of American patriots who followed them,
established the greatest democracy the world has known. I cannot
believe they could have contemplated that the undemocratic governing
arrangement that exists between the United States and Puerto Rico would
last for more than a century, or that it might effectively be
transformed into the Island's permanent status.
The Constitution vests Congress with almost absolute power over the
territories. The fundamental premise of 2499 is that Congress, in the
responsible exercise of its authority, should ask the people of Puerto
Rico whether they consent to the current status or prefer a different
status. The first-stage plebiscite authorized by the bill would pose
this threshold question to voters.
If a majority expresses a desire for a different status, the
legislation would authorize a second-stage plebiscite where voters
would state their preference among four options: the current
territorial status and the three possible alternatives-independence,
free association, and statehood. By adopting an amendment during floor
debate to add the current status as a ballot option in this plebiscite,
the House has put to rest the argument that the bill ``stacks the
deck'' in favor of statehood or any other status option. That charge,
to the extent it was ever colorable, no longer has the slightest merit.
H.R. 2499 does not require any federal action if a majority chooses
a different status in the first vote and a particular non-territorial
option in the second vote. Congress and the President should decide
which steps to take-if any-after seeing the results.
I hope that the Senate will follow the House's lead and pass this
bill. But I am the first to say that inaction by this chamber is not
the real obstacle to a fair process of self-determination. Rather, the
greatest barrier to meaningful self-determination is that politicians
affiliated with the Island's minority Popular Democratic Party have not
been honest with the people of Puerto Rico.
In addition to denying the self-evident fact that Puerto Rico is a
territory, these politicians continue to proclaim the feasibility of a
pie-in-the-sky proposal under which Puerto Rico would receive more
federal benefits than it does now, while also having the power to
decide which federal laws apply to the Island, all pursuant to a
bilateral pact from which the U.S. could not withdraw absent Puerto
Rico's consent.
As the House counterpart to this Committee stated in its report on
2499, this impossible proposal has been ``consistently opposed by
federal authorities . . . on both constitutional and policy grounds.''
Naturally, those who champion this scheme do not talk about it in
Washington, because they know it is a non-starter. But they talk about
it incessantly in San Juan. This has caused substantial confusion in
Puerto Rico about the Island's true status options, and has resulted in
misinformed and inconclusive local status referenda in 1967, 1993, and
1998.
In passing 2499 by a large margin, the House accomplished several
important things. It clarified that there are only three possible
alternatives to the current status. It delivered a devastating blow to
those who deceive the people of Puerto Rico for political gain. And it
helped ensure that the forthcoming plebiscite process in Puerto Rico
will be a meaningful exercise in self-determination, where voters will
finally have the opportunity to express their preference among the
valid-and only the valid-status options. I hope this Committee, like
the House before it, will show respect for the people of Puerto Rico by
leveling with them about their real choices.
Thank you.
The Chairman. Thank you. Thank you, both, for your
excellent statements. We appreciate your coming before our
committee and advocating for the bills that you have sponsored.
We will hear from both panels and try to reach our conclusions
as to how to proceed, but thank you both.
I did not have any questions, let me just ask if any member
wanted to pose a question to either of the sponsors of the
legislation. If not, we'll permit you to go on with your
duties, whatever is required, and we will go on with the first
panel.
Thank you very much.
Mr. Pierluisi. Thank you.
The Chairman. Panel one is the Honorable Luis Fortuno, who
is the Governor of the Commonwealth of Puerto Rico; the
Honorable Hector Ferrer Rios, who is President of the Popular
Democratic Party; and the third witness is the Honorable Ruben
Angel Berrios Martinez, who is President of the Puerto Rican
Independence Party.
We thank all of you for being here. Our ground rules here
are that, obviously, whatever written statements you have
developed is welcome. We will include the full statement in the
record. I think the committee would benefit most if you could
summarize the main points that you think we need to understand
and then we will, undoubtedly, have questions.
So, why don't we start with Governor Fortuno, if you would
like to start and then go across the table.
STATEMENT OF HON. LUIS G. FORTUNO, GOVERNOR OF PUERTO RICO
Governor Fortuno. Thank you, Mr. Chairman and Ranking
Member Murkowski as well as the distinguished members of this
committee for the opportunity to appear this morning before you
and the other fellow members of this committee to express my
support of H.R. 2499, the Puerto Rico Democracy Act of 2009. I
especially appreciate the opportunity to follow Puerto Rico's
sole representative--elected representative in Congress,
Resident Commissioner Pedro Pierluisi, who was my running mate
in 2008.
Today, I appear before you as Governor of Puerto Rico and
as President of Puerto Rico's Statehood Party, which includes
national Republicans like myself as well as Democrats like
Resident Commissioner Pierluisi.
In the elections of 2008, voters gave candidates of our
Party the biggest margin of any electoral victory in 44 years.
We obtained over two-thirds of the seats in each house of the
legislature and three-fifths of the mayorships.
The candidates in the ``Commonwealth'' party, by contrast,
received the lowest percentage of votes for their party in
history. This is particularly relevant because the process
proposed by H.R. 2499 was an issue in the elections. Our party
campaigned on a pledge to seek congressional sponsorship of a
status choice process in order to provide a choice among real
status options to be made directly by the voters in
plebiscites.
Why does Congress need to act? Because there is a patently
obvious need for the territory's real options to be clarified.
Under the present status, given Congress' constitutional
jurisdiction under the Territory Clause, Congress can provide
the necessary clarification. Specifically, previous political
status plebiscites without Federal legislation in the first 2
instances, at the end of the 1960s and the beginning of the
1990s were inconclusive as the Ranking Member mentioned
earlier, because of proposals for an unconstitutional and
impossible governing arrangement. The most recent plebiscite,
12 years ago, was similarly confused by such a proposal.
For decades, the leaders of the ``Commonwealth'' party--
including those of that party's delegation here today--have
refused to recognize the reality that the only possible
``Commonwealth'' option that exists is the one that is the
island's current territory status.
H.R. 2499 simply clarifies what the possible status options
for Puerto Rico are: continuation of the current territory
status that goes by the name of ``Commonwealth,'' independence,
nationhood in free association with the United States, and
statehood.
What is not included in the legislation, and what is the
real reason for the ``Commonwealth'' party's persistent
objections to the bill is this impossible ``Commonwealth''
status proposal that is not the current status. Under the
present--and I have a copy of their platform in 2008, here. In
this proposal of theirs, Puerto Rico would be permanently
empowered to nullify Federal laws and court jurisdiction. The
island would also be empowered to enter into international
agreements and organizations requiring national sovereignty.
The proposal also includes a new subsidy for the government of
the island, coming from the Federal taxpayers, and incentives
for companies in the States to locate plants in Puerto Rico.
But wait, there's more. The proposal also further includes
all current Federal program assistance to individuals, and U.S.
citizenship would be perpetually guaranteed, as well. A wise
member of this committee once called this proposal ``the free
beer and barbeque option.'' Members of the Senate should once
again join their counterparts in the House in clarifying that
such proposals are not possible status options.
In doing so, Mr. Chairman, you and your colleagues would do
well to join Congresswoman Virginia Foxx who, in a letter to
myself and Resident Commissioner Pierluisi last week, did just
that. Congresswoman Foxx clarified that the ``Commonwealth''
option contained in her amendment to H.R. 2499--which was
approved by the full House--is, and I quote, ``the status quo,
under which Puerto Rico is subject to Federal Territory Clause
authority.''
As Congresswoman Foxx further made clear, her amendment's
intention was not to endorse the legal viability or practical
possibility of a quote--and I quote again--``a new Commonwealth
status,'' I end quote, which would grant Puerto Rico greater
autonomy from Federal authority with greater Federal benefits.
With your permission, Mr. Chairman, I would like to submit
Congresswoman Foxx's letter for the record and, in doing so,
also my entire written statement.
The Chairman. We're glad to include that in the record.
Governor Fortuno. Thank you, Mr. Chairman.
Mr. Chairman, what H.R. 2499 essentially does is authorize
a process, at the discretion of Puerto Rico's elected
representatives, that would begin with threshold votes on
whether to consider status options. This responds to the
``Commonwealth'' Party argument that the status question should
not be addressed. Only if a majority of voters no longer favors
the current status--and Puerto Rico's elected representatives
agree--would there be a second-stage vote on the full range of
possible options. If a majority of voters in a threshold
plebiscite do not want to consider Puerto Rico's status
options, the issue would be put aside for 8 years.
If a second-stage vote does take place, the current status
would stand equally alongside the other possible status
alternatives that have support in Puerto Rico: free
association--which is advocated by an increasing number of
members of the ``Commonwealth'' Party, although not the current
leadership; independence; and statehood. In terms of measuring
support for Puerto Rico's possible status choices, H.R. 2499
could not be any fairer.
In sum, H.R. 2499 would enable the preferences of Puerto
Ricans, among the real status alternatives, to finally be
ascertained. The legislation would not mandate any action in
response by the Federal Government. If there ever is a majority
of the vote for a status different from the present one, it is
then that the Federal officials could determine what response
is appropriate. An accurate expression of status preferences by
the people is the necessary first step, though.
Last month, members of the House took the right step. I
urge you to do the same. By so doing, you will be effectively
responding to the people of Puerto Rico's clear mandate for a
federally sanctioned status choice process. You will also
fulfill Congress' responsibility to enable a territory that
lacks democracy at the National Government level to determine
if it wants one of the options for National Government
democracy.
Mr. Chairman, over the course of more than a century,
millions of your fellow American citizens in the territory of
Puerto Rico have made countless contributions to the Nation,
both in peace and wartime. Thousands of our sons and daughters
have laid down their lives--thousands more proudly serve today,
and there are a few of them with us today--in defense of
American democratic values. Yet, we have never been given the
chance to express our views about our political relationship
with the Nation in the context of an accurate, fair and
democratic process sponsored by Congress. This bill will, at
long last, give us that chance. What would be more right?
Thank you, again.
[The prepared statement of Governor Fortuno follows:]
Prepared Statement of Hon. Luis G. Fortuno, Governor of Puerto Rico
Thank you, Mr. Chairman . . . and Ranking Member Murkowski . . .
for the opportunity to appear this morning before you and fellow
members of this Committee to express my support of H.R. 2499, the
Puerto Rico Democracy Act of 2009. I especially appreciate the
opportunity to follow Puerto Rico's sole elected representative in
Congress, Resident Commissioner Pedro Pierluisi, who was my running
mate in 2008.
Today, I appear before you as Governor of Puerto Rico and as
President of Puerto Rico's statehood party, which includes national
Republicans like myself as well as Democrats like Resident Commissioner
Pierluisi.
In the elections of 2008, voters gave candidates of our party the
biggest margin of any electoral victory in 44 years. We obtained over
two-thirds of the seats in each house of the legislature and three-
fifths of the mayorships. The candidates in the ``Commonwealth'' party,
by contrast, received the lowest percentage of votes for their party in
history.
This is particularly relevant because the process proposed by H.R.
2499 was an issue in the elections. Our party campaigned on a pledge to
seek congressional sponsorship of a status choice process.in order to
provide a choice among real status options to be made.directly by
voters . . . in plebiscites.
Why does Congress need to act? Because there is a patently obvious
need for the territory's real options to be clarified. Under the
present status . . . given Congress' constitutional jurisdiction under
the Territory Clause . . . Congress can provide the necessary
clarification. Specifically, previous political status plebiscites
without federal legislation . . . in the first two instances, at the
end of the 1960s and the beginning of the 1990s . . . were inconclusive
because of proposals for an unconstitutional and impossible governing
arrangement. The most recent plebiscite . . . 12 years ago . . . was
similarly confused by such a proposal.
For decades, the leaders of the ``Commonwealth'' party-including
those of that party's delegation here today--have refused to recognize
the reality that the only possible ``Commonwealth'' option that exists
is the one that is the island's current territory status.
H.R. 2499 simply clarifies what the possible status options for
Puerto Rico are: continuation of the current territory status that goes
by the name of ``Commonwealth'', independence, nationhood in free
association with the United States and statehood.
What is not included in the legislation.and what is the real reason
for the ``Commonwealth'' party's persistent objections to the bill . .
. is this impossible ``Commonwealth'' status proposal that is not the
current status [holding up copy].
Under this proposal of theirs, Puerto Rico would be permanently
empowered to nullify federal laws and court jurisdiction. The island
would also be empowered to enter into international agreements and
organizations requiring national sovereignty. The proposal also
includes a new subsidy for the government of the island, and incentives
for companies in the States to locate plants in Puerto Rico. But wait,
there's more. The proposal also further includes all current federal
program assistance to individuals, and U.S. citizenship would be
perpetually guaranteed.
A wise member of this Committee once called this proposal ``the
free beer and barbeque option.'' Members of the Senate should.once
again. join their counterparts in the House in clarifying that such
proposals are not a possible status option.
In doing so, Mr. Chairman, you and your colleagues would do well to
join Congresswoman Virginia Foxx . . . who in a letter to myself and
Resident Commissioner Pierluisi last week did just that. Congresswoman
Foxx clarified that the ``Commonwealth'' option contained in her
amendment to H.R. 2499.which was approved by the full House . . . is .
. . and I quote . . . '' the status quo, under which Puerto Rico is
subject to federal Territory Clause authority.''
As Congresswoman Foxx further made clear, her amendment's intention
was not to endorse the legal viability or practical possibility of . .
. and I quote once again . . . '' a new Commonwealth status' which
would grant Puerto Rico greater autonomy from federal authority with
greater federal benefits.'' With your permission, Mr. Chairman, I would
like to submit Congresswoman Foxx's letter for the record, along with
my entire written testimony.
Mr. Chairman, what H.R. 2499 essentially does is authorize a
process.at the discretion of Puerto Rico's elected representatives . .
. that would begin with threshold votes on whether to consider status
options. This responds to the ``Commonwealth'' Party argument that the
status question should not be addressed. Only if a majority of voters
no longer favors the current status . . . and Puerto Rico's elected
representatives agree. would there be a second-stage vote on the full
range of possible options. If a majority of voters in a threshold
plebiscite do not want to consider Puerto Rico's status options, the
issue would be put aside for eight years.
If a second-stage vote does take place, the current status would
stand equally alongside the other possible status alternatives that
have support in Puerto Rico: free association--which is advocated by an
increasing number of members of the ``Commonwealth'' Party, although
not the current leadership; independence; and statehood. In terms of
measuring support for Puerto Rico's possible status choices, H.R. 2499
could not be any fairer.
In sum, H.R. 2499 would enable the preferences of Puerto
Ricans.among the real status alternatives . . . to finally be
ascertained. The legislation would not mandate any action in response
by the federal government. If there ever is a majority of the vote for
a status different than the present one, it is then that Federal
officials could determine what response is appropriate. An accurate
expression of status preferences by the people is the necessary first
step.
Last month, members of the House took the right step. I urge you to
do the same. By so doing, you will be effectively responding to the
people of Puerto Rico's clear mandate for a federally sanctioned status
choice process. You will also fulfill Congress' responsibility to
enable a territory that lacks democracy at the national government
level to determine if it wants one of the options for national
government democracy.
Mr. Chairman, over the course of more than a century, millions of
your fellow American citizens in the territory of Puerto Rico have made
countless contributions to the Nation, both in peace and wartime.
Thousands of our sons and daughters have laid down their lives . . .
thousands more proudly serve today.in defense of American democratic
values. Yet, we have never been given the chance to express our views
about our political relationship with the Nation in the context of an
accurate, fair and democratic process sponsored by Congress. This bill
will, at long last, give us that chance. What could be more right?
Thank you very much.
The Chairman. Thank you very much, Governor. I appreciate
your testimony very much.
Next is the Honorable Hector Ferrer Rios, who is the
President of the Popular Democratic Party. Thank you for being
here.
STATEMENT OF HECTOR J. FERRER RIOS, PRESIDENT, POPULAR
DEMOCRATIC PARTY
Mr. Rios. Thank you, Mr. Chairman, and good morning ranking
members and members of the committee. My name is Hector Ferrer,
I am the President of the Popular Democratic Party of Puerto
Rico, the Minority Leader in the Puerto Rico House of
Representatives and a Commonwealth supporter. Along with my
remarks today, I have submitted, for the record, a written
testimony.
I come before you to oppose H.R. 2499, the Puerto Rico
Statehood Bill. H.R. 2499 is crafted as an unusual and
unprecedented two-round voting scheme to manufacture a
predetermined outcome in front of Statehood. Even after some
amendments included on the House floor, the bill remains
slanted toward Statehood, and has serious procedural flaws.
Moreover, this bill is non-binding. This means that this
Congress is not committed to honor its results.
This sounds to me like your ``free beer and barbeque''
comment 12 years ago, Mr. Chairman, when we defeated Statehood,
once again, in the 1998 plebiscite, in a rigged process just
like this one. There is absolutely no pain involved in Congress
if you're simply hosting a beauty pageant with no tangible
obligations. Mr. Chairman, the people of Puerto Rico and the
United States deserve better.
The core question before this committee today is this: Why
are we here? Frankly, I'm not quite sure. Puerto Rico is
undergoing a significant crisis. The University of Puerto Rico
system has been shut down for almost a month, and Governor
Fortuno's Administration has just announced that it will remain
closed until August.
As unemployment is nearing 20 percent, he has fired well
over 20,000 public employees without regard to their unions'
calls for negotiations and compromise, while the private sector
has lost over 100,000 jobs in the past year and a half.
Since January 2009, the Governor has added 12 new taxes on
homes and business, corporate and individual taxes, motor
vehicles, among others, and all of this in the middle of a
recession. Puerto Rico's public debt surpasses $60 billion. In
the first 5 months of this year, more civilians have been
murdered in Puerto Rico than American and Coalition forces in
both Iraq and Afghanistan together.
With all of these pressing matters at hand, the Governor
and his Party are again playing up the status issue, and
forcing us to participate, once more, in this 3-ring circus
that comes to town every couple of years. For what? To discuss
a non-binding plebiscite? Again, the people of Puerto Rico and
the United States deserve better.
In fact, today's leader--legislation of Puerto Rico is
currently holding hearings on a locally authorized, non-binding
plebiscite just like this one. If this is happening, why are we
wasting your time here, today? To that effect, I'm submitting
for the record Senate bill 1407 and House bill 2497 for the
committee's consideration. If Congress chooses to enact this
legislation with a clearly pre-ordained pro-State result in
mind, it is your responsibility toward the people of Puerto
Rico and the United States to clearly define and outline the
Statehood that you are willing to grant Puerto Rico. Tell us if
you're willing to commit to Statehood on a first vote with a
simple majority, or a plurality. Tell us if you will allow for
a State where the Executive, Legislative and Judicial branches,
schools, business, and every other affair is conducted in
Spanish.
Mr. Chairman, your own State of New Mexico, along with
Louisiana, Oklahoma, and Arizona, were required to adopt
English for all official business as a prerequisite for
admission. Will you do that so with Puerto Rico?
Tell us if, under Statehood, Puerto Rico will still receive
the Rum Tax Color Over, and tell us how U.S. companies, with
significant investment and operations in Puerto Rico will be
treated.
Tell us if you're willing to admit a State without
sufficient economic resources to support its own government,
let alone its share of the Federal budget. Explain if the route
to Statehood requires first becoming an incorporated territory,
with the burden of Federal taxes and the end of our Olympic
Committee. If it's the will of this committee to offer the
people of Puerto Rico a bid for Statehood, why not propose a
straight yes or no vote on Statehood?
As you can tell, there are more questions to be made to
Congress than answers to be demanded from the people of Puerto
Rico. As President of the Popular Democratic Party, I believe
that the most honest and straightforward way of dealing with
this issue of Puerto Rico's status is providing for the people
of Puerto Rico to convene in a constitutional convention. This
much fairer process has been supported by the Popular
Democratic Party for years, and was actually introduced as a
Senate bill by Senator Kennedy, Menendez, Burr, and Lott in the
109th Congress.
H.R. 2499 is not a process of self-determination. In fact,
what is needed to move forward is a binding and democratic
process that leads us toward mutual determination, where both
the people of Puerto Rico and the United States are committed
to a fair result. I encourage this committee to rise honorably
to the occasion, and do right by the people of Puerto Rico.
Thank you.
[The prepared statement of Mr. Rios follows:]
Prepared Statement of Hector J. Ferrer Rios, President, Popular
Democratic Party
My name is Hector Ferrer Rios, President of the Popular Democratic
Party and House Minority Leader. I come before the Committee to urge
you to oppose H.R. 2499, recently approved by the House of
Representatives. H.R. 2499 simply appears to call for a non-binding
expression by the Puerto Rican people as to their political status
preference. Beyond its seemingly innocuous facade, the bill was
constructed as an unusual and unprecedented two round voting scheme to
predetermine the outcome by producing an artificial statehood majority.
Fundamentally, plebiscites and referendums are democratic
mechanisms for determining by direct vote a people's own destiny. These
are methods with which to identify, and subsequently implement, the
people's most favored avenues of politico-constitutional evolution---as
selected by those peoples themselves. And the common denominator of any
such democratic exercise is fairness. The legislator's fair and
equitable treatment of the options is paramount to assuring the
legitimacy of any such self-determination process.
Nevertheless, the legislative intention of H.R. 2499 was to sub-
categorize the options to be presented to the people, in order to
configure the voting system in a way that would assure a particular
outcome, a predetermined result by imposing its bias and annulling the
legitimacy of the process.
That is what H.R. 2499 attempts. In it, the drafters arbitrarily
separated what they regard a ``territorial and impermanent'' option
from purportedly ``non-territorial and permanent'' ones. Following that
rationale, the bill calls for an initial round limited to a yes or no
vote on the ``current political status'', followed by a second round
among all other options if the current political status fails to
achieve 50% of the vote in the first round. Such action renders the
process patently biased.
Historical background illustrates what is at play here. Back in
1993, after a landslide victory in the general elections, the pro-
statehood governor quickly called for a plebiscite expecting his
personal popularity to translate into a similar win for statehood. The
governor allowed each of the parties to decide how their status option
would appear defined on the ballot. To his surprise, Commonwealth won
with 48.6% of the vote to statehood's 46.5% and independence's 4.4.%.
Pledging not to let that happen again, governor Rossell" called for
a new plebiscite in 1998, but this time he drafted the Commonwealth's
definition himself and in such unpalatable terms that the Commonwealth
party could not endorse it. To his total dismay, the Commonwealth party
asked its supporters to vote instead under a ``none of the above''
option sanctioned by local courts. Commonwealth status d/b/a ``none of
the above'' prevailed again with 50.3% of the vote against statehood's
46.5%, independence's 2.5%. A new option called Free Association got a
meager 0.3%.
After the 1998 humiliation, the statehood party went back to the
drawing board and came up with a scheme that now takes the form of H.R.
2499. The 1993 plebiscite taught them that statehood can never beat
Commonwealth in a face to face contest and the 1998 plebiscite showed
them that the Commonwealth supporters are not easily excluded from the
process. And so the idea of a two round vote.
The pro-statehood Resident Commissioner from Puerto Rico reasonably
thinks that splitting the vote should result in a huge win for
statehood. That conclusion is supported by history. Take the 1993
plebiscite results mentioned above. Commonwealth was the people's top
choice. If that vote had been divided into two rounds, as H.R. 2499
proposes, Commonwealth's otherwise 48.6% victory would have meant a
rejection, and the people would have been forced to choose between what
were, and probably still are, their second and third choices. Based on
those 1993 numbers, it is reasonable to conclude that statehood,
although not the people's preferred choice, would achieve an
overwhelming majority of the votes in the second round.
The statehood party has already made sure that the ``none of the
above'' option can no longer foil a statehood majority as it did in
1998. ``None of the above'' was a judicially mandated option based on
constitutional grounds regarding the individual's right to vote. But
the current pro-statehood governor had the opportunity to change the
Puerto Rico Supreme Court's ideological composition by filling three
vacancies; and just a year ago, a 4-3 majority, without having a case
or controversy on this issue before it, quickly reversed the earlier
ruling requiring this option.
H.R. 2499 is now the final piece of the statehood party's assault
on Puerto Rico's right to self-determination. It is crude, unabashed,
undemocratic gimmickry.
The two round setup had its genesis in heavily flawed conclusions
regarding the current Commonwealth status found in a Presidential Task
Force Report.
Executive Order 13183 (dated December 23, 2000), as amended by
Executive Order 13319 (dated December 3, 2003), created a President's
Task Force on Puerto Rico's Status (the ``Task Force'') to ``report on
its actions to the President as needed, but no less than once every 2
years, on progress made in the determination of Puerto Rico's ultimate
status.'' Pursuant to such directive, the Task Force issued its initial
report on December 22, 2005, and the first follow up addendum report on
December 21, 2007 (hereinafter the ``Task Force Reports''). A final
report is due this coming December 2009.
Ever since the publication of the initial Task Force Report in
December 2005, the Popular Democratic Party openly challenged the Task
Force Reports' main legal conclusions; namely, that despite the
establishment of Commonwealth status in 1952, Puerto Rico remains to
this day an unincorporated territory of the United States subject to
Congress's plenary powers under the Territory Clause of the U.S.
Constitution and as such can be unilaterally ceded or conveyed to any
other sovereign country and, moreover, that the U.S. citizenship of the
people of Puerto Rico is likewise revocable by Congress. For the past
three and a half years, the PDP has forcefully contended that the
authors of the Task Force Reports blatantly failed to substantiate
their obtuse legal conclusions and inexcusably overlooked the robust
and consistent corpus of U.S. Supreme Court precedent to the contrary.
During the 2008 Presidential Campaign, President Obama explicitly
rejected the legal conclusions contained in the Task Force Reports. In
a letter addressed to then Governor Anibal Acevedo Vila (the
``President's Letter'') (dated February 12, 2008), President Obama
challenged head-on the Task Force's irrational proposition that Puerto
Rico (along with the 4 million Puerto Ricans inhabiting the island) can
be ceded or transferred to a foreign country at Congress's whim.
The American citizenship of Puerto Ricans is constitutionally
guaranteed for as long as the people of Puerto Rico choose to
retain it I reject the assertion in reports submitted by a
Presidential Task Force on December 22, 2005 and December 21,
2007 that sovereignty over Puerto Rico could be unilaterally
transferred by the United States to a foreign country.
The erroneous legal conclusions put forward by the Task Force, as
referenced above, are derailing Puerto Rico's self-determination
process into a profound, unnecessary and unfair state of confusion.
Such conclusions have now been used to legitimize and recommend a
highly irregular two-round self-determination process, whereby the
current Commonwealth option (in light of its alleged territorial
nature) is put on for ratification or rejection in the first round,
and, assuming rejection, then statehood and independence face it off in
a second and definitive last round. This is contrary to the norm in all
two-round voting processes where electors vote all status options in
the first round, and then vote again in a face-off between the two most
voted formulas in the final round.
As the subsequent sections show, President Obama was right in
rejecting the legal conclusions rendered by the Task Force Reports
because they run afoul the most basic values of substantive justice and
equality under the law; all of which have been at the heart of American
constitutionalism since the early days of the Republic--as were so
eloquently echoed in the President's Letter.
A. Congress no longer holds plenary powers over Puerto Rico and
consequently cannot unilaterally cede Puerto Rico
The Task Force Reports embrace the untenable proposition that the
Federal Government can unilaterally cede Puerto Rico, if it so wishes,
to any other sovereign (e.g. Venezuela, Cuba or Iran) without the
consent of the people of Puerto Rico as an exercise of its plenary
powers over the island under the Territory Clause of the U.S.
Constitution. Specifically, the authors of the Task Force Reports
conclude that: ``[t]he Federal Government may relinquish United States
sovereignty by granting independence or ceding the territory to another
nation . . . '' Ignoring the canon of legal construction articulated
through the years by the U.S. Supreme Court to the effect that Puerto
Rico shed its status as an unincorporated territory with the attainment
of Commonwealth status in 1952, the drafters of the Task Force Reports
claim that such event did not change Puerto Rico's relationship with
the United States. Such posturing, in turn, rests on the perverse
notion that Congress intentionally deceived the people of Puerto Rico
when it entered into the compact elevating Puerto Rico's status from an
unincorporated territory to a Commonwealth, and instead retained
plenary powers--including the authority to unilaterally cede or even
sell Puerto Rico to any foreign nation.
President Obama was right in rebuffing such untenable conclusion.
Neither the 2005 Task Force nor its 2007 sequel identifies any legal
authority substantiating a contention so incendiary that flies in the
face of U.S. Supreme Court jurisprudence (blithely ignored by the
drafters of the Task Force Reports) that has explicitly recognized that
the creation of the Commonwealth of Puerto Rico was effected through a
compact wherein Congress relinquished powers over Puerto Rico making it
sovereign over matters not ruled by the U.S. Constitution.
Not surprisingly, the federal courts have forcefully rejected the
argument that would render Public Law 600 an entirely illusory
legislative gesture. The U.S. Court of Appeals for the First Circuit
addressed the issue in one of its first judicial interventions shortly
after the Commonwealth's creation. Rejecting the contention that Public
Law 600 was merely another Organic Act, Chief Judge Magruder, writing
for the First Circuit, concluded that, ``We find no reason to impute to
the Congress the perpetration of such a monumental hoax.''
If, as suggested in the Task Force Reports, the compact entered
into pursuant to Public Law 600 did not transform Puerto Rico's
political status, then the United States perpetrated a ``monumental
hoax'' not only on the people of Puerto Rico, but also on the General
Assembly of the United Nations. Specifically, in 1953 the United States
advised the United Nations that it would no longer report on Puerto
Rico as a ``non self-governing territory'' under Article 73(e) of the
United Nations Charter.''
In the Cessation Memorandum, the United States formally advised the
United Nations that the incremental process of the ``vesting of powers
of government in the Puerto Rican people and their elected
representatives'' had ``reached its culmination with the establishment
of the Commonwealth of Puerto Rico and the promulgation of the
Constitution of this Commonwealth on July 25, 1952.'' The Cessation
Memorandum explicitly declares that, ``[w]ith the establishment of the
Commonwealth of Puerto Rico, the people of Puerto Rico have attained a
full measure of self-government.''
In describing the ``principle features of the Constitution of the
Commonwealth,'' the Cessation Memorandum noted that the new
Constitution, ``as it became effective with the approval of the
Congress, provides that `[i]ts political power emanates from the people
and shall be exercised in accordance with their will, within the terms
of the compact agreed upon between the people of Puerto Rico and the
United States of America.''
Mason Sears, the United States Representative to the Committee on
Information from Non-Self-Governing Territories, explained the legal
significance under American law of the fact that Puerto Rico's
Constitution resulted from a compact,
A most interesting feature of the new constitution is that it
was entered into in the nature of a compact between the
American and Puerto Rican people. A compact, as you know, is
far stronger than a treaty. A treaty usually can be denounced
by either side, whereas a compact cannot be denounced by either
party unless it has the permission of the other.
Moreover, Frances Bolton, U.S. Delegate to the United Nations'
Fourth Committee, made it plain clear that while ``the previous status
of Puerto Rico was that of a territory subject to the absolute
authority of the Congress of the United States in all governmental
matters [ . . . ] the present status of Puerto Rico is that of a people
with a constitution of their own adoption, stemming from their own
authority, which only they can alter or amend [ . . . ]''
The United Nations accepted at face value the representations made
by the United States. The General Assembly recognized, ``the people of
the Commonwealth of Puerto Rico, by expressing their will in a free and
democratic way, have achieved a new constitutional status.'' Resolution
748, VIII (Nov. 3, 1953). On approving the Cessation Memorandum on
Puerto Rico, the General Assembly further stated that,
[I]n the framework of their Constitution and of the compact
agreed upon with the United States of America, the people of
the Commonwealth of Puerto Rico have been invested with
attributes of political sovereignty which clearly identify the
status of self-government attained by the Puerto Rican people
as that of an autonomous political entity.
The U.S. Supreme Court has confirmed that view. In Calero Toledo v.
Pearson Yacht Leasing Co., 416 U.S. 663 (1974), the Supreme Court motu
proprio addressed the issue of whether Puerto Rico statutes were State
statutes for purposes of the Three-Judge Court Act (28 U.S.C.
Sec. 2281). The issue was of great import, for the predominant reason
behind the law was requiring that issues about the constitutionality of
State statutes be resolved before a three judge district court panel in
order to avoid unnecessary interference with the laws of a sovereign
State of the Union. That ``predominant reason'' did not exist in
respect of territories because they do not enjoy the attributes of
sovereignty of States within the U.S. federal structure. For that
reason, the Supreme Court had already ruled in Stainback v. Mo Hock Ke
Lok Po, 336 U.S. 368 (1949) that the legislative enactments of the
Territory of Hawaii were not State statutes for purposes of Judicial
Code Sec. 266 (predecessor to 28 U.S.C. Sec. 2281). Similarly, the
First Circuit had arrived at the same conclusion with respect to Puerto
Rico in Benedicto v. West India & Panama Tel. Co., 256 F.417 (1st Cir.
1919).
Stainback and Benedicto, of course, were decided before Puerto Rico
became a Commonwealth, so the issue had to be examined afresh and the
opportunity finally arouse in Calero Toledo. As the Calero Toledo Court
narrates, Puerto Rico's Commonwealth status was preceded by a series of
Organic Acts,
Following the Spanish-American War, Puerto Rico was ceded to
this country in the Treaty of Paris, 30 Stat. 1754 (1898). A
brief interlude of military control was followed by
congressional enactment of a series of Organic Acts for the
government of the island. Initially these enactments
established a local governmental structure with high officials
appointed by the President. These Acts also retained veto power
in the President and Congress over local legislation.
The creation of the Commonwealth, as the Court suggests by voice of
Justice Brennan, followed a materially different procedure,
By 1950, however, pressures for greater autonomy led to
congressional enactment of Pub. L. 600, 64 Stat. 319, which
offered the people of Puerto Rico a compact whereby they might
establish a government under their own constitution. Puerto
Rico accepted the compact, and on July 3, 1952 Congress
approved, with minor amendments, a constitution adopted by the
Puerto Rican populace [ . . . ] Pursuant to that constitution
the Commonwealth now ``elects its Governor and legislature;
appoints its judges, all cabinet officials, and lesser
officials in the executive branch; sets its own educational
policies; determines its own budget; and amends its own civil
and criminal code'' (citing Leibowitz, The Applicability of
Federal Law to the Commonwealth of Puerto Rico, 56 GEO. L. J.
219, 221 (1967)).
The Calero Toledo Court recognized that the Commonwealth's creation
effected ``significant changes in Puerto Rico's governmental
structure.'' It then quoted at length, and with apparent approval, from
Chief Judge Magruder's observations in Mora v. Mejias, 206 F.2d 377
(1st Cir. 1953) that ``Puerto Rico has thus not become a State in the
federal Union like the 48 States, but it would seem to have become a
State within a common and accepted meaning of the word . It is a
political entity created by the act and with the consent of the people
of Puerto Rico and joined in union with the United States of America
under the terms of the compact.''
Two years later, in Examining Board v. Flores de Otero, 426 U.S.
572 (1976), the Supreme Court again examined the juridical nature of
Puerto Rico's Commonwealth status and held that for purposes of Section
1983 jurisdiction the island enjoyed the same attributes of sovereignty
as a State of the Union. The Court found that ``the purpose of Congress
in the 1950 and 1952 legislation was to accord to Puerto Rico the
degree of autonomy and independence normally associated with States of
the Union [ . . . ].'' The Court reasoned, moreover, that through the
establishment of the Commonwealth, ``Congress relinquished its control
over the organization of the local affairs of the island and granted
Puerto Rico a measure of autonomy comparable to that possessed by the
States.''
Six years later, in Rodriguez v. Popular Democratic Party, 457 U.S.
1 (1982), the issue before the Supreme Court was whether a local
political party could be granted statutorily the power to fill an
interim vacancy in the Puerto Rican Legislature. Arguing for the PDP,
former Justice Abe Fortas wrote,
The Commonwealth of Puerto Rico, as this Court has stated,
``occupies a relationship to the United States that has no
parallel in our history''. Califano v. Torres 435 U.S. at 3, 98
S.Ct. at 907, fn. 4. That it is an ``autonomous political
entity,'' ``in the framework of the compact agreed upon with
the United States'' has been recognized by formal action and
resolution of the United Nations on the basis of
representations of the United States.
Fortas added,
There can be no doubt that the Commonwealth of Puerto Rico
has ``freedom from control or interference by the Congress in
respect of internal government and administration . . . '' Mora
v. Mejias, 115 F.Supp. 610 at 612 (D.P.R. 1953) (Three-Judge
Court), quoted in Calero-Toledo v. Pearson Yacht Leasing Co.,
416 U.S. at 674, 94 S.Ct. at 2087. The Compact between the
United States and the people of Puerto Rico incorporated the
repeal of most of the provisions of the Organic Act of 1917,
including repeal of the Bill of Rights contained therein and
the provisions for local government. The provisions of the
Organic Act that were continued by the Compact were directed to
the interrelationships of Puerto Rico and the United States:
Affirmation that Puerto Ricans are citizens of the United
States; that Puerto Rico is free of United States Internal
Revenue laws; that trade between the two shall be free of
export duties; and that the rights, privileges and immunities
of citizens of the United States shall be respected in Puerto
Rico.
The Court, agreeing with the PDP's position, accorded the same
deference to the Puerto Rico Legislature that it accords the States,
``Puerto Rico, like a state, is an autonomous political entity,
`sovereign over matters not ruled by the Constitution.''' Based on the
principle that fundamental constitutional rights apply to the people of
Puerto Rico, the Court concluded that ``it is clear that the voting
rights of Puerto Rico citizens are constitutionally protected to the
same extent as those of all other citizens of the United States.'' In
reaching this conclusion the Court cited approvingly the following
excerpt from a decision authored by then Circuit Judge Stephen Breyer
in Cordova & Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank N.A.,
649 F. 2d 36, 39-42 (1st Cir. 1981),
[In 1952] Puerto Rico's status changed from that of a mere
territory to the unique status of Commonwealth. And the federal
government's relations with Puerto Rico changed from being
bounded merely by the territorial clause, and the rights of the
people of Puerto Rico as United States citizens, to being
bounded by the United States and Puerto Rico Constitutions,
Public Law 600, the Puerto Rican Federal Relations Act and the
rights of the people of Puerto Rico as United States citizens.
Between Flores de Otero (1976) and Rodriguez (1982), the Supreme
Court delivered a very short per curiam decision that has been
misinterpreted by anti-Commonwealth sectors in Puerto Rico, by some
federal courts and by the Task Force. In Harris v. Rosario, 446 U.S.
651 (1980), the Supreme Court held that Puerto Rico could receive less
assistance than the States under the Aid to Families with Dependent
Children Program. In a two paragraph decision, the Court found that
Congress pursuant to the Territory Clause of the U.S. Constitution
could treat Puerto Rico differently than the States so long as there is
a rational basis for its actions.
The Task Force Report interprets Harris as holding ``that Puerto
Rico remains fully subject to congressional authority under the
Territory Clause.'' But that reading confuses what Harris is about and
ignores that the U.S. Supreme Court has clearly recognized that Puerto
Rico enjoys full sovereignty over its internal affairs. If the Supreme
Court said in 1976 that ``Congress relinquished its control over the
organization of the local affairs of the island and granted Puerto Rico
a measure of autonomy comparable to that possessed by the States'' and
then in 1982 that Puerto Rico is ``sovereign over matters not ruled by
the Constitution'' it is then wrong to interpret Harris in 1980 saying
that Puerto Rico remains fully subject to congressional authority under
the Territory Clause. These two notions are antithetical. So either the
Supreme Court was twice contradicting itself, or Harris is being
misread. We strongly believe the latter is the case.
The Supreme Court did not contradict itself. Harris deals with a
federal assistance program, a legislative area within Congress'
exclusive purview. It does not deal with the internal affairs of the
Commonwealth. In ruling that Congress could treat Puerto Rico
differently than a State for purposes of federal fund allocations, the
Supreme Court was not suggesting that Congress retained its plenary
powers over Puerto Rico under the Territory Clause. But there is even
more to Harris.
The Supreme Court does say in Harris that Congressional power over
Puerto Rico arises from the Territory Clause. That is a reflection of
the Constitution's vintage. Its textual configuration reflects the
conditions of its time. While Congress enjoys plenary powers pursuant
to the Territory Clause, the Supreme Court has long recognized that
Congress can relinquish such authority. It may do so, for instance, by
admitting a Territory as a State, in which case Congressional power
over the former Territory is transformed from plenary to limited under
U.S. Constitution Article 1. While Puerto Rico did not become a State
on July 25, 1952, Congress did relinquish (as the Supreme Court has
consistently found) the same powers over Puerto Rico that it
relinquishes when admitting a Territory as a State of the Union. In the
case of the Commonwealth of Puerto Rico, while the remaining
Congressional powers are exercised pursuant to the Territory Clause,
for lack of a more specific source of constitutional authority, those
powers are no longer plenary.
The courts and the U.S. Justice Department before 1990 have long
recognized that the territorial power, like other federal powers,
demands flexibility on the part of Congress and hesitation on the part
of those who like the authors of the Task Force Reports would confine
the exercise of those powers to rigid or arbitrary categories. In 1963
the U.S. Justice Department saw this very clearly, and quoted a
memorandum written by future Justice Felix Frankfurter in 1914 when he
was a law officer in the U.S. Department of War:
The form of the relationship between the United States and
[an] unincorporated territory is solely a problem of
statesmanship. History suggests a great diversity of
relationships between a central government and [a] dependent
territory. The present day shows a great variety in actual
operation. One of the great demands upon creative statesmanship
is to help evolve new kinds of relationship[s] so as to combine
the advantages of local self-government with those of a
confederated union. Luckily, our Constitution has left this
field of invention open. The decisions in the Insular cases
mean this, if they mean anything; that there is nothing in the
Constitution to hamper the responsibility of Congress in
working out, step by step, forms of government for our Insular
possessions responsive to the largest needs and capacities of
their inhabitants, and ascertained by the best wisdom of
Congress.
Eight years later, the Office of Legal Counsel, under then-
Assistant Attorney General William H. Rehnquist, expounded on
Frankfurter's functionality argument:
[T]he Constitution does not inflexibly determine the
incidents of territorial status, i.e., that Congress must
necessarily have the unlimited and plenary power to legislate
over it. Rather, Congress can gradually relinquish those powers
and give what was once a Territory an ever-increasing measure
of self-government. Such legislation could create vested rights
of a political nature, hence it would bind future Congresses
and cannot be ``taken backward'' unless by mutual agreement.
That is precisely what Flores de Otero holds with respect to
Puerto Rico.
A thorough reading of Harris, moreover, reveals that Congress'
relinquishment of powers over Puerto Rico went beyond matters of
internal governance. Even with regards to the allocation of federal
funds, the Supreme Court makes clear in Harris that Congress cannot
exercise unrestricted powers over Puerto Rico. It can only treat Puerto
Rico differently to the extent there is a rational basis for doing so.
If Congress had plenary powers over Puerto Rico, it would not need to
have a rational basis to discriminate.
The Task Force Reports' erroneous reading of Harris constitutes
their most fatal flaw. It leads their authors to make the colossal
mistake of asserting that, ``[a]s long as Puerto Rico remains a
territory of the United States, Congress may not impair the
constitutional authority of later Congresses to alter the political
powers of the government of Puerto Rico by entering into a covenant or
compact with Puerto Rico or its residents.'' In the same way that a
future Congress cannot de-admit Alaska, Hawaii or Texas, or revoke the
independent status of the Philippines, it cannot reclaim powers
relinquished to the people of Puerto Rico.
The federal circuit courts of appeals have also recognized that
Puerto Rico is no longer merely an unincorporated territory. See e.g.
United States of America v. Marco Laboy-Torres, 553 F. 3d 715, 721 (3rd
Cir. 2009) (``Puerto Rico possesses `a measure of autonomy comparable
to that possessed by the States.'''); Emma Rodriguez v. Puerto Rico
Federal Affairs Administration 435 F. 3d 378, 379-80 (DC Cir. 2006)
(``Through popular referendum, the people of Puerto Rico approved
Public Law 600's proposed allocation of power--supreme national power
to the U.S. Congress and full local control to the Puerto Rican
government . . . and then adopted a . . . constitution.''); Romero v.
United States, 38 F. 3d 1204 (Fed. Cir. 1994) (``Congress approved the
proposed Constitution of the Commonwealth of Puerto Rico, which
thenceforth changed Puerto Rico's status from that of an unincorporated
territory to the unique one of Commonwealth.''); United States v.
Quinones, 758 F.2d 40 (1st Cir. 1985) (``The authority of the federal
government emanated thereafter from the compact itself. Under the
compact between the people of Puerto Rico and the United States,
Congress cannot amend the Puerto Rico Constitution unilaterally, and
the government of Puerto Rico is no longer a federal government agency
exercising delegated power.'').
There is scattered case law asserting that Puerto Rico still is
subject to the plenary powers of Congress under the Territory Clause.
In U.S. v. S nchez, 992 F.2d 1143, 1151-53 (11th Cir. 1993) the
Eleventh Circuit disagreed with consistent First Circuit case law and
held that Puerto Rico is not a separate sovereign for purposes of the
dual sovereignty exception to the Double Jeopardy Clause. That patently
wrong view is supported by Judge Torruella out of the First Circuit,
who espoused it in his dissident opinion in United States v. Lopez
Andino, 831 F.2d 1164 (1st Cir.1987) and then slipped a line to that
effect writing for the majority in Davila-Perez v. Lockheed Martin
Corp., 202 F.2d 464, 468 (1st Cir. 2000) (holding that Puerto Rico is a
territory under the Defense Base Act). All of these cases rely on the
same erroneous interpretation of Harris v. Rosario. These cases have
been wrongly decided and must be discarded.
Both the constitutional history of the relationship between the
United States and Puerto Rico and the relevant Supreme Court cases
confirm that Puerto Rico's Commonwealth status is predicated upon a
binding compact, created through the mutual consent of the sovereign
parties and revocable, likewise, only by the mutual consent of such
parties.
The Task Force Reports' blatantly outrageous conclusion that the
United States can unilaterally cede the Commonwealth of Puerto Rico,
without the consent of its people, to any foreign country of its
choosing is not only superficial and highly un-American but also
without any legal merit.
B. The U.S. Citizenship of the People of Puerto Rico
The drafters of the Task Force Reports also adhere to the unfounded
notion that Congress can rescind the U.S. citizenship of the 4 million
Puerto Ricans born in the island. The Task Force Reports adamantly
suggest that ``[i]ndividuals born in Puerto Rico are citizens of the
United States by statute (rather than by being born or naturalized in
the United States),'' and that as such ``if Puerto Rico were to become
an independent sovereign nation, those who chose to become citizens of
it or had U.S. citizenship only by statute would cease to be citizens
of the United States, unless a different rule were prescribed by
legislation or treaty [ . . . ].''
It is a well-settled principle of federal law that the citizenship
rights of people born in Puerto Rico are protected by the
constitutional guarantees of due process and equal protection of the
laws emanating from the U.S. Constitution.
The history of the U.S. citizenship of the Puerto Rican people
begins with the 1899 Treaty of Paris, which provided that, ``[t]he
civil rights and political status of the native inhabitants of the
territories hereby ceded to the United States shall be determined by
Congress.'' The Foraker Act, enacted on April 12, 1900, put an end to
military rule and established a civil government in the island. But it
was not until the enactment of the 1917 Jones Act that Puerto Ricans
were granted U.S. citizenship. The 1940 Nationality Act, moreover,
defined ``United States'' as ``the continental United States, Alaska,
Hawaii, Puerto Rico and the Virgin Islands of the United States,'' and
determined that the people who were born ``in the United States'' were
citizens at birth. The 1952 Immigration and Nationality Act, from which
most Puerto Ricans today trace their U.S. citizenship, tracked the
language of the 1940 statute.
The Citizenship Clause of the Fourteenth Amendment states, ``All
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the
State wherein they reside.'' By its terms, the text of the Fourteenth
Amendment extends American citizenship to persons born or naturalized
``in the United States.'' The Commonwealth of Puerto Rico is certainly
``in the United States,'' as specifically acknowledged in the
Immigration and Nationality Act and elsewhere. Thus, the people of
Puerto Rico clearly qualify as ``constitutional'' or ``Fourteenth
Amendment'' citizens.
The Supreme Court has interpreted the Fourteenth Amendment as
granting irrevocable constitutional citizenship to those persons born
within a jurisdiction such as Puerto Rico. In the Slaughter-House
Cases, 83 U.S. (16 Wall.) 36 (1872), the Supreme Court directly
rejected the claim that only citizens of a State are United States
citizens under the Fourteenth Amendment. The Court found inter alia
that ``[ . . . ] persons may be citizens of the United States without
regard to their citizenship of a particular State, and . by making all
persons born within the United States and subject to its jurisdiction
citizens of the United States.''
In light of the Slaughter-House Cases and the Supreme Court's
common-law interpretation of the Citizenship Clause, it is clear that
persons born ``within the United States''--such as the people of Puerto
Rico--are constitutional U.S. citizens. In Afroyim v. Rusk, 387 U.S.
253, 262 (1967), the Supreme Court explained that Congress cannot
revoke Fourteenth Amendment citizenship,
[The Fourteenth Amendment] provides its own constitutional
rule in language calculated completely to control the status of
citizenship: `All persons born or naturalized in the United
States . . . are citizens of the United States . . . ' There
is no indication in these words of a fleeting citizenship, good
at the moment it is acquired but subject to destruction by the
Government at any time. Rather the Amendment can most
reasonably be read as defining a citizenship which a citizen
keeps unless he voluntary relinquishes it.
Thus, Afroyim makes clear that Congress may not rescind or revoke
the U.S. citizenship of people born in Puerto Rico. The Task Force
Reports' contrary conclusion is patently incorrect. The Supreme Court
has only recognized one revocable variant of U.S. Citizenship. Both the
1940 Nationality Act and 1952 Immigration and Nationality Act, as well
as subsequent federal statutes, contain provisions regarding persons
born outside the United States and its outlying possessions of parents
one of whom is a citizen of the United States. They are regarded as
U.S. Citizens, but if they fail to reside in the United States or its
outlying possessions for a prescribed period or periods of time between
given ages, they automatically, by statute, lose that citizenship.
Quite clearly, the people of Puerto Rico do not fall under this
latter category. Puerto Ricans are born in the United States for
purposes of the Fourteenth Amendment. Their citizenship, thus, is
irrevocable.
Rather than designing a process whereby all three options--namely
commonwealth, statehood and independence--are voted on side-by-side,
H.R. 2499, in accordance with the Task Force Report, adopted a rigged
two-step process designed to kill the commonwealth option in the first
round of voting. However, H.R. 2499 was amended before its
consideration by the House of Representatives in the second round and
the commonwealth option was included. Hence, the initial round is
superfluous, unnecessary and wasteful. This committee must recommend
its elimination. But the second round, as an only round, would still
have problems. In a study conducted in 1985 at the request of the late
Senator Kennedy, the Library of Congress examined the statehood
processes of all the territories and identified as one of the
traditional requirements for statehood that a majority of the
electorate wish it. The four option plebiscite in H.R. 2499 is likely
to produce only a plurality for the prevailing option. If the statehood
option were to obtain that plurality in a ``federally sanctioned
process'', you will have to deal with the unprecedented situation of
admitting a new state against the will of the majority of its
population.
An obvious solution is to require a majority vote for any change of
status. Since one generation of voters would be deciding on behalf of
all subsequent generations and simple majorities may result from purely
temporary sentiments, you should consider whether requiring a
supermajority of votes is more prudent. The way to obtain a majority
vote in this situation is to hold a runoff election between the two
most voted options.
Another defect of this bill is that it presents statehood as an
option without having conducted a feasibility study. The Library of
Congress' 1985 analysis reveals that one of the traditional
requirements for statehood is ``that the proposed new State has
sufficient population and resources to support State government and at
the same time carry out its share of the cost of the Federal
Government.'' The Congressional Budget Office must conduct such an
analysis before the people vote. It is unfair to all parties to do it
after the votes are cast.
The other major defect of this bill is that it contains nothing in
terms of implementation of the results. As indicated earlier, if the
Senate sanctions this process it will become morally bound to respect
its results. Failing to provide for an implementation process will only
lead to chaos. We already know how the statehood party intends to force
statehood down the Senate's throat. But what if Commonwealth prevails
and we wish to propose some enhancements to its current structure?
The bill should address this issue. It should provide for the
people of Puerto Rico to convene in a constitutional convention.
As contended above, the second ballot prescribed by H.R.2499 should
allow the voters the option of continuing and enhancing Puerto Rico's
Commonwealth status. Thus, H.R. 2499's voting process has to recognize
the voting rights of Puerto Rico's voters to choose within that second
vote the enhancing of the Commonwealth.
During his campaign, President Obama made a commitment that his
Administration would openly engage the people of Puerto Rico in
engineering a ``genuine and transparent process of self-determination
that will be true to the best traditions of democracy.'' He said:
As President, I will actively engage Congress and the Puerto
Rican people in promoting this deliberative, open and unbiased
process, that may include a constitutional convention or a
plebiscite, and my Administration will adhere to a policy of
strict neutrality on Puerto Rico status matters. My
Administration will recognize all valid options to resolve the
question of Puerto Rico's status, including commonwealth,
statehood, and independence.
As President of the Popular Democratic Party, I encourage Congress
to insist upon a real self-determination mechanism that will not force
statehood upon the people of Puerto Rico, and instead to support a
process that will provide productive and democratic options. H.R. 2499
still does not do that.
Moreover, the results of the proposed plebiscite in this bill will
make sense only if Congress legitimizes it, by amending the bill and
clearly ratifying the results as ``federally sanctioned''. If not, the
process will be a beauty contest.
My party and I believe that the true way of dealing with the status
issue of Puerto Rico is, as stated before, providing for the people of
Puerto Rico to convene in a Constitutional Convention. It will allow a
true democratic and self determination process with the participation
and representation of all the political sectors. HR 2499 is not a true
democratic and self determination process. Thank you.
The Chairman. Thank you very much for your testimony.
Next, Senator Berrios Martinez, we're very glad to welcome
you here as the President of the Puerto Rican Independence
Party. Please, go right ahead.
STATEMENT OF RUBEN ANGEL BERRIOS MARTINEZ, PRESIDENT, PUERTO
RICAN INDEPENDENCE PARTY
Mr. Berrios Martinez. Thank you.
Mr. Chairman and members of the committee, the people of
Puerto Rico have an inalienable right to self-determination and
independence. We are now in the 21st century, and yet Puerto
Rico is still colony of the United States, or as you prefer to
call it, an unincorporated territory. It is up the people of
Puerto Rico to decide how and when we should exercise our right
of self-determination.
But the United States has the legal and moral obligation to
respect self-determination which is, under your Constitution,
part of the supreme law of the land.
Congress has repeatedly refused to facilitate a process for
Puerto Rico to exercise its right to self-determination.
Moreover, Congressional inaction forces us to live under a
colonial straitjacket which has pushed Puerto Rico to economic,
social, and moral bankruptcy which you have seen described here
today. Right now, back home, our people are demonstrating their
frustration, despair, and indignation, including a strike in
the University of Puerto Rico where the students are
mercilessly tried at this moment as if they were criminals.
That is the shameful reality of the territory after 112 years
under U.S. sovereignty.
The U.S. House of Representatives responds with H.R. 2499,
which is now before you. Cynically entitled ``The Puerto Rican
Democracy Act,'' the bill purports to advance the principle of
self-determination, yet it proposes the continuation of the
colonial status of unincorporated territory--not once, but
twice--as an alternative to the problem of territorial
subordination, even against the original purpose of its
sponsors. It adds insult to injury.
Of course, it could have been worse. Instead of, or in
addition to the present territorial relation, someone might
have thought of including, some modified form of commonwealth
along the lines of what Senator Bingaman has characterized in
the past, as has already been mentioned, ``free beer and
barbecue'' offer.
Colonial rule, consented or not, constitutes a denial of
the elementary principle of democracy which requires
participation of the governed in determining the laws under
which they live. A democratic colony is a contradiction in
terms. Slavery or apartheid would not have been less abominable
had they enjoyed popular support, because it would have been
presumed to be the consequence of manipulation, intimidation,
and deception. Likewise, colonialism with consent is, by
definition, only apparent, for it is the product of collective
coercion.
The territorial status of Puerto Rico still stands because
such has been the will of the United States. For many years you
have shunned and criminalized independence. Now you cringe at
the mere thought of a Statehood petition, because granting
statehood to a Latin American and Caribbean nation, like Puerto
Rico, is incompatible with your national interests. Therein
lies the reason behind the contradictory nature of H.R. 2499.
The United States is not, and does not aspire to be, a
multinational state; multicultural, maybe. Multinational,
never.
Those of us in Puerto Rico who respect ourselves and
believe in democracy and self-determination repudiate this hoax
that perpetuates colonialism. We will denounce it in Puerto
Rico and before the international community.
What should Congress do, then? It should simply declare its
intention to put an end to colonial rule in Puerto Rico by
disposing of the territory, and commit itself to receive and
act upon a proposal for decolonization formulated by the people
of Puerto Rico through a procedural mechanism of its choice,
among alternatives recognized by international law. That is,
independence, integration, and free association.
Puerto Ricans--and I am sure I speak here for the great
majority of our people--are sick and tired of the condescending
and cavalier attitude of the U.S. Government. Enough is enough.
More than one hundred years of colonialism have not broken
our national spirit. Regardless of your decision concerning
H.R. 2499, you will never admit Puerto Rico as a State because
we are a separate nation. Precisely because we are a nation, in
the end, freedom for Puerto Rico will prevail and we will be
masters of our own destiny.
Thank you very much.
[The prepared statement of Mr. Berrios Martinez follows:]
Prepared Statement of Ruben Berrios Martinez, President, Puerto Rican
Independence Party
Mr. Chairman and Members of the Committee:
The people of Puerto Rico have an inalienable right to self
determination and independence. We are now in the 21st century, and yet
Puerto Rico is still colony of the United States, or as you prefer to
call it, an unincorporated territory. It is up to our people to decide
how and when we should exercise our right of self determination. But
the United States has the legal and moral obligation to respect self
determination which is, under your Constitution, part of the supreme
law of the land.
Congress has repeatedly refused to facilitate a process for the
exercise of the right to self determination. Moreover, Congressional
inaction forces us to live under a colonial straitjacket which has
pushed Puerto Rico to economic, social and moral bankruptcy. These are
not just words. Right now, in Puerto Rico our people are in the
streets, expressing their frustration, despair and indignation. That is
the shameful reality of the territory after 112 years under U.S.
sovereignty.
And the U.S. House of Representatives responds with H.R. 2499,
which is now before you. Cynically entitled the Puerto Rico Democracy
Act, the bill purports to advance the principle of self determination.
Yet, it proposes the continuation of the colonial status of
unincorporated territory--not once but twice--as an alternative to the
problem of territorial subordination, even against the original purpose
of the proponents of the bill.
H.R. 2499 adds insult to injury.
Of course, it could have been worse. Instead of including the
present territorial relation, someone might have thought of including,
instead of or in addition to, some cosmetically modified form of
commonwealth along the lines of what Senator Bingaman has characterized
in the past as ``free beer and barbecue''.
Colonial rule, consented or not, constitutes a denial of the
elementary principle of democracy which requires participation of the
governed in determining the laws under which they live. There is no
such thing as a democratic colony. It is a contradiction in terms, at
best, a gilded cage. Slavery or apartheid would not have been less
abominable had they enjoyed popular support, because it would have been
presumed to be the consequence of manipulation, intimidation and
deception. Likewise consent to colonialism is by definition only
apparent, for it is the product of collective coercion.
The territorial status of Puerto Rico still stands simply because
such has been the will of the United States. For many years you have
shunned and criminalized independence. Now you cringe at the mere
thought of a petition for statehood because granting statehood to a
Latin American and Caribbean nation like Puerto Rico is incompatible
with your national interests. Therein lies the reason behind the
contradictory nature of H.R. 2499. The United States is not, and does
not aspire to be, a multinational state; multicultural maybe,
multinational never.
Those of us in Puerto Rico who respect ourselves and believe in
democracy and self-determination repudiate this fraudulent maneuver
designed to perpetuate colonialism and allow Congress to avoid facing
its decolonizing obligation. We will denounce this hoax in Puerto Rico
and before the international community.
What should Congress do? It should simply declare its intention to
put an end to colonial rule in Puerto Rico by disposing of the
territory, and commit itself to receive and act upon a proposal for
decolonization formulated by the people of Puerto Rico through a
procedural mechanism of its choice, among alternatives recognized by
international law.
Puerto Ricans--and I am sure I speak for the great majority of our
people--are sick and tired of the condescending and cavalier attitude
of the U.S. government so crudely reflected in H.R. 2499. Enough is
enough.
More than one hundred years of colonialism have not broken our
national spirit nor diminished our profound sense of identity as a
Latin American and Caribbean nation. Regardless of your decision
concerning H.R. 2499, you will never admit Puerto Rico as a state
because we are a separate nation. And precisely because we are a
separate nation, in the end, freedom for Puerto Rico will prevail and
we will be masters of our own destiny.
The Chairman. Thank you very much.
Thank you, all, for your testimony.
Let me start with 5 minutes of questions, and then defer to
my colleagues, here, for their questions.
Governor Fortuno, H.R. 2499 was significantly altered when
an amendment was adopted adding continuation of the present
Commonwealth relationship as a fourth option in the second
round of voting. Given the addition of Commonwealth to this
second vote, wouldn't it make more sense to just eliminate the
first vote? What purpose does the first vote now serve?
Governor Fortuno. Mr. Chairman, you bring an excellent
point and actually the intent really was to understand whether
the people of Puerto Rico desired to address this issue now, or
not. That was the intent of the first vote. If the second round
is going to include the 3 constitutionally viable alternatives,
plus the current territorial status option then, indeed,
perhaps it will make sense to have just one vote amongst--with
the 4 alternatives: 3 that are permanent in nature, and one
that is, really, the current territorial status and will not
solve the issue.
I do have to say that I understand what Mr. Berrios is
saying, on behalf of the Independence Party, because, you know,
whether the problem could be part of the solution is a big
question. If we want to solve this once and for all, it should
be the 3 constitutionally viable options. But, if we simply
want to poll how the people of Puerto Rico feel about this,
then the 4 options should be there, and there should be only
one vote.
The Chairman. Let me ask one other question, Governor. In
your testimony, you say the U.S. Congress needs to act, quote,
``Because there is a patently obvious need for the Territory's
real options to be clarified.'' H.R. 2499 goes beyond defining
the options, however, by authorizing these 2 rounds of voting.
Wouldn't this objective of defining the options be achieved
more easily by a simple sense of the Congress Resolution that
would identify the options available under U.S. law, and then
leave the mechanics of the process to the Government of Puerto
Rico?
Governor Fortuno. Let me first tell you that, as Governor
of 4 million American citizens residing in Puerto Rico, what I
pledged to do was to try to get Congress to actually sponsor a
process--a balanced and fair process--so that the voters would
be guaranteed that they had a fair process. However, if that
were not possible, certainly a clarification of what the
options are is needed. I'll tell you why.
We all know what Statehood means, and there are 50
successful examples of that. We all know what independence
means, and we all know what the present territorial status
means. But then, there's a fourth option that, I believe, also
has to be clarified, and that is the free association option.
If I may, I have some documents to introduce into the record.
Free association actually started being discussed openly in
1998 when the Governing Board of the Commonwealth Party
approved a definition--a definition that I will introduce for
the record, with an English translation. That definition, 1998
definition, is included in the PDP Training Manual that they
put out in September--on September 1, 2009. Essentially, this
manual states very clearly that the 1998 definition that I just
mentioned earlier is the, and I quote, ``Institutional
definition of the Party.'' It relates to what they have told
the voters in Puerto Rico that's doable. Essentially, they had
said that we could retain American citizenship, we would retain
all of the Federal funding that we're getting today and,
actually, then some more. We will pay no Federal taxes; that we
could have veto power over the legislation that you approve
here; that we could even pick and choose which wars we like or
we don't like, and that we could even decide when there is
Federal jurisdiction at the court level on different issues. We
all know that's not doable, but that's what they've sold to the
people as late as September 1, 2009, in their Manual.
This year, on January 18, 2010, they're converting more,
again, actually approve a resolution, and I have a full
resolution, and a section in English--English translation that
is relevant to this issue--where they state again, and they
refer to the Manual as a definition they will be using. So,
again, they're using the 1998 definition, and I think it's fair
for the 4 million American citizens residing in Puerto Rico to
understand, if that deal is doable, you may have 50 requests
for the same deal, but that will be your problem. But, we all
need to know whether that's doable or not doable.
The Chairman. My 5 minutes is up.
Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
As I mentioned in my opening remarks, the issue with Alaska
Statehood is somewhat different than where we are, currently,
with Puerto Rico. At the time that Alaska petitioned Congress
for Statehood, it did so backed by a referendum that showed
that--there was an overwhelming number of Alaskans that were in
support, it was about a 2 to 1 ratio on the issue. Given the
results that we've seen in the last several plebiscites,
there's clearly not a majority that's represented in support of
any one option, much less a supermajority.
So, the question I have to each one of you this morning is,
given that the population, obviously, is conflicted on this,
what do you believe the Federal role should be at that point in
time?
Governor, I heard you to say that it's important for us to
clarify the status of the options. Mr. Ferrer Rios, you
suggested that you're not quite sure what role the Congress
has. But it's important, I think, for us to understand what
that role appropriately should be. So, if I could ask each one
of you to clarify what you believe the Federal role on this
issue should be at this point.
Mr. Berrios Martinez.
Mr. Berrios Martinez. I think it was very clear about the
role of the U.S. It has an obligation to de-colonize Puerto
Rico. Therefore, the only real option should be to proclaim to
the world----
Senator Murkowski. Should we do that when we're not quite
certain what the people of Puerto Rico wish?
Mr. Berrios Martinez. No, no. Wait a minute. It's clear, in
my statement, what you should do. What you should say is you--
have the obligation to de-colonize Puerto Rico, to dispose of
the territory, because free determination means that.
Now, how and when we should freely determine what option we
shall use, that's up to us in Puerto Rico. That's not up to
Congress. So, I'm proposing that Congress merely states its
decolonizing obligation under international law, which is part
of the law of this land, of the United States, and then tell
the Puerto Rican people, ``We are willing to receive your
petition, under the conditions and through the mechanisms you
choose in order to make that petition.'' We, the Puerto Rican
people, then--I will propose a constitutional assembly among
alternatives recognized by international law, that is, free
association, integration, or independence. Other people, like
Governor Fortuno, will propose a plebiscite between those 3
alternatives. That's what I'm telling you. Your only obligation
is to fulfill your obligation to decolonize, announcing to the
world that you have a duty to decolonize Puerto Rico and that
you are willing to receive the petition, and then you shall
speak. As for independence, you have nothing to speak about,
because we have an inalienable right--if we petition for
independence, there's no option. We are independent.
Senator Murkowski. Let's go on to the others, here, because
I have limited time. If I can get responses from Mr. Berrios--
--
Mr. Rios. Yes, Madam Senator.
The people of Puerto Rico knows what Commonwealth is. We've
been living in Commonwealth for the past 60 years. An option
that was validated by the U.S. Government, here in Congress,
and the United Nations. What the people of Puerto Rico don't
know is Statehood. That's why, in my remarks, I urge Congress
and this Senate to explain to the people of Puerto Rico the
consequences of Statehood for them. Because we don't know what
Statehood is. What we have to engage in order to become a
State. I think the people of Puerto Rico deserve to know,
because Mr.--Governor Fortuno's Party say that Statehood can be
in Spanish. That Statehood can be with our Olympic team, and
all those--all those may be simple things for this committee,
Spanish is really important for Puerto Rico. Our Olympic team
is part of our culture, big things for our people.
So, the right thing for--to do for--of the Senate is to
explain, outline, and define what Statehood means, and the
consequences for the people of Puerto Rico.
Senator Murkowski. Governor.
Governor Fortuno. Yes, and I thank you for the question.
I would respectfully pose to you that if the ``free beer
and barbeque'' option had been one of the options in Alaska,
you would not have gotten a 2 to 1 margin. The issue, here, is
that we need to understand what the options are. I think people
know what Statehood means in Puerto Rico. Actually, more than
half of Puerto Rican-Americans have moved to the mainland, so
they clearly understand what it means. But, we need to
understand what all the options are.
There are 4 options. There is the present territorial
status----
Senator Murkowski. Do you believe there's only 4, or are
there more?
Governor Fortuno. There are 4 options. I mean, there is the
present territorial status, which will not solve this issue.
You will be seeing us coming back over and over again for
decades. Then there are 3 options that will solve this once and
for all: independence, Statehood, and free association which
has been, historically, the position--at least since 1998 until
January of this year--the position of the Commonwealth Party. I
understand that they may be backtracking on that, but that has
been, historically, their position and the people need to
understand what it means.
At the very least, if I may say so, on behalf of the 4
million American citizens residing in Puerto Rico, we would ask
Congress to clearly define what the options are. We may have a
process, locally, if that's what it takes at the end of the
day, but our--the American citizens residing in Puerto Rico--
deserve to know what the options are.
If I may, I want to end with this. The Founding Fathers
never intended for territorial status to last 112 years. I'm
sure they never did. We need to end this once and for all. It
doesn't help anyone in the process. Actually, if at the end of
the day you could clarify those options for us, I'm sure we
could agree on how to address them. I pose that the majority of
people want the voters to decide that--that's the American way,
that's the way things are done in America. You vote, and you
vote up or down what do you want to do. But you must understand
what the alternatives are.
Senator Murkowski. Thank you, Mr. Chairman.
The Chairman. Senator Menendez.
Senator Menendez. Mr. Chairman, this is a very serious and
complicated issue. I hope the chair--since you've decided to
hold this hearing--is going to give adequate time for questions
beyond the 5 minutes, I have many. Since I didn't make an
opening statement and this is an issue that I have followed for
some time, I want to preface it with a statement.
That is, first and foremost, I appreciate the distinguished
panel we have before us. I've had the pleasure of interacting
with all of them at one time or another. I appreciate the
Resident Commissioner and the work he's doing on behalf of the
people of Puerto Rico and I have worked with him on healthcare
and other critical issues for the economy of Puerto Rico, and
probably have been their strongest advocate here in the U.S.
Senate.
Puerto Ricans have given a great deal to our Nation,
through their contributions to our economy, and to the Armed
Forces of the United States. I'm reminded of the 65th Infantry
Regiment, an all-Puerto Rican Division, ``Los Borinqueneeros,''
who actually were among the most highly decorated in the
military history of the United States. So, they have worn the
uniform and they have died for this Nation. They deserve, as
such, a process toward self--true self-determination--that is
fair and balanced.
That has been my position for 18 years in the U.S.
Congress. I have always said, when it comes to Puerto Rico, we
must have an unstacked, and unbiased process that allows the
people of Puerto Rico to determine their own future. I believe
that the issue is not whether you support Statehood,
independence or Commonwealth, the issue is creating a process
that is fair. The bottom line is that any rigged process
creates a false outcome, and the people of Puerto Rico deserve
a fair and transparent process with an outcome that can,
ultimately, be supported.
I, for one, if we have a fair and balanced process, one
that is not rigged, am happy to state--as I have stated for
over 18 years, and not every member of the Congress that I have
heard who supposedly ``supports'' the idea of a plebiscite is,
then, willing to support the outcome of a plebiscite. A fair,
balanced, and unbiased plebiscite, I for one, am ready to
support the position of the people of Puerto Rico. Whether that
be Statehood, continuation of the Commonwealth, or
independence. I would love to challenge my colleagues to make
those statements, as well.
For many people, the idea of a plebiscite or a referendum
by the people sounds like a good idea. Why not let the people
vote on the option to determine their future? But I truly
wonder if the people of Puerto Rico need to be instructed by
Congress how to determine, for themselves, the best approach? I
think any process needs to have a clear and complete comparison
between the 3 options, and I really wonder whether or not this
particular way that this has been structured, if you want to
say, ``Yes, the Congress should have--be the instigator of a
process,'' whether or not the two-step process is one that
actually meets the test of not being stacked in a specific way.
I think that the issue of the status of Puerto Rico not
only affects the lives of all Puerto Ricans, it affects their
economy, and their language, and their customs, and their daily
lives, and all of that needs to be, honestly, understood at the
end of the day.
So, let me start with 1 or 2 questions in the time I have
left.
Governor, and any of you, isn't the two-step process,
really, a way in which--clearly, the distinguished Senator,
head of the Independence Party, wants to see independence for
the people of Puerto Rico, clearly you, Governor, as the head
of the Statehood Party wants to see a change in the status and
you want to see a Statehood. So, the first option,
automatically, the union of both of your parties toward that
option, means that that vote is predetermined.
Governor Fortuno. If I may, first of all, Mr. Senator, I
want to commend you and thank you for standing up for the
American citizens residing in Puerto Rico on so many issues in
the last 16 months, and before that, of course. I must say,
publicly--and I've stated this in Puerto Rico--that you stood
up for what was right. I thank you on behalf of the 4 million
Americans residing in Puerto Rico--not just on healthcare, but
on many other issues where you have been up in center, really,
defending our rights and obligations. If we had 2 Senators
here, we would not have, really, been bothering you all the
time, really. But we thank you, anyway, for everything you've
done so far.
Trying to address your question--and I believe I did,
somewhat, address the question earlier. The idea of the two-
step process was to understand whether the voters wanted to
change, and then address the status options that are viable in
a free vote.
However, especially given the way this bill was amended in
the House, it probably makes no sense, any longer, to have a
two-step process, it probably makes sense to go straight to a--
to one vote on the 4 options.
If I may, because you mentioned 3, I think it's important
that I mention that there are really 3 that are permanent in
nature, but we should allow those that want to remain a
territory, that option. There's a sizable group in the
Commonwealth Party that don't want to remain as we are. That
they want to move into free association. Actually, since 1998
until January of this year, that was the institutional position
of the Commonwealth Party.
Whether it is, or not, actually there have been polls in
the last month in Puerto Rico, and there is a group--somewhere
between 17 and 18 percent that clearly, always, stand for free
association. So, I believe, if we're going to do that, we
should have the 3 options that are permanent--that is,
Statehood, independence, and free association--and then the
territorial status would just transitory in nature, even though
we have been living as a territory for the last 112 years.
Senator Menendez. So, in essence, you believe at this point
that, based upon how the bill was amended in the House of
Representatives that the first step should be eliminated?
Governor Fortuno. Probably. It makes--it really would make
sense if we want to solve this once and for all. I sense
pushback on the first round of votes. I sense that, to be open
about this, here, that we move straight to the second vote.
However--and I must state this very clearly--the voters
must understand that what Commonwealth means, as the author of
that amendment states to Pedro Pierluisi and I, is the present
status quo, which is a territorial status. That there are 3
options that are permanent in nature, and the 3 options should
be there, as well.
Senator Menendez. Mr. Chairman, I have many other
questions, but I'll wait for a second round.
Mr. Berrios Martinez. Mr. Chairman, I would like to answer
your question, also.
The Chairman. Senator Bunning has been waiting to ask
questions, we will have another round, or 2, of questions,
here. So, there will be opportunities to respond.
Senator Bunning.
Senator Bunning. Thank you, Chairman.
Good to see you again, Governor.
Governor Fortuno. Likewise.
Senator Bunning. Welcome, to all of our witnesses.
It's come to my attention you've had 3 plebiscites in
Puerto Rico--1967, 1993, and 1998. None of them determined
anything. Because the Congress and the plebiscites never
connected.
Now, it's come to my attention that there's 2 pieces of
legislation relevant to this referendum that have been filed in
the legislature in Puerto Rico, S. 1407, and H.R. 2487, in the
House. Both indicate that if the option of Statehood is chosen
in this referendum, then 8 months later, Puerto Rico would move
ahead and conduct the elections of Representatives and Senators
to the U.S. Congress. Seeing how a pro-Statehood result is only
the first step in what is certain to be a process longer than 8
months to join the Union, does it not seem premature to hold
these elections before there are even seats to fill?
Governor Fortuno. Yes, indeed, I agree 100 percent. But,
you know, the State legislators have a right to file whatever
bills they want to file, and that's their right and I respect
that. But----
Senator Bunning. Then you're not--you, personally, are not
supporting either one of them?
Governor Fortuno. No, I have stated very clearly that the
process is different. That, let's assume we had a vote of 3
permanent options, or 3 plus the one that is transitory in
nature. Let's assume Statehood carries the day. We will
commence a process, really, for additional votes, and new--and
actually, actual Federal legislation--to have a process as we
have seen in other, in previous cases, where that issue will be
decided, and it will probably end up being a Statehood, yes or
no, vote at the end of the day. It's just the beginning of a
process.
But don't--and I know a lot of people have been misleading,
trying to mislead Congress as to filing of those bills. I have
been very clear on this issue: that the next step would be
coming back here, probably having new Federal legislation, and
having additional votes probably just on the status question
that was approved. You need an enabling bill to move forward.
You probably have more than one vote, as we have had in other
previous territories.
Senator Bunning. Do you all really--the 4 different options
that we're talking about, here--do you need it written out? Do
the people of Puerto Rico need to know exactly what a State has
the responsibility of doing, or if you're an independent
country? You don't need it. You think the average Puerto Rican
is fully capable of making that determination?
Mr. Berrios Martinez. Yes, sir. I must tell you----
Senator Bunning. No wait a minute.
Mr. Berrios Martinez. I'm sorry.
Senator Bunning. I'm asking all 3 of you.
Mr. Berrios Martinez. OK.
Senator Bunning. Do you really think that Statehood,
independence, Commonwealth, and the current status is easily
understood by the average voter in Puerto Rico?
Governor Fortuno. I believe the average voter understands
fully what Statehood means. Actually, there are more Puerto
Rican-Americans living--residing in the mainland than in Puerto
Rico. So, they clearly----
Senator Bunning. I understand that.
Governor Fortuno. I believe they understand what
independence means. I believe they understand what our present
territorial status means. They are confused by that--this
fourth option----
Senator Bunning. Commonwealth.
Governor Fortuno. It's a free association option. Because
they are being told that we could retain our American
citizenship, enter into international treaties, have veto power
over Federal legislation, retain all of the Federal funding
we're getting today without paying a dime in income taxes at
the Federal level, and actually even get an additional
funding--trust----
Senator Bunning. We don't have those kind of parties in----
Governor Fortuno. But that has to be clarified. Because
otherwise you will have 50 requests for the same deal.
Senator Bunning. Yes, sir.
Mr. Berrios Martinez. Senator.
Senator Bunning. Yes.
Mr. Berrios Martinez. I must state--you asked first, why
hasn't the petition from Puerto Rico found a common ground in
this Congress. It's very simple.
Senator Bunning. This Congress--not this Congress.
Mr. Berrios Martinez. Yes, previous----
Senator Bunning. The Congress in 1998.
Mr. Berrios Martinez. Previous Congresses. It's very
simple. Because this Congress and the U.S. Government is
interested in maintaining the territorial status. If it weren't
interested it would----
Senator Bunning. Maybe some are.
Mr. Berrios Martinez. Yes, the majority. If the majority
hadn't been----
Senator Bunning. I'm not sure of that, either.
Mr. Berrios Martinez: Why are we still a territory if you
don't want us to be a territory, can you answer that?
Senator Bunning. Some of us would like to see you be
independent.
Mr. Berrios Martinez. Perfect. You are----
Senator Bunning. Some of us would like to see you in your
current status. Some, I mean--there is a very divergence in the
Congress of the United States.
Mr. Berrios Martinez. But we have petitioned different
ways, and you have always refused the procedures--even when we
came here, all of us----
Senator Bunning. Because you send us such mixed messages.
What was the last plebiscite? What was the result of it?
Governor Fortuno. None of the above.
Senator Bunning. That's right. None of the above was the
result.
Mr. Berrios Martinez. It is your obligation to decolonize.
Your constitution obligation to announce to the world that you
want Puerto Rico to----
Senator Bunning. A hundred and some years ago, that wasn't
our obligation.
Mr. Berrios Martinez. No, no. Now, now, now. It is the
obligation of the United States----
Senator Bunning. We have the same relationship, I can give
you, right now, with Puerto Rico that we have with 3 other
establishments.
Mr. Berrios Martinez. Other free nations?
Senator Bunning. Yes.
Mr. Berrios Martinez. Of course. That's what I yearn for.
Senator Bunning. No, no. I mean the same status that you,
Puerto Ricans, now--the Marshall Islands, and others, have the
same relationship as you do.
Mr. Berrios Martinez. No, no.
Senator Bunning. No, no?
Mr. Berrios Martinez. No, no.
The Chairman. Why don't I----
Mr. Berrios Martinez. Some of them are free associations--
--
Mr. Rios. Can I answer--can I answer the question?
Senator Bunning. Three former----
Mr. Rios. Can I answer the question?
Senator Bunning. Three former territories have the same
arrangement and associated with the United States----
Mr. Berrios Martinez. These are free association
arrangements.
The Chairman. Right.
Senator Bunning. Yes.
Mr. Rios. Can, sir----?
Mr. Berrios Martinez. That's correct.
Senator Bunning. OK, that's what I meant.
The Chairman. Senator Bunning, why don't we go with the--?
Mr. Rios. Can I answer the first question? I wasn't allowed
to answer the----
The Chairman. Let me ask you a different question, and then
you can also answer that question.
Mr. Rios. Sure.
The Chairman. But, I would like to start a second round of
questions, here.
As I understand your statement, you said the bill was
constructed--this is the legislation--as an unusual, and
unprecedented two-round voting scheme to predetermine the
outcome by producing an artificial Statehood majority. Would
you support this bill if the first-round vote were eliminated?
In that circumstance, there would then be only one vote, among
the 4 options presented, including the current Commonwealth
relationship. Would you support that?
Mr. Rios. As long as it's a binding process, and----
The Chairman. You want it to be binding?
Mr. Rios [continuing]. The United States--U.S. Congress
commits with the results. But this bill, right now, is not
binding.
The Chairman. Right, I agree.
Mr. Rios. It's not binding. I want to----
The Chairman. Go right ahead, go ahead and respond to his
question.
Mr. Rios [continuing]. To answer the question of Senator
Bunning, first of all, people know in Puerto Rico what
Commonwealth is. People don't know what Statehood is.
Second, Mr. Governor, you ran on a platform saying that if
Congress did not act in a year, year and a half, you will start
a special election in Puerto Rico to elect 6 Congressmen and 2
Senators and start the Tennessee plan. That is in your
platform, and what Senator Bunning's saying is correct. This
bill--Senate bill 1407 and H.R. 2497, which are presented by
your delegations, both of them contain that part--that section
of your platform that took you to the victory in November 2008,
and that's in your platform, and you have talked about the
Tennessee Plan once, twice, 3, 4 and 5 times.
The Chairman. Let me ask one other question, Representative
Ferrer, about your testimony on page 11. You state that the
second ballot should allow the voters the option of continuing,
and enhancing, Puerto Rico's Commonwealth status.
Mr. Rios. Correct, sir.
The Chairman. Continuing the current relationship is an
option under the House-passed bill. But the question arises as
to what is meant by the enhancement, and whether these
enhancements trigger constitutional or policy issues that we
need to understand.
More specifically, would the Party continue to seek an
enhancement, as an enhancement, the establishment of a, quote,
``Permanent union with the United States under a covenant that
cannot be invalidated--a covenant that cannot be invalidated or
altered unilaterally''? Also, would the Party continue to
support, quote, ``A mechanism to approve or deny the
application of legislation approved by the U.S. Congress''?
Mr. Rios. Sir, first of all, what we have today, a
Commonwealth, the compact that we have today, it was a
presentation made by the U.S. Government 60 years ago, to the
world. It says that what we were doing--the Puerto Rican
Government and the U.S. Government.was right. That that action,
and let me read what the representative of the United States
said in the United Nations, he said, ``A most interesting
feature of the new constitution is that it will enter into--in
the nature of a compact between the American and Puerto Rican
people. A compact, as you know, is far stronger than a treaty.
A treaty usually can be denounced by either side, whereas a
compact cannot be denounced by either party unless it has the
permission of the other.''
This is what the U.S. Government told the world about
Puerto Rico. We have lived with that assumption for the past 60
years. Is there something wrong about this compact which is the
law of the land, and has been at least 4 or 5 times seen in
different Supreme Court cases as a valid, and constitutional,
option, well, that's what--that was your offer to the people of
Puerto Rico and your presentation to the world about the
compact and the option that was given to the people of Puerto
Rico.
The Commonwealth has good things about it, and it has
flaws--just like independence, and just like Statehood. But,
our position is that it is better, Commonwealth, than
independence and Statehood, and that we have the right--like we
did 60 years ago--to sit on a table with the United States,
with Congress, the President, and try to enhance the
Commonwealth. It has been done before--20 years ago, 30 years
ago. The House passed a bill, it was a bill H.R. 4567, where it
contained an enhancement of the Commonwealth, and that was
passed on the House, so it has been done before, it can be done
before. It's not a legal issue, it's a political will issue,
and we're in favor of sitting down, anytime, with this
committee and try to get to an agreement on an enhanced--on an
enhancement Commonwealth.
The Chairman. Let me go ahead and call on Senator Murkowski
for her additional questions.
Governor Fortuno. Mr. Chairman.
The Chairman. Yes.
Governor Fortuno. If I may, some statements were made that
I, I think at some point I would love to be able to clarify
them.
The Chairman. That's fine, I don't mind, but we're really
not here talking about the various campaign platforms of the
various parties.
Governor Fortuno. OK.
The Chairman. I think we're more focused on this particular
legislation that's been proposed in the House, and----
Mr. Berrios Martinez. Senator? I agree with you, but it is
about time you tell us what you are willing to do. We've told
you what we're willing to do for 60 years, now. What is
Congress willing to do?
The Chairman. That's the purpose of our hearing, is to try
to get enough knowledge that we can make that judgment.
Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
I would hope that this is going to be an easy question for
each of you. I think there have been some statements and
assumptions that, ``Puerto Ricans know what the definition of
independence is, what the definition of Statehood--'' I would
like each of you, in a couple of sentences, or less, to
describe your Party's definition of its political status
option.
So, Governor, if you--as the pro-Statehood, if you could
just, very succinctly define your political status option, that
of Commonwealth, and that of independence.
Governor Fortuno. Statehood is the arrangement under the
Federal system under which American citizens, residing in a
body politic, can actually enjoy the same benefits and
obligations that other citizens residing in other States have.
That is very clear.
Senator Murkowski. Commissioner.
Mr. Rios. Yes, ma'am. I'm going to read from our governing
platform. It's in Spanish, but I'm going to translate. ``The
concept of a sovereign Commonwealth seeks to have the Puerto
Rican and U.S. Government agree on specific terms defining this
mutual relationship, with American citizenship as the binding
element of a political association. We support the autonomous
development of the Commonwealth based on the principles of
shared sovereignty, association, and responsibilities with the
United States. Sovereignty means that the ultimate power of a
nation to handle its affairs rests with the people. To address
the status issue, we must begin by recognizing that the
sovereignty rests with the people.'' That's what's written in
our platform.
Senator Murkowski. OK.
Mr. Berrios Martinez. Senator. I'm not--I don't know if
you're a lawyer, but I am so I----
Senator Murkowski. I'm a lawyer, and I would like your
definition of the independence option.
Mr. Berrios Martinez. It's a res ipsa loquitor. All
independent states in the world which are 200 and some-odd
independent nations in the world are independent nations, and
that's what we yearn for our land. Those principles that
Jefferson, Madison, Washington fought for, that's what we want
for our land--we want to command our own destiny. So, res ipsa
loquitor.
Senator Murkowski. Let me ask, the last status, which is
free association.
Governor, you have suggested that it is, perhaps, confused
or less understood--and you've spoken to that. Would the other
2 gentlemen agree that there is less clarity on the definition
of that political status option?
Mr. Rios. The way it is defined----
Senator Murkowski. Because there is no one representing
that, here.
Mr. Rios. Correct. The way it's defined in the bill, it is
confusing.
Senator Murkowski. Would you agree, Mr. Berrios Martinez?
Would you agree?
Mr. Berrios Martinez. The way the free association
statement is defined in the bill?
Mr. Rios. In the bill.
Mr. Berrios Martinez. It's defined by international law. It
doesn't need to be defined that way.
Mr. Rios. The CRS has a report--2 reports as a matter of
fact--in that issue, and it says that it's vague. The
definition of that third option is vague in this bill. I think
we have it here, we can share it with you guys.
Governor Fortuno. Senator, the issue is that the position--
official position of the Commonwealth Party has been quite
different----
Mr. Rios. No, it's not.
Governor Fortuno.--until January of this year, at least.
Mr. Rios. No, it's not. No, it's not.
Governor Fortuno. I have the documents, you know.
Mr. Rios. No, it's not.
Governor Fortuno. Again, the resolutions and what they put
out----
Mr. Rios. No, it's not.
Governor Fortuno.--that's why we're requesting that
Congress step in----
Mr. Berrios Martinez. Why don't we stop fighting among
ourselves and let you fight among----
Governor Fortuno.--define it.
Senator Bunning [continuing]. Determination.
Governor Fortuno. That's why a definition is needed.
Mr. Rios. No, it's not, sir.
Senator Murkowski. If there are documents that you would
like submitted to the record----
Mr. Rios. We will.
Senator Murkowski [continuing]. I think it's fully
appropriate to provide them to the Chairman.
Mr. Rios. We will.
Senator Murkowski. Thank you, Mr. Chairman.
The Chairman. No, we--we're glad to include in our record
whatever documents any of you would like to have included.
But, let me now call on Senator Menendez for additional
questions.
Senator Menendez. Thank you, Mr. Chairman.
You know, Mr. Ferrer, do--let me get this straight. Do you
support, as one of the options in the plebiscite, the
association--sovereignty in association with the United States?
Mr. Rios. No. My Party does? No.
Senator Menendez. OK. So, you do not. That's--that's why
I'm confused, because when I only spoke of 3, I spoke of 3
because that was my understanding of the positions of the
respective parties represented before us, and to me,
sovereignty in association with the United States, I agree with
Governor Fortuno. Not only are Puerto Ricans confused about it,
but I am confused by it. I am both a legislator and a lawyer.
One of the concerns I have in sovereignty in association,
is that if you defined it under international standards, under
that definition, the people of Puerto Rico would not be
considered citizens of the United States.
Mr. Rios. Correct.
Senator Menendez. I do not think--I do not think--that is--
I would not think--maybe, I know Mr. Barrios would disagree--
but I do not think that those who have citizenship want to give
it up. So, I'm confused as to why we have sovereignty in
association, if no one here supports it and, in fact, it is a
clearly--a huge definitional problem, including a fundamental
issue about those United States citizens in Puerto Rico who,
under such a change, might very well lose their citizenship.
So, let me ask this question. In independence, it's rather
clear--it is res ipsa loquitor, it is what it is, it speaks for
itself. But, in the case of either Statehood or a continuing
Commonwealth, or an enhanced one, as you have suggested that
the law permits, there are questions that Puerto Ricans should
know about. Be able to answer.
For example, what happens to the question of language? What
happens to the question of an Olympic team? What happens to the
question of the conduct of the courts and the public schools?
Change, in any of these set of circumstances, in one case
remains the same, in another case, with Statehood, how do we
view that? Your enhanced Commonwealth, how do you view that?
Because it seems to me that if we look at the history of
how States were entered in--territories entered into the Union,
there were demands on them, you know, including the
distinguished Chairman's State. How do you view that?
Governor Fortuno. Mr. Chairman, I mean, Mr. Senator, I--
first of all, I----
Senator Menendez. Please don't get me in trouble with
Senator----
Governor Fortuno. I know.
[Laughter.]
Governor Fortuno. Senator, I think it's very clear what
Statehood means. The arrangement that allows for a Federation
of States to be established under one Federal Government is--
was unique at the time that it was commenced, but it is no
longer unique. Actually we see other parts of the world that
are trying to move in that direction--not with the same success
we have had, so far.
What is wrong is to, after 112 years, have formerly
American citizens residing under conditions that are so unequal
to their counterparts in the mainland.
Senator Menendez. I fully understand that that is your
position, and I understand, you know, the currency behind your
statement.
My question would be, if the people of Puerto Rico voted in
an unstacked plebiscite for Statehood, and those of us--like
myself--who are ready to support the people of Puerto Rico's
determination in an unstacked plebiscite, would--if Statehood
meant that the official language of Puerto Rico has to be
English, if Statehood meant that you obviously couldn't have an
Olympic team because you are part of the United States now--
those are things that the people of Puerto Rico should know in
the equation.
If Commonwealth is going to continue to be the set of
circumstances the people of Puerto Rico should know that there
are certain things that they will not be able to achieve under
Commonwealth status. So, my goal here, is that it is very easy
to throw out, you know, a one-phrase term, ``Statehood,''
``Commonwealth,'' ``independence,'' but what goes behind that
in understanding what comes with it, I think, is very critical.
Governor Fortuno. Let me tell you, and I'll answer both
questions.
First of all, as to Statehood, since 1902 our 2 official
languages have been English and Spanish. We're proud of both
languages, and most of our parents want their children to be
totally fluent in English. English is the language of--to
advance, not just in business and your professions, but in
life, in general. We recognize that. Actually at times, there
have been people that have played with that tool of advancement
for political purposes.
I believe it makes no sense. I pledged in my campaign that
I wanted our children, since pre-K, to be fully bilingual. They
must learn English from the very beginning, and we're proud of
that.
At the same time, I'm proud that I speak Spanish. When we
pray at home, we pray in Spanish. I'm sorry, I don't think
Washington should have anything to say about how we pray at
home.
Having said that, however----
Senator Menendez. I don't believe Washington should have
anything to say how you pray home, or anywhere else. I think
you should have the freedom to pray wherever you choose.
Governor Fortuno. Exactly. That's what binds this great
country together, is the values we share. That's why we're
proud to be Americans.
Having said that, however, if I may--I believe there's
still a question on the table. Because the present leadership
of the Commonwealth Party supports--I think, I'm not sure, yet
but I think--it's the present territorial status. Even though,
for the last 12 years, they have supported a different deal,
and it's in writing. A deal that have been put in writing and
actually that they--in the 1998 plebiscite that you all
questioned about, was put forth as one of the options, that
they said, you know, that this is doable.
We all know it's not doable. We know it's not doable.
There's a sizable group that may not be represented by him,
within his own Party, that feel different. That group has
legislators. They must have an option to vote for that, because
it's doable.
We have a deal like that, as Senator Bunning was
mentioning, with the Marianas. I mean, the Micronesian Islands,
which is different from the deal the Federal Government has
with the territory of Puerto Rico.
Senator Menendez. Mr. Chairman, could we have the other 2
witnesses answer the question?
The Chairman. Yes. Why don't we do that, and then we'll go
to Senator Bunning for additional questions.
Mr. Rios. First of all, I do represent my Party, all of my
Party.
Second, somebody told me when I started visiting Congress,
that you have to--in your meetings, you have to ask. What is
your ask? Your question, Senator, is our ask. Define Statehood,
for the people of Puerto Rico. The people of Puerto Rico should
know what are the consequences of Statehood. Spanish or
English? I'm a Spanish-speaking Puerto Rican. I know English.
But only 20 percent of the people of Puerto Rico are fully
bilingual. That's a fact, too.
Two, we love our Olympic team. With all due respect, when
our basketball team, our national basketball team, beat the
U.S., we were celebrating because we beat the best team in the
world, with our Olympic team, and that's a fact, too.
So, my ask is, to define Statehood, outline Statehood for
the people for the people of Puerto Rico.
Second, about Commonwealth. Sure, we want to enhance
Commonwealth, but that's a process of negotiation between
Congress and the people of Puerto Rico. Their--Governor Fortuno
is repeating and repeating that he has 10, 12 documents--well
those are aspirations of our Party. You can be in one point of
the table, as a party that is engaging in negotiation, and the
other party is in the other side. We start walking together,
and see what we can agree upon.
We can also take, as a starting point, the definition of
the new Commonwealth relationship that was approved on the
House 20 years ago, H.R. 4567, and that's a starting point on
the discussion on how we can enhance Commonwealth.
Finally, it can be done. The Constitution of the United
States is not a strict constitution, it's a dynamic
constitution. I roll back on what I say on a previous term.
It's not a legal issue, it's a will issue.
Governor Fortuno. Senator, if I may say so, we aspire to
have 4 Senators, too.
The Chairman. Why don't we go ahead and have Senator
Bunning--or, Senator Barrios, could you give us a quick
response to his question? Then Senator Bunning?
Mr. Berrios Martinez. Yes, of course.
Of course, Congress could say what's it's opinion regarding
Statehood or Commonwealth, of course. What I am suggesting,
what I am telling Congress to tell the people of Puerto Rico
is, ``You have a right to self-determination, and we have an
obligation to decolonize. Now, you go and tell us your
mechanism,'' which we propose as a constitutional convention,
``what is it that you want?'' Then let whoever wins, if the
Statehoods win, come here and ask--and then you will tell them.
That's the way to do it. We--when and how we do it, it's our
self-determination.
The Chairman. Right.
Mr. Berrios Martinez. That's my position regarding what you
just said. So, I think it's very simple.
The Chairman. All right, thank you very much.
Senator Bunning, go right ahead.
Senator Bunning. Thank you.
We get 3 Puerto Ricans together, we can get an argument any
time.
[Laughter.]
Mr. Berrios Martinez. That's what I mean by the cavalier
and condescending attitude of Congress.
Senator Bunning. Oh, really?
Mr. Berrios Martinez. Yes.
Senator Bunning. I happened to live in Puerto Rico for
quite a while, and----
Mr. Berrios Martinez. You have to----
Senator Bunning [continuing]. I understand Puerto Rico
pretty well. In fact, I played for Marianal down in Puerto Rico
and----
Mr. Berrios Martinez. Good.
Senator Bunning [continuing]. The----
Mr. Berrios Martinez. Welcome.
Senator Bunning. Not Marianal, I was in Cuba, but we played
for Cogwes.
Mr. Rios. Cogwes.
Mr. Berrios Martinez. Cogwes.
Mr. Rios. All right.
Senator Bunning. Managed Cogwes in Puerto Rico. So, I have
a very strong affinity with Puerto Rico. I am troubled by self-
determination and a certain way to self-determine if, not
allowing the people to vote on what they want is not the proper
way to self-determine, rather than having a constitutional
convention which, we haven't had in--God knows how long--in the
United States. We don't even--we haven't had one in the
Commonwealth of Kentucky since 1891-1981. Just to give you an
example how long constitutional conventions have not been in
vogue.
But, a determination--and I agree that there--it has to be
laid out, the different options that are available, and spelled
out for those who are voting. But, just to give you an idea of
why there is such mixed feelings about this--1990, CBO did a
study on Puerto Rican Statehood. It would cost, in 1990, about
$2 billion a year. Independence would save almost $780 million
per year.
Now, these figures are 20 years old. They're certainly
higher, probably, now than they were at that time. Do any of
you know what the current budgetary effects of the different
options discussed here, today, are? Anybody?
Governor Fortuno. First of all, on behalf of the 4 million
American citizens that reside in Puerto Rico, but especially
the men and women that have served in uniform in defense of
democracy since 1917, I cannot put a price tag on their lives,
I'm very sorry, Senator.
Senator Bunning. I don't want to put a price tag on their
lives, either.
Governor Fortuno. Second, I will state, very clearly, that
there have been a number of scorings on different bills, on
status. I saw a scoring that stated that the cost of
Statehood--if you want to call it that way, and I have a
problem with that--will be $5 million. The raw deal for the
American citizen is what's happening today.
Senator Bunning. We spend more than that, Governor, in 1
day.
Governor Fortuno. Actually, I have the report here. I have
the report here that we could actually, if we--if you want to--
--
Senator Bunning. You may, please enter it into the record.
Governor Fortuno. We could introduce it into the record,
but actually this was the Senate Committee, this committee
report, in 1989, stated that the cost was less than $5 million
under the bill that was reported under Senate Finance in 1990.
So, there are--it depends on which bill you were looking at,
but this was scored. This bill, right now, 2499, has not been
scored because it is not self-executing. But at the time, the
last time we had something that was self-executing, the numbers
were quite different.
Actually, it stated--the CRS report in 1991 stated that
the--Statehood would have a net cost to the U.S. Treasury,
during the first 4 years, beginning with the $700 million in
1992, but then after the Treasury, after the succeeding 5
years, culminating in a $1.3 billion net positive contribution
by 2000. So, the net--there was going to be a net contribution.
But the greatest one of those contributions is our men and
women, really, that have actually contributed to this Nation in
more than one way.
Senator Bunning. Go ahead.
Mr. Rios. Sir, I agree with you, there should be a CBO
study on all of the options--this bill doesn't have one. That's
one of the flaws of this.
Senator Bunning. There will be--if, in fact--there will be
a CBO study. A score.
Mr. Rios. But, let me add that, it is essential for this
committee to have that study. Because while the pro-Statehood
Party, its strategy is to go to Puerto Rico and say, ``Well, if
we get a resolution of this committee,'' not even the bill,
just a resolution of this committee, agreeing on self-
determination, that will be enough for them to conduct a
plebiscite in Puerto Rico. That's--nothing wrong with that.
But, the 2 bills that you stated before, the ones that are in
the House and Senate, I would like you to read them--both of
them. You were talking about self-determination--both of them
only include Statehood and independence. There's no room for
Commonwealth on their bill, and that's a rigged process, too.
Senator Bunning. Excuse me.
Go ahead.
Mr. Berrios Martinez. Yes, sir.
Senator, of course if nothing is done, than Commonwealth
wins by default. The territory----
Senator Bunning. Correct.
Mr. Berrios Martinez [continuing].--That's the position of
the PPD.
Senator Bunning. Status quo is the position.
Mr. Berrios Martinez. Yes. Status quo.
Now, I must say, regarding cost. You've already referred to
the cost of Statehood. The cost of Commonwealth is a political,
economic, moral, spiritual, and economic bankrupt, or
bankruptcy Puerto Rico is living under. Those are clear. As you
say, for the United States, the cost of independence is for its
prestige to surge in Latin America and the world over.
Senator Bunning. Thank you, Mr. Chairman.
The Chairman. Thank you very much.
I think we've had a good hearing, we've had good testimony
on all sides of the issue.
Mr. Rios. Yes, sir, I just wanted to ask permission to
submit, in the next 10 days, all possible written documents
that we can, in the next 10 days, like Ranking Member Murkowski
asked? In the next 10 days?
The Chairman. We're glad to have anything that's relevant
to this issue before us.
Mr. Rios. To this issue.
The Chairman. We don't need all of the political----
Mr. Rios. No, to this issue. To this issue, sir.
The Chairman [continuing]. Platform positions.
Mr. Rios. Yes, to this issue, sir.
The Chairman. But, if--anything relevant to this
legislation----
Mr. Rios. Thank you.
The Chairman [continuing]. We're glad to have.
Mr. Rios. Thank you.
The Chairman. We would appreciate that.
But, thank you all. I think it's been very good testimony,
and we will ask the second panel to please come forward.
Let me ask the second panel to please come forward, and
those who are not involved in the second panel could take their
seats.
OK, let me introduce the second panel, please. The
witnesses on the second panel are the Honorable Donna
Christensen, who is the United States Virgin Islands delegate
to Congress, serving in the House of Representatives. Next is
Mr. Gerald Luz James, who is President of the Fifth
Constitutional Convention in the Virgin Islands, thank you for
being here. Mr. Cedarbaum is the Deputy Assistant Attorney
General with the Department of Justice.
Could we ask that the visitors please exit the room if
they're not focused on this second panel?
Let me just state for the record, Mr. Cedarbaum is here to
present the Administration's views only on the proposed
constitution for the Virgin Islands. He's not authorized to
speak to, or answer questions on other bills that are being
considered by the committee today.
Next is the Honorable John Silk, the Minister of Foreign
Affairs with the Republic of the Marshall Islands, we
appreciate him being here. Mr. Nikolao Pula, who is the
Director of the Office of Insular Affairs with the Department
of the Interior.
There any way to speed up the exit of folks so that we can
hear the witnesses?
OK, why don't we go ahead. We have the Honorable Donna
Christensen first, and then we would just go right across the
table. If each of you could take about 5 minutes and make the
main points you think we need to understand, and your complete
statements will be included in the record.
Thank you for being here.
STATEMENT OF HON. DONNA M. CHRISTENSEN, DELEGATE OF THE VIRGIN
ISLANDS, U.S. HOUSE OF REPRESENTATIVES
Ms. Christensen. Thank you, Mr. Chairman. Good morning to
you, Chairman Bingaman, and Ranking Member Murkowski. Thank you
for holding this hearing on the proposed Virgin Islands
Constitution and for the opportunity to testify.
I consider the adoption of our own Constitution an
important and requisite step in our political development.
Having begun this process more than 30 years ago and now on
this our 5th attempt, the time to complete the process is now
or it may be years, yet another generation before a 6th
convention could be convened. That is unacceptable, at least it
is unacceptable to me.
Since the people of the Virgin Islands have not made a
status decision that would allow us to develop a Constitution
under anything other than that of an unincorporated territory,
this draft must be consistent with the U.S. Constitution.
Reviews thus far by the White House and Justice Department have
concluded that it is not, in several areas.
While I understand the concerns of the Congress not to
abdicate its responsibility to bring it into compliance with
the U.S. Constitution, I feel that it's very important--I feel
it's necessary that this process be viewed, also, as an
important step--an important part of our journey to increased
political maturity and greater self-governance.
Further, the Congress has taken a position in recent years
that has been supportive but non-prescriptive and one of little
or no interference in that journey. Recognizing that no law or
any constitution of any territory or State----
The Chairman. Let me ask you if the door can be closed,
please?
I apologize for that interruption. Go ahead with your
statement.
Ms. Christensen. Some students from the Virgin Islands may
also come in at some point.
But, recognizing that no law or constitution of any
territory or State can abrogate any right of a person living in
the United States or under the U.S. constitution, I believe
that this is the position--the position of non-interference--
that we should continue to take in this matter.
As Virgin Islanders, we have grappled with the issues
raised by the White House and the Department of Justice for
many years. I believe that these issues should be resolved or
brought to consensus by the people of the Virgin Islands. If
the Congress intervenes, it will not allow the people to go
through the important process of coming to this resolution on
our own.
This approach would present a choice, then, of years of
local court proceedings or one of reconvening the
Constitutional Convention for the purpose of considering the
issues raised by the President and the Department of Justice.
The better and wiser course, I believe, would be the latter. I
recommend, then, that the Convention be reconvened for a
specific number of days and that it be left to the Convention
delegates to decide the process that they want to follow when
it does reconvene. To ensure the success of this process, it
would be critical that the Congress support the extended
convention with the necessary funding to properly undertake
this task. The Fourth constitutional convention and the process
has set a precedent for that to be done.
Last, I strongly recommend that it not be required that the
document be returned to the President or to the Congress once
the convention has completed its reconsideration of the issues,
but that once passed by the Convention, it go directly to the
people of the Virgin Islands for their adoption or rejection.
So, I thank you for the opportunity to testify.
[The prepared statement of Delegate Christensen follows:]
Prepared Statement of Hon. Donna M. Christensen, Delegate of the Virgin
Islands, U.S. House of Representatives,
Good morning and thank you Chairman Bingaman, Ranking Member
Murkowski, and other members of the Committee for this hearing on the
proposed Virgin Islands Constitution and for the opportunity to
testify.
I consider the adoption of our own Constitution an important and
requisite step in our political development. Having begun this process
more than 30 years ago and now on this our fifth attempt, the time to
complete the process is now or it may be years, yet another generation
before a 6th convention could be convened. That is unacceptable--at
least to me.
Since the people of the Virgin Islands have not made a status
decision that would allow us to develop a Constitution under anything
other than that of an unincorporated territory, this draft should be
consistent with the U.S. Constitution. Reviews thus far by the White
House and Justice Department have concluded that it is not in several
areas.
While I understand the concerns of the Congress not to abdicate its
responsibility to bring it into compliance with the US Constitution, I
feel it is necessary that this process be viewed as an important part
of our journey to increased political maturity and greater self
governance.
Further, the Congress has taken a position in recent years that is
supportive but non-prescriptive and of little or no interference in
this journey. Recognizing that no law or any constitution of any
territory or state can abrogate any right of a person living in the
United States and under the US constitution, I believe this is the
position we should continue to take in this matter.
As Virgin Islanders, we have grappled with the issues raised by the
White House and the Department of Justice for many years. I believe
that these issues should be resolved or brought to consensus by the
people of the Virgin Islands. If the Congress intervenes, it will not
allow the people to go through the important process of coming to this
resolution on our own.
We have a choice of years of local court proceedings or reconvening
the Constitutional Convention for the purpose of considering the issues
raised by the President and the Department of Justice. The better and
wiser course I believe is the latter. I recommend that the Convention
be reconvened for a specific number of days and that it be left to the
Convention delegates to decide the process that they want to follow. To
ensure the success of this process it would be critical that the
Congress support the extended convention with the necessary funding to
properly undertake this task. The Fourth constitutional document has
set a precedent for this to be done.
Lastly, I strongly recommend that it not be required that the
document be returned to the President or the Congress once the
convention has completed its reconsideration of the issues, but that if
passed by the Convention it go directly to the people of the Virgin
Islands for their adoption or rejection.
I again thank you for this opportunity to testify.
Ms. Christensen. If I might, I'd like to introduce the next
speaker?
The Chairman. Go right ahead.
Ms. Christensen. Thank you.
Mr. Chairman, Ranking Member, I'm pleased to introduce the
President of our Fifth Constitutional Convention, the Honorable
Gerard Luz James II, who is also a former Lieutenant Governor
of the Virgin Islands, a former member of the legislature of
the Virgin Islands, and a prominent businessman in the St.
Croix community.
He comes from a well-known Virgin Islands family whose
record of service to our people is long and distinguished. I am
pleased that he is here with us today to convey the wishes of
the Convention with regard to the document before us.
Thank you, again, for the opportunity to testify, and to
introduce the President of the Constitution.
The Chairman. Thank you very much.
Mr. James, go right ahead.
STATEMENT OF GERALD LUZ AMWUR JAMES, II, PRESIDENT, FIFTH
CONSTITUTIONAL CONVENTION OF THE VIRGIN ISLANDS
Mr. James. Thank you very much. Thank you very much. Good
morning, Chairman Bingaman and Ranking Member Murkowski.
Members and others present, I am Gerard Luz James II, President
of the Fifth Constitutional Convention of the United States
Virgin Islands. It is my distinct honor to address this
committee.
The proposed constitution was drafted by the people and for
the people of the United States Virgin Islands. It is not
proposed to govern any other people. The people who have made
negative comments about the document have not worn the shoes of
those who have suffered the indignation of being governed
externally. They have not examined the evidence that led the
convention to adopt provisions in this constitution that are so
necessary to keep life going for those whose parents,
grandparents, and great-grandparents have worked hard in order
to own property that would provide life for themselves and
their future generations.
The critics have not reviewed the evidence that shows that
those whose ancestries lies in the Virgin Islands have been
devastated by the lack of support for the people of the Virgin
Islands. That evidence demonstrates that the territory has
114,000 residents, and that more than 58,000 Virgin Islanders
no longer reside in the Virgin Islands. These people now live
in the mainland U.S. of A. Simple math resolves that this loss
represents about one-half of the current population of the
Virgin Islands. The life-blood of any people lies in its young.
Historically, people of this great country worked to provide a
better life for their young with the hope that they would
prosper from their parent's labor. The young of the Virgin
Islands are leaving because their parents can not pass on to
them the home that had been in their family for decades.
Unlike the mainland, the values of the homes in the Virgin
Islands have soared due to the many tourist developments. These
developments have caused the taxes on the ancestral homes to be
well beyond the ability of many families to pay. Even worse is
the plight of our young, who remain and resort to violence in
an effort to acquire something they can call their own.
I sit as a witness to the loss of these young lives. As a
funeral director, I daily look into the eyes of the young and
see the absence of hope. The convention has compelling reasons
for the provisions that are contained in the document. The
provisions in this constitution, as they relate to natives, is
not new to this Congress. This body has recognized that the
native people of this country and its territories, at times,
need special protection in order for the native people to
exist. The Congress of the United States has enacted laws for
native people of Hawaii, Alaska, and Northern Marianas,
Aleutians, and the continental United States. Congress did not
deny those revisions in advance because of alleged
unconstitutionality. Congress knew that constitutional
challenges to a specific provision of law can not be resolved
by any litmus paper test. Congress knew that constitutionality
is determined on a case-by-case basis.
It was the U.S. Government that established the definition
contained in the proposed constitution. These definitions
should not bring suspicions or challenge, or be improper. These
definitions are derived directly from the Government of the
United States. It was an act of Congress that differentiated
the people of the Virgin Islands and conferred different legal
status upon them by virtue of 8 USC, subsection 1406.
It was an act of Congress that carved out certain rights
for natives. Everyone in this room, including the Justice
Department, is fully aware that our proposed constitution is
not designed to usurp the sovereignty or supremacy of the
Federal law. The passage of the constitution will not, nor is
it intended, to alter our political relationship with the
United States. It merely represents a farther step along the
path toward a full measure of self-dignity. We strongly believe
that the constitutions provisions are not discriminatory, do
not violate Federal law, and do support a constitutional
appropriate interest.
Throughout our history, our shores have remained open to
all people, cultures, and ethnicity. We ask that Congress
approve the proposed constitution with all its present
provisions. I am aware that Congress is considering a
resolution to urge the convention to reconvene. If the
resolution passes, we ask that Congress provide the financial
resources that would be necessary for the convention to
reconvene. We ask that Congress allow the convention, after
reconvening, to place the proposed constitution before the
voters of the territory, without further need to send a
document to the Government of the Virgin Islands. We further
ask that the requirements to send the proposed constitution
back to Congress be eliminated.
This is our fifth attempt to attain greater self
government. You need to know how important this constitution is
to the Virgin Islands. This proposed constitution has helped to
breed new life and hope into our people. It is--it is the talk
of every radio and television show, it is the topic of daily
conversations. People now believe that their lifelong dreams
will come true. These pieces of paper may not mean much to many
in this room, but it means life to the people of the Virgin
Islands.
I thank you very much for giving me this opportunity.
[The prepared statement of Mr. James follows:]
Prepared Statement of Gerard Luz Amwur James, II, President, Fifth
Constitutional Convention of the Virgin Islands
Good Morning Chairman Bingaman, Committee members and all others
present. I am Gerard Luz Anwur James II, President of the Fifth
Constitutional Convention of the Unites States Virgin Islands
(``Convention''). It is my distinct honor to address this Committee.
The proposed constitution was drafted by the people and for the
people of the United States Virgin Islands. It is not proposed to
govern any other people. The people who have made negative comments
about the document have not worn the shoes of those who have suffered
the indignation of being governed externally. They have not examined
the evidence that led the Convention to adopt provisions in this
constitution that are so necessary to keep life going for those whose
parents, grandparents, and great-grand parents have worked hard in
order to own property that would provide life for themselves and their
future generations. The critics have not reviewed the evidence that
shows that those whose ancestry lies in the Virgin Islands have been
devastated by the lack of support for the people of the Virgin Islands.
The evidence demonstrates that the territory has 114,000 residents
and that more than 58,000 Virgin Islanders no longer reside in the
Virgin Islands. These people now live in the mainland United States.
Simple math resolves that this lost represents about one-half of the
current population of the Virgin Islands. This exodus must stop or the
Virgins Islands' life blood will cease to exist. Extinction of the
native people of the Virgin Islands is not an acceptable option.
The life blood of any people lies in its young. Historically,
people of this great country work to provide a better life for their
young with the hope that they will prosper from their parent's labor.
The young of the Virgin Islands are leaving because their parents
cannot pass on to them the home that had been in their family for
decades. Unlike the mainland, the values of the homes in the Virgin
Islands have soared due to the many tourist developments. These
developments have caused the taxes on the ancestral home to be well
beyond the ability of many families to pay. Their homes have been taken
from them. Even worst is the plight of our young who remain and resort
to violence in an effort to acquire something they can call their own.
I sit as a witness to the lost of these young lives. As a funeral
director, I daily look into the eyes of the young and see the absence
of hope they once suffered. The Convention has compelling reasons for
the provisions that are contained in the document.
The provisions in this constitution as they relate to ``natives''
is not new to this Congress. This body has recognized that the native
people of this country and its territories at times need special
protections in order for the native people to exist. The Congress of
the United States has enacted laws for native people in Hawaii, Alaska,
the Northern Marianas, Aleutians and the continental United States.
Congress did not deny those provisions in advance because of alleged
unconstitutionality. Congress knew that Constitutional challenges to a
specific provision of law cannot be resolved by any litmus-paper test.
Congress knew that constitutionality is determined on a case-by-case
basis.
It was the United States government that established the
definitions contained in the proposed constitution. These definitions
should not bring suspicion or challenge as being improper. These
definitions are derived directly from the Government of the United
States. It was an act of Congress that differentiated the people of the
Virgin Islands and conferred different legal status upon them by virtue
of 8 U.S.C. Sec. 1406. It was this act of Congress that carved out
certain rights for ``natives.'' To the best of my knowledge, these
provisions have not been challenged or overturned.
The Fifth Constitutional Convention's fact gathering process
included public meetings throughout the Virgin Islands. The Convention
heard testimony from hundreds, reviewed formal presentations and
documents.
Everyone in this room including the Justice Department is fully
aware that our proposed constitution is not designed to usurp the
sovereignty or supremacy of federal law. The passage of our
constitution will not, nor is it intended to, alter our political
relationship with the United States. It merely represents a further
step along the path toward a full measure of self-dignity.
We strongly believe that the constitution's provisions are not
discriminatory, do not violate federal law and support a Constitutional
appropriate interest. Throughout our history our shores have remained
open to people of all cultures and ethnicities. The Virgin Islands has
long been known as the `American Paradise.'' The proposed constitution
is our sincere effort to insure that our beloved territory remains our
``Virgin Islands Home.''
We asked that Congress approve the proposed constitution with all
of its present provisions. At the very least we ask that the
constitution be returned with no action.
I am aware that Congress is considering a resolution to urge the
Convention to reconvene. We do not ask this, but if the resolution
passes, we ask that Congress in the resolution provide the financial
resources that would be necessary for the Convention to reconvene. We
ask that Congress allow the Convention, after reconvening, to place the
proposed constitution before the voters of the territory without
further need to send the document to the Governor of the Virgin
Islands, who has tried in every way to circumvent the will of the
people. We further ask that the requirement to send the proposed
constitution back to the President and Congress be eliminated.
This is our fifth attempt to attain greater self-government since
Congress passed PL 94-584 in 1976, which granted us the authority to
draft our own constitution. You need to know how important this
Constitution is to the Virgin Islands. This proposed constitution has
helped to breathe new life and hope into our people. It is the talk of
every radio and television show. It is the topic of daily conversation.
People now believe that their life-long dreams will come true. These
pieces of paper may not mean much to many in this room, but it means
life to the people of the United States Virgin Islands.
Thank you again for your time and consideration.
The Chairman. Thank you very much for your testimony.
Mr. Cedarbaum, why don't you give us your Administration's
views on the proposed constitution.
STATEMENT OF JONATHAN G. CEDARBAUM, DEPUTY ASSISTANT ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE
Mr. Cedarbaum. Thank you, Chairman Bingaman, Ranking Member
Murkowski, my name is Jonathan Cedarbaum, I'm a Deputy
Assistant Attorney General in the Office of Legal Counsel at
the Justice Department. I am honored to appear before you this
morning to discuss the proposed constitution for the U.S.
Virgin Islands recently drafted by a constitutional convention
there.
As you know, Public Law 94-584 as amended, establishes a
process by which the people of the U.S. Virgin Islands can
adopt a constitution for their local self-government. In accord
with that process, the Fifth Constitutional Convention of the
U.S. Virgin Islands drafted a proposed constitution last year
and submitted it to the Governor of the Virgin Islands. The
Governor forwarded the proposed constitution to President
Obama. President Obama then transmitted the proposed
constitution to Congress with his comments. As the President
stated in his letter of transmittal, the electorate of the
Virgin Islands and its governmental representatives are to be
commended for their continuing commitment to increasing self-
government and the rule of law.
As the President also indicated in his letter of
transmittal, in carrying out his responsibilities under public
law 94-584, he asked the Department of Justice, in consultation
with the Department of the Interior, to provide its views of
the proposed constitution. The department provided those views
in the form of a memorandum from the Assistant Attorney General
for Legislative Affairs, to the Office of Management and
Budget. The President attached a copy of the department's
memorandum to his letter of transmittal. As the President
noted, the Department of Justice's memorandum analyzed several
features of the proposed constitution, including: first, the
absence of an express recognition of United States sovereignty
and the supremacy of Federal law; second, provisions for a
special election on the USVI's political status; third,
provisions conferring legal advantages on certain groups
defined by place and timing of birth, timing of residency, or
ancestry; fourth, residence requirements for certain offices;
fifth, provisions guaranteeing legislative representation of
certain geographic areas; sixth, provisions addressing
territorial waters and marine resources; seven, imprecise
language in certain provisions of the proposed constitution's
bill of rights; eighth, the possible need to repeal certain
Federal laws if the proposed USVI constitution were adopted;
and ninth, the effect of Congressional action or inaction on
the proposed constitution.
I would be happy to address any of these issues with you
this morning, but I should emphasize that our review was
limited to legal issues. The Department's memorandum does not
address any questions of policy. Because I trust you have had
some opportunity to review the Department's memorandum in
advance of today's hearing, I will not attempt to summarize it
in this opening statement. I would just like to briefly
highlight 3 issues as to which the Department suggested that
changes in the proposed constitution should be considered.
First, several provisions of the proposed constitution give
special advantages to ``Native Virgin Islanders'' and
``Ancestral Native Virgin Islanders.'' These provisions raise
serious concerns under the Equal Protection guarantee of the
U.S. Constitution, which has been made applicable to the Virgin
Islands by the Revised Organic Act. Because we find it
difficult to discern a legitimate governmental purpose that
would be rationally advanced by these provisions defining
groups by place and timing of birth, timing of residency, or
ancestry, we recommend that they be removed.
Second, the proposed constitution imposes substantial
residence requirements on a number of USVI offices. In
particular, it requires the Governor and lieutenant Governor,
judges and justices of the USVI Supreme Court and lower court,
and the Attorney General, Inspector General, and members of the
Political Status Advisory Commission, to have been Virgin
Island residents for periods ranging from 5 to 15 years. These
requirements, particularly those requiring more than 5 years of
residence, raise potential Equal Protection concerns. Thus, we
would suggest the consideration be given to shortening their
duration.
Third, article 12, section 2 of the proposed constitution,
concerning preservation of natural resources, makes a number of
assertions about USVI sovereignty or control over waters and
submerged lands. The intended meaning and effect of this
section are not entirely clear. To the extent that its
reference to a claim of sovereignty over coastal waters is
intended to derogate from the sovereignty of the United States
over those waters, it is inconsistent with Federal law and
should be revised.
In addition, by statute, the United States has, subject to
certain exceptions, conveyed to the Virgin Islands its right,
title, and interest in submerged lands and mineral rights in
those submerged lands, out to 3 miles. Federal law also
reserves to the United States exclusive management rights over
fisheries within the exclusive economic zone. The proposed
constitution must be made consistent with these Federal
statutory mandates.
Finally, while the last sentence of article 12, section 2,
acknowledges that the rights it addresses are alienable, we
recommend modifying this language to make clearer that these
matters are subject to Congress's plenary authority.
I would like to emphasize that my statement has focused on
these 3 aspects of the proposed constitution because they are
ones that we believe Congress should consider revising. We
thought that would be most useful--most helpful for the
committee as it determines what action to take in response to
the transmittal of the proposed constitution.
But let me close by again echoing President Obama's letter
of transmittal, in commending the electorate of the Virgin
Islands and its governmental representatives in their
continuing commitment to increasing self-government and the
rule of law.
I'd be happy to address any questions you have, and I'd be
grateful if the Department's memorandum could be inserted in
the record of this hearing following my statement.
The Chairman. We will be glad to include that memorandum in
the committee record.
[The prepared statement of Mr. Cedarbaum follows:]
Prepared Statement of Jonathan G. Cedarbaum, Deputy Assistant Attorney
General, Department of Justice
Chairman Bingaman, Ranking Member Murkowski, Members of the
Committee:
My name is Jonathan Cedarbaum. I am a Deputy Assistant Attorney
General in the Office of Legal Counsel at the Department of Justice. I
am honored to appear before you this morning to discuss the proposed
constitution for the U.S. Virgin Islands (``USVI'') recently drafted by
a constitutional convention in the Virgin Islands.
As you know, Public Law 94-584 establishes a process by which the
people of the U.S. Virgin Islands can adopt a constitution for their
local self-government. In accord with that process, the Fifth
Constitutional Convention of the U.S. Virgin Islands drafted a proposed
constitution last year and submitted it to the Governor of the Virgin
Islands. The Governor forwarded the proposed constitution to President
Obama. President Obama then transmitted the draft Constitution to the
Congress with his comments. As the President indicated in his letter of
transmittal, in carrying out his responsibilities under Public Law 94-
584 he asked the Department of Justice, in consultation with the
Department of the Interior, to provide its views of the proposed
constitution. The Department provided those views in the form of a
memorandum from the Assistant Attorney General for Legislative Affairs
to the Office of Management and Budget, and the President attached a
copy of the Department's memorandum to his letter of transmittal.
As the President also noted, the Department of Justice's memorandum
analyzed several features of the proposed constitution, including: (1)
the absence of an express recognition of United States sovereignty and
the supremacy of federal law; (2) provisions for a special election on
the USVI's territorial status; (3) provisions conferring legal
advantages on certain groups defined by place and timing of birth,
timing of residency, or ancestry; (4) residence requirements for
certain offices; (5) provisions guaranteeing legislative representation
of certain geographic areas; (6) provisions addressing territorial
waters and marine resources; (7) imprecise language in certain
provisions of the proposed constitution's bill of rights; (8) the
possible need to repeal certain federal laws if the proposed USVI
constitution is adopted; and (9) the effect of congressional action or
inaction on the proposed constitution. I would be happy to address any
of these issues with you this morning. I should emphasize that our
review was limited to a review of legal issues in light of the
requirements established by Public Law 94-548. The Department's
memorandum does not address any questions of policy.
Because I trust you have had some opportunity to review the
Department's memorandum in advance of today's hearing, I will not
attempt to summarize in this opening statement the analysis it provides
of all of these issues. I would just briefly discuss the three issues
as to which the Department suggested that changes in the proposed
constitution should be considered.
A. Provisions Concerning ``Native Virgin Islanders'' and ``Ancestral
Native Virgin Islanders''
First, several provisions of the proposed constitution give special
advantages to ``Native Virgin Islanders'' and ``Ancestral Native Virgin
Islanders.'' These provisions raise serious concerns under the equal
protection guarantee of the U.S. Constitution, which has been made
applicable to the USVI by the Revised Organic Act, see 48 U.S.C. Sec.
1561 (2006). Because we find it difficult to discern a legitimate
governmental purpose that would be rationally advanced by these
provisions conferring legal advantages on certain groups defined by
place and timing of birth, timing of residency, or ancestry, we
recommend that these provisions be removed from the proposed
constitution.
In Article III, section 2, the proposed constitution would define
``Native Virgin Islander'' to mean (1) ``a person born in the Virgin
Islands after June 28, 1932,'' the enactment date of a statute
generally extending United States citizenship to USVI natives residing
in United States territory as of that date who were not citizens or
subjects of any foreign country, see Act of June 28, 1932, ch. 283, 47
Stat. 336 (now codified at 8 U.S.C. 1406(a)(4) (2006)); and (2) a
``descendant[] of a person born in the Virgin Islands after June 28,
1932.'' ``Ancestral Native Virgin Islander'' would be defined as: (1)
``a person born or domiciled in the Virgin Islands prior to and
including June 28, 1932 and not a citizen of a foreign country pursuant
to 8 U.S.C. [Sec. ] 1406,'' the statute governing United States
citizenship of USVI residents and natives; (2) ``descendants'' of such
individuals; and (3) ``descendants of an Ancestral Native Virgin
Islander residing outside of the U.S., its territories and possessions
between January 17, 1917 and June 28, 1932, not subject to the
jurisdiction of the U.S. and who are not a citizens [sic] or a subjects
[sic] of any foreign country.'' Proposed Const. art. III, Sec. 1.\1\
---------------------------------------------------------------------------
\1\ The third prong of this definition appears circular insofar as
it defines ``Ancestral Native Virgin Islander'' in terms of descendants
of ``Ancestral Native Virgin Islanders'' (a category of people already
encompassed by the definition's second prong), and it is also
grammatically ambiguous with respect to whether the qualifying terms
modify the ``descendants'' or the ``Ancestral Native Virgin Islander''
from whom they are descended.
---------------------------------------------------------------------------
1. Property Tax Exemption for Ancestral Native Virgin
Islanders
Under the proposed constitution, the USVI legislature would be
authorized to impose real property taxes, but ``[n]o Real Property tax
shall be assessed on the primary residence or undeveloped land of an
Ancestral Native Virgin Islander.'' Proposed Const. art. XI, Sec.
5(g). The property tax exemption for Ancestral Native Virgin Islanders
raises serious equal protection concerns. The Equal Protection Clause
of the Fourteenth Amendment, which has been extended to the USVI by
statute, see 48 U.S.C. Sec. 1561 (2006),\2\ generally requires only
that legislative classifications be rationally related to a legitimate
governmental purpose. See, e.g., Heller v. Doe, 509 U.S. 312, 319-20
(1993). But the proposed constitution does not identify a legitimate
governmental purpose that the real property tax exemption for Ancestral
Native Virgin Islanders would further, and it is difficult for us to
discern a legitimate governmental purpose that the exemption could be
said to further.
---------------------------------------------------------------------------
\2\ See also, e.g., Government of the Virgin Islands v. Davis, 561
F.3d 159, 163-64 n.3 (3d Cir. 2009) (recognizing applicability of the
Fifth and Fourteenth Amendment Due Process Clauses to the USVI under
the Revised Organic Act); Hendrickson v. Reg O Co., 657 F.2d 9, 13 n.2
(3d Cir. 1981) (same); Moolenaar v. Todman, 433 F.2d 359, 359 (3d Cir.
1970) (per curiam) (requiring adherence to ``the constitutional
requirements of equal protection of the law'' in the USVI).
---------------------------------------------------------------------------
The definition of Ancestral Native Virgin Islander appears to
combine two sub-classes: (i) individuals born or domiciled in the USVI
before a certain date and (ii) descendants of such persons. The first
sub-class may include many long-time residents of the USVI, but to the
extent the real property tax exemption is designed to benefit such
long-time residents it raises serious equal protection concerns. The
Supreme Court has held that statutes limiting benefits, including
property tax exemptions, to citizens residing in a jurisdiction before
a specified date are not rationally related to any legitimate
governmental purpose. For example, in Hooper v. Bernalillo County
Assessor, 472 U.S. 612 (1985), the Court held that a New Mexico
property tax exemption applicable only to Vietnam War veterans who
resided in the state before a certain date violated equal protection by
``creat[ing] two tiers of resident Vietnam veterans, identifying
resident veterans who settled in the State after May 8, 1976, as in a
sense `second-class citizens.''' Id. at 623. Explaining that ``singling
out previous residents for the tax exemption[] [and] reward[ing] only
those citizens for their `past contributions' toward our Nation's
military effort in Vietnam'' was ``not a legitimate state purpose,''
the Court held that the tax exemption violated the Equal Protection
Clause by ``creat[ing] fixed, permanent distinctions . . . between . .
. .classes of concededly bona fide residents.''' Id. at 622-23 (quoting
Zobel v. Williams, 457 U.S. 55, 59 (1982)).\3\
---------------------------------------------------------------------------
\3\ See also, e.g., Att'y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898,
909, 911 (1986) (plurality opinion) (applying heightened scrutiny to
invalidate civil service employment preference limited to veterans who
lived in the state when they entered the armed forces); id. at 913
(Burger, C.J., concurring in judgment) (same under rational basis
review); Bunyan v. Camacho, 770 F.2d 773, 776 (9th Cir. 1985)
(invalidating law enacted by Guam legislature awarding certain
retirement credits for higher education degrees to Guam civil servants
only if they resided in Guam before pursuing the degree).
---------------------------------------------------------------------------
We think it clear that these classifications could not be
considered tribal within the meaning of the Indian Commerce Clause,
U.S. Const. art. I, Sec. 8, cl. 3, that is, as falling within the
established body of law defining the special relationship between
aboriginal peoples of the United States and the Federal Government. In
any event, that Clause empowers Congress, not the government of the
Virgin Islands.
Moreover, even as to this sub-class, the real property tax
exemption proposed here appears to be even less constitutionally
justifiable than benefits for long-time residents. In Nordlinger v.
Hahn, 505 U.S. 1 (1992), the Supreme Court upheld a California real
property valuation system that disfavored newer purchasers (though not
necessarily newer or longer-term residents), and the Court recognized
as legitimate two governmental interests for such a system: ``local
neighborhood preservation, continuity, and stability,'' id. at 12, and
honoring the reliance interests of long-time property owners, id. at
12-13. To the extent that those interests might be offered in defense
of tax benefits for long-time residents or property owners, they cannot
justify the real property tax exemption for Ancestral Native Virgin
Islanders. Neither of those interests appears to be rationally
furthered by the first sub-class included in the proposed property tax
exemption for Ancestral Native Virgin Islanders because membership in
that sub-class is defined neither by length of residence nor even by
length of property ownership in the USVI, but simply by having been
born or having lived in the USVI many years ago. Thus, for example, an
individual born in the USVI on June 28, 1932, who left the Islands the
following year and who moved back to the Islands and bought a home
there 50 years later (or who simply bought an undeveloped piece of land
there 50 years later) would be entitled to immunity from real property
taxes even though an individual who had spent his or her whole life in
the USVI and had owned the same home there for the past 50 years, but
who had been born there of parents who had arrived in the USVI as
immigrants on June 29, 1932, would not be so shielded. How a system
permitting this kind of discrimination could be said to further
neighborhood stability or reliance interests of long-time property
owners is unclear.
The second sub-class benefitted by the real property exemption for
Ancestral Native Virgin Islanders also seems difficult to justify as
furthering a legitimate governmental interest, for the second sub-class
is defined simply by parentage or ancestry. We need not delve into
whether this use of ``ancestry'' in classifying citizens would be
deemed ``suspect'' and thus subject to heightened scrutiny under the
Fourteenth Amendment. See, e.g., Mass. Bd. of Retirement v. Murgia, 427
U.S. 307, 312 & n.4 (1976) (per curiam) (identifying alienage, race,
and ancestry as classifications subject to strict scrutiny). Again, it
is unclear to us what legitimate governmental purpose would support
favoring so starkly the descendants of individuals born or resident
long ago in the USVI regardless of the descendants' own connections (or
lack thereof) to the Islands.
2. Provisions on Voting and Office-Holding Favoring Native
Virgin Islanders and Ancestral Native Virgin
Islanders
Provisions in the proposed constitution that limit certain offices
and the right to vote in certain elections to Native Virgin Islanders
and Ancestral Native Virgin Islanders or that guarantee members of
those groups the right to participate in certain elections present
similar issues. Under the proposed constitution, the positions of
Governor and Lieutenant Governor would be open only to members these
groups, see Proposed Const. art. VI, Sec. 3(d), as would service on
the Political Status Advisory Commission, an eleven-member body
composed of four appointed members and seven elected members that would
promote awareness of the USVI's political status options and advise the
Governor and legislature on ``methods to achieve a full measure of
self-government.'' Id. art. XVII, Sec. Sec. 1(b), 3. The special
election on ``status and federal relations options'' provided for under
the proposed constitution would be ``reserved for vote by Ancestral
Native and Native Virgin Islanders only, whether residing within or
outside the territory.'' Id. art. XVII, Sec. 2. And the proposed
constitution would guarantee that ``Ancestral and Native Virgin
Islanders, including those who reside outside of the Virgin Islands or
in the military, shall have the opportunity to vote on'' amendments to
the USVI constitution. Id. art. XVIII, Sec. 7.\4\
---------------------------------------------------------------------------
\4\ The right to vote on such amendments does not appear to be
limited to these groups, as the same provision requires that amendments
be submitted ``to the electors of the Virgin Islands.'' Proposed Const.
art. XVIII, Sec. 7. Although the term ``electors of the Virgin
Islands'' is undefined, the proposed constitution elsewhere provides
that ``[e]very citizen of the United States and the Virgin Islands
eighteen (18) years of age or older and registered to vote in the
Virgin Islands shall have the right to vote.'' Id. art. IV, Sec. 1.
The separate provisions establishing special voting rights and
opportunities for Ancestral Native Virgin Islanders and Native Virgin
Islanders suggest that the term ``electors of the Virgin Islands''
refers to the broader group of eligible voters.
---------------------------------------------------------------------------
The provisions concerning eligibility to vote in certain elections
raise equal protection concerns. To the extent one might attempt to
justify the limitation on the electorate for the special election on
status options as akin to a durational residence requirement, we
believe it is too restrictive to be so justified. Although the Supreme
Court has upheld a very brief residential limitation on eligibility to
vote in one instance based on a state's legitimate interest in
``prepar[ing] adequate voter records and protect[ing] its electoral
processes from possible frauds,'' Marston v. Lewis, 410 U.S. 679, 680
(1973) (per curiam) (upholding 50-day durational residence
requirement), it has held that even a requirement of one year's
residence for voting, as opposed to office-holding, violates
constitutional equal protection guarantees. See Dunn v. Blumstein, 405
U.S. 330, 360 (1972) (invalidating state's requirement that voters have
resided in the state for one year and the county for three months).
Moreover, the classifications here are not based on length of
residence, and their effects appear potentially arbitrary. As I
discussed earlier, the categories of Ancestral Native Virgin Islanders
and Native Virgin Islanders are based simply on place and timing of
birth, the fact of having resided in the USVI before a certain date
regardless of for how brief a time, or ancestry, regardless of the
individual's own connection to the USVI. Thus, they could prohibit, for
example, a foreign-born but life-long resident of the USVI from voting
on political status, but would permit any qualifying ancestral
descendant, including those who have never lived in the USVI, to do
so.\5\
---------------------------------------------------------------------------
\5\ Cf. Soto-Lopez, 476 U.S. at 915 (Burger, C.J., concurring in
judgment) (discussing ``irrationality'' of law that ``would grant a
civil service hiring preference to a serviceman entering the military
while a resident of [the state] even if he was a resident only for a
day,'' but that would deny the preference to a veteran ``who was a
resident of [the state] for over 10 years before applying for a civil
service position''); Dunn, 405 U.S. at 360 (concluding that the state
interest in ``knowledgeable'' voters did not justify a durational
residence requirement for voting because ``there is simply too
attenuated a relationship between the state interest in an informed
electorate and the fixed requirement that voters must have been
residents in the State for a year and the county for three months'');
Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 632 (1969)
(rejecting, under strict scrutiny, restrictions on franchise for school
board elections because ``[t]he classifications in [the statute] permit
inclusion of many persons who have, at best, a remote and indirect
interest in school affairs and, on the other hand, exclude others who
have a distinct and direct interest in the school meeting decisions'').
---------------------------------------------------------------------------
The proposed constitution's guarantee that Native Virgin Islanders
and Ancestral Native Virgin Islanders ``resid[ing] outside of the
Virgin Islands'' may vote on amendments to the USVI constitution also
raises equal protection concerns. Proposed Const. art. XVIII, Sec. 7.
To uphold inclusion of non-resident voters in local government
elections against equal protection challenges, courts have required a
showing that the non-resident voters have a ``substantial interest'' in
the elections in question.\6\ Because many non-resident Ancestral
Native Virgin Islanders and Native Virgin Islanders may have no
connection to the Islands apart from ancestry, it is unclear whether
their inclusion in the electorate for USVI constitutional amendments
would satisfy this standard.
---------------------------------------------------------------------------
\6\ See, e.g., May v. Town of Mountain Village, 132 F.3d 576, 583
(10th Cir. 1997) (upholding inclusion of nonresident property owners in
town electorate because such voters ``have a substantial interest in
township elections''); Board of County Commissioners of Shelby County,
Tenn. v. Burson, 121 F.3d 244, 248-51 (6th Cir. 1997) (deeming
participation of city voters in county school board elections
irrational and thus impermissible under Fourteenth Amendment where city
voters had their own independent school board and lacked a substantial
interest in county school board elections); Hogencamp v. Lee County Bd.
of Educ., 722 F.2d 720, 722 (11th Cir. 1984) (deeming city taxpayers'
contribution of 2.74% of county school board's budget ``insufficient by
itself to create a substantial interest in the city residents''
justifying their participation in county school board elections).
---------------------------------------------------------------------------
Finally, although the residential duration requirements for
Governor and Lieutenant Governor and members of the Political Status
Advisory Commission would prevent non-resident individuals who qualify
as Native Virgin Islanders or Ancestral Native Virgin Islanders from
serving in those offices, it is unclear what legitimate governmental
purpose would be advanced by narrowing the subset of longtime residents
who could hold those offices to Native Virgin Islanders and Ancestral
Native Virgin Islanders.
In the absence of any identified legitimate governmental interest
to support such provisions concerning voting and office-holding based
on place of birth, residence many decades ago, or ancestry, we would
again recommend that these provisions be removed from the proposed
constitution.\7\
---------------------------------------------------------------------------
\7\ Because we conclude that the restrictions on voting present
clear equal protection concerns under the Fourteenth Amendment, we need
not consider whether they may also violate the Fifteenth Amendment's
prohibition on denial or abridgement of the right to vote ``on account
of race, color, or previous condition of servitude.'' U.S. Const.
amend. XV; see also 48 U.S.C. Sec. 1561 (extending Fifteenth Amendment
to USVI).
---------------------------------------------------------------------------
B. Residence Requirements for Office-Holding
Second, the proposed constitution imposes substantial residence
requirements on a number of USVI offices. In particular, the Governor
and Lieutenant Governor would be required to have been
``domiciliar[ies]'' of the USVI for at least fifteen years, ten of
which ``must immediately precede the date of filing for office,''
Proposed Const. art. VI, Sec. 3(a); judges and justices of the USVI
Supreme Court and lower court to be established under the proposed
constitution would be required to have been ``domiciled'' in the USVI
for at least ten years ``immediately preceding'' the judge or justice's
appointment, id. art. VII, Sec. 5(b); the Attorney General and
Inspector General would need to have resided in the USVI for at least
five years, id. art. VI, Sec. Sec. 10(a)(1), 11(a)(2);\8\ and the
members of the Political Status Advisory Commission would be required
to have been ``domiciliaries'' of the USVI for ``a minimum of five
years,'' id. art. XVII, Sec. 1(b). In addition, the proposed
constitution would require that USVI Senators be ``domiciled'' in their
legislative district ``for at least one year immediately preceding the
first date of filing for office.'' Id. art. V, Sec. 3(c).
---------------------------------------------------------------------------
\8\ The proposed constitution appears ambiguous with respect to how
this five-year period is determined. It provides: ``There shall be an
Attorney General, who shall be appointed by the Governor with the
advice and consent of the Senate, and at the time of the appointment
must . . . have resided in the Virgin Islands at least five (5) years
next preceding his election.'' See Proposed Const. art. VI, Sec.
10(a)(1). Given that the Attorney General would be appointed rather
than elected, the reference to the period ``next preceding his
election'' seems unclear.
---------------------------------------------------------------------------
These requirements, particularly those requiring more than five
years of residence, raise potential equal protection concerns. The
Supreme Court has summarily affirmed three decisions upholding five-to
seven-year residence requirements for state senators and governors, see
Chimento v. Stark, 353 F. Supp. 1211, 127 (D.N.H. 1973), aff'd, 414
U.S. 802 (1973); Kanapaux v. Ellisor (D.S.C. unreported), aff'd, 419
U.S. 891 (1974); Sununu v. Stark, 383 F. Supp. 1287 (D.N.H. 1974),
aff'd, 420 U.S. 958 (1975), and lower courts have upheld relatively
brief durational residency requirements for state or local offices,
typically applying only rational basis review and deeming such laws
adequately justified by the governmental interest in ensuring
familiarity with local concerns.\9\ But in some cases lower courts have
struck down laws imposing residence requirements of five or more years
on certain state or local offices.\10\
---------------------------------------------------------------------------
\9\ See, e.g., City of Akron v. Bell, 660 F.2d 166, 168 (6th Cir.
1981) (one-year residence requirement for city council members);
MacDonald v. City of Henderson, 818 F. Supp. 303, 306 (D. Nev. 1993)
(one-year residence requirement for city council); Hankins v. Hawaii,
639 F. Supp. 1552, 1556 (D. Hawaii 1986) (five-year residence
requirement for Hawaii governor under state constitution); Schiavone v.
DeStefano, 852 A.2d 862, 866-67 (Conn. Sup. Ct. 2001) (fiveyear
residence requirement for city mayor); Civil Service Merit Bd. of City
of Knoxville v. Burson, 816 S.W.2d 725, 734 (Tenn. 1991) (one-year
residence requirement for municipal civil service boards); State ex
rel. Brown v. Summit County Bd. of Elections, 545 N.E.2d 1256, 1259-60
(Ohio 1989) (two-year residence requirement for city council);
Langmeyer v. Idaho, 656 P.2d 114, 118 (Idaho 1982) (five-year residence
requirement for appointment to local planning and zoning board); cf.
Thournir v. Meyer, 909 F.2d 408, 411 (10th Cir. 1990) (upholding under
rational basis review state requirement that unaffiliated candidates
have been registered as unaffiliated voters in the state for at least
one year before filing for office); White v. Manchin, 318 S.E.2d 470,
488, 491 (W.Va. 1984) (applying strict scrutiny based on the
fundamental right ``to become a candidate for public office'' but
upholding state constitutional requirement that state senators have
resided in their district for at least one year before their election).
\10\ See, e.g., Antonio v. Kirkpatrick, 579 F.2d 1147, 1151 (8th
Cir. 1978) (invalidating tenyear residence requirement for State
Auditor); Brill v. Carter, 455 F. Supp. 172, 174-75 (D. Md. 1978)
(invalidating four-year residence requirement for members of county
council); Billington v. Hayduk, 439 F. Supp. 975, 978-79 (S.D.N.Y.)
(invalidating five-year residence requirement for county executive),
aff'd on other grounds, 565 F.2d 824 (2d Cir. 1977); cf. Robertson v.
Bartels, 150 F. Supp. 2d 691, 696, 699 (D.N.J. 2001) (applying strict
scrutiny based on ``the combined right of persons to run for public
office and the right of voters to vote for candidates of their choice''
and invalidating state requirement that state legislators have resided
within their legislative districts for at least one year); Peloza v.
Freas, 871 P.2d 687, 691 (Alaska 1994) (applying heightened scrutiny
under state constitution and invalidating three-year residence
requirement for city council).
---------------------------------------------------------------------------
Insofar as the territorial status and unique history and geography
of the USVI make familiarity with local issues particularly important
for office-holders there, the governmental interests supporting
durational residence requirements for USVI offices may be particularly
strong.\11\ Yet at least some courts might consider the lengthy
residence requirements here-particularly the ten-or fifteen-year
periods required for USVI judges, Governors, and Lieutenant Governors-
unjustified.\12\ Accordingly, we would recommend that consideration be
given to shortening the ten-and fifteen-year residence requirements for
USVI Governors, Lieutenant Governors, and judges.
---------------------------------------------------------------------------
\11\ See, e.g., Hankins, 639 F. Supp. at 1556 (observing that
``[t]he State has a strong interest in the assurance that its governor
will be a person who understands the conditions of life in Hawaii'' and
that ``[t]his concern has `particular relevance in a small and
comparatively sparsely populated state''' (quoting Chimento, 353 F.
Supp. at 1215)); cf. Bell, 660 F.2d at 168 (noting that ``the interests
of [a state or local] governmental unit in knowledgeable candidates and
knowledgeable voters may be served by differing lengths of durational
residency requirements'').
\12\ Cf. Clements, 457 U.S. at 963 (plurality opinion) (observing
that ``[d]ecision in this area of constitutional adjudication is a
matter of degree''); Summit County Bd. of Elections, 545 N.E.2d at 1260
(upholding two-year residence requirement but deeming it ``conceivable
that such a requirement may be too long in duration to serve a
legitimate state interest'').
---------------------------------------------------------------------------
C. Territorial Waters, Marine Resources, and Submerged Lands
In Clements v. Fashing, 457 U.S. 957 (1982), a plurality of the
Supreme Court observed that ``the existence of barriers to a
candidate's access to the ballot `does not of itself compel close
scrutiny,''' and that ``[d]ecision in this area of constitutional
adjudication is a matter of degree, and involves a consideration of the
facts and circumstances behind the law, the interests the State seeks
to protect by placing restrictions on candidacy, and the nature of the
interests of those who may be burdened by the restrictions.'' Id. at
963 (plurality opinion) (quoting Bullock v. Carter, 405 U.S. 134, 143
(1972)). Clements, however, did not involve durational residence
requirements, but rather provisions requiring a waiting period or
mandatory resignation before certain current state officeholders could
seek new elective offices. See id. at 966-71. In another case, a
concurring opinion, citing Chimento's approval of a seven-year
residence requirement for a state governor, suggested that residence
requirements may serve legitimate purposes, but this opinion did not
elaborate on how long a period of prior residence may be required. See
Zobel, 457 U.S. at 70 (Brennan, J., concurring) (observing that
``allegiance and attachment may be rationally measured by length of
residence . . . and allegiance and attachment may bear some rational
relationship to a very limited number of legitimate state purposes'').
Third, Article XII, Section 2, concerning ``Preservation of
Natural Resources,'' states:
The Government shall have the power to manage, control and
develop the natural and marine resources comprising of
submerged lands, inlets, and cays; to reserve to itself all
such rights to internal waters between the individual islands,
claim sovereignty over its inter-island waters to the effect
that the territorial waters shall extend 12 nautical miles from
each island coast up to the international boundaries. This is
an alienable right of the people of the Virgin Islands of the
U.S. and shall be safeguarded.
The intended meaning and effect of this provision are not entirely
clear. To the extent that its reference to a claim of ``sovereignty''
over coastal waters is intended to derogate from the sovereignty of the
United States over those waters, it is inconsistent with federal law
and should be removed. See Proclamation No. 5928, 54 Fed. Reg. 777
(Jan. 9, 1989) (proclamation of U.S. territorial sea). In addition, by
statute, the United States has, subject to certain exceptions, conveyed
to the USVI its right, title, and interest in submerged lands and
mineral rights in those submerged lands out to three miles. See 48
U.S.C. Sec. Sec. 1705, 1706 (2006); see also, e.g., Proclamation No.
7399, 66 Fed. Reg. 7364 (Jan. 22, 2001) (proclamation of Virgin Islands
Coral Reef National Monument). Any assertion of USVI control over
submerged lands and mineral rights beyond those federal statutory
limits would be inconsistent with federal law and should be removed.
Federal law also reserves to the United States exclusive management
rights over fisheries within the ``exclusive economic zone.'' See 16
U.S.C. Sec. 1811(a) (2006). Again, the proposed constitution must be
made consistent with this federal statutory mandate. While the final
sentence of Article XII, Section 2 acknowledges that the rights it
addresses are alienable, we recommend modifying this language to make
clearer that these matters are subject to Congress's plenary
authority.\13\
---------------------------------------------------------------------------
\13\ After the Department of Justice had completed its memorandum,
we received a copy of a letter from several members of the Fifth
Constitutional Convention to Delegate Christensen in which they raised,
among other things, a concern about another article in the proposed
constitution addressing submerged lands. See Letter for Hon. Donna M.
Christensen, from Craig Barshinger et al. (Jan. 29, 2010). Article XV,
concerning ``Protection of the Environment,'' provides in Section 4:
---------------------------------------------------------------------------
Submerged, Filled and Reclaimed Lands
Submerged lands, filled and reclaimed lands in the Virgin
Islands are public lands belonging collectively to the people
of the Virgin Islands, and shall not be sold or transferred.
The Virgin Islands of the United States cannot be sold or
transferred.
Because this provision comes in an Article on environmental
protection and follows sections on establishing a land, air and water
preservation commission and protecting public access to beaches, we
understood it as directed at private owners. To the extent the second
sentence could be read as purporting to limit Congress's power under
the Territories Clause of the Constitution, see U.S. Const. art. IV,
sec., to transfer the USVI, we agree that it should be amended to
remove any ambiguity on that score.
I would like to emphasize that my statement has focused on three
aspects of the proposed constitution that we believe Congress should
consider revising because we believed that discussing those provisions
would be most helpful to the subcommittee as its considers what action
to take in response to the transmittal of the proposed constitution.
Let me close by echoing President Obama's letter of transmittal in
commending the electorate Virgin Islands and its governmental
representatives in their continuing commitment to increasing self-
government and the rule of law.
I would be happy to address any questions you may have. I would be
grateful if the Department's memorandum could be inserted in the record
of this hearing immediately following my statement.
Attachment.--DOJ Memorandum
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, January 18, 2001.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: This is in response to your letter to President
Clinton requesting that the Administration provide an analysis of the
status options for Puerto Rico favored by the three principle--
political parties in Puerto Rico This letter provides comments on two
proposals that were voted on in the December 1998 political status
plebiscite in Puerto Rico, as well as a third proposal outlined by the
Popular Democratic Party in its 2000 platform. The first proposal, for
Statehood, is outlined in option number 3 in Puerto Rico's recent
Petition to the Government of the United Stales. The second proposal,
for Independence, is outlined in option number 4 of that petition. The
third proposal, the ``New Commonwealth'' option, is described in the
Popular Democratic Party platform documents. Given the complexity and
number of proposals on which our comments have been sought, we address
only a limited number of issues raised by the proposals, most of them
constitutional in nature.
1. Statehood
The Statehood option\1\ provides that Puerto Rico would become ``a
sovereign state, with rights, responsibilities and benefits completely
equivalent to those enjoyed by the rest of the states.'' The principle
that a new State stands on ``equal footing with the original States in
all respects whatsoever'' has been recognized since the first days of
the republic. Coyle v. Smith, 221 U.S 559, 567 (1911) (quoting 1796
declaration upon the admission of Tennessee). Supreme Court caselaw
makes clear that, as a State, Puerto Rico would be ``equal in power,
dignity, and authority'' to the other States. Id. This shift in status
to statehood would also have tax consequences not fully articulated in
the statehood proposal itself. Currently, as an unincorporated
territory, Puerto Rico is not subject to the Tax Uniformity Clause,
which requires that ``all Duties, Imposts, and Excises'' imposed by
Congress ``shall be uniform throughout the United States `` U S. Const.
art. I, Sec. 8, cl. 1; see Downes v. Bidwell, 182 U.S. 244 (1901). As
a result, it can be and is exempted from some federal tax laws
(including most federal income lax laws), and it has other tax
preferences not applicable to the States, although it also does not
receive certain benefits such as the earned income tax credit. See 48
U.S.C. Sec. 734 (1994) (providing that, with certain exceptions, ``the
internal revenue laws'' shall not apply in Puerto Rico); 26 U.S.C.
Sec. 32 (earned income tax credit). Were Puerto Rico to become a
State, however, it would be covered by the Tax Uniformity Clause and
many, if not all, of these different tax treatments could not
constitutionally be preserved on a permanent basis. See Political
Status of Puerto Rico: Hearings on S. 244 Before the Senate Comm. on
Energy and Natural Resources, 102d Cong. 189-90 (1991) (testimony of
Attorney General Richard Thornburgh) (``Thornburgh Testimony'')
(reaching this conclusion, but also noting that the Tax Uniformity
Clause permits the use of narrowly tailored transition provisions under
which Puerto Rico's tax status need not be altered immediately once the
decision were made to bring it into the Union as a State).
---------------------------------------------------------------------------
\1\ The Statehood proposal contemplates a petition to Congress
asking it to provide for the following:
The admission of Puerto Rico into the Union of the United States of
America as a sovereign state, with rights, responsibilities and
benefits completely equal to those enjoyed by the rest of the states.
Retaining, furthermore, the sovereignty of Puerto Rico in those matters
which are not delegated by the Constitution of the United States to the
Federal Government. The right to the presidential vote and equal
representation in the Senate and proportional representation in the
House of Representatives, without impairment to the representation of
the rest of the states. Also maintaining the present Constitution of
Puerto Rico and the same Commonwealth laws; and with permanent United
States citizenship guaranteed by the Constitution of the United States
of America. The provisions of the Federal law on the use of the English
language in the agencies and courts of the Federal Government in the
fifty states of the Union shall apply equally in the State of Puerto
Rico, as at present.
---------------------------------------------------------------------------
In addition, the statement in the Statehood option that admitting
Puerto Rico as a State would not result in the ``impairment of the
representation of the rest of the states'' may be inaccurate. If Puerto
Rico gains representatives in Congress, it will affect the
representation of the rest of the States in both the Senate and the
House. In the Senate, because granting Puerto Rico two senators will
increase the total membership of the Senate, the representation of the
other States in the Senate will decline as a proportion of the whole,
arguably ``impair[ing]'' their representation. Similarly, if the total
number of representatives in the House of Representatives were to be
increased beyond its cuerent number of 435 with the addition of
representatives from Puerto Rico, then the representation of current
States as a proportion of the whole would decline, again arguably
``impair[ing]'' their representation. If, on the other hand, the total
number of representatives were to remain fixed at 435, then the fact
that Puerto Rico had achieved representation would necessarily mean
that at least one State would have fewer representatives. The
representation of that State (or States) would arguably be ``impair[ed]
in two ways: its number of representatives in the House would decline,
and (like all the other States) its representation would decline as a
proportion of the whole.\2\
---------------------------------------------------------------------------
\2\ In the past, Congress permanently increased the number of
representatives in the House when new States were admitted. Most
recently, however, when Hawaii and Alaska were admitted in 1959, the
number of Members of Congress was temporarily increased (from 435 to a
total of 437) by the addition of a representative from each of these
States; following the 1960 census, however, the number of
representatives returned to 435, and the House was reapportioned. See
Comptroller General, Puerto Rico's Polilical Future: A Divisive Issue
with Many Dimensions 103 (1981).
---------------------------------------------------------------------------
Moreover, the clause ``maintaining the present Constitution of
Puerto Rico and the same Commonwealth laws'' contained in the Statehood
option could be read as stating that the admission of Puerto Rico as a
State would have no effect on the constitution and laws of Puerto Rico.
Such a statement might not be entirely correct. Currently, not all
provisions of the United States Constitution are fully applicable to
Puerto Rico. See Balzac v. Porto Rico, 258 U.S. 298, 304-314 (1922)
(Sixth Amendment right to jury trial not applicable in Puerto Rico);
Downes, 182 U.S. at 291 (White, J., concurring in the judgment)
(explaining that only constitutional provisions that are ``of so
fundamental a nature that they cannot be transgressed'' apply to
unincorporated territories such as Puerto Rico). If Puerto Rico were to
become a State, however, it would then be subject to the entire
Constitution. In that event, some aspects of Puerto Rico's constitution
and laws might be preempted by the Constitution pursuant to the
Supremacy Clause, U.S. Const. art. VI, cl. 2. Similarly, the admission
of Puerto Rico as a State might extend to Puerto Rico some federal
statutes that may be deemed not to apply to Puerto Rico at present
because they are written to apply only in the several States. If so,
then under the Supremacy Clause those statutes would also preempt
aspects of Puerto Rican law with which they conflict (although it
should be noted that Congress currently has power to preempt laws of
Puerto Rico).
2.Independence
The Independence proposal contains certain provisions regarding
citizenship. Specifically, it states:
The residents of Puerto Rico shall owe allegiance to, and
shall have the citizenship and nationality of, the Republic of
Puerto Rico. Having been born in Puerto Rico or having
relatives with statutory United States citiienship by birth
shalt no longer be grounds for United States citizenship;
except for those persons who already had the United States
citizenship, who shall have the statutory right to keep that
citizenship for the rest of their lives, by right or by choice,
as provided by the laws of the Congress of the United
States.This proposal could be read as having two possible
meanings: it could mean that persons already holding United
States citizenship based on their birth in Puerto Rico or on
the birth of their relatives have a right to that citizenship
and that Congress must legislate in a way that makes provision
for that right; or, it could mean that Congress has discretion
to decide whether persons who have United States citizenship by
virtue of their birth in Puerto Rico (or by virtue of having
United States citizen relatives) will retain that citizenship
once Puerto Rico becomes independent.\3\ At least the second
reading raises the question whether statutory United States
citizens residing in Puerto Rico at the time of independence
would have a constitutionally protected right to retain that
citizenship should Congress seek to terminate it.\4\
---------------------------------------------------------------------------
\3\ We do not read the proposal to affect existing statutory
provisions regarding U.S. citizenship for persons born outside the
United States to a U.S. citizen parent or parents. See 8 U.S.C.
Sec. Sec. 1401, 1409.
\4\ If such persons do have a constitutionally protected right to
retain their United States citizenship even as they acquire Puerto
Rican citizenship, then Puerto Rican independence could result in a
significant number of people acquiring dual citizenship. While this
letter does not address the policy implications of such dual
citizenship, we do not think it would run afoul of any constitutional
stricture.
---------------------------------------------------------------------------
Although the proposal speaks of a ``statutory right'' to retain
citizenship,\5\ there is at least an argument that individuals
possessing United States citizenship would have a constitutional right
to retain that citizenship, even if they continue to reside in Puerto
Rico after independence. See Afroyim v. Rusk, 387 U.S. 253, 257 (1967)
(rejecting the position that Congress has a ``general power . . . to
take away an American citizen's citizenship without his assent''). On
the other hand, there is also case law dating from the early republic
supporting the proposition that nationality follows sovereignty. See
American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511, 542 (1828)
(Marshall, C.J.) (upon the cession of a territory the relations of its
inhabitants ``with their former sovereign are dissolved, and new
relations are created between them, and the government which has
acquired their territory. The same Act which transfers their country,
transfers the allegiance of those who remain in it.''); Boyd v.
Nebraska ex rel Thayer, 143 U.S. 135, 162 (1892) (``Manifestly the
nationality of the inhabitants of territory acquired by . . . cession
becomes that of the government under whose dominion they pass, subject
to the right of election on their part to retain their former
nationality by removal, or otherwise, as may be provided.''); United
States ex rel Schwarzkopf v. Uhl, 137 F.2d 898, 902 (2d Cir. 1943)
(describing Canter as recognizing a ``generally accepted principle of
international law'' that ``[i]f the inhabitants [of a newly independent
nation] remain within the territory [of the new nation] their
allegiance is transferred to the new sovereign.''). See also
Restatement (Third) of The Law of Foreign Relations Sec. 208 (1987)
(observing that [n]ormally, the transfer of territory from one state to
another results in a corresponding change in nationality for the
inhabitants of that territory'' and that, in some cases of territory
transfer, inhabitants can choose between retaining their former
nationality and acquiring that of the new state). In view of the
tension between Afroyim and cases such as Canter, it is unclear whether
the Independence proposal's possible provision for congressional
revocation of United States citizenship passes constitutional muster.
See Treanor Testimony at 19 (reserving the constitutional issue of
whether, upon independence, it would be permissible to terminate non-
consensually the United States citizenship of residents of Puerto
Rico).\6\
---------------------------------------------------------------------------
\5\ It is the Department's position that the source of the
citizenship of those born in Puerto Rico is not the Fourteenth
Amendment, but federal statute, specifically 8 U.S.C. Sec. 1402
(1994). See Statement of William M. Treanor, Deputy Assistant Attorney
General, Office of Legal Counsel, Before the House Comm. on Resources,
106th Cong. 18 (Oct. 4, 2000) (``Treanor Testimony''); Puerto Rico:
Hearings on H.R. 856 and S. 472 Before the Senate Comm. on Energy and
Natural Resources, 105th Cong. 148 (1998) (statement of Randolph D.
Moss, Acting Assistant Attorney General, Office of Legal Counsel, U.S,
Department of Justice). That point is separate, however, from the
question whether the Constitution protects that citizenship once it is
statutorily conferred, and, if so, to the same extent as it protects
``Fourteenth Amendment citizenship.''
\6\ It should be noted that in 1991 the Department of Justice did
not treat this question as unsettled. See Thornburgh Testimony at 206-
07 (suggesting that should Puerto Rico become independent, its
residents ``should be required to elect between retaining United States
citizenship (and ultimately taking up residence within the United
States . . .),'' and citizenship in the new republic of Puerto Rico.).
---------------------------------------------------------------------------
The Independence proposal also provides that ``Puerto Rico and the
United States shall develop cooperation treaties, including economic
and programmatic assistance for a reasonable period, free commerce and
transit, and military force status.'' Viewing this language as part of
a ballot option for the people of Puerto Rico, we understand it as a
possible proposal to be made by Puerto Rico to Congress. We do not,
therefore, read the use of the word ``shall'' to impose on the United
States any obligation to enter into certain treaties with an
independent Puerto Rico. Moreover, if the proposal did purport to
impose such an obligation, we would construe its language as precatory,
not binding, in order to preserve the sovereign prerogatives of the
United States. We discuss this point in greater detail infra at 7-9.
3. New Commonwealth\7\
---------------------------------------------------------------------------
\7\ Our comments on the New Commonwealth proposal are based in part
on, and are intended to be consistent with, the October 4, 2000
testimony of Deputy Assistant Attorney General William M. Treanor
before the House Committee on Resources. See Treanor Testimony, supra
at n.5.
The New Commonwealth proposal describes Puerto Rico as ``an
autonomous political body, that is neither colonial nor territorial, in
permanent union with the United States under a covenant that cannot be
invalidated or altered unilaterally.'' Our analysis of this proposal is
based on two general premises, which we will outline before proceeding
to address specific aspects of the proposal.
The first premise is that the Constitution recognizes only a
limited number of options for governance of an area. Puerto Rico could
constitutionally become a sovereign Nation, or it could remain subject
to United States sovereignty. It can do the latter in only two ways: it
can be admitted into the Union as a State, U.S. Const. art. IV, Sec.
3, cl. 1, or it can remain subject to the authority of Congress under
the Territory Clause, U.S. Const. art. IV, Sec. 3, cl. 2. See National
Bank v. County of Yankton, 101 U.S. 129, 133 (1879) (``All territory
within the jurisdiction of the United States not included in any State
must necessarily be governed by or under the authority of Congress.'').
The terms of the Constitution do not contemplate an option other than
sovereign independence, statehood, or territorial status.
Although Puerto Rico currently possesses significant autonomy and
powers of self-government in local matters pursuant to the Puerto Rican
Federal Relations Act, Pub. L. No. 81-600, 64 Stat. 319 (1950)
(codified at 48 U.S.C. Sec. Sec. 73 lb-731e (1994)) (``Public Law
600''), that statute did not take Puerto Rico outside the ambit of the
Territory Clause. In Harris v. Rosario, 446 U.S. 651 (1980) (per
curiam), for example, the Court sustained a level of assistance for
Puerto Rico under the Aid to Families with Dependent Children program
lower than that which States received, and explained that ``Congress,
which is empowered under the Territory Clause of the Constitution to
`make all needful Rules and Regulations respecting the Territory ...
belonging to the United States,' may treat Puerto Rico differently from
States so long as there is a rational basis for its actions.'' Id. at
651-52 (internal citation omitted). See also Califano v. Torres, 435
U.S. 1, 3 n.4 (1978) (per curiam) (``Congress has the power to treat
Puerto Rico differently, and , .. every federal program does not have
to be extended to it.''). The Department of Justice has long taken the
same view,\8\ and the weight of appellate case law provides further
support for it. See, e.g., Mercado v. Commonwealth of Puerto Rico, 214
F.3d 34, 44 (1st Cir. 2000) (``[U]nder the Territorial Clause, Congress
may legislate for Puerto Rico differently than for the states.'');
Davila-Perez v. Lockheed Martin Corp., 202 F.3d 464, 468 (1st Cir.
2000) (affirming that Puerto Rico ``is still subject to the plenary
powers of Congress under the territorial clause.''); United States v.
Sanchez, 992 F.2d 1143, 1152-53 (11th Cir. 1993) (```Congress continues
to be the ultimate source of power [over Puerto Rico] pursuant to the
Territory Clause of the Constitution.''') (quoting United States v.
Andino, 831 F.2d 1164, 1176 (1st Cir. 1987) (Torruella, J.,
concurring), cert. denied, 486 U.S. 1034 (1988)), cert. denied, 510
U.S. 1110 (1994).\9\
---------------------------------------------------------------------------
\8\ This position has been expressed in briefs filed in federal
court by past Solicitors General. See, e g., Jurisdictional Statement
of the United States at 10-11, Harris v. Rosario, 446 U.S. 651 (1980)
(No. 79-1294). It has also been taken in memoranda and opinions issued
by the Office of Legal Counsel. See, e.g., Memoranda for Linda
Cinciotta, Director, Office of Attorney Personnel Management, from
Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal
Counsel, Re. Interpretation of the Term ``Territory'' in the Department
of Justice Appropriations Act (July 31, 1997); Memorandum for Lawrence
E. Walsh, Deputy Attorney General, from Paul A. Sweeney, Acting
Assistant Attorney General, Office of Legal Counsel, Re: H.R. 5926,
86th Cong., 1st Sess., a bill ''To provide for amendments to the
compact between the people of Puerto Rico and the United States'' (June
5, 1959). In a 1963 opinion, the Office of Legal Counsel treated the
legal consequences of Public Law 600 as an open question and did not
resolve it. See Memorandum Re: Power of the United Stales to Conclude
with the Commonwealth of Puerto Rico a Compact Which Could Be Modified
Only by Mutual Consent (July 23, 1963).
\9\ We acknowledge, however, that the First Circuit has not always
spoken with a single voice on this question. See, e.g., United States
v. Andino, 831 F.2d 1164 (1st Cir. 1987) (prevailing opinion), cert.
denied, 486 U.S. 1034 (1988)); United States v. Quinones, 758 F.2d 40,
42 (1st Cir. 1985) (``[I]n 1952, Puerto Rico ceased being a territory
of the United States subject to the plenary powers of Congress as
provided in the Federal Constitution.''); Cordova & Simonpietri Ins.
Agency Inc. v. Chase Manhattan Bank N.A., 649 F.2d 36, 4 l (1st Cir.
1981) (Breyer, J.) (stating that following the passage of Public Law
600, ``Puerto Rico's status changed from that of a mere territory to
the unique status of Commonwealth.''); Figueroa v. People of Puerto
Rico, 232 F.2d 615, 620 (1st Cir. 1956) (Magruder, J.) (maintaining
that to say that Public Law 600 was ``just another Organic Act'' for
Puerto Rico would be to say that Congress had perpetrated a
``monumental hoax'' on the Puerto Rican people). Notwithstanding these
inconsistencies, we believe the more recent First Circuit and other
appellate decisions correctly state the law and properly recognize that
the Supreme Court's decision in Harris is controlling.
We also acknowledge that the Federal Circuit's opinion in Romero v,
United States, 38 F.3d 1204 (Fed. Cir. 1994), found that, for purposes
of 5 U.S.C. Sec. 5517, Puerto Rico is not a ``State,'' ``territory,''
or ``possession.'' We read that opinion as addressing questions
regarding the terms of that particular statute alone.
---------------------------------------------------------------------------
The second premise is that, as a matter of domestic constitutional
law, the United States cannot irrevocably surrender an essential
attribute of its sovereignty. See United States v. Winstar Corp., 518
U.S. 839, 888 (1996) (The United States ``may not contract away `an
essential attribute of its sovereignty.''') (quoting United States
Trust Co. v. New Jersey, 431 U.S. 1, 23 (1977)); Burnet v. Brooks, 288
U.S. 378, 396 (1933) (``As a nation with all the attributes of
sovereignty, the United States is vested with all the powers of
government necessary to maintain an effective control of international
relations.''). This premise is reflected in the rule that, in general,
one Congress cannot irrevocably bind subsequent Congresses. See Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (Marshall, C. J.) (noting
that legislative acts are ``alterable when the legislature shall please
to alter [them].''); see also Fletcher v. Peck, 10 U.S. (6 Cranch) 87,
135 (1810) (Marshall, C.J.) (recognizing the general rule that ``one
legislature is competent to repeal any act which a former legislature
was competent to pass; and that one legislature cannot abridge the
powers of a succeeding legislature,'' while holding that vested rights
are protected against subsequent congressional enactments). Moreover,
as the Supreme Court has recognized, treaties and other covenants to
which the United States is party stand, for constitutional purposes, on
the same footing as federal legislation. See Breard v. Greene, 523 U.S.
371, 376 (1998) (per curiam) (``We have held `that an Act of Congress .
. . is on a full parity with a treaty, and that when a statute which is
subsequent in time is inconsistent with a treaty, the statute to the
extent of conflict renders the treaty null.''') (quoting Reid v.
Covert, 354 U.S. 1, 18 (1957) (plurality opinion)). Thus, to the extent
a covenant to which the United States is party stands on no stronger
footing than an Act of Congress, it is, for purposes of federal
constitutional law, subject to unilateral alteration or revocation by
subsequent Acts of Congress. As the Court explained in Whitney v.
Robertson, 124 U.S. 190, 194 (1888):
When the stipulations [of a treaty] are not self-executing
they can only be enforced pursuant to legislation to carry them
into effect, and such legislation is as much subject to
modification and repeal by Congress as legislation upon any
other subject. If the treaty contains stipulations which are
self-executing, that is, require no legislation to make them
operative, to that extent they have the force and effect of a
legislative enactment. Congress may modify such provisions, so
far as they bind the United States, or supersede them
altogether.
This second premise applies to the exercise of presidential powers
as well as to the exercise of congressional powers. Thus, a compact
could not constitutionally limit the President's power to terminate
treaties by requiring that he not exercise that power in the context of
that compact without first obtaining the consent of the other
signatories to the compact. Cf. United States v Curtiss-Wright Export
Corp., 299 U.S. 304, 320 (1936) (President has ``plenary and exclusive
power . . . as the sole organ of the federal government in the field of
international relations''); Goldwater v. Carter, 617 F.2d 697, 703-09
(D.C. Cir.) (en banc), rev'd on other grounds, 444 U.S. 996 (1979)
(finding that the President has constitutional authority to terminate a
treaty); Goldwater, 444 U.S. at 1007 (Brennan, J., dissenting)
(President's power to recognize the People's Republic of China entailed
power to abrogate existing defense treaty with Taiwan).
With these two premises established, we turn now to analyzing the
New Commonwealth proposal. The threshold point to consider is what type
of status the proposal contemplates for Puerto Rico. Parts of the New
Commonwealth proposal appear to contemplate Puerto Rico's becoming an
independent Nation,\10\ while others contemplate Puerto Rico's
remaining subject to United States sovereignty to some degree).\11\ To
the extent that the proposal would thereby create for Puerto Rico a
hybrid status, it runs afoul of the first premise discussed above. The
proposal must be assessed against the constitutionally permissible
status categories that exist, and the precise nature of the
constitutional issues raised by the proposal turns in part on whether
it is understood to recognize Puerto Rico as a sovereign nation or to
maintain United States sovereignty over Puerto Rico.
---------------------------------------------------------------------------
\10\ See, e.g., Preamble (referring to Puerto Rico as a ``nation,''
and describing the ``natural right to self government'' and ``free
will'' of the people of Puerto Rico as ``ultimate sources of their
political power''); Article V(B) (referring to Puerto Rico's authority
over international matters).
\11\ See, e.g., Preamble (describing Puerto Rico as being, ``in
permanent union with the United States''); Article II (providing for
continued United States citizenship for persons born in Puerto Rico);
Article VIII (providing for federal court jurisdiction over matters
arising from ``provisions of the Constitution of the United States and
of the Federal laws that apply to Puerto Rico consistent with this
Covenant and not in violation [of] the laws of the Constitution of
Puerto Rico''); Article XIII (providing that the Resident Commissioner
of Puerto Rico shall be ``considered a Member of the U.S. House of
Representatives'' for certain purposes).
---------------------------------------------------------------------------
First, regardless of whether the New Commonwealth proposal
contemplates full Puerto Rican independence or continued United States
sovereignty over Puerto Rico, the proposal's mutual consent provisions
are constitutionally unenforceable. Article X of the proposal specifies
that the New Commonwealth will be implemented pursuant to an
``agreement between the people of Puerto Rico and the government of the
United States,'' and provides that the agreement will have the force of
a ``bilateral covenant . . . based on mutual consent, that cannot be
unilaterally renounced or altered.\12\ If the proposal is read to
maintain United States sovereignty over Puerto Rico, then, since the
``enhanced'' Commonwealth it contemplates would not be a State, it
would necessarily remain subject to congressional power under the
Territory Clause. It follows, then, that Congress could later
unilaterally alter the terms of the covenant between the United States
and Puerto Rico. See District of Columbia v. John R. Thompson Co., 346
U.S. 100, 106 (1953) (explaining that delegations of power from one
Congress to the government of a territory are generally subject to
revision, alteration, or revocation by a later Congress); see also
Thornburgh Testimony at 194 (stating that proposed legislation
conferring on Puerto Rico ``sovereignty, like a State'' and making that
status irrevocable absent mutual consent was ``totally inconsistent
with the Constitution'').\13\
---------------------------------------------------------------------------
\12\ This mutual consent requirement appears in a number of places
throughout the proposal. The Preamble states that Puerto Rico shall
remain ``in permanent union with the United States under a covenant
that cannot be invalidated or altered unilaterally.'' Article II(A)
provides that ``[p]eople born in Puerto Rico will continue to be
citizens of the United States by birth,' and specifics that this rule
``will not be unilaterally revokable''). See also Article XIII(e)
(prohibiting unilateral alteration of the covenant by the United States
by providing that ``[a]ny change to the terms of this Covenant will
have to be approved by the people of Puerto Rico in a special vote
conducted consistent with its democratic processes and
institutions.'').
\13\ Under the approach set forth in Fletcher v. Peck, 10 U.S. (6
Cranch) 87 (1810), a different result would be warranted if the
covenant called for in the New Commonwealth proposal had the effect of
vesting rights in Puerto Rico's status as a commonwealth or in an
element of that status, such as the mutual consent requirement. It is
true that in 1963, the Office of Legal Counsel concluded that a mutual
consent provision would be constitutional because Congress could vest
rights in political status. See Memorandum Re: Power of the United
States to Conclude with the Commonwealth of Puerto Rico a Compact which
Could be Modified Only by Mutual Consent (July 23, 1963). But the
Justice Department altered its position on that question during the
administration of President Bush, see Thornburgh Testimony at 194, and
the Office of Legal Counsel now adheres to that position. See Treanor
Testimony at 15-16; Memorandum for the Special Representative for Guam
from Teresa Roseborough, Deputy Assistant Attorney General, Office of
Legal Counsel, Re: Mutual Consent Provisions in the Guam Commonwealth
Legislation (July 28, 1994).
Two independent grounds support out current position that rights
may not be vested in political status. First, after the issuance of the
Department's 1963 opinion, the Supreme Court concluded that the Fifth
Amendment's guarantee of due process applies only to persons and not to
States. See South Carolina v. Katzenbach, 383 U.S. 301, 373-24 (1966).
While Katzenbach was concerned with a State, its rationale suggests
that a governmental body, including a territory such as Puerto Rico,
could not assert rights under the Due Process Clause. Second, the
modern Supreme Court case law concerning vested rights is limited in
scope. While the Court has recognized that economic rights are
protected under the Due Process Clause, see, e.g., Lynch v. United
States, 292 U.S. 571 (1934), the case law does not support the view
that there would be Fifth Amendment vested rights in a political status
for a governmental body that is not itself provided for in the
Constitution. Cf Bowen v. Public Agencies Opposed to Social Security
Entrapment, 477 U.S. 41, 55 (1986) (``[T]he contractual right at issue
in this case bears little, if any, resemblance to rights held to
constitute `property' within the meaning of the Fifth Amendment.... The
provision simply cannot be viewed as conferring any sort of `vested
right' in the fact of precedent concerning the effect of Congress'
reserved power on agreements entered into under a statute containing
the language of reservation.'').
---------------------------------------------------------------------------
If Puerto Rico is to become an independent nation under the New
Commonwealth proposal, then the relationship between the United States
and Puerto Rico would necessarily be subject to subsequent action by
Congress or the President, even without Puerto Rico's consent. As a
general matter, a treaty cannot, for purposes of domestic
constitutional law, irrevocably bind the United States, See supra at 7-
8. In particular, because the power to make and unmake treaties is
``inherently inseparable from the conception'' of national sovereignty,
Curtiss-Wright Export Corp., 299 U.S. at 318, it can not be contracted
away. Thus, if Puerto Rico were to become independent, the New
Commonwealth proposal's mutual consent requirements would be
constitutionally unenforceable against the United States.\14\
---------------------------------------------------------------------------
\14\ It is a separate question whether, or to what extent, the New
Commonwealth proposal's mutual consent requirements would be binding
under international law, and we do not address that question here.
---------------------------------------------------------------------------
The New Commonwealth proposal also contains certain provisions
regarding the retention of United States citizenship. Specifically, it
provides that ``[p]eople born in Puerto Rico will continue to be
citizens of the United States by birth and this citizenship will
continue to be protected by the Constitution of the United States and
by this Covenant and will not be unilaterally revokable.''
This provision could be read in two different ways, First, it could
be read as concerned only with persons born in Puerto Rico after the
New Commonwealth proposal goes into effect. Understood as limited to
these individuals, the proposal would confer United States citizenship
on them unless and until Puerto Rico and the United States mutually
agree to revoke it. Second, the text could be read as addressing the
United States citizenship of all persons born in Puerto Rico, whether
before or after the New Corrunonwealth proposal goes into effect.\15\
Under this second reading, the proposal would preserve these
individuals' citizenship subject to revocation by the mutual consent of
Puerto Rico and the United States.
---------------------------------------------------------------------------
\15\ One limitation to the scope of the clause should be noted:
presumably it is not intended to apply to those residing outside of
Puerto Rico at the time the proposal took effect.
---------------------------------------------------------------------------
With respect to either reading, the mutual consent stipulation
(i.e. that the grant of citizenship cannot be altered except by mutual
consent) is, for the reasons discussed above, see supra at 8-9,
constitutionally unenforceable. If that stipulation is set aside, the
provision then reads as a simple grant of citizenship to certain
persons born in Puerto Rico--either those born in Puerto Rico after the
New Commonwealth proposal goes into effect, or all those born in Puerto
Rico before and after such time. We see no constitutional impediment
with that provision, regardless of how broadly it is read. However,
whether that provision is itself alterable by a subsequent Act of
Congress becomes a question of whether the United States citizenship of
the persons covered by the provision is constitutionally protected. The
answer to that question depends on how the provision is read (that is,
whether it is read as addressing those born in Puerto Rico in the
future, or as covering those already born in Puerto Rico, or both),\16\
and may also depend on whether the New Commonwealth proposal in general
is understood as creating an independent nation or as maintaining
United States sovereignty over Puerto Rico.
---------------------------------------------------------------------------
\16\ The proposal might also be read to refer to people born in
Puerto Rico in the future, but before any future action by Congress to
cease extending citizenship to persons born in Puerto Rico. Identifying
the precise constitutional considerations relevant to that reading of
the proposal would require further study.
---------------------------------------------------------------------------
We first address whether there would be any constitutional
constraints on Congress's authority to provide that persons born in
Puerto Rico in the future would not acquire United States citizenship
by virtue of their birth in Puerto Rico. If Puerto Rico is to become an
independent nation, then, while Congress may well have the power to
provide (as the New Commonwealth proposal appears to contemplate) that
persons born in Puerto Rico in the future shall acquire United States
citizenship, we think Congress could also change that rule and provide
that, in the future, birth in Puerto Rico shall no longer be a basis
for United States citizenship.\17\ If, however, Puerto Rico is to
remain subject to United States sovereignty, then the answer is less
clear. We are unaware of any case addressing the power of Congress to
withhold prospectively non-Fourteenth Amendment citizenship from those
born in an area subject to United States sovereignty, when persons
previously born in that area received statutory citizenship by
birthright, and we think it is unclear how a court would resolve that
issue.
---------------------------------------------------------------------------
\17\ We do not, however, address whether Congress could also
exclude residents of Puerto Rico from other statutory sources of United
States citizenship, such as being born abroad to a United States
citizen parent or parents.
---------------------------------------------------------------------------
Next, we consider whether the Constitution would permit Congress to
revoke the United States citizenship of persons who already have such
citizenship because they were born in Puerto Rico. If the New
Commonwealth proposal is understood to maintain United States
sovereignty over Puerto Rico, then we think Congress could not revoke
the United States citizenship of persons who already possess that
citizenship by virtue of their birth in Puerto Rico. As the Court
explained in Afroyim, Congress lacks a ``general power . . . to take
away an American citizen's citizenship without his assent.'' 387 U.S.
at 257. While not squarely faced with a case of statutory citizenship,
the Court in Afroyim did not limit its decision to persons whose
citizenship is based on the Fourteenth Amendment, and we think it
should not be so confined.\18\ Accordingly, while we find no
constitutional impediment in the New Commonwealth proposal's provision
that those born in Puerto Rico will retain their citizenship in the
future, we do think that to the extent Puerto Rico is to remain subject
to United States sovereignty, the provision is redundant (or at best
declaratory) of an underlying constitutional requirement that such
citizenship not be revoked once it is granted. If, on the other hand,
Puerto Rico were to become an independent nation under the New
Commonwealth proposal, then, as we noted in our discussion of the
Independence proposal's treatment of citizenship, see supra at 4-5, it
is unclear whether Congress could revoke the U.S. citizenship of
persons already holding such citizenship at the time of independence.
There is an argument that the Constitution would ensure that those who
possessed United States citizenship at the time of Puerto Rican
independence must he able to retain that citizenship after
independence, see Afroyim, 387 U.S at 257, but there is also case law
supporting the proposition that nationality follows the flag. See
Canter, 26 U.S. at 542. As noted, it is unclear how a court would
resolve this issue.
---------------------------------------------------------------------------
\18\ A counter-argument might be made based on the Supreme Court's
decision in Rogers v. Bellei, 401 U.S. 815 (1971), which upheld the
loss of citizenship of an individual who was born in Italy and who
acquired citizenship under a federal statute because one of his parents
was an American citizen. The statute required that persons claiming
citizenship on that basis meet certain requirements of residency in the
United States prior to their twenty-eighth birthday. The Rogers Court
upheld the statute's provision for loss of citizenship for those who
failed to meet the residency requirement. While the Rogers Court
criticized Afroyim's language concerning non-Fourteenth Amendment
citizenship and based its own holding in part on the fact that Belles
citizenship was not conferred pursuant to the Fourteenth Amendment, see
401 U.S. at 835, Rogers is best understood as addressing the legitimacy
of pre-established requirements for statutorily conferred citizenship
(including conditions subsequent such as the residency by age 28
requirement) when Congress grants citizenship to those who would not
otherwise receive it directly by operation of the Fourteenth Amendment.
That issue--of the legitimacy of pre-established requirements--is not
relevant to Congress's powers to divest citizenship once it has been
unconditionally conferred. Afroyim thus appears to be the most relevant
precedent, and it supports the view that, so long as Puerto Rico
remains under United States sovereignty, citizenship that has been
granted is constitutionally protected.
---------------------------------------------------------------------------
The New Commonwealth proposal also provides for the election of a
Resident Commissioner to ``represent Puerto Rico before the Government
of the United States and who will be considered a Member of the U.S.
House of Representatives for purposes of all legislative matters that
have to do with Puerto Rico.'' The applicable provision of the
Constitution--Article I, Section 2, Clause 1--provides that the House
of Representatives ``shall be composed of Members chosen every second
Year by the People of the several States.'' (emphasis added). On its
face, that provision would seem to mean that the Resident Commissioner
from Puerto Rico could not be ``considered a Member'' of the House
because, under the New Commonwealth proposal, Puerto Rico would not be
a ``State.'' While Congress has the ability to permit participation by
representatives of the territories, see Michel v. Anderson, 14 F.3d
623, 630-32 (D.C. Cir. 1994) (holding that the House of Representatives
had the authority to permit a territorial delegate (including the
Resident Commissioner from Puerto Rico) to vote in the House's
committees, including the Committee of the Whole), there are
constitutional limits to the participation that would be permitted.
The New Commonwealth proposal contains a number of other provisions
that may raise particular constitutional concerns if the proposal
contemplates Puerto Rico remaining subject to United States
sovereignty. The proposal authorizes Puerto Rico to ``enter into
commercial and tax agreements, among others, with other countries,''
and to ``enter into international agreements and belong to regional and
international organizations.'' The Constitution vests the foreign
relations power of the United States, which includes the power to enter
into treaties, in the federal government. Curtiss-Wright Export Corp.,
299 U.S. at 318. Specifically, Article I, Section 10, Clause 1 (the
``Treaty Clause'') prohibits States from entering into ``any Treaty,
Alliance, or Confederation.'' Under Article I, Section 10, Clause 3
(the ``Compact Clause''), however, States are permitted, if authorized
by Congress, to ``enter into any Agreement or Compact ... with a
foreign Power.'' Read against the backdrop of these constitutional
provisions, the New Commonwealth proposal raises several issues.
First, it is unclear whether either the Treaty Clause or the
Compact Clause applies to Puerto Rico, since both clauses refer only to
``State[s].'' What little case law there is on this question is not in
agreement. Compare Venable v. Thornburgh, 766 F. Supp. 1012, 1013 (D.
Kan. 1991) (stating in dicta that ``the compact clause addresses
agreements between the states, territories and the District of
Columbia.''), with Mora v. Torres, 113 F. Supp. 309, 315 (D. P.R )
(concluding that ``Puerto Rico is not a State, and the compact clause,
as such, is not applicable to it''), aff 'd, 206 F.2d 377 (1st Cir.
1953). If the two clauses do apply to Puerto Rico, then presumably the
Compact Clause's provision for congressional authorization to enter
into ``Agreement[s] or Compact[s]'' applies to Puerto Rico. Second,
even if Congress may consent to Puerto Rico's entry into ``Agreement[s]
or Compact[s),'' it is not clear that the ``commercial and tax
agreements'' and ``international agreements and ... regional and
international organizations'' referred to in the New Commonwealth
proposal would all constitute ``Agreement[s] or Compact[s]'' to which
Congress may give its consent. As the Supreme Court has noted, the
constitutional distinction between ``Agreement[s] [and] Compact[s],''
on the one hand, and ``Treat[ies], Alliance[s], [and]
Confederation[s],'' on the other, is not easily discerned. See U.S.
Steel Corp v. Multistate Tax Comm 'n, 434 U.S. 452, 461-62 (1978)
(noting that ``the Framers used the words `treaty,' `compact,' and
`agreement' as terms of art, for which no explanation was required and
with which we are unfamiliar.'').\19\ Some ``commercial and tax
agreements'' would be likely to qualify as ``Agreement[s] or
Compact[s]'' under Article I, Section 10, Clause 3 of the Constitution.
If so, then Congress may be able to authorize Puerto Rico to enter into
such agreements. The status of the ``international agreements and ...
regional and international organizations'' referred to in the New
Commonwealth proposal, however, is less clear. At least some of the
agreements embraced in this phrase might constitute ``Treat[ies],
Alliance[s], or Confederation[s]'' under Article I, Section 10, Clause
1. If so, then Puerto Rico may not constitutionally enter into them,
with or without congressional consent. Third, even assuming Congress
may authorize Puerto Rico to enter into at least some of the types of
international agreements referenced in the New Commonwealth proposal,
it is unclear whether Congress could, as apparently contemplated by the
proposal, give Puerto Rico prospective blanket authorization to
conclude such agreements. Although it is our view that, under the
Compact Clause, Congress may consent in advance to a State's entering
into certain international agreements,\20\ there would still be a
question whether advance consent over such a broad and unspecified
range of agreements as is contemplated here would be an impermissible
use of Congress's power.\21\
---------------------------------------------------------------------------
\19\ On one account (which traces back to Justice Story) of the
distinction between the Treaty and Compact Clauses, the Treaty Clause's
categorical prohibition refers to agreements of a political character
such as one Nation would make with another, while the conditional
prohibition of the Compact Clause on agreements with foreign countries
refers to arrangements regarding the private rights of sovereigns, such
as adjusting boundaries, making territorial acquisitions in another
State, or harmonizing the internal regulations of bordering States. See
Louisiana v, Texas. 176 U.S. 1, 16-18 (1900) (outlining Story's
theory); Virginia v. Tennessee, 148 U.S. 503, 519-20 (1893) (same).
Agreements between Puerto Rico and foreign countries regarding taxation
and commerce seem unlikely to concern private sovereign rights; a
fortiori, international agreements and membership in international or
regional organizations would seem to be political in character. On this
theory, therefore, the Treaty Clause, if applicable to Puerto Rico,
could well bar all forms of international agreements mentioned in the
bill.
\20\ See Letter for the Hon. Caspar W. Weinberger, Director, Office
of Management & Budget, from Ralph E. Erickson, Deputy Attorney General
(Sept. 19, 1972); Memorandum for Nicholas deB. Katzenbach, Deputy
Attorney General, from Norbert A, Schlei, Assistant Attorney General,
Office of Legal Counsel, Re: Draft bill ``To authorize the construction
of certain international bridges,'' the proposed International Bridge
Act of 1963 (July 18, 1963). The case law accords with that conclusion.
See Cuyler v. Adams, 449 U.S. 433, 441 (1981) (advance congressional
consent to certain interstate compacts relating to crime prevention and
law enforcement); Seattle Master Builders Ass'n v. Pacific Northwest
Power and Conservation Council, 786 F,2d 1359, 1363 (9th Cir. 1986)
(even if advance congressional consent were ``unusual,'' it would not
be unconstitutional), cert. denied, 479 U.S. 1059 (1987); see generally
Virginia v. Tennessee, 148 U.S. at 521 (``The Constitution does not
state when the consent of congress shall be given, whether it shall
precede or may follow the compact made. . . . In many cases the consent
will usually precede the compact or agreement.'').
\21\ We have found little authority addressing the scope of
permissible congressional delegation under the Compact Clause, and we
note that potential ``delegation'' problems might arise whether or not
the Compact Clause were thought to apply to Puerto Rico. Compare Milk
Industry Found. v Glickman, 132 F.3d 1467, 1473-78 (D.C. Cir. 1998)
(analyzing issue arising under Compact Clause of delegation of
authority to Executive Department), with Philippine Islands--Postal
Service, 29 Op. Att'y Gen. 380 (1912) (analyzing without reference to
Compact Clause whether Congress could delegate to government of
Philippine Islands authority to negotiate and enter into international
postal conventions). In either case, the breadth of the delegation
contemplated here might raise constitutional concerns.
---------------------------------------------------------------------------
Finally if Puerto Rico remains subject to United States
sovereignty, the provision that Puerto Rico would ``retain[] all the
powers that have not been delegated to the United States'' rests on a
constitutionally flawed premise. This provision appears to attempt to
create for Puerto Rico an analogue to the Tenth Amendment. But the
legislative powers of a non-State region under the sovereignty of the
United States are entirely vested in Congress. Because territories are
created by the Nation, as a matter of constitutional law they can not
delegate power to the Nation. As Chief Justice Marshall explained in
Canter, ``[i]n legislating for [the territories], Congress exercises
the combined powers of the general, and of a state government.'' 26
U.S. at 546. And while Congress may delegate some of its powers over a
territory to the territory itself, such delegation is, as discussed
supra at 7-8, always subject to Congress's own plenary power to revise,
alter, or revoke that authority. See Thompson, 346 U.S. at 106, 109;
United States v. Sharpnack, 355 U.S. 286, 296 (1958).\22\
---------------------------------------------------------------------------
\22\ Other provisions of the Commonwealth proposal may present
constitutional concerns. Article VIII makes jurisdiction of federal
courts subject to the provisions of the Constitution of Puerto Rico,
and article XIII concerns the creation of a mechanism by which
application of United States laws to Puerto Rico will be subject to the
laws of Puerto Rico.
---------------------------------------------------------------------------
We hope this information is helpful to you. Please do not hesitate
to contact me if I can be of further assistance.
Sincerely,
Robert Raben,
Assistant Attorney General.
The Chairman. Yes, Mr. Silk, go right ahead. We're glad to
have you here.
STATEMENT OF JOHN M. SILK, MINISTER OF FOREIGN AFFAIRS,
REPUBLIC OF THE MARSHALL ISLANDS
Mr. Silk. Thank you, Mr. Chairman. On behalf of the
President Jurelang Zedkaia, the Government and people of the
Republic of the Marshall Islands, it is my privilege and
pleasure to be able to testify before your committee here
today, on S. 2941, The Republic of the Marshall Islands
Supplemental Nuclear Compensation Act of 2010.
Mr. Chairman, I would also like to take this opportunity,
on behalf of President Zedkaia, to thank you for our meeting
yesterday. You have always been a good friend to the Marshall
Islands, and we greatly appreciate your assistance.
Mr. Chairman, S. 2941 was introduced on January 28, 2010.
It's identical to the original version of S. 1756, which you
introduced in 2007, at the request of President Note. Although
a new draft of S. 1756 was presented to the RMI as a complete
substitute after a hearing before your Honorable Committee on
September 25, 2007, I will speak to the present S. 2941.
While we appreciate the efforts of the Department of Energy
with the people of Enewetak to provide monitoring of the
nuclear waste storage facility at Runit, it is clear that the
responsibility for monitoring and oversight needs to be
institutionalized within the U.S. Government. In this
connection, we support the provisions of S. 2941 to require a
radiological survey of Runit to ensure that it is secure and
that seepage or environmental contamination is not taking
place, along with this committee's maintaining oversight in the
reporting of these surveys.
The RMI also appreciates the inclusion of the former tri-
territory citizens to participate in a Department of Labor
Healthcare and Compensation Program for Department of Energy
employees who contracted cancer after exposure to occupational
sources of radiation. S. 2941 makes provisions for the National
Academy of Sciences to conduct an assessment of the health
impacts of the nuclear testing program on the residents of the
RMI. The RMI hopes that this study could consider all data and
analysis sent relating to analysis relating to those
reconstruction exposure pathways and potential health outcomes.
The RMI strongly supports this assessment.
S. 2941 appropriates the sum of $2 million annually, as
adjusted for inflation, in accordance with section 218 of the
RMI-U.S. compact for purposes of providing primary healthcare
to the Four Atoll communities. The RMI government welcomes and
fully supports this measure, and wishes to thank the Chairman
for making this a permanent rather than a discretionary
appropriation.
Nonetheless, as I note in my written statement, Mr.
Chairman, healthcare funding for cancers attributable to the
nuclear testing program, have steadily declined since the mid-
1980s. Despite the findings of the NCI and the PCP, regarding
continuing healthcare burdens caused by the nuclear testing
program on the Marshallese people.
In addition, the compact, as amended, excluded any
consideration of healthcare impacts of the nuclear testing
program. I can only ask that Congress, under the commitment
made in section 177 agreement, and take action on these
important issues. Many Marshallese have died from the
consequences of the nuclear testing program without receiving
adequate medical care. While the U.S. continues to expand and
increase assistance to its own citizens, we have suffered from
exposure to radiation. Assistance to Marshallese has declined
considerably. We recall that after the hearing in 2007, this
committee took steps to address these issues in a meaningful
manner, by improving the provisions of the original version of
S. 1756.
We hope that this will happen again, after today's hearing
on S. 2941.
Finally, Mr. Chairman, the fact is that the United States
nuclear testing program was the marking point of our modern
history. Our islands and our institutions reflect the chaos and
problems caused by extensive contamination, public health
crisis, and upheaval--and the upheaval and repeated relocation
of several populations. Nonetheless, we do not hold the present
generation of the American people personally responsible for
what their forefathers did or failed to do to our people.
I submit to you, Chairman, that as much as we had--as much
as you, we had no control or say over the politics of the cold
war, and the consequences of the nuclear arms race. However,
this generation of Americans are the inheritors of the richest
and most powerful country in the world.
If indeed the United States has closer relationship with
any nation in the world than it has through compact of free
association with the RMI, as openly stated by numerous
government officials, then I pray, on behalf of my government
and people, that our calls may not fall on deaf ears. I further
pray, Mr. Chairman, that this generation of Americans will have
the courage and the will to rise above the past and make a
difference, rather than to allow itself to remain controlled by
the past and make excuses.
Mr. Chairman, we Marshallese and Americans can and must
work together to bring closure to the legacy of the nuclear
testing. I believe that together we can further the respect and
mutual understanding between our 2 peoples, and bequest to our
grandchildren the promise of a better future.
Thank you, Mr. Chairman. I would be pleased to answer any
questions.
[The prepared statement of Mr. Silk follows:]
Prepared Statement of John M. Silk, Minister of Foreign Affairs,
Republic of the Marshall Islands
Mr. Chairman, Distinguished Members of the Senate Committee on
Energy and Natural Resources, Ladies and Gentlemen:
Thank you for the opportunity to appear before you today. His
Excellency President Jurelang Zedkaia once again takes this opportunity
to personally thank you Chairman Bingaman for introducing S. 2941, the
Republic of the Marshall Islands Supplemental Nuclear Compensation Act
of 2010, and for convening this hearing so that we may present our
views on this most important and historic legislation.
I would also like to take this opportunity to recognize other
members of our delegation present here today, and to thank them for
their presence and contributions.
S.2941, Republic of the Marshall Islands Supplemental Nuclear
Compensation Act of 2010
There is no question that the U.S. Government's detonation of
sixty-seven atmospheric nuclear weapons in our country created profound
disruptions to human health, the environment, as well as our economy,
culture, political system, and virtually every aspect of life. The U.S.
nuclear weapons testing program was the marking period of our modern
history; the trajectory of our people, our islands, and our
institutions reflect the chaos and problems caused by extensive
contamination, public health crises, and the upheaval and repeated
relocation of several populations.
A small country with seventy square miles of land, and only six
feet above sea level, and a population one tenth the size of
Washington, D.C. does not have the financial, human, or institutional
capacity to respond to and address the magnitude of problems caused by
the nuclear weapons testing program--problems which continue to plague
our nation to this day, and into the future.
The RMI Government appreciates all the assistance the U.S.
Government has given to date to address some of the needs related to
the testing program. The health programs, the environmental monitoring,
and the food support programs for the atolls most impacted by the
testing program are perhaps the most important programs that the U.S.
has provided to the RMI, particularly from a symbolic perspective as
they demonstrate the U.S. commitment in taking responsibility for the
damages and injuries caused by U.S. testing. However, the RMI
Government and the atoll leaders have been telling the U.S. Government
continuously over many decades and through multiple administrations and
Congressional hearings that the needs are much greater than the U.S. is
taking responsibility for.
Mr. Chairman, S 2941, which was introduced on January 20, 2010, is
identical to the original version of S 1756 which you introduced in
2007, at the request of President Note. Although a new draft of S 1756
was presented to the RMI as a complete substitute after a hearing
before your Honorable Committee on September 25, 2007, I will speak to
the present S 2941, and then discuss the proposed substituted version
of S 1756 in light of those comments.
Consequently, I would like to discuss some of the issues addressed
in S 2941, as well as those issues that need to be further considered
and acted upon by our governments to fully address the consequences of
the U.S. Nuclear testing program in the MarshallIslands.
Runit Nuclear Waste Storage Facility
We are most pleased to note the inclusion of provisions to address
the monitoring of the Runit Nuclear Waste Storage Facility at Enewetak
Atoll.
The partial cleanup of Enewetak Atoll in the late 1970's resulted
in the creation of an above ground nuclear waste storage site on Runit
Island that has come to be known as the Runit Dome. Inside the Runit
Nuclear Waste Storage Facility is over 110,000 cubic yards of
radioactive material scraped from other parts of Enewetak Atoll. This
nuclear waste storage site is of concrete construction and the material
inside is radioactive for 24,000 years. This type of nuclear waste
storage facility would not have been permitted in the US because it
would not have been considered to be adequately protective of human
health and the environment.
In addition, there is an area on Runit Island where particles of
plutonium were dispersed and not cleaned up. These particles remain on
the island covered only by a few inches of dirt.
We all know that monitoring of Runit Nuclear Waste Storage Facility
and other parts of Runit Island needs to be done as part of a long-term
stewardship program. Neither my government nor the Enewetak people have
the expertise or resources to conduct such monitoring. The Runit
Nuclear Waste Storage Facility and the surrounding contaminated land
and marine area should be monitored and treated as any nuclear storage
site in the US in order to provide the same level of protection to the
Enewetak people as US citizens receive. That means that the monitoring
needs to be part of a long-term stewardship program under the direction
and responsibility of the DOE or other appropriate US agency.
This has always been a major issue of concern for the people of
Enewetak who live in the immediate area of Runit, and consume fish and
other seafood from the reef area adjoining Runit. Accordingly, we ask
the Committee to remain engaged in the oversight of the Department of
Energy's survey reports regarding the radiological conditions at Runit,
and to see to it that these surveys are adequately and consistently
funded to allow the Department of Energy to carry out the surveys in a
complete and timely manner, and to take immediate action if a problem
is discovered.
We also note that the provisions contained in the proposed
substitute for S 1756 provided additional support and assurances beyond
the provisions presently contained in S. 2941. We would ask that those
changes also be made to S 2941.
Eligibility for Energy Employees Occupational Illness
Compensation Program
The inclusion of citizens of the Trust Territory of the Pacific
Islands for coverage under the Energy Employees Occupational Illness
Compensation Program Act of 2000 is also most welcomed by the RMI.
Approximately 50 Marshallese worked for the United States or its
contractors in the Marshall Islands during this period in efforts to
clean-up or monitor these severely contaminated sites, but unlike their
U.S. citizen co-workers, have been denied access to health care to
address the health consequences of their very hazardous work.
In this connection, we note that the US government has recently
expanded its coverage under the Energy Employees Occupational Illness
Compensation Program and is increasing the number of Americans eligible
for nuclear compensation through ``special exposure cohorts'', groups
of people who were exposed at US nuclear facilities, including Bikini
and Enewetak.
Section 177 Healthcare
S. 2941 also appropriates the sum of $2 million annually, as
adjusted for inflation in accordance with the Section 218 of the RMI-
U.S. Compact for purposes of providing primary health care to the four
atoll communities. The RMI welcomes and fully supports this measure and
wishes to thank the Chairman for making this a permanent rather than
discretionary appropriation; an issue that has caused significant
problems in other Compact assistance.
Section 1(a) of Article II of the Section 177 Agreement provided
that $2 million annually be made available to address the health
consequences of the nuclear testing program. This amount was never
subject to an inflation adjustment, despite the fact that health care
cost inflation rates have always been substantially higher in the U.S.
than overall inflation rates. Applying the Medical Care CPI in Hawaii,
where most medical referral cases from the RMI were sent during the
period in question, the adjusted rate would have been $4.42 million
annually as of 2001. These costs have continued to increase even as
nuclear related health care funding has declined.
As stated in the November 13, 2009, letter from President Zedkaia
to Chairman Bingaman, ``The provisions contained in Section 4 of the
substituted version of S.1756 that provided the sum of $4.5 million
annually plus adjustment for inflation as a continuing appropriation
through FY 2023 to address radiogenic illnesses and the nuclear related
health care needs of Bikini, Enewetak, Rongelap, Utrik, Ailuk, Mejit,
Likiep, Wotho, and Wotje, is acceptable to my Government.''
There is more than ample evidence and justification to support this
request. The scope of 177 Health Care Program needs to be examined,
especially in light of the September 2004 NCI report prepared at the
specific request of the Senate Committee on Energy and Natural
Resources. In addition to stating that more than half of the estimated
532 excess cancers had ``yet to develop or be diagnosed'' (page 14),
the report also indicates that more than half of those excess cancers
will occur in populations that were at atolls other than the four
included in the 177 Health Care Program. Table 3 on page 20 of the
report provides more than adequate justification for including in the
program the populations of the ``Other Northern Atolls'' of Ailuk,
Mejit, Likiep, Wotho, Wotje, and Ujelang. That table indicates 227
estimated excess cancers among the 2005 people who were living at those
atolls during the testing period, an amount representing more than 11%
of those populations. It could also be argued that there should be an
active and ongoing medical diagnostic program carried out across the
RMI, specifically including the outer islands, in order to diagnose the
excess cancers so that they can be treated at the earliest possible
stage.
While the NCI Report continues to undergo peer review, new reports
continue to support the need for a substantial increase in Section 177
Health Care, beyond the provisions of S.2941. The President's Cancer
Panel Annual Report entitled ``Reducing Environmental Cancer Risk, What
We Can Do Now'' (PCP) published by the U.S. Department of Health and
Human Services, National Institutes of Health and the National Cancer
Institute comment in the Report's Executive Summary that:
Of special concern, the U.S. has not met its obligation to
provide for ongoing health needs of the people of the Republic
of the Marshall Islands resulting from radiation exposures they
received during U.S. nuclear weapons testing in the Pacific
from 1946-1958.
The PCP goes on to state:
Funding issues are exacerbated by the limited health
resources available in the Marshall Islands and elsewhere in
the Pacific Islands to treat affected individuals who seek care
through the Section 177 and Special Medical Care programs.
The PCP notes that despite the ongoing increased risk of several
hundred new cancers caused as a result of the Nuclear Testing Program
in the Marshall Islands, actual funding to address these health risks
has declined considerably since the mid 1980's notwithstanding the
exponential increase in health care costs during the same period. In
this connection, the PCP notes that the Section 177 healthcare has been
significantly underfunded; annual funding beginning in 1986 was $4
million. Annual funding dropped to $2 million after about 4 years.
Since 2006, funding has been level at approximately $984,000 per year.
The 4 Atoll Health Care Program (formerly the 177 Health Care
Program) has been operating on borrowed time and resources since its
beginnings. We have continued to watch medical and pharmaceuticals,
supplies, and logistical costs increase year after year while our
financial support stayed flat. After 24 years of the Compact, with
medical costs at an all time high, we faced the challenge of trying to
continue the program with a more than 50% cut in our already seriously
inadequate budget.
What are the challenges we face?
We need a commitment for longer term funding that maintains its
value in light of rapidly increasing health care costs.
We need adequate and reliable water supply systems.
We need affordable and reliable power supply systems.
We need reliable transportation services for patients and medical
supplies.
We continue to lack the ability to diagnose or treat cancers in the
RMI. We have no full time oncologist and lack the necessary personnel
and equipment to treat cancers, although we have started a national
cancer registry.
We lack autoclaves because these sterilizers require a continuing
supply of distilled water to operate. Other sterilization supplies such
as Formalin can only be transported by boat and are difficult to ship
into the Marshall Islands. This means we do without basic minor surgery
equipment unless we use cost-prohibitive disposable sets and supplies.
None of our clinics have basic laboratory setups for simple
diagnostics and many of the one step lab tests are either too costly or
require cool storage. We have extremely limited diagnostic equipment
and much of it has to be shared on a rotating basis. We have no
proctoscopes, we cannot do PSA's. Both of these would be needed for
cancer screenings. In addition, we lack reliable cold storage.
Facing these limits, we have been very lucky to recruit physicians
from third world countries with strong clinical skills, experience
relative to our diseases, and a willingness to work under these
difficult circumstances. These doctors continue to live and work in our
outer atolls despite limitations in supplies, equipment, and logistical
support. Hiring these doctors has also been a matter of necessity as
neither our previous or current budget would have supported hiring
physicians with greater salary expectations. The recruiting and
relocation costs for these doctors can be relatively high. This expense
is compounded as we deal with year to year funding. Lack of secured
funding prevents us from recruiting and hiring on longer term contracts
and seriously impacts the program's continuity and the related
recruiting costs.
Some have suggested that sector grants available under the Compact,
as amended, can fill this program and funding gap. Nothing could be
further from the truth. Although introduced into the record in prior
hearings before this committee and the House Resources and Foreign
Affairs committees, the U.S. Administration specifically excluded in
writing any consideration of nuclear related health issues when the
amended Compact was negotiated. Instead, it was pointed out to our
government that nuclear related health issues were to be taken up by
the Congress under Article IX of the Section 177 Agreement. Thus, we
look to Congress as provided in the Section 177 Agreement to address
these issues.
NAS Study
S.2941 makes provision for the National Academy of Sciences to
conduct an assessment of the health impacts of the nuclear testing
program on the residents of the RMI. The RMI strongly supports this
assessment as it will look at the overall health impacts caused by the
Nuclear Testing Program rather than focusing on just one aspect of
those impacts. The RMI would like to make it clear, however, that the
NCI and other data previously presented to this Committee provides the
justification for taking action now to establish a cancer screening and
treatment program, and to address the radiogenic healthcare needs of
several communities beyond the 4 atolls.
The proposed National Academy of Sciences assessment of the health
impacts of the nuclear program on the residents of the Marshall Islands
should consider all data and analyses relating to dose reconstructions,
exposure pathways, and potential health outcomes. In particular, two
reports prepared for the Centers for Disease Control by S. Cohen &
Associates and dated May, 2007, should be reviewed as part of the
assessment and the authors of the reports should be given an
opportunity to meet with the NAS experts to discuss their findings. The
two reports are: ``Historical Dose Estimates to the GI Tract of
Marshall Islanders Exposed to BRAVO Fallout''.Contract No. 200-2002-
00367, Task Order No. 9) and ``An Assessment of Thyroid Dose Models
Used for Dose Reconstruction,'' Vols. I and II (Contract No. 200-2002-
00367 ,Task Order No. 10).
We also believe that the NAS study should consider Marshallese
perspectives on illness caused by the testing. Instead of looking for
effects that the NAS expects to find, it should incorporate a research
methodology that includes an opportunity for Marshallese to explain the
changes from their perspectives.
We know from the PCP and other reports that knowledge is constantly
changing in this area, and there is an ongoing need for a continuing
assessment of the health impacts of the nuclear testing program in the
Marshall Islands.
While the NAS study provision had been removed from the proposed
substitute of S 1756, we ask that it be retained in S. 2941, so that
both governments can stay fully apprised of updated information
concerning the health impacts of the nuclear program on residents of
the Marshall Islands.
We want to also raise an issue that concerns the people of Utrik.
In 2003, the Department of Energy established a Whole Body Counting
(WBC) facility for radiological testing of the people of Utrik. Due to
insufficient power supply on Utrik Atoll, the Department of Energy
located the Utrik WBC on Majuro. As a result, the people who live on
Utrik Atoll must travel to Majuro, which is approximately 250 miles
away, in order to be tested at the WBC facility. The significant cost
of air transportation, when it is available, and inconvenience to
travel to Majuro from Utrik has led to infrequent and sporadic WBC
testing of the inhabitants of Utrik. Congress acknowledged this problem
when it passed legislation in 2004 to transfer a decommissioned NOAA
vessel to Utrik Atoll for the purpose of helping to alleviate this
transportation issue. While Utrik supported and welcomed that
Congressional gesture, a professional analysis showed that if Utrik
took possession of the vessel it would be a heavy financial burden, so
unfortunately the NOAA vessel was not the solution.
So today, with only a portion of the Utrik community being tested,
many are left unexamined. This is extremely problematic because recent
WBC data gathered by Lawrence Livermore Laboratory has demonstrated
that the people living on Utrik have received the highest body burdens
of radionuclides of any group in the Marshall Islands. The people of
Utrik strongly feel that relocating the WBC facility to Utrik is the
right solution and is long overdue. They therefore request that
language be added to S. 1756 that grants the Department of Energy the
authority and funding necessary to construct a WBC facility with an
adequate power supply on Utrik Atoll. While the people of Utrik do not
have an exact cost estimate at this time, they believe this can be
achieved with a relatively modest expenditure.
I note that provision for a WBC was included in the proposed
substitute version of S 1756, but does not appear in S 2941 before us
today. We urge that this provision be included in S 2941 to support and
the people of Utrik on this important health and safety concern.
Assessment of the Marshall Islands Nuclear Claims Tribunal
Absent from the S.2941 is any reference to the decisions and awards
made by the Marshall Islands Nuclear Claims Tribunal. The
administrative and adjudicative processes of the Tribunal over the past
19 years are an important mutually agreed to component of the Section
177 Agreement and its implementation to resolve claims for damage to
person and property arising as a result of the nuclear testing program.
We cannot simply ignore the Tribunal's work and awards that it has
made.
Understanding that there continues to be concerns in Congress, we
would support a further study of the decision-making processes of the
Marshall Islands Nuclear Claims Tribunal and its awards by an
appropriate organization. The RMI has presented a Report on this
subject prepared by former United States Attorney General Richard
Thornburgh in January, 2003, however, issues and concerns apparently
continue. We should move forward and resolve any remaining issues and
concerns regarding the Tribunal and its work. We would therefore
respectfully suggest that the GAO may be appropriate to undertake such
a study and provide recommendations to the Congress should these
concerns persist.
We note that there recently has been a great deal of activity in
the United States in respect to amending the U.S. Radiation Effects
Compensation Act (RECA) to increase the parameters of eligibility; the
amounts of compensation; and the number of qualifying conditions that
are presumed eligible for compensation. The RMI would take this
occasion to point out as we have in the past that the Tribunal's
personal injury program is based on the U.S. RECA program. The
difference is that while RECA expands, the Tribunal is not provided
with the resources necessary to carry out its statutory and Compact
mandate and obligations. Given that test yields in the Marshall Islands
were almost 100 times as great as those from the Nevada Tests, there is
clearly a gross disparity between the treatment of U.S. and Marshallese
victims. We ask that nuclear victims in the RMI be provided equity in
compensation and treatment with their US counterparts.
Conclusion
The RMI first presented its petition under Article IX of the
Section 177 Agreement regarding ``changed circumstances'' almost 10
years ago, and as noted earlier, the ensuing Compact negotiations
excluded any discussion or measures to address issues related to the US
Nuclear Testing Program. Subsequently, we were most pleased that
hearings took place in the House and Senate in 2005, and again in 2007.
Specifically, our Government had the opportunity to testify before this
Committee on September 25, 2007, on S. 1756, in its initial version
which is identical to S 2941 before us here today.
Finally, our government was provided with a proposed substituted
version which increased health care assistance and expanded eligibility
to ten atolls. That version was never submitted to the Committee, so S
1756 died at the end of 2008.
Meanwhile, many Marshallese have died from radiogenic related
cancers without adequate health care or ever receiving their full
awards from the Nuclear Claims Tribunal. Problems related to clean-up
and resettlement continue to this day with inadequate resources and
with no resolution in sight. We need to look for ways forward in
addressing these problems, and we should not continue to put off action
that should have been taken years ago.
The RMI notes that the Section 177 Agreement continues in the
Compact, as amended. It does not have an expiration date, including
Article IX. We need to look for solutions rather than impediments and
obstacles. Contrary to what the U.S. Administration seems to believe,
taking steps under Article IX of the Section 177 Agreement does not
reopen the settlement. Rather it allows us to work together and address
the shortcomings of the settlement as those shortcomings have become
apparent over time, and need to be addressed.
We ask that this process start again today with consideration of S
2941 and timely passage of these important measures.
Thank you, and I would be pleased to answer any questions that you
may have.
The Chairman. Thank you very much.
Mr. Pula, you're our cleanup witness here, go right ahead.
STATEMENT OF NIKOLAO I. PULA, DIRECTOR, OFFICE OF INSULAR
AFFAIRS, DEPARTMENT OF THE INTERIOR
Mr. Pula. Thank you, Mr. Chairman, Ranking Member
Murkowski, and members of the committee. Thank you for the
opportunity today to discuss S. 2941, the Republic of the
Marshall Islands Supplemental Nuclear Compensation Act.
The 4 principal sections deal with nuclear weapons testing
in the Marshall Islands from June 1946 until August 1958.
If enacted, section 2 of S. 2941 would require the
Department of Energy to survey radiological conditions on Runit
Island every 4 years. In 1986, the agreement subsidiary to
section 177 of the 1986 compact of free association relieved
the U.S. Government of all responsibility for controlling the
utilization of areas in the Marshall Islands effected by the
nuclear testing program, and placed that responsibility solely
on the Marshall Island's government.
Despite the settlement, the Department of Energy, for many
years, performed environmental measurements at Bikini,
Enewetak, Rongelap, and Utrik Atolls, including, upon request,
periodic environmental sampling around Enewetak Atolls, Runit
dome.
Section 3 deals with the eligibility of the former citizens
of the trust territory of the Pacific islands for the Energy
Employees Occupational Illness Compensation Program Act,
EEOICPA. The Department of the Interior defers to the
Department of Labor, which, since it has primary responsibility
for administering EEOICPA, is the Federal agency best
positioned to discuss this compensation program.
If enacted, section 4 of the bill would appropriate funds
for the Four Atoll Health Care Program. The Administration does
not support permanent annual appropriation of $2 million for
this program. The executive branch determined in 2005 that
there was no legal basis for considering additional payments
under the agreements subsidiary to section 177 of the compact.
If enacted, Sec. 5 of S. 2941 would mandate that the Secretary
of the Interior commission an assessment and report by the
National Academy of Sciences of the health impact of the U.S.
nuclear weapons testing program in the northern islands and
atolls of the Marshall Islands from June 1946 until August
1948, or 58.
The Administration does not support the commissioning of
additional studies at this time. Mr. Chairman, we understand
the committee is contemplating amendments to this legislation,
the Administration would be happy to work with the committee on
any appropriate changes.
With regard to H.R. 3940, the bill would authorize
technical assistance funding for political status education
programs. The Department of the Interior has no objection to
the enactment of H.R. 3940, however we note that any assistance
provided under this authorization would have to compete with
other priority needs. We also note that everything section 2
would authorize, be accomplished under the language already
contained in subsection A of section 601 of Public Law 95-597,
without the enactment of additional legislation.
The Department of the Interior would not object to funding
political status education on 2 conditions. One, the
educational option is factual, and 2, all points of view
receive equal opportunity for hearing. The hallmark
considerations for a public education program on political
status are facts and fairness.
Thank you for the opportunity to comment on this particular
bill.
[The prepared statement of Mr. Pula follows:]
Prepared Statement of Nikolao I. Pula, Director, Office of Insular
Affairs, Department of the Interior
on h.r. 3940
Mr. Chairman and members of the Committee on Energy and Natural
Resources, thank you for the opportunity today to discuss H.R. 3940,
which would authorize technical assistance funding for political status
education programs.
Subsection (a) of section 601 of Public Law 96-597 created a
technical assistance program that authorizes the Secretary of the
Interior----
to extend to the governments of American Samoa, Guam, the
Northern Mariana Islands, the Virgin Islands, and the Trust
Territory of the Pacific Islands technical assistance on
subjects within the responsibility of the respective
territorial governments.
This technical assistance program, administered by the Office of
Insular Affairs in the Department of the Interior, has provided
technical assistance funds to the territories for a wide range of
purposes.
Section 2 of H.R. 3940 would add a new section before the language
above that would authorize, not require, the Secretary of the Interior
to extend assistance to American Samoa, Guam and the U.S. Virgin
Islands for grants, research, planning assistance, studies, and
agreements with Federal agencies to facilitate public education
programs regarding political status options.
The Department of the Interior has no objection to the enactment of
H.R. 3940. However, we note that any assistance provided under this
authorization would have to compete with other priority needs. We also
note that everything section 2 would authorize can be accomplished
under the language already contained in subsection (a) of of section
601 of Public Law 96-597 without the enactment of additional
legislation.
When the political status of a territory is under consideration,
education of the public regarding the options available to the people
is of utmost importance. Only an educated populace can make informed
decisions about its future. The Department of the Interior would not
object to funding political status education on two conditions:
the education on options is factual, and
all points of view receive equal opportunity for
hearing.
The Department would not award funding to extol one point of view
that unfairly excludes other points of view. The hallmark
considerations for a public education program on political status are
facts and fairness.
Thank you for the opportunity to comment on H.R. 3940. I would be
happy to answer any questions at this time.
on s. 2941
Mr. Chairman and members of the Committee on Energy and Natural
Resources, thank you for the opportunity today to discuss S. 2941, the
Republic of the Marshall Islands Supplemental Nuclear Compensation Act.
The four principal sections of S. 2941 deal with several issues
arising from the nuclear weapons testing program that the United States
conducted in the northern islands and atolls of the Marshall Islands
from June 1946 until August 1958.
Continued Monitoring on Runit Island--Section 2
If enacted, section 2 of S. 2941 would require the Department of
Energy to survey radiological conditions on Runit Island every four
years and to report the results to relevant House and Senate
committees. The partial clean-up of Enewetak Atoll conducted by the
Department of Defense in the late 1970's resulted in the creation of an
above-ground nuclear waste storage site on Runit Island capped by a
dome. Inside Runit Dome are over 110,000 cubic yards of radioactive
material scraped from other parts of Enewetak Atoll.
In 1986, the U.S. and Marshall Islands Governments fully settled
all claims, past, present and future, of the government and citizens of
the Marshall Islands which are based upon, arise out of, or are in any
way related to the U.S. nuclear weapons testing program. In particular,
Article VII of the agreement subsidiary to section 177 of the 1986
Compact of Free Association relieved the U.S. Government of all
responsibility for controlling ``the utilization of areas in the
Marshall Islands affected by the Nuclear Testing Program'' and placed
that responsibility solely with the Marshall Islands Government.
Nevertheless, radiological conditions at the Runit Island repository
have remained for many years a point of friction in the otherwise
mutually agreeable, bilateral relationship between the Marshall Islands
and U.S. Governments. Representatives of the Marshall Islands
Government have raised questions regarding Runit Island including:
the safety of land, water and marine life;
the radiological condition of the northern part of
the island; and
the structural integrity of the dome.
For many years the Department of Energy has performed environmental
measurements at Bikini, Enewetak, Rongelap and Utrik Atolls, including,
upon request, periodic environmental sampling around Enewetak Atoll's
Runit Dome. The atoll communities set their own environmental goals and
conduct all remedial actions. The Department of Energy takes
environmental measurements before and after remedial actions to see if
the actions have achieved their goals. In addition, the Department of
Energy offers suggestions for remedial actions at the request of the
Marshall Islands Government, to aid atoll communities' resettlement
decisions.
Clarification of Eligibility under EEOICPA--Section 3
Section 3 deals with the eligibility of the people of the former
Trust Territory of the Pacific Islands for the Energy Employees
Occupational Illness Compensation Program Act (EEOICPA). In the 1950's
the U.S. Government hired U.S. citizens and people of the Trust
Territory to clean up ground-zero locations on Bikini and Enewetak
Atolls and to collect soil and other materials from contaminated areas
in the Marshall Islands. Trust Territory inhabitants received certain
benefits, e.g. consular, from the United States Government as
administering authority, but they were not U.S. citizens. These
individuals cannot currently receive EEOICPA benefits.
Section 3 is intended to place the former non-U.S. citizen Trust
Territory workers on an equal footing with U.S. citizen workers.
Regarding section 3 of this bill, the Department of the Interior
defers to the Department of Labor, which, since it has primary
responsibility for administering EEOICPA, is the Federal agency best
positioned to discuss this compensation program and provide technical
assistance concerning the language of section 3.
Four Atoll Health Care Program--Section 4
If enacted, section 4 of the bill would appropriate funds for the
Four Atoll Health Care Program. The Congress established the Four Atoll
Health Care Program in the early 1970's to provide health care for
certain members of the Enewetak, Bikini, Rongelap, and Utrik Atoll
communities. When the original Compact of Free Association came into
force in 1986, the Four Atoll Program was funded for fifteen years
under the agreement subsidiary to section 177 of the Compact. This
funding ended in 2001 in accordance with the terms of that agreement.
In January 2005, the Department of State transmitted to Congress the
Executive Branch's evaluation of the Marshall Islands Government's
changed circumstances petition under Article IX of the agreement
subsidiary to Compact section 177. The Marshall Islands request
included, among other things, an enhanced primary, secondary and
tertiary health care system to serve all Marshall Islanders for fifty
years. The Executive Branch's report concluded that there was no legal
basis for considering additional payments.
Nonetheless, in each fiscal year beginning with 2005, the Congress
has added a little less than $1,000,000 in appropriations for the Four
Atoll Program. Section 4 of this bill would create a permanent
appropriation for the program for fiscal years 2012 through 2028.
Additionally, it would fund the program annually at $2,000,000, as
adjusted for inflation.
The Administration does not support a permanent annual
appropriation of $2,000,000 for this program. As noted previously, the
Executive Branch determined in 2005 that there was no legal basis for
considering additional payments under the agreement subsidiary to
section 177 of the Compact. Furthermore, the U.S. Government is
spending over $1,500,000,000 in direct assistance and trust fund
contributions for the Marshall Islands through fiscal year 2023. Also,
the Marshall Islands Government, equally with U.S. State and insular
governments, remains eligible for a number of categorical and
competitive public health grant programs administered by the Department
of Health and Human Services under section 105(f)(1)(D) of the Compact
of Free Association Amendments Act of 2003 (48 U.S.C. 1921d(f)(1)(D)),
should the Marshall Islands wish to apply.
Assessment of Health Care Needs of the Marshall Islands--Section 5
If enacted, section 5 of S. 2941 would mandate that the Secretary
of the Interior commission an assessment and report by the National
Academy of Sciences of the health impact of the U.S. nuclear weapons
testing program in the northern islands and atolls of the Marshall
Islands from June 1946 until August 1958.
The Administration believes that this assessment is not necessary.
In January 2005, the Department of State submitted the results of the
Executive Branch's evaluation that comprehensively and methodically
reviewed existing scientific studies of the impact of the U.S. nuclear
weapons testing program in the Marshall Islands. This evaluation
highlighted that previous studies had adequately answered questions
about the impact of the nuclear weapons testing program as those
questions related to additional claims for compensation.
The Administration does not support the commissioning of additional
studies at this time.
Mr. Chairman, we understand that the Committee is contemplating
amendments to the legislation. The Administration would be happy to
work with the Committee on any appropriate changes.
The Chairman. Thank you all very much for your testimony.
Let me just ask a few questions. First, let me ask Ms.
Christensen, your suggestion is that we urge that the
Constitutional Convention reconvene for the purpose of
considering issues that have been raised by the President and
by the Department of Justice, and that there would be some
funding required if the convention did reconvene and pursue
this. What--what are you suggesting is the right amount of
necessary funding, what would it be required for?
Ms. Christensen. I can't tell you at this point what the
correct funding would be. We've asked the convention to prepare
a budget that we could consider. I've also had some discussions
with the Department of the Interior, the Assistant Secretary
for Insular Affairs. On this--perhaps the President might have
a better sense of what the cost might be, but I have not
received a budget or--or an approximate cost.
The Chairman. Did you have a comment, Mr. James?
Mr. James. I certainly do, Mr. Chairman. It will be
approximately $600,268.15.
The Chairman. That's a good approximation. All right, and
you have some documentation as to how that figure was arrived
at that you could present?
Mr. James. Yes, I can provide that to you, Mr. Chairman,
that can be provided.
The Chairman. That would be useful.
The Chairman. Delegate Christensen, you also recommended
that, if the convention reconvenes and considers these points
that the Department of Justice and the President have made,
that then the convention's resulting document should be
presented to the people of the Virgin Islands directly, and not
come back to Congress. Are you not concerned with the
possibility that the convention would choose not to address the
issues or would find--and we would wind up in years of court
proceedings?
Ms. Christensen. I'm convinced that the 30 individuals who
are elected by the people of the territory to be delegates to
the Constitution convention have a commitment to seeing a
document that can be adopted by the people of the Virgin
Islands, sent to the people of the Virgin Islands. I think the
concerns that have been raised and the issues that have been
raised by the President and the Justice Department will be
taken into complete consideration. I do recognize that in
many--in some cases the governmental--the governmental intent
or the rationale has not been made clear perhaps. I think it
can be made clearer, but I do think that as this is returned to
the territory with the Department of Justice and the White
House having pointed out the inconsistencies with the U.S.
Constitution and the Organic Act, recognizing the authorizing
legislation requires that the constitution be consistent with
the Constitution of the United States and the Organic Act. Also
recognizing the concerns of the people of the territory, also
regarding some of those issues that the constitution will--
convention when it convened will ensure that this is a document
that has the support of, and the consensus of the territory.
The Chairman. Mr. James, do you have--could you give us
your perspective as to how the convention would feel about
making revisions in this document, on the issues that have been
raised by the Department of Justice and the President?
Mr. James. If it's the wish of this body, we will have to
go forward, but I would like to just put on the record that the
members of the delegates are former judges, Governors,
lieutenant Governors, they also are individuals who are
teachers, professors, and it will be their wish once they come
to consensus. That's following the lead of the delegate. We'd
like to have that done and that returned back. We did have a
problem getting the bill here, in terms of its process, and we
don't want to have that happen again.
The Chairman. Let me ask either one of you, I guess
particularly, Mr. James, here. If there were a consensus here
in the committee and in the Congress that this suggestion of
delegate Christensen should be taken up and we should urge the
reconvening of the convention, could it--could that be done
through something less formal than an actual Resolution passed
by Congress? Could it be done through a, perhaps letters from
the Chairman and Ranking Members of the committees of
jurisdiction and the delegates to the convention, is that--
would that be an adequate way to proceed?
Mr. James. I would rather see it more formal, as a
resolution.
The Chairman. All right.
Mr. James. Then a letter.
The Chairman. OK.
Ms. Christensen. Mr. Chairman, I'm not sure that it can be
done without a formal resolution, given the authorizing--the
way the authorizing legislation was written.
The Chairman. OK.
Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
Let me start with you, Mr. Pula. Since the Administration
has said that they don't support the continued for the Four
Atoll Healthcare Program, are there any aspects of the Compact
funding that are or could be used to assist in providing for
the healthcare programs and the environmental monitoring in the
Four Atolls, and potentially for the additional 6 that have
been identified by the National Cancer Institute?
Mr. Pula. Thank you for the question. With compact funding,
it has been slated for six sectors, health, education,
infrastructure, and environmental, and also, I think capacity
building, public capacity building. That--most of the funding
goes into those sectors. If there's any funding that could be
discussed with the joint economic committees that deal with the
annual budget of both--in particular of Marshall Islands here,
that is something that could be subject to discussion, but
it's--I can say it's pretty tight, the way the money is now
being spent and appropriated on an annual basis.
Senator Murkowski. Let me ask you then, Minister Silk, what
capacity does the RMI government have to submit these
competitive grant applications for--as Mr. Pula has said--the
public health programs? What level of Compact funding has been
used to develop the capacity?
Mr. Silk. Senator, the current Compact funding is all
geared toward the whole Republic of the Marshall Islands. There
is no specific funding specifically geared toward the health of
the--of the people who were effected by the nuclear testing
program. I'm very, let me say this, that I'm very disappointed
by the response from the Administration. Three years ago, we
had this same hearing with this committee, Senator, and at that
time a testimony was given by, then Minister Felipo, in which
he stated, and I quote, that he was ``profoundly disappointed''
by the Administration's position.
Now, let me repeat that again, and I'm saying that on
behalf of the government, let me say that I'm deeply and
profoundly disappointed and saddened--let me add that--that
the--of the continued denial of the consequences of the nuclear
testing program, continues until today. Thank you, Senator.
Senator Murkowski. With regard to the monitoring that you
had mentioned on Runit, you had--I think you had indicated that
we need to institutionalize this within the U.S. Government.
Should this fall under the existing Department of Energy
monitoring or do we place in a new program? Have you given any
thought to that, in terms of where the monitoring is?
Mr. Silk. I think it should continue with the Department of
Energy, but that there should be continued oversight by the
Congress.
Senator Murkowski. OK.
Mr. Silk. Thank you.
Senator Murkowski. Then one last question for you Minister,
you had noted that the conditions that physicians in the outer
atolls live and work under are less than ideal. You've had
some--some luck, I guess, in attracting and recruiting
physicians from third-world countries that have the necessary
experience. What's the level of interaction, if there is any
interaction, between those physicians that you're able to bring
to the Marshall Islands and their involvement with the
Department of Energy's Marshall Islands' programs? Do we need
to be doing more to coordinate the efforts to allow for greater
effectiveness of the Four Atoll Healthcare Program?
Mr. Silk. Yes, indeed we should and could. I think that is
something that we would have to work on in order to improve
coordination between the--and also within the Ministry of
Health of the Government of the Republic of the Marshall
Islands, and the Department of Energy as well, the Department
of the Interior. Thank you.
Senator Murkowski. Thank you.
Mr. Chairman, I don't have any further questions this
morning.
The Chairman. All right. Let me just ask one additional
question. Mr. Pula, you say on page 4, that the Administration
does not support a permanent annual appropriation of $2 million
for the Four Atoll Healthcare Program, because, ``The executive
branch determined in 2005 that there was no legal basis for
considering additional payments under the agreement subsidiary
to section 177 of the Compact.'' In reaching this decision, did
the Administration consider the findings of the 2005 study of
the National Cancer Institute or this year's annual report of
the President's Cancer Panel? If those were not considered,
would you be willing to recommend that the Administration
reconsider its position in light of those reports?
Mr. Pula. Thank you, Mr. Chairman. I have just learned that
myself, regarding the Panel's decision recently. As I stated in
my testimony that the Administration would be happy to work
with the committee on appropriate changes regarding this.
The Chairman. Thank you very much. I thank all witnesses
for your excellent testimony. We have a good record and we will
try to figure out the right way to proceed on each of these
bills and initiatives and move ahead. But thank you all for
being here.
Mr. Cedarbaum. Mr. Chairman.
The Chairman. Yes.
Mr. Cedarbaum. Could I comment on that question?
The Chairman. Certainly, certainly you can. Go right ahead.
Mr. Cedarbaum. Thank you, Mr. Chairman. Mr. Chairman, we
don't agree with that position that there is no legal basis,
however, the Congress has that authority as--the Congress
could--enact to improve on the health of the Four Atolls and
the rest of the Marshall Islands as a consequence of the
nuclear testing, but we don't agree with that assessment that
there is no legal basis. Thank you.
The Chairman. Thank you very much.
Thank you all again for your testimony, and that will
conclude our hearing.
[Whereupon, at 11:56 a.m., the committee was adjourned.]
The following documents have been retained in committee
files:
The Compact of Permanent Union Between Puerto Rico
and the United States, submitted by Ferrer.
An Overview of the Special Tax Rules Related to
Puerto Rico and an Analysis of the Tax and Economic
Policy Implications of Recent Legislative Options,
submitted by Ferrer.
H.R. 2497 from the Puerto Rican House of
Representatives, submitted by Ferrer.
A Letter from the Obama Campaign, submitted by
Ferrer.
The PNP Platform, submitted by Ferrer.
S.B. 1407, submitted by Ferrer.
The PDP Resolution, submitted by Fortuno.
The Political Education and Training Manual of the
PDP, submitted by Fortuno.
APPENDIXES
----------
Appendix I
Responses to Additional Questions
----------
Responses of Hon. Luis G. Fortuno to Questions From Senator Murkowski
Question 1. Among the status options put forward by the
Presidential Task Force is that of Free Association, which is not
represented on the panel this morning. How would you define the Free
Association option?
Answer. The defining element of free association in international
law is that the parties be sovereign nations that remain sovereign.
Because they are sovereign, the corollary essential aspect of the
status is that the association is terminable by either nation, that is,
``free.''
Obviously, Puerto Rico is not now in free association with the
United States--as claimed by some representatives of the
``Commonwealth'' party--because Puerto Rico is clearly not a sovereign
nation that remains sovereign. Additionally, under U.S. law, Puerto
Rico does not have a right to withdraw from its U.S. relationship.
Congress would have to act to change Puerto Rico's status.
An important aspect of free association is that, under such a
status, individuals born in Puerto Rico would be citizens of Puerto
Rico and not the United States. U.S. citizens alive at the time of the
start of free association would also have to choose between retaining
their U.S. citizenship and acquiring citizenship in the new nation.
This is consistent with U.S. citizenship policy, which requires primary
loyalty to the U.S.
Other likely aspects of a free association between the U.S. and
Puerto Rico based on the precedents, current law, and positions of the
Clinton and George W. Bush Administrations would include: some greater
access to the U.S. for citizens of the freely associated state in
comparison to that of citizens of purely independent nations; U.S. laws
not applying; U.S. courts not having any jurisdiction; the continuation
of some U.S. domestic programs and services but far from all current
ones; U.S. military rights; Puerto Rican foreign policy, subject to a
U.S. security veto; U.S. taxation of Puerto Rican income of U.S.
citizens, with an exclusion for a basic amount and credit for Puerto
Rican income taxes.
Question 2. Do you believe the four options put forward by the
Presidential Task Force and in the House bill are the only legitimate
and viable options for Puerto Rico's political status?
Answer. The four options--the current status (unincorporated
territory), independence, nationhood in a free association with the
U.S., and U.S. statehood are the only real options and the only real
options with support in Puerto Rico. Theoretically, Puerto Rico could
freely associate with another nation, such as Spain or the Dominican
Republic, or become part of another nation, such as those nations, but
there is no known support for such options.
The proposal of the ``Commonwealth'' party for an association
between the U.S. and Puerto Rico that the U.S. could not change without
Puerto Rico's consent that would empower Puerto Rico to nullify federal
laws and federal court jurisdiction on most matters and enter into
international agreements and organizations that do not compromise U.S.
security, replace repealed tax incentives for companies in the States
to locate plants in Puerto Rico, provide a new subsidy for the insular
government, continue all programs providing assistance to Puerto Ricans
and grant U.S. citizenship to individuals born in Puerto Rico forever
is not a possible arrangement. It is an incompatible combination of
aspects of different statuses that is contrary to the Constitution and
basic laws and policies of the U.S., as has been explained by the
Justice and State Departments and the Clinton and George W. Bush White
Houses, the Congressional Research Service, the House committee with
jurisdiction over territories matters, and bipartisan leaders of your
committee.
______
Response of Gerald Luz Amwur James, II, to Question From Senator
Murkowski
Question 1. If the Constitutional Convention were to reconvene and
revise the proposed constitution, how would that impact the timing of a
vote by the people and voter participation?
Answer. Thank you for the your concern on behalf of the people of
the Virgin Islands. The people will have the opportunity to vote in the
November general election or in a subsequent special election called
for voting on the constitution. Originally, the Convention was of the
belief that the vote would be by special election. If the constitution
was were returned today, I seriously question the ability of the
Convention and Territory the Virgin Islands Election System to be ready
adequately prepared for a vote in the November general election. It is
the Convention's plan to have a comprehensive education program before
a call to a vote.
______
Responses of Ruben Angel Berrios Martinez to Questions From Senator
Murkowski
Question 1. Among the status options put forward by the
Presidential Task Force is that of Free Association, which is not
represented on the panel this morning. How would you define the Free
Association option?
Answer. This option is defined by International Law in ``Principle
VII'' of the United Nations General Assembly Resolution 1541 (XV)
(1960) as follows:
http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/153/15/IMG/
NR015315.pdf?OpenElement
principle vii
(a) Free association should be the result of a free and
voluntary choice by the peoples of the territory concerned
expressed through informed and dmocratic processes. It should
be one which respects the individuality and the cultural
characteristics of the territory and its peoples, and retains
for the peoples of the territory which is associated with an
independent State the freedom to modify the status of that
territory through the expression of their will be democratic
means and through constitutional processes.
(b) The associated territory should have the right to
determine its internal constitution without outside
interference, in accordance with due constitutional processes
and the freely expressed wishes of the people. This does not
preclude consultations as appropriate or necessary under the
terms of the free association agreed upon.
Evidently, the terms of the association would need to be worked out
between the United States and a sovereign Puerto Rico, after
constitutional disposition of the territory.
Question 2. Do you believe the four options put forward by the
Presidential Task Force and in the House bill are the only legitimate
and viable options for Puerto Rico's political status?
Answer. I wish to reiterate that current territorial status is
illegitimate in the XXI century under international law, as are
apartheid, slavery, or child-labor laws. The present status--or any
form of territorial status--is colonial and therefore immoral and anti-
democratic because Puerto Rico continues to be governed by federal laws
it does not make, under a foreign constitution of a nation to which it
belongs, but of which it is not a part. [See The Insular Cases, several
U.S. Supreme Court cases decided early in the XX century, most of which
deal with Puerto Rico's status as an unincorporated territory.'']
Puerto Rico is a Spanish-speaking, Latin American nation of the
Caribbean -and was, even before the U.S. acquired it by conquest in
1898. Hence, it is not an independent territory. The only rational-and
legal-alternative to colonialism under international law is
independence.
In 1960, the United Nations General Assembly adopted Resolution
1514 (XV). Paragraph 5 of its dispositive part states that:
5. Immediate steps shall be taken, in Trust and Non-Self-
Governing Territories or all other territories which have not
yet attained independence, to transfer all powers to the
peoples of those territories, without any conditions or
reservations, in accordance with their freely expressed will
and desire, without any distinction as to race, creed or
colour, in order to enable them to enjoy complete independence
and freedom.
http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/152/88/IMG/
NR015288.pdf?OpenElement
Since then, this Resolution has been recognized as stating the
international legal standard for decolonization. [See, the
International Court of Justice decision in Western Sahara (1975)
I.C.J., among other sources of International Law.]
The right to self-determination and independence has also become
part of customary international law. The U.S. Supreme Court has
recognized international law as part of U.S. law. [See, The Paquete
Habana, 175 U.S. 677 (1900).] Furthermore, since the United States is a
signatory of the U.N. Charter, perhaps the most important multilateral
treaty adopted by your country, self-determination, as the norm has
developed under international law, is also treaty law and as such,
under your constitution, the Supreme Law of the Land.
Resolution 1514 (XV) is complemented in some aspects by Resolution
1541 (XV), to which reference has been made in the preceding question
regarding ``free association.'' This Resolution also recognizes that
``integration,'' which might loosely be compared to U.S. federated
statehood might, like ``free association,'' be regarded as a way out of
colonialism. However, as long as Puerto Rico retains its distinct
identity and culture, under International and Human Rights Law, it will
continue to have an inalienable right to self-determination and
independence. If the U.S. were to contemplate ``statehood'' for Puerto
Rico, it should bear in mind that, in Puerto Rico's case, this would
entail federated statehood with a right to secession.
''Statehood,'' currently favored by an increasing number of Puerto
Ricans, is not generally a choice of loyalty to the United States, so
much as a forced choice of colonial dependence. In the absence of
sovereign powers to integrate into the global economy under the most
beneficial terms to us as a developing country, economic dependence
would increase under statehood. This means growing dependence on
federal transfer payments to what would become the poorest state of the
Union, with a congressional delegation considerably larger than that of
your state of Alaska--indeed, larger than that of most states.
Puerto Rico's right to secede as a federated state makes it a
different case from the other 50 states. These became integrated after
a sufficient number of mainland Americans had settled in each territory
and any ``native'' population (such as in Alaska, Hawaii, or Native
Americans elsewhere) became a subdued minority.
As historical circumstances change, so can Puerto Rico's national
sentiment. Statehood, therefore, would not be a good choice for us
Puerto Ricans, or for you, Americans.
The Puerto Rican Independence Party does not favor free association
because there is nothing we could achieve under this status that could
not be achieved by national sovereignty in independence through a
Treaty of Friendship and cooperation, including free transit and free
trade under mutually convenient terms with the United States, or any
other free nation. Independence frees Puerto Rico to multiply sources
of investment and job creation, while protecting Puerto Rico's and the
United States' right of self-determination and territorial integrity.
I shall be happy to respond to any additional questions you may
wish to pose.
______
Response of Jonathan G. Cedarbaum to Question From Senator Murkowski
Question 1. In Mr. James' testimony, he refers to the Act of
Congress that extended U.S. citizenship to USVI natives as establishing
the date to differentiate between an ancestral native Virgin Islander
and a native Virgin Islander. Do you agree with his assessment that the
Act differentiated between the people of the Virgin Islands and
conferred different legal status upon them?
Answer. The proposed constitution for the United States Virgin
Islands (``USVI'') would exempt from real property taxation the
``primary residence or undeveloped land of an Ancestral Native Virgin
Islander,'' a term defined to refer to, among others, individuals born
or domiciled in the USVI on or before June 28, 1932 and not a citizen
of a foreign country or descended from such individuals. See Proposed
Const. art. 111, sec. 1; art. XI, sec. 5(g). In addition, the proposed
constitution would limit certain offices and the right to vote in
certain elections to Ancestral Native Virgin Islanders and ``Native
Virgin Islanders,'' a term defined to refer to individuals born in the
USVI after June 28, 1932 or descended from such individuals; and the
proposed constitution would also specially guarantee the right to
participate in certain elections to members of these two groups. See
Proposed Const. art. 111, sec. 1; art. VI, sec. 3(d); art. XVII, secs.
1(b), 2; art. XVIII, sec. 7.
June 28, 1932 was the date of enactment of an Act of Congress
extending United States citizenship to ``[a]ll natives of the Virgin
Islands of the United States who, on the date of enactment of this
[provision], are residing in [the] continental United States, the
Virgin Islands of the United States, Puerto Rico, the Canal Zone, or
any other insular possession or Territory of the United States, who are
not citizens or subjects of any foreign country, regardless of their
place of residence on January 17, 1917.'' Act of June 28, 1932, sec. 5,
47 Stat. 336 (now codified at 8 U.S.C. 1406(a)(4) (2006)). In a prior
statute enacted on February 25, 1927, Congress had granted United
States citizenship to all persons born in the USVI after January 17,
1917 (the date when the United States formally acquired the USVI, see
Convention Between the United States and Denmark for Cession of the
Danish West Indies, 39 Stat. 1706 (1916)) and subject to the
jurisdiction of the United States, as well as to certain other
categories of USVI natives and residents who were not then citizens or
subjects of any foreign state--specifically, former Danish citizens who
had resided in the USVI on January 17, 1917 and resided in the United
States, Puerto Rico, or the USVI on February 25, 1927; natives of the
USVI who resided in the USVI on January 17, 1917 and resided in the
United States, Puerto Rico, or the USV1 on February 25, 1927; and
natives of the USVI who resided in the United States on January 17,
1917 and resided in the USVI on February 25, 1927. Act of February 25,
1927, secs. 1, 3, 44 Stat. 1234, 1234-35 (now codified at 8 U.S.C.
1406(a)(1)-(3), (b)).
The Act of June 28, 1932 thus built upon prior legislation that had
already conferred United States citizenship on broad categories of USVI
natives and residents, including all individuals born in the USVI after
the United States acquired the Islands, by extending citizenship to yet
another category--USVI natives who resided in the United States or any
United States territory when this legislation was enacted. We do not
see how the date of enactment of this citizenship statute provides a
rational basis for conferring a tax exemption and other advantages on
individuals born in the USVI on or before that date or descended from
such individuals. Thus, for the reasons explained in the Department's
memorandum of February 23, 2010 and in the May 19, 2010 testimony of
Deputy Assistant Attorney General Jonathan G. Cedarbaum, we believe
that the benefits conferred on Ancestral Native Virgin Islanders and
Native Virgin Islanders by the proposed constitution would likely be
subject to challenge under the equal protection guarantee of the United
States Constitution, which has been made applicable to the USVI by the
Revised Organic Act.
______
Response of Hon. Donna M. Christensen to Question From Senator
Murkowski
Question 1. If the Constitutional Convention were to reconvene and
revise the proposed constitution, how would that impact the timing of a
vote by the people and voter participation?
Answer. Thank you for your question. I believe that it is the will
of the Convention Delegates to have the proposed constitution on the
ballot by this November, and I have been advised by the Virgin Islands
Supervisor of Elections that as long as they receive it by October 15,
this can be achieved. However, since it will be up to the Convention,
if and when to proceed and how long to deliberate, it is difficult to
determine if they would indeed by ready for this year.
______
Responses of Hector J. Ferrer Rios to Questions From Senator Bingaman
Question 1. Does the document ``Development of the Commonwealth,''
approved by the Governing Board of the Popular Democratic party on
October 15, 1998, continue to represent the position of the Party
regarding enhancements to the current PR-US relationship?
If not, would you please provide the Committee with the Party's
platform including its proposed enhancements to the current
relationship.
Answer. Since 1998 the Popular Democratic Party has approved a
number of platforms and resolutions that in a way or another address
the political status issue. The current platform, as I mentioned during
the May 19th hearing, states:
We support the autonomous development of the Commonwealth
based on the principles of shared sovereignty, association and
responsibilities with the Unites States. Sovereignty means that
the ultimate power of a Nation to handle its affairs rests with
the people. To address the status issue we must begin by
recognizing that sovereignty rests with the people. The concept
of sovereign Commonwealth seeks to have the Puerto Rican and US
governments agree on specific terms defining this mutual
relationship, with the American citizenship as the binding
element of our political association.''
The use of the term ``sovereign Commonwealth'' in that platform,
however, has been the subject of a great deal of distortion by
Commonwealth detractors, some even trying to equate it with the concept
of free association. That interpretation was expressly and flatly
rejected by the party's Governing Board this past January, 2010.
The juridical notion of the ``shared sovereignty'' nature of
Commonwealth was recognized by the U.S. Supreme Court in Rodr!guez v.
PDP, 457 U.S. 1, 8 (1982) when it stated: ``Puerto Rico, like a state,
is an autonomous political entity, `sovereign over matters not ruled by
the Constitution.''' A broader statement defining the Commonwealth's
relationship with the federal government was provided by the First
Circuit Court of Appeals in Cordova-Simponprieti v. Chase Manhattan
Bank, 649 F.2d 36 (1st Cir. 1981):
[In 1952] Puerto Rico's status changed from that of a mere
territory to the unique status of Commonwealth. And the federal
government's relations with Puerto Rico changed from being
bounded merely by the territorial clause, and the rights of the
people of Puerto Rico as United States citizens, to being
bounded by the United States and Puerto Rico Constitutions,
Public Law 600, the Puerto Rican Federal Relations Act and the
rights of the people of Puerto Rico as United States citizens.
The party's 2008 platform is consistent with the case law.
The 1998 Resolution you allude to was written in order to contain a
number of aspirations intended to be negotiated with the United States
in the event the people of Puerto Rico and the United States decide to
deal, in a serious and fair way, with the P.R.--U.S. political
relationship. There is no specific document or resolution overruling
it. This document too has been the subject of distortion by
Commonwealth opponents. If there is a particular question regarding a
specific matter covered in that Resolution, I will gladly provide you
with a detailed answer on that point. The Popular Democratic Party
understands that enhancing the Commonwealth status requires a process
of dialogue and negotiation with the federal government, and, thus, its
adopted resolutions on this matter may constitute aspirations at a
given point in time.
In the past there have been several serious efforts between the
U.S. and Puerto Rico to enhance the current Commonwealth status. In
October,1975, an Ad Hoc Advisory Group on Puerto Rico appointed by
President Nixon and Governor Hern ndez Col"n presented a ``Compact of
Permanent Union Between Puerto Rico and the United States.'' A copy is
attached. The proposed compact was the result of a process of studies,
inquiries, public hearings, reports and discussions over a two year
span. The group concluded that: ``in order to further develop
Commonwealth towards the maximum of self-government and self
determination within the framework of Commonwealth, as well as to
provide guidelines concerning which statutory laws and administrative
regulations of the United States should apply in Puerto Rico, a new
compact of permanent union should be adopted to replace the Puerto
Rican Federal Relations Act, section 4, Public Law 600, 1950.'' The
Popular Democratic Party is open to that approach.
During the 101th Congress, the House of Representatives unanimously
passed a bill calling for a plebiscite on status. The House Report
included the following definition of a ``New Commonwealth'':
A NEW COMMONWEALTH RELATIONSHIP.--(A) The new Commonwealth of
Puerto Rico would be joined in a union with the United States
that would be permanent and the relationship could only be
altered by mutual consent. Under a compact, the Commonwealth
would be an autonomous body politic with its own character and
culture, not incorporated into the United States, and sovereign
over matters governed by the Constitution of Puerto Rico,
consistent with the Constitution of the United States.
(B) The United States citizenship of persons born in Puerto
Rico would be guaranteed and secured as provided by the Fifth
Amendment of the Constitution of the United States and equal to
that of citizens born in the several States. The individual
rights, privileges, and immunities provided for by the
Constitution of the United States would apply to residents of
Puerto Rico. Residents of Puerto Rico would be entitled to
receive benefits under Federal social programs equally with
residents of the several States contingent on equitable
contributions from Puerto Rico as provided by law.
(C) To enable Puerto Rico to govern matters necessary to its
economic, social, and cultural development under its
constitution, the Commonwealth would be authorized to submit
proposals for the entry of Puerto Rico into international
agreements or the exemption of Puerto Rico from specific
Federal laws or provisions thereof to the United States. The
President and the Congress, as appropriate, would consider
whether such proposals would be consistent with the vital
national interests of the United States on an expedited basis
through special procedures to be provided by law. The
Commonwealth would assume any expenses related to increased
responsibilities resulting from the approval of these
proposals.
The Popular Democratic Party is also open to discuss this
alternative or any other.
The above examples demonstrate that this is a matter of political
will. As Felix Frankfurter put it in 1914: ``The form of the
relationship between the United States and [an] unincorporated
territory is solely a problem of statesmanship. History suggests a
great diversity of relationships between a central government and [a]
dependent territory. The present day shows a great variety in actual
operation. One of the great demands upon creative statesmanship is to
help evolve new kinds of relationship[s] so as to combine the
advantages of local self-government with those of a confederated union.
Luckily, our Constitution has left this field of invention open . . .
'' The outright rejection, without discussion, without a study, without
any kind of serious process, of the possibility of improvements to the
Commonwealth status has always been the result of a bias.
Question 2. In January, 2001 the U.S. Department of Justice
responded to this Committee's request for an analysis of the status
options favored by the three principal political parties in Puerto
Rico. Its analysis of Enhanced Commonwealth begins with the premise
that ``All territory within the jurisdiction of the United States not
included in any state must necessarily be governed by or under the
authority of the Congress.'' Do you agree with this premise, and if not
why not?
Answer. The actual first premise in the Justice Department's 2001
response was ``that the Constitution recognizes only a limited number
of options for governance of an area.'' We do not agree with that
premise. Instead we agree with Felix Frankfurter's 1914 statement to
the effect that:
The form of the relationship between the United States and
[an] unincorporated territory is solely a problem of
statesmanship. History suggests a great diversity of
relationships between a central government and [a] dependent
territory. The present day shows a great variety in actual
operation. One of the great demands upon creative statesmanship
is to help evolve new kinds of relationship[s] so as to combine
the advantages of local self-government with those of a
confederated union. Luckily, our Constitution has left this
field of invention open . . .
The statement that ``All territory within the jurisdiction of the
United States not included in any state must necessarily be governed by
or under the authority of the Congress'' is taken from the Supreme
Court case of Bank v. Country of Yankton, 101 U.S. 129. 133 (1879) and
reflects the state of constitutional thought in the mid to late
nineteenth century. As of that date, the United States solely acquired
territories with the intention of eventual statehood. Since then,
however, the United States has acquired territories not intended for
statehood, the Commonwealth of Puerto Rico was created and later the
Commonwealth of the Northern Marianas. There have been developments in
this area of constitutional law that Congress cannot ignore.
In the specific case of Puerto Rico and its Commonwealth status,
Country of Yankton must be read as substantially qualified by
subsequent Supreme Court case law on this matter. The Court in Calero
Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), describes the
fundamental changes that occurred with the creation of Puerto Rico's
Commonwealth status in 1952:
Following the Spanish-American War, Puerto Rico was ceded to
this country in the Treaty of Paris, 30 Stat. 1754 (1898). A
brief interlude of military control was followed by
congressional enactment of a series of Organic Acts for the
government of the island. Initially these enactments
established a local governmental structure with high officials
appointed by the President. These Acts also retained veto power
in the President and Congress over local legislation.
The creation of the Commonwealth, as the Court suggests by voice of
Justice Brennan, followed a materially different procedure,
By 1950, however, pressures for greater autonomy led to
congressional enactment of Pub. L. 600, 64 Stat. 319, which
offered the people of Puerto Rico a compact whereby they might
establish a government under their own constitution. Puerto
Rico accepted the compact, and on July 3, 1952 Congress
approved, with minor amendments, a constitution adopted by the
Puerto Rican populace [ . . . ] Pursuant to that constitution
the Commonwealth now ``elects its Governor and legislature;
appoints its judges, all cabinet officials, and lesser
officials in the executive branch; sets its own educational
policies; determines its own budget; and amends its own civil
and criminal code'' (citing Leibowitz, The Applicability of
Federal Law to the Commonwealth of Puerto Rico, 56 GEO. L. J.
219, 221 (1967).
The Calero Toledo Court recognized that the Commonwealth's creation
effected ``significant changes in Puerto Rico's governmental
structure.'' It then quoted at length, and with approval, from Chief
Judge Magruder's observations in Mora v. Mejias, 206 F.2d 377 (1st Cir.
1953) that:
Puerto Rico has thus not become a State in the federal Union
like the 48 States, but it would seem to have become a State
within a common and accepted meaning of the word . . . . It is
a political entity created by the act and with the consent of
the people of Puerto Rico and joined in union with the United
States of America under the terms of the compact.
Two years later, in Examining Board v. Flores de Otero, 426 U.S.
572 (1976), the Court found that ``the purpose of Congress in the 1950
and 1952 legislation was to accord to Puerto Rico the degree of
autonomy and independence normally associated with States of the Union
[ . . . ].'' The Court reasoned, moreover, that through the
establishment of the Commonwealth, ``Congress relinquished its control
over the organization of the local affairs of the island and granted
Puerto Rico a measure of autonomy comparable to that possessed by the
States.''
The 2001 Department of Justice response is seriously incomplete in
that it fails to recognize the implications of that last statement by
the Supreme Court. In Yankton, the Court had stated that territories
``must necessarily be governed by or under the authority of the
Congress'', but the Court is saying in Flores de Otero that as to
Puerto Rico, Congress ``relinquished its control over the organization
of the local affairs.'' The Supreme Court did not say ``delegated'', or
``authorized''. Its choice of words was ``relinquished''.
That concept of ``relinquishment'' appears earlier in a Memorandum
Re: Micronesian Negotiations (Office of Legal Counsel, Aug. 18, 1971),
then Assistant Attorney General William H. Rehnquist recognized that:
[T]he Constitution does not inflexibly determine the
incidents of territorial status, i.e., that Congress must
necessarily have the unlimited and plenary power to legislate
over it. Rather, Congress can gradually relinquish those powers
and give what was once a Territory an ever-increasing measure
of self-government. Such legislation could create vested rights
of a political nature, hence it would bind future Congresses
and cannot be ``taken backward'' unless by mutual agreement.
No analysis of the Commonwealth status can ignore those cases and
the statements that appear therein.
The position of the Popular Democratic Party on this matter is
clear and simple: the Commonwealth of Puerto Rico is not the result of
an organic act, it arose from a process wherein Congress offered the
people of Puerto Rico a compact and the people accepted the compact.
Calero Toledo. In that process Congress relinquished its control over
the organization of the local affairs of Puerto Rico. Flores de Otero.
Puerto Rico, like a state, is an autonomous political entity, sovereign
over matters not ruled by the Constitution. Rodriguez v PDP. Therefore,
[In 1952] Puerto Rico's status changed from that of a mere
territory to the unique status of Commonwealth. And the federal
government's relations with Puerto Rico changed from being
bounded merely by the territorial clause, and the rights of the
people of Puerto Rico as United States citizens, to being
bounded by the United States and Puerto Rico Constitutions,
Public Law 600, the Puerto Rican Federal Relations Act and the
rights of the people of Puerto Rico as United States citizens.
Cordova Simonprieti v. Chase Manhattan Bank.
Our opinion is shared by many renowned legal scholars. In his 2002
book, Semblances of Sovereignty, Dean Alexander Aleinikoff from the
University of Georgetown Law School devoted an entire chapter to the
Commonwealth of Puerto Rico\1\. In reference to a 1991 testimony from
Attorney General Richard Thornburgh before the U.S. Senate stating that
the ``enhanced commonwealth'' status proposed was unconstitutional, he
wrote:
---------------------------------------------------------------------------
\1\ Aleinikoff, Alexander, SEMBLANCES OF SOVEREIGNTY, Chapter 4,
Harvard University Press (2002).
The Attorney General's reasoning seems to be this: the United
States Constitution knows only the mutually exclusive
categories of ``State'' and ``Territory.'' States are full and
equal members of the Union, but territories are subject to
plenary federal power. Such plenary power may be surrendered
only by moving outside the territory clause by granting
statehood or independence. To recognize congressional power to
create new categories--such as ``enhanced
commonwealth''.violates the structure of the Constitution and
---------------------------------------------------------------------------
potentially weakens the position of the states . . .
Rejecting that approach and making an implicit challenge to
Congress, Dean Aleinikoff further states:
The infamous Insular Cases recognized the need for
congressional flexibility in handling the unanticipated
situation of Empire. When flexibility is now, by mutual consent
of capital and former colony, exercised to restore dignity and
self-government, why should congressional power suddenly be
read narrowly?
And more specifically Dean Aleinikoff asks Congress:
the question is whether we can think ourselves into notions
of sovereignty that permit overlapping and flexible
arrangements attuned to complex demands of enhanced autonomy
with a broader regulative system of generally applicable
constitutional and human rights norms,'' responding that ``if
both Congress and the people of Puerto Rico seek to establish a
new relationship that recognizes space within the American
constitutional system for ``autonomous'' entities, it ill
behooves either the executive branch or the judiciary to set
such efforts aside in the name of nineteenth-century
conceptions of sovereignty.The Constitution should not be
read--out of fear and loathing of new understandings of
sovereignty--to prevent promising power-sharing arrangements
that provide a space for political and cultural autonomy.
Similarly, in a recent memorandum, Professor W. Michael Reisman,
Professor of International Law at Yale (2006), stated:
Yet in the late twentieth and early twenty-first century, all
three branches of the U.S. federal government maintain legal
positions on Puerto Rico rooted firmly in a nineteenth-century
paradigm of international law . . . This binary division
(between states and territories), . . . is in fact,
anachronistic: It neither accurately reflects nor properly
accommodates the diverse political arrangements embodied in the
freely associated state of Puerto Rico, the CMNI, and the FAS.
Legally created at a later date, those arrangements better
represent current law.
Professor Reisman further concludes:
Should Puerto Rico decide that an ``enhanced'' commonwealth
status best serves its long term interests, U.S. constitutional
law, to our view would likely be able to accommodate that
arrangement . . . ; the barriers to enhance commonwealth status
are more political than legal.
Another respected scholar, NYU Constitutional Law Professor Richard
Pildes, has testified extensively before Congress\2\ that:
---------------------------------------------------------------------------
\2\ Pildes, Richard, TESTIMONY BEFORE THE COMMITTEE ON NATURAL
RESOURCES, SUBCOMMITTEE ON INSULAR AFFAIRS, U.S. HOUSE OF
REPRESENTATIVES ON H.R. 900 and H.R. 1230, page 1, March 22, 2007.
were the United States Congress and the people of Puerto Rico
to prefer expanding the existing Commonwealth relationship, in
a way that provides greater autonomy for Puerto Rico on the
basis of mutual consent, it would be unfortunate, even tragic,
for that option to disappear due to confusion or error about
whether the Constitution permits Congress to adopt such an
---------------------------------------------------------------------------
option.
And he clearly concludes:
Congress does have the power, should it choose to use it, to
enter into a mutual-consent agreement that would create and
respect more autonomous form of Commonwealth status for Puerto
Rico, in which Congress would pledge not to alter the
relationship unilaterally.
Finally, Charles Cooper, a former head of the Office of Legal
Counsel of the U.S. Department of Justice, in a recent memorandum\3\
stated that:
---------------------------------------------------------------------------
\3\ Cooper, Charles, THE POWER OF CONGRESS TO VEST JURIDICAL STATUS
IN PUERTO RICO THAT CAN BE ALTERED ONLY BY MUTUAL CONSENT, page 7,
September, 2005 (Memorandum presented to the U.S. Department of Justice
on behalf of the Government of Puerto Rico).
there is no support for a reading of the Constitution that
unnecessarily restricts the political arrangements available to
the President and Congress in fashioning binding consensual
solutions to the Nation's relations with the people of its
territories,'' . . . ``the relevant Supreme Court cases
confirm that Puerto Rico's commonwealth status is predicated
upon a binding compact, created through the mutual consent of
the sovereign parties and revocable, only by mutual consent of
---------------------------------------------------------------------------
the parties.
Most recently, President Barack Obama, in a letter addressed to
former Commonwealth Governor, Anibal Acevedo Vila, bluntly rejected the
premises contained in the 2005 White House Task Force Report on Puerto
Rico. Such Report based its legal findings on the above stated 2001
U.S. Department of Justice opinion. President Obama stated the
following:
As President, I will actively engage Congress and the Puerto
Rican people in promoting this deliberative, open and unbiased
process, that may include a constitutional convention or a
plebiscite, and my Administration will adhere to a policy of
strict neutrality on Puerto Rican status matters. My
Administration will recognize all valid options to resolve the
question of Puerto Rico's status, including commonwealth,
statehood, and independence. I strongly believe in equality
before the law for all American citizens. This principle
extends fully to Puerto Ricans. The American citizenship of
Puerto Ricans is constitutionally guaranteed for as long as the
people of Puerto Rico choose to retain it. I reject the
assertion in reports submitted by a Presidential Task Force on
December 22, 2005 and December 21, 2007 that sovereignty over
Puerto Rico could be unilaterally transferred by the United
States to a foreign country, and the U.S. citizenship of Puerto
Ricans is not constitutionally guaranteed.
See letter form presidential Candidate Barack Obama to Governor
An!bal Acevedo Vila, dated February 12, 2008.
Question 3. The fundamental characteristic of Enhanced Commonwealth
is that of ``an autonomous political body, that is neither colonial nor
territorial, in permanent union with the United States under a covenant
that cannot be invalidated or altered unilaterally . . . ''. However,
the Justice Department's 2001 analysis established a second premise
that ``the U.S. cannot irrevocably surrender an essential attribute of
its sovereignty''. As a consequence, the Department concludes that
``the (New Commonwealth) proposal's mutual consent provisions are
constitutionally unenforceable.''
Do you agree or disagree with this Justice Department premise and
conclusion?
Answer. We disagree with the conclusion and do not think that it
follows from the stated premise. The requirement of mutual consent
exists under the current Commonwealth status from its inception without
it ever having been considered to have entailed a ``surrendering'' of
an ``essential'' attribute of U.S. sovereignty.
In 1953 the United States advised the United Nations that it would
no longer report on Puerto Rico as a ``non self-governing territory''
under Article 73(e) of the United Nations Charter.''\4\
---------------------------------------------------------------------------
\4\ See ``Memorandum by the Government of the United States of
America Concerning the Cessation of Transmission of Information Under
Article 73(e) of the Charter with Regard to the Commonwealth of Puerto
Rico,'' reprinted in PUERTO RICO FEDERAL AFFAIRS ADMINISTRATION,
DOCUMENTS ON THE CONSTITUTIONAL RELATIONSHIP OF PUERTO RICO AND THE
UNITED STATES, 616 (3D ED. 1988) (the ``Cessation Memorandum'' enclosed
herein as Annex 6).
---------------------------------------------------------------------------
In the Cessation Memorandum, the United States formally advised the
United Nations that the incremental process of the ``vesting of powers
of government in the Puerto Rican people and their elected
representatives'' had ``reached its culmination with the establishment
of the Commonwealth of Puerto Rico and the promulgation of the
Constitution of this Commonwealth on July 25, 1952.''\5\ The Cessation
Memorandum explicitly declares that, ``[w]ith the establishment of the
Commonwealth of Puerto Rico, the people of Puerto Rico have attained a
full measure of self-government.''\6\
---------------------------------------------------------------------------
\5\ Cessation Memorandum at 616.
\6\ Id.
---------------------------------------------------------------------------
In describing the ``principle features of the Constitution of the
Commonwealth,'' the Cessation Memorandum noted that the new
Constitution, ``as it became effective with the approval of the
Congress, provides that `[i]ts political power emanates from the people
and shall be exercised in accordance with their will, within the terms
of the compact agreed upon between the people of Puerto Rico and the
United States of America.\7\''
---------------------------------------------------------------------------
\7\ Id. at 620, quoting P.R. Const. art I, Sec. 1.
---------------------------------------------------------------------------
Mason Sears, the United States Representative to the Committee on
Information from Non-Self-Governing Territories, explained the legal
significance under American law of the fact that Puerto Rico's
Constitution resulted from a compact,
A most interesting feature of the new constitution is that it
was entered into in the nature of a compact between the
American and Puerto Rican people. A compact, as you know, is
far stronger than a treaty. A treaty usually can be denounced
by either side, whereas a compact cannot be denounced by either
party unless it has the permission of the other.\8\
---------------------------------------------------------------------------
\8\ Press Release No. 1741, United States Mission to the United
Nation, at 2 (Aug. 28, 1953) (emphasis added).
Moreover, Frances Bolton, U.S. Delegate to the United Nations'
Fourth Committee, made it plain clear that while ``the previous status
of Puerto Rico was that of a territory subject to the absolute
authority of the Congress of the United States in all governmental
matters [ . . . ] the present status of Puerto Rico is that of a people
with a constitution of their own adoption, stemming from their own
authority, which only they can alter or amend [ . . . ]''\9\
---------------------------------------------------------------------------
\9\ Official Records of the U.N. General Assembly, Eighth Session,
Fourth Committee, Trusteeship, at 225-26 (Nov. 3, 1953).
---------------------------------------------------------------------------
Those statements are consistent with the analysis made in 1971 by
then Assistant Attorney General William H. Rehnquist in the Memorandum
Re: Micronesian Negotiations (Office of Legal Counsel, Aug. 18, 1971),
which I have quoted in my answer to a previous question:
[T]he Constitution does not inflexibly determine the
incidents of territorial status, i.e., that Congress must
necessarily have the unlimited and plenary power to legislate
over it. Rather, Congress can gradually relinquish those powers
and give what was once a Territory an ever-increasing measure
of self-government. Such legislation could create vested rights
of a political nature, hence it would bind future Congresses
and cannot be ``taken backward'' unless by mutual agreement.
There can be no other conclusion that when Congress has
relinquished powers to a territory, it can not claim those powers back,
except by mutual consent. See Flores de Otero.
Question 4. The enhanced commonwealth proposal of October 15, 1998,
states that the new covenant ``will include a mechanism to approve the
application of legislation approved by the U.S. Congress.'' Given the
history between the Federal and State governments on the issue of the
applicability of Federal law to the states, particularly the experience
of the U.S. Civil War, why do you believe a majority of the members of
Congress would agree to such a mechanism under a covenant with Puerto
Rico?
Answer. The proposal of a mechanism to exempt Puerto Rico from the
automatic application of federal law is justified by a fundamental
difference between the Commonwealth of Puerto Rico and a State: Puerto
Rico, unlike the States, has no voting representation in Congress. Thus
federal law is approved without its participation.
Such mechanisms have been examined in the past by Congress. The
1990 legislation approved in the House, provided in the House Report
that:
To enable Puerto Rico to govern matters necessary to its
economic, social, and cultural development under its
constitution, the Commonwealth would be authorized to submit
proposals for the entry of Puerto Rico into international
agreements or the exemption of Puerto Rico from specific
Federal laws or provisions thereof to the United States. The
President and the Congress, as appropriate, would consider
whether such proposals would be consistent with the vital
national interests of the United States on an expedited basis
through special procedures to be provided by law. The
Commonwealth would assume any expenses related to increased
responsibilities resulting from the approval of these
proposals.
The 1975 proposed ``Compact of Permanent Union Between Puerto Rico
and the United States.'' developed by an Ad-Hoc Advisory Group
appointed by President Nixon and Governor Hernandez Colon proposed a
more elaborate mechanism:
Prior to final passage of any legislation applicable to the
Free Associated State, the Governor or Resident Commissioner
thereof shall be entitled to submit to the Congress objections
as to the applicability of said legislation to the Free
Associated State, whereupon Congress shall specifically act
upon those objections so as to determine whether the proposed
law is essential to the interests of the United States and is
compatible with the provisions and purposes of this Compact. If
the respective committee or committees by vote express
agreement with the objections, the Free Associated State will
be held exempt from those affected provisions of the proposed
law in the event of its final enactment. Provided, That this
paragraph shall not apply to proposed laws which directly
affect the rights and duties of citizens, security and common
defense, foreign affairs, or currency.
Article 12 of the Compact.
It is in the interest of both Puerto Rico and the United States to
adopt a provision to that effect in order to resolve an undemocratic
condition.
Responses of Hector J. Ferrer Rios to Questions From Senator Murkowski
Question 1. Among the status options put forward by the
Presidential Task Force is that of Free Association, which is not
represented on the panel this morning. How would you define the Free
Association option?
Answer. Before addressing the question, I must clarify that the
Popular Democratic Party does not advocate for the Free Association
option. We support the development of the Commonwealth option.
As adopted by the United States in the case of the Palau,
Micronesia and the Marshall Islands, Free Association has the following
characteristics: 1-they are compacts between independent nations; 2-
with a specific duration; 3-where the people of the country associated
with the U.S. are not U.S. citizens; 4-where federal aid is limited to
certain areas.
Question 2. Do you believe the four options put forward by the
Presidential Task Force and in the House bill are the only legitimate
and viable options for Puerto Rico's political status?
Answer. I do not believe that the options put forward and as
defined by the President's Task Force on Puerto Rico Status are the
only viable options for Puerto Rico's political status. If we accept
that conclusion, it would be a narrow reading of the US Constitution
that would also portray the limitations and inflexibility of
Congressional power. I believe there is no support for a reading of the
Constitution that unnecessarily restricts the political arrangements
available to the President and Congress in fashioning binding
consensual solutions to US relations with the people of its
territories.
In terms of International Law, that conclusion has no merit either.
The United Nations has said that the establishment of a sovereign and
independent State, the free association or integration with an
independent State or the emergence into any other political status
freely determined by a people constitute modes of implementing the
right of self-determination by that people.\10\
---------------------------------------------------------------------------
\10\ UN Resolution 2625 (XXV): Declaration on Principles of
International Law Concerning Friendly Relations and Cooperation among
States in accordance with the Charter of the United Nations.
---------------------------------------------------------------------------
There is no justification for Congress to shut the doors to any
enhancement possibilities for Commonwealth. It must overcome the
inertia created in the past two decades and allow for a serious debate
on this matter.
Appendix II
Additional Material Submitted for the Record
----------
Statement of Luis A. Delgado Rodriguez and Senator Jose A. Ortiz-Daliot
Alliance for Sovereignty in Free Association
Mr. Chairman and members of the Committee:
We are, Luis A. Delgado Rodriguez and Senator Jose A. Ortiz-Daliot,
spokespersons for ALAS -Alliance for Sovereignty in Free Association, a
non-colonial and non-territorial political formula which is growing in
support in Puerto Rico. As a matter of fact, two polls released last
week by two of the main radio stations on the island, placed ``free
association'' with a 13% and 17% percent of electorate support. This is
a significant achievement, considering Free Association has never had
the support of a political structure.
We come before you to share our views on HR2499, the latest effort
for decolonizing Puerto Rico.
Mr. Chairman, the US preaches freedom and democratic values from
its bully pulpit as the sole super-power in the world. In some
instances, it even resorts to military intervention in its efforts to
promote freedom around the world. Ironically, the U.S. breaches its
values in its own backyard, particularly when dealing with its colonial
possessions. The US declared its independence from one of the greater
colonial powers in the world (at that time), the United Kingdom, and
then fought another colonial power in 1898--Spain, when it acquired
Puerto Rico. Today, notwithstanding, it has replaced both of these
countries as the main colonial power in the world, holding more than
4.5 million people as colonial subjects in American Samoa, Mariana
Islands, Guam, the Virgin Islands, and Puerto Rico. Shameful, to put it
mildly. It seems this great country is satisfied to tell the world ``do
as I say, not as I do.'' Why? To us, it is incomprehensible,
particularly when the international community is in its second decade
of attempting to end colonialism in the world.
You would believe the US would be leading this effort, but it is
not. To the contrary, it utilizes XX century rhetoric to avoid its duty
to lead a true effort to decolonize its own backyard. Puerto Rico, as
the chairman described it recently in a news article, is an
unincorporated territory of the U.S., as labeled by the Supreme Court
in the now famous insular cases, decided at the beginning of the XX
century. So even after the creation of the Commonwealth in 1952, it
remains an unincorporated territory which is nothing more than a
different label for a US colonial possession.
Many say it is a self-governing commonwealth, after the US
government tricked the UN into releasing the US from its duty to report
annually on Puerto Rico as a territory under Article 73 of the UN
Charter by approving UN Resolution 748 on November 27, 1953.
Ironically, that very same day the UN approved Resolution 742 which
described the necessary elements needed to release a colonial power
from its duties under Article 73. The creation of the Commonwealth did
not meet the criteria set forth by the UN on November 27, 1953 by
Resolution 742 (VIII) particularly because neither the government of
the US or Puerto Rico provided freedom of choice to the people of
Puerto Rico (the freedom of choosing on the basis of the right of self-
determination of peoples between several possibilities, including
independence). The US had not met said requirement. Notwithstanding UN
Resolution 748 was approved, mainly due to the US influence as a super-
power, right after World War II.
The Commonwealth of Puerto Rico option has never had the attributes
of a self governing jurisdiction. A self governing entity should be
able to handle its everyday affairs of its people. Puerto Rico cannot.
Lets briefly examine the self-governing attributes of the
Commonwealth of Puerto Rico and afterwards decide if Puerto Rico is
``really and effectively'' a self-governing jurisdiction. Let's take a
close look at several areas in which the daily affairs of our people
are conducted and which under normal circumstances should be under the
purview of the government of Puerto Rico. The few examples which follow
should be sufficient to illustrate our point:
1. The government of Puerto Rico doesn't has the legal
authority to decide the best mode of maritime transportation
for the products, edibles and other food items which are
imported from the US, therefore, its people do not have access
to these products in the most efficient and inexpensive way,
without having to pay the most expensive mode of maritime
transportation in the world. The government of Puerto Rico does
not have said authority since maritime transportation is
regulated by the US Congress as a way of subsidizing its non-
competitive and most expensive shipping industry. Therefore,
this is not self-government.
2. The US government excludes, as a general rule, Puerto Rico
from its tax treaties since the island is considered a foreign
tax jurisdiction. Notwithstanding, the US denies Puerto Rico
its tax-treaty making power. Consequently, Puerto Rico may not
reap the benefits from negotiating tax treaties with other
countries. This is not self-government.
3. Puerto Rico may import Peugeot cars directly from France?
It cannot. Every vehicle entering Puerto Rico has to comply
with the US Congressional mandated standards. So Puerto Rico is
forced to buy only automobiles authorized to entry into the US.
This, my fellow senators is not self-government.
4. Puerto Rico may not set its own set of environmental
statutory standards unless, of course, they are more stringent
than US laws. This is not self-government.
5. US minimum wage laws do not apply to Puerto Rico? They do,
so Puerto Rico may not even set its own minimum wage, even
though it is the poorest jurisdiction under the US flag.
Therefore, this is not self-government.
6. The government of Puerto Rico or its residents may
purchase medications in the international market, consequently
saving millions of dollars. No, all medicines sold on the
island need FDA approval, so a jurisdiction with a per capita
income fifty percent (50%) lower than Mississippi, has to pay
extraordinary high prices since only FDA approved medicines may
be sold in Puerto Rico. This again, is not self-government.
We could go on forever, providing you examples of the lack of self-
government authority the government of Puerto Rico has, but with a few
of them, should be enough. But, why is our self governing authority so
limited? Simple, Puerto Rico is subject to the plenary powers of
Congress under territorial clause of the US Constitution and thus
subject to every act of Congress whether it makes sense or not. And
that fact, dear Senators, is not self-government. It is a subordinated
government.
What we have described above, is a total subordination to the
federal government. That is why we have labeled the commonwealth
arrangement as territorial and colonial in nature. Puerto Rico is a
colonial possession of the US, though the US Supreme Court may call it
whatever they want. The Senate should take notice of this; stop looking
the other way and take steps to decolonize Puerto Rico, as well as the
other US territories, NOW.
At ALAS, we would like to see a Free Association arrangement much
like the treaties the US has negotiated with three nations in the
Pacific. But we recognized that the people of Puerto Rico should be
able to choose among the three (3) non-colonial options of statehood,
independence and free association. Not like what occurred in 1952, when
the present Commonwealth was imposed to the Puerto Rican people.
HR-2499 is not perfect, but at least, as it had been originally
drafted the second round offer three political options which are non-
colonial in nature. The Foxx amendment damaged the bill. The bill
should only include options which are non-colonial and not-territorial.
The commonwealth is neither, and consequently should not be an option,
unless, as usual, the colonial power (the US Congress) imposes it as an
option. The Senate could fix HR-2499 or simply take appropriate action,
as long as it does not take 112 more years.
Thank you for the opportunity for submitting our comments on HR-
2499.
______
Statement of Governor John P. De Jongh, Jr.
On behalf of the people of the Virgin Islands, I am grateful to the
Chairman and Members of Committee on Energy and Natural Resources for
providing me with this opportunity to again express my strong
opposition to certain elements of the proposed Constitution of the
Virgin Islands, and my equally strong conviction that it is the people
of the Virgin Islands, and not the members of this Congress, who should
be permitted freely to accept or reject their own Constitution on its
merits.
opening statement
As you know, in March I came to Washington and appeared before the
House Subcommittee on Insular Affairs to explain my view that the
proposed Virgin Islands Constitution is contrary to basic principles of
the Federal Constitution, in that, among other things, it creates
invidious distinctions between Virgin Islanders based on their heritage
and ancestry; violates the sacred democratic principles of ``one man,
one vote''. and willfully fails to recognize the supremacy of the
United States, its Constitution, and its laws. I further explained that
regardless of its legal infirmities, the proposed constitution was
unacceptable to me because it was wholly inconsistent with our
fundamental values as Virgin Islanders-values like equality before the
law and our very identity as Americans.
Despite those grave misgivings, however, I asked the House
Subcommittee to leave it to us-to the people of the Virgin Islands that
the proposed constitution would purport to govern-to either remedy the
document's manifest deficiencies or reject it outright. The proposed
constitution is not merely a legal document; it is, however flawed, a
symbol of the Virgin Islands' right to self-determination. To take from
us the opportunity to consider (and, I hope, reject) the proposed
constitution in our own democratic process would be a bitter irony, and
would vitiate the very purpose that the constitutional process is meant
to serve.
I made those remarks to the House two months ago. I reaffirm them
here today. The intervening months have only strengthened my conviction
that the proposed constitution, despite its many flaws, must be
returned to the people of the Virgin Islands for acceptance or
rejection by referendum. That referendum will represent another
important step in the Islands' struggle for true self-governance-a
struggle that has lasted for decades, even centuries, and in which I
hope and intend we will prevail during my administration.
the virgin islands' commitment to local, constitutional self-governance
Before I discuss the proposed constitution and what I believe to be
its serious deficiencies, I must re-affirm the fundamental principle
that the proposed constitution represents: the right of the people of
the Virgin Islands to govern themselves.
As you know, the Virgin Islands became part of the United States in
1917. From the earliest days of their assimilation into the American
republic, the people of the Virgin Islands have relentlessly pursued
increased self-government and Home Rule. And after decades of tireless
effort, we have achieved a great deal. We now elect our own Governor
and Legislature. We draft our own laws, and constitute our own Supreme
Court to administer them. All of this represents progress-progress
toward the deeply American goal of local self-determination within the
federal system. And there is no more significant step in reaching that
goal than drafting and ratifying our own constitution.
This is not an easy thing. Ours is a long and unique political
history, unlike that of any other part of the United States. A
constitution acceptable to the people of the Virgin Islands must both
honor that history and reflect the very best traditions of democratic
self-governance. We have been pursuing such a constitution now for
thirty-four years: since 1976, we have elected five constitutional
conventions, but have not ratified a constitution. It is fair to say we
have struggled with this gravest of political responsibilities. But
these struggles are inherent in democracy itself. No document produced
by a constitutional convention will be perfect: as you know, even this
nation's Constitution emerged from the constitutional convention
without the Bill of Rights that has come to define American liberty.
The Bill of Rights came later, when the people of this country, asked
to ratify the original document, demanded it.
The constitution proposed by our own constitutional convention is
much more severely flawed: it violates the very rights that the Bill of
Rights seeks to protect. But the people of the Virgin Islands, like the
people of the original States, must be the ones to demand better. To
deny them the opportunity to do so would set back the cause of self-
governance far more than the proposed constitution itself, despite its
flaws, ever could. Only when we are presented with a constitution that
is of Virgin Islanders, by Virgin Islanders, and for Virgin Islanders
can our Islands reach the fullness of their political maturity and
their place within the American system. It is a goal to which I and my
fellow Virgin Islanders have always been, and remain, deeply committed.
We have been waiting a long time.
the proposed constitution violates the federal constitution and is
contrary to the values of the people of the virgin islands
For the convention delegates, the drafting of the proposed
constitution was a difficult task, and in many ways a thankless one. It
is, therefore, with great reluctance and disappointment that I have
concluded that, in too many respects, the document they produced is not
worthy of the people of the Virgin Islands. Most disturbingly, the
proposed constitution divides the people and declares that some of them
have more rights than, and should be given legal and financial
preference over, others.
The legal and constitutional deficiencies of the proposed
constitution are obvious on their face, and have been extensively
documented by every competent lawyer to consider them-including the
convention's own legal counsel. You have the benefit of the Department
of Justice's memorandum of February 23, 2010 (hereinafter ``DOJ Memo,''
and attached as Appendix A), as well as the Virgin Islands Attorney
General's opinion of June 9, 2009 (hereinafter the ``USVI AG Opinion,''
attached as Appendix B), both of which set forth some of those
deficiencies in detail. Taken together, those deficiencies do not only
render the document unlawful; they also render it profoundly contrary
to the most cherished values of the people of the Virgin Islands. I
will describe three of them briefly here today.
First, the current constitutional proposal fails to recognize the
supremacy of the ``Constitution, treaties, and laws of the United
States.'' It is required to do by law, pursuant to the 1976 law
authorizing a Virgin Islands constitution, and its failure to do so is
intentional and egregious. Because of the lack of a supremacy clause,
the proposed constitution's assertion of ``sovereignty'' over coastal
waters in Article XII, Section 2 can be read to ``derogate from the
sovereignty of the United States over those waters.'' DOJ Memo at 16.
As the Department of Justice has pointed out, the proposed
constitution's assertion of sovereignty over inter-island waters ``up
to twelve nautical miles from each island coast'' is flatly
inconsistent with federal law. Id. A supremacy clause would resolve
this ambiguity by making it clear that the Virgin Islands does not
claim any more than what it is due under federal and international law.
Without it, DOJ concluded that the coastal waters provision must be
modified or removed because it is ``inconsistent'' with ``Congress'
plenary control'' over U.S. territorial sea. DOJ Memo at 16.
The lack of a supremacy clause is not merely a legal failure. It is
also a symbolic failure, with political and historical implications. To
formally recognize the supremacy of the Federal Constitution is to
affirm, in our fundamental political document, that we are the United
States Virgin Islands. It is an essential symbol of the Virgin Islands'
place within the American system-and of Virgin Islanders' identities as
Americans. For reasons of both law and principle, the failure to
recognize the supremacy of the U.S. Constitution is a grave error, and
of itself would justify the rejection of the proposed constitution by
the people of the Virgin Islanders.
Second, and more important, the proposed constitution openly
creates invidious distinctions among the people of the Virgin Islands,
and confers special political and economic benefits upon favored
classes of ``native'' and ``ancestral native'' Virgin Islanders.
I cannot overstate the repugnance of those distinctions. There is
no more fundamental American value than the self-evident truth that all
men are created equal, and as such, are entitled to equal protection of
the laws. The Fourteenth Amendment of the United States Constitution
protects this value. And ever since Brown v. Board of Education of
Topeka, the Supreme Court has made clear that government may not drive
a wedge between its citizens based on the accident of their birth. The
proposed constitution, unfortunately, does just that.
Article III of the proposed constitution divides its citizens into
three classes. The first class, termed ``Ancestral Native Virgin
Islanders,'' principally includes any person, or any descendants of any
person, born or domiciled in the Virgin Islands before June 28, 1932.
The second class, termed ``Native Virgin Islanders,'' includes any
person, or any descendant of any person, born in the Virgin Islands
after June 28, 1932. The third class, without a name in the proposed
constitution, includes everyone else. These classifications depend
entirely on the timing and place of one's birth, the timing of one's
residency, and the birth or residency of one's ancestors.
Having so divided its citizenry in Article III, the proposed
constitution goes on to apportion benefits and burdens based on those
divisions. For example, Article XI, Section 5 authorizes the Senate to
levy and collect property taxes. But it contains an exemption providing
that ``No Real Property tax shall be assessed on the primary residence
or undeveloped land of an Ancestral Native Virgin Islander.'' In other
words, some Virgin Islanders would pay these property taxes; others, by
virtue of their birth or ancestry, would not.
Article XVII, Section 2 provides for a special election on ``status
and federal relations options,'' i.e., an election devoted to the
Islands' status as a U.S. Territory. But it contains a strict
limitation that it is ``reserved for vote by Ancestral Native and
Native Virgin Islanders only, whether residing within or outside the
territory.'' In other words, some Virgin Islanders would have the right
to vote in these elections; others, by virtue of their birth or
ancestry, would not.
Article XVIII, Section 7 of the proposed constitution appears to
permit citizens of the Virgin Islands to ratify future constitutional
amendments by a majority vote. It further provides, however, that
``Ancestral and Native Virgin Islanders, including those who reside
outside the Virgin Islands or in the military, shall have the
opportunity to vote on Constitutional Amendments.'' In other words,
some non-residents, by virtue of their birth or ancestry, would have
the right to vote on constitutional amendments; others would not.
Finally, Article VI, Section 3 provides for the election of a
Governor and Lieutenant Governor. But eligibility for those offices is
tightly restricted: both the Governor and Lieutenant Governor must ``be
an Ancestral or Native Virgin Islander.'' In other words, some Virgin
Islanders would have the right to seek these elected offices; others,
by virtue of their birth or ancestry, would not.
In short, the proposed constitution uses birth and ancestry to
exempt some Virgin Islanders from property taxes; to give some Virgin
Islanders the exclusive right to vote in important special elections;
to give some Virgin Islanders preferential rights to vote on
constitutional amendments; and to give some Virgin Islanders the
exclusive right to hold the offices of Governor and Lieutenant
Governor. Those who by birth or ancestry do not enjoy favored
``native'' status have none of these rights.
All of these provisions conferring legal advantages on ``natives''
are manifestly unconstitutional. The Department of Justice found it
``difficult to discern a legitimate governmental purpose'' that the
provisions could possibly serve. DOJ Memo at 1, 7, 8, 10. My own
attorney general had the same difficulty. See ``USVI AG Opinion at 2,
8, 10, 11. And so do I. Even under the most deferential ``rational
basis'' standard, the provisions violate the Equal Protection Clause of
the Fourteenth Amendment.
Again, however, the offensiveness of these nativist preferences is
not wholly a function of their illegality. It is more important that
they are contrary to the most fundamental of all American values: the
self-evident truth that all men are created equal, are endowed by their
Creator with certain inalienable rights, and are entitled to the equal
protection of the laws. The proposed constitution, with its carve-outs
and special preferences, assails these fundamental values. As a matter
of U.S. constitutional law, it is indefensible; as a political act, it
is divisive; and as a matter of history, it is a dangerous step
backwards in our centuries-long struggle, which has been joined by
generations of Virgin Islanders, for full and equal civil rights.
A constitution is not merely a law, or even a law of laws. It not
only governs us; it constitutes us. It is the tangible expression of
our values, and a source of our identity as a people. A constitution
that would carve us up into factions, based solely upon our origins and
the circumstances of our birth, is one that does not reflect the values
of Virgin Islanders, and the identity it creates is one I do not wish
to share.
Third, the proposed constitution divides the Virgin Islands in
another unconstitutional respect. Article V, Section 2 of the proposed
constitution establishes a new method for apportioning seats in the
Senate, which creates a Senate seat exclusively for the island of St.
John. That apportionment serves to overrepresent St. John and
underrepresent the other islands of St. Thomas and St. Croix relative
to their populations.
Such lopsided apportionment gives St. John a vastly greater share
of power in the 15-member Senate than its population warrants, and for
that reason, both my Attorney General and the Department of Justice
have concluded that it probably violates the Equal Protection Clause of
the Fourteenth Amendment and the bedrock principle of ``one person, one
vote.'' See DOJ Memo at 13-15; USVI AG Op. at 13-14.
Because the proposed constitution's apportionment scheme is a sharp
break from the past resulting in a large representation disparity, it
likely has no legally sufficient justification. Although the Supreme
Court has warned that states must make an effort to construct districts
that are as close as possible to having equal populations, the proposed
constitution suggests that such an effort was not made. Apportionment
can be difficult and complicated, but it must be done in a manner
designed to ensure ``one person, one vote.'' The constitutional
convention's failure to heed this requirement places a cloud of
constitutional uncertainty over the apportionment provisions.
The creation of the St. John Senate seat is nevertheless of a piece
with the other objectionable parts of the proposed constitution: Like
preferences for ``natives,'' it gives preferential treatment to one
class of Virgin Islanders over all others-this time, residents of St.
John. As such, it is likely to be a source of substantial resentment
and divisiveness in the Virgin Islands. And like the ``native''
provisions, it is inconsistent with basic principles of fairness and
equality-principles that, as Americans and as Virgin Islanders, are
deeply rooted in our shared values.
correction of the proposed constitution's deficiencies should be left
to the people of the virgin islands
The flaws in the proposed constitution are so blatant, and so
contrary to the best traditions of democratic self-governance, that I
am tempted to seek the document's rejection by any means necessary. But
that is a temptation that I resist, and that I must ask you to resist
as well. For as passionate as I am in rejecting the inequalities and
preferences embodied in the proposed constitution, I am equally
passionate about the importance of leaving the fate of this document in
the hands of those it would purport to govern-the people of the Virgin
Islands.
There is no question that Congress has the power, implicit in the
governing statute and inherent in its legislative authority, to reject
the proposed constitution outright. It also has the power to modify the
proposed constitution and return it, as modified, for a vote in the
Virgin Islands. The minority members of the constitutional convention
have proposed exactly that. See Letter to The Hon. Donna M.
Christensen, Jan. 29, 2010 (``Minority Letter,'' attached as Appendix
D).
But I must urge the Congress not to exercise its power to modify or
reject the constitution. I have great respect and admiration for those
minority members who have spoken out on this matter; but I seek a
different result. I believe it is critical to the continued political
development of the Virgin Islands that our constitution, when finally
adopted, be the product solely of the labors of Virgin Islanders. A
constitution that has been edited by Congress, however good its
intentions, will be seen in the Islands as an exercise that runs
contrary to true local self-governance.
It is my view that it falls to the people of the Virgin Islands to
correct, on our own, the deficiencies so blatantly evident in the
proposed constitution. Therefore if this proposed constitution is not
rejected based on its failure to meet the requirements of
constitutionality, I would request, at this juncture, that you return
the proposed constitution to the people of the Virgin Islands and leave
it to them to either accept, or reject, this document.
I have made no secret of my views on this proposed constitution. I
believe that the people should reject it, and I believe that they
ultimately will. But I just as strongly believe that such a decision
belongs with the people of the Virgin Islands.
conclusion
In conclusion, my position today remains the one I articulated
before the House two months ago. I am a native Virgin Islander. I am
also an American. Those identities are not separable: To be a Virgin
Islander is to be an American. The overriding flaw of the proposed
constitution before you is that, in its effort to recognize and honor
the unique contributions of those of us who are natives, it would
sacrifice the values that make us Americans.
As a Virgin Islander, as an American, and as an officer of the
government sworn to support and defend the Constitution of the United
States, I cannot countenance that result. I ask that Congress not do so
either, while also allowing us the ability to determine our own
political fate.
Thank you.
______
Statement of the Hon. Eni F. H. Faleomavaega, Delegate of American
Samoa, U.S. House of Representatives
on hr 3940
Chairman Jeff Bingaman, Ranking Member Lisa Murkowski,
Distinguished Members of the Senate Committee on Energy and Natural
Resources:
I extend to you my deepest gratitude and appreciation for allowing
me to submit statement for the record in strong support of H.R. 3940.
This piece of legislation authorizes federal grant funding to
facilitate political status public education programs in American
Samoa, Guam and the U.S. Virgin Islands.
I want to acknowledge the leadership of the Chairwoman of the
Subcommittee on Insular Affairs, Oceans and Wildlife, my good friend
Ms. Madeleine Bordallo. While this bill was originally intended for
Guam, Chairwoman Bordallo heeded a request that the assistance provided
for under H.R. 3940 is extended to include American Samoa and the US
Virgin Islands.
Mr. Chairman and distinguished members of the Committee, the
question of political status continues to underscore many of the policy
issues that the territorial governments faced. Addressing this ongoing
issue is the prerogative of the people. Nonetheless, Congress has a
constitutional responsibility to help the territorial governments
decide their political status according to the peoples' aspirations.
This bill embodies such responsibility.
Under H.R. 3940, the Secretary of Interior is authorized to extend
much needed assistance to the three territorial governments, American
Samoa, Guam and the US Virgin Islands, to facilitate a public education
program regarding political status options. This includes assistance in
the form, of grants, research, planning assistance, studies, and
agreements with Federal agencies, to better educate and inform the
public about various valid political status options and alternatives
for the territories.
For American Samoa, political relationship with the United States
government is based on two separate deeds of cessions: between the U.S.
and Tutuila and Aunu'u in 1900; and U.S. and Manu'a in 1904. Under
Title 48 U.S. Code Section 1661 (c), Congress delegated all civil,
judicial, and military powers over American Samoa to the President.
Subsequently, by Executive Order 10264, these powers were transferred
to the Secretary of the Department of Interior (DOI).
As of today, American Samoa remains an unorganized and
unincorporated territory of the United States. After more than 100
years since the two deeds of cession were signed, the local government
of American Samoa is conducting a review of its political status. This
bill, H.R. 3940 will go a long way to facilitating this process.
Mr. Chairman, I am pleased that Congress remains committed to the
territorial governments and the people living in the insular areas. The
program and assistance provided for under HR 3940 would certainly
enhance public knowledge and enable Americans living in the insular
areas realize their aspirations for a formalized political status with
the United States government.
I urge you and members of the Senate Energy and Resources Committee
to support H.R. 3940.
______
Statement of Zoraida Fonalledas, Republican National Committeewoman
From Puerto Rico, on H.R. 2499
House record on H.R. 2499 makes Senate action urgent
The Republican Party of Puerto Rico supported H.R. 2499 in the
House of Representatives. The debate on H.R. 2499 in the House, in
Puerto Rico, and in the local and national media, confirmed once again
that ultimately Congress must define the political status options
available to four million U.S. citizens in Puerto Rico. The U.S. Senate
itself confirmed that only Congress can determine the political status
options available to Puerto Rico, when it adopted Senate Resolution 279
on September 17, 1998. The only problem was that S. Res. 279 failed to
state what options the Senate deemed compatible with federal law, and
would be willing to consider if approved by a majority in a locally
conducted advisory status referendum.
In light of House passage of H.R. 2499, action by the Senate to
affirm status alternatives that Congress is willing to consider for
Puerto Rico is now urgently necessary. If the Senate fails to act in
concert with the House in some manner that ends confusion over status
options demonstrated by past local votes, then Congress will be
repeating its 1998 abdication of constitutional responsibility to
affirmatively manage disposition of federal territories. The mixed
message from House and Senate actions in 1998 contributed to yet
another inconclusive local status vote. While the 1998 vote advanced
the status resolution process, it did so in a confusing and vexatious
way that makes Congressional guidance now more necessary than ever.
In this historical context, we do not need to be reminded here in
Washington or back in San Juan that the duly-constituted local
government has the authority to conduct a referendum on locally
formulated status options. We also know a constitutional convention can
be called, and proposed amendments to the territorial constitution can
be submitted to the voters. We do not need Congress to authorize a
local constitutional convention, proposed as a delaying tactic by the
commonwealth party.
These local government initiatives are possible already and have
always been available as tools of the current limited local self-
government we have had for 60 years under ``commonwealth.'' Indeed,
these local powers of self-determination were allowed by permission of
Congress when it approved Article VII of the Puerto Rico constitution,
with amendments Congress required to confirm the supremacy of federal
law applied to Puerto Rico under Article IV, Section 3, Clause 2 of the
U.S. Constitution.
So it is clear what we can do under ``commonwealth'' to address our
aspirations for self-government locally, and we know that self-
government under ``commonwealth'' is limited to local matters not
otherwise governed by federal law. Thus, despite the sympathetic but
gratuitous verbiage in a few federal court rulings that nevertheless
remain within the confines of Insular Cases jurisprudence, the
``commonwealth'' model of federal-territorial relations does not create
a zone of local sovereignty beyond the reach of Congress and the
supremacy of federal law.
It also is clear to any rational person what we are not empowered
or enabled to do under ``commonwealth.'' When it comes to addressing
the political status question which is paramount over all other issues
in Puerto Rico, the most important thing we are unable to do under the
local constitution is formulate through any local political process
definitions of the political status options Congress will accept as
consistent with federal law, and be willing to consider for Puerto
Rico. If the Senate will agree to be bound by local status definitions
we will go away and not come back until we have a majority for a
locally defined status, but if not the Senate must act now.
The amendments Congress made to the ``commonwealth'' constitution
in 1952, imposed as a prerequisite for it to take effect, confirm that
any amendments proposed by a local constitutional convention must
address local matters arising under provisions of the local
constitution itself, and must be consistent with federal law
authorizing the adoption of the local constitution, subject to the
residual sovereignty and territorial clause authority of Congress over
Puerto Rico. This ensured local government adherence to the legal and
political order under the federal constitution, pursuant to which U.S.
national law is the supreme law of the land in Puerto Rico, as
promulgated in Congress assembled.
The historical and legal revisionism of the commonwealth party
suggesting ``commonwealth'' is a constitutionally permanent status is
based on opportunistic and tertiary ambiguities in the U.S. and U.N.
proceedings through which ``commonwealth'' was instituted in 1952. The
``commonwealth'' bilateral pact ideology is superficially beguiling,
but ultimately just an idiosyncratic obsession of a colonial mindset
among one faction in the local territorial political culture. The
sociological notion that Puerto Rico acquired a power of consent over
definition of its own status under federal law is unavailing in light
of unambiguous federal territorial law and policy confirmed by
subsequent Congressional measures, the prevailing effect of which has
been to define ``commonwealth'' as territorial.
The confusion created by local ``commonwealth'' political mythology
promotes a Quebec-like political and cultural separatism under the
American flag in the name of ``autonomy.'' That is why the Senate now
must act to end its silence of 112 years, the period of American rule
during which Congress never has afforded U.S. citizens in Puerto Rico
the opportunity by direct vote to give consent of the governed to the
current territorial status. Adoption of the local territorial
constitution in 1952 was not a form of consent to the current status,
because approval of limited home rule was the only option on the ballot
at that time, rather than any actual political status.
Nor has Congress ever enabled the residents of the territory to
accept or reject non-territorial status options recognized by Congress.
In this connection, past local status votes the residents of Puerto
Rico did not reject statehood, as some falsely have claimed before and
since H.R. 2499 was passed.
Inclusion of a bogus ``commonwealth'' option on the ballot in local
status votes conducted under Puerto Rico law in 1967 and 1993 stacked
the deck against statehood, but statehood still gained 46.4% of the
vote against the bogus ``commonwealth'' option in 1993. That bogus
``commonwealth'' option in 1993 was based on principles of local
nullification of federal law and a de facto confederacy created through
``mutual consent'' gimmicks the U.S. Justice Department has termed
``deceptive'' and ``illusory.''
In 1998 statehood got the highest percentage of votes case on valid
status options (46.5%), in a locally vote where ``commonwealth'' as
defined by Congress in current territorial organic law garnered less
than 1%. ``None of the Above'' received 50.2%, expressing the confusion
and frustration of voters due to the discrepancies between definition
of status options in the federal and local political and legal process.
The current territorial status with a ``commonwealth'' structure of
limited local self-government, subject to supremacy of federal law,
does not confer equal rights or equal dignity on the U.S citizens of
Puerto Rico. Consequently, its continuation cannot be justified or
reconciled with American values, unless there is at the very minimum a
mechanism recognized under federal law and policy for the residents of
Puerto Rico periodically to give consent to continuation of the current
less than fully democratic status of the territory.
Additionally, some advisory self-determination mechanism must be
available to inform the residents of Puerto Rico and Congress if there
is a non-territorial and fully democratic representative status that a
majority of the voters prefer, triggered any time the present status
proves not to have the consent of a majority. Failure to provide these
status resolution mechanisms represents a failure by Congress to
perform its constitutionally prescribed duties with respect to
administration and disposition of territories of the U.S. government.
The debate surrounding House passage of H.R. 2499 reinforces that
Congress will never return to the false doctrine that ``commonwealth''
can be converted into a new form of ``free associated state'' with
attributes of a nation unto itself, with ``first allegiance'' to Puerto
Rico, while retaining U.S. citizenship and eligibility for federal
subsidization of ``commonwealth'' by U.S. taxpayers.
However, the House debate also revealed the work that still needs
to be done to end the high level of confusion and misdirection about
how America--historically and constitutionally--resolves the status of
populated territory under U.S. sovereignty, so that temporary
territorial status can end in favor of sovereign self-government,
within or outside the federal union.
House debate demands Senate clarification of territorial policies
It was conspicuous to everyone in Puerto Rico paying any attention
that the local ``commonwealth'' party lobbyists were creating high
levels of confusion among House Republicans about English language
policy under current status, as well as under statehood, as well as the
fiscal implications of federal subsidization of the current
``commonwealth'' regime, in contrast to Puerto Rico's ability to pay
its own way in the union under statehood.
Suffice to say that there is no horizon for unending increases in
the current 15 billion annual federal subsidy of the ``commonwealth''
regime. In contrast, CBO projects Puerto Rico will be able to meet the
test for contribution to the cost of government under the statehood
model that has enabled every economically underperforming territory to
pay its own way once it becomes a part of the national economy.
We also need to remind Republicans in Congress that it was the
``commonwealth'' party that ended equal time public instruction in
English and ended English as an official language, and the statehood
party that revered those attempts at cultural separatism. It was the
same liberal Democrat controlled ``commonwealth'' party that retained
Republican credentialed lobbyists to distort these issues and try to
arouse seemingly anti-Hispanic sentiment in Republican ranks to confuse
the House debate.
If Puerto Rico is placed on the path to statehood based on results
of an advisory status resolution process, the same English language
policies applied to Louisiana, California and New Mexico will apply.
There is no justification for discriminatory language policy that holds
Puerto Rico to a higher standard than other mostly non-English
territories that were admitted to the union.
Ironically, it is under ``commonwealth'' that the Congress can
arbitrarily and in a discriminatory way apply English language and
federal fiscal policy to the territory without any protections that
states have form under federal interventions.
The attempt of liberal Democrats in the local ``commonwealth''
party to mobilize conservative pundits to confuse GOP members of the
House on these issues was unsuccessful, but it was made, and that
underscores the need for the Senate to act responsibly to clarify the
real issues and define the real options.
Obama Administration must restore efficacy of White House Task Force
The Republican Party of Puerto Rico is deeply disappointed that the
Obama Administration did not sustain continuity of bipartisan policy
and procedure in management of the activities of the President's Task
Force on Puerto Rico. The coherence that was achieved between the first
Bush Administration, the Clinton Administration and the second Bush
Administration on the Puerto Rico status issue was a model of
bipartisan commitment to do what was right for America.
Indeed, the President's Task Force on Puerto Rico's Status was
created by and Executive Order of President Clinton's, which defined
its mission in a manner that both recognized the status policy of the
Reagan and first Bush administrations. The Clinton policy was then in
turn embraced by the second Bush Administration.
In contrast, the Obama Administration has been aloof and diluted
the mission of the task force. Its members visited Puerto Rico in March
of this year and showed an obvious preference for discussing the Obama
agenda over status. The Obama Administration clearly does not attach a
high level of importance to the fact that status resolution is the
paramount issue for the people of Puerto Rico, and for the U.S. in its
governance of Puerto Rico. That is why there is a federal task force on
the subject of Puerto Rico's status in the White House.
Simply stated, no matter how it may be perceived in the short term,
in reality all other federal and local political, legal, fiscal,
commercial, economic, social, cultural, and government policy matters
ultimately have less long term importance than status resolution. That
may seem an overstatement, but it is true due to the reality that the
current status creates a pervasive and corrosive ambiguity about our
individual and collective rights and responsibilities, challenges and
opportunities. This impairs our vision of the future, prevents informed
self-determination, and obscures the true meaning of our identity as
the body politic of Puerto Rico.
Indeed, there are few federal or local interests or endeavors that
do not suffer in a profound and sometimes crippling way from
institutionalized ambiguities that are due directly to the lack of a
permanent political status. In all matters of import and consequence,
Puerto Rico will be better off and we will do better, once the path to
a permanent future status of the island is known. Even if it takes
years for the self-determination process to reach culmination, it is
imperative now that there be a federally sponsored self-determination
mechanism that makes orderly democratic status resolution possible.
While the transition period for achieving a democratic status may
be prolonged, real progress toward a known permanent status will end
state of political limbo we have been in for a hundred years. Certainty
will usher in a political, social and economic resurgence for Puerto
Rico. This view is consistent with the position adopted by President
Obama during the 2008 campaign, after he had been barraged by the most
persuasive arguments of the most impassioned advocates on all sides of
the status debate.
Upon hearing from statehooders, commonwealth supporters, and the
independence faction, he spoke plainly and yet resoundingly, saying on
May 25, 2008, that Puerto Rico is `` . . . definitely a territory'' and
one that is `` . . . trying to figure out'' if it wants to remain one.
Then he said, ``And that's why it's so important for us to really pay
attention to providing a mechanism for that final status to be
determined . . . I'm committed to doing that . . . in my first term . .
. setting up a procedure whereby the people of Puerto Rico can make
this final decision.''
For all Americans, regardless of political affiliation, the
transcendental meaning of the election of President Obama in 2008 was
that we as a nation, as a people, do not have to live forever with the
mistakes of the past. We are not captives of the wrongs and injustices
of the past. We uphold the same hope for Puerto Rico with respect to
the mistakes, wrongs and injustice of our political status. Yet, we are
mindful that:
It was a mistake for Congress to confer U.S. citizenship in
1917, without explicitly committing to full and equal
citizenship through incorporation, extension of the federal
constitution by its own force, and eventual statehood.
It was wrong for the U.S. Supreme Court to rule in the 1922
Balzac case that Congress could govern the U.S. citizens of
Puerto Rico outside the protection of the federal constitution,
in the same manner as non-citizen subjects in the Philippine
islands territory were governed under the unincorporated
territory doctrine invented by the court's 1901 ruling in the
Downes case.
It was an injustice for Congress to misconstrue the Balzac
decision as license to govern the U.S. citizens of Puerto Rico
under discriminatory statutory policies that define a subclass
of citizenship with less than equal legal standing, and to do
so for an indefinite period without sponsoring a self-
determination process to ensure that the principles of self-
determination and government by consent were being respected in
governance of the territory.
The Road Ahead: H.R. 2499
We do not have to live with those mistakes, wrongs and injustices
any longer. A bipartisan record supporting a federally sponsored status
process has been created in the Congress, as well as the 2005 and 2007
reports of the Task Force. That record includes authoritative U.S.
Department of Justice legal opinions from the Bush-Clinton-Bush years.
The decades of confusion are over, the truth is clear. The whole
world knows the ``improved commonwealth'' ideology is a subterfuge for
perpetual federal subsidization of a failed political economic model.
Politically, the idea that Puerto Rico can be a nation but remain under
U.S. sovereignty, or become sovereign and keep U.S. citizenship without
true allegiance, is the real hoax. The notion that real self-
determination on real options should be held in abeyance, while the
elites of the territorial commonwealth seek to redefine U.S. federalism
and create a new form of ``associated statehood,'' is nothing more than
a grand deception.
Treaty based free association between two separate sovereign
nations is recognized under U.S. and international law, but the status
of Puerto Rico under commonwealth, improved or not, is not and never
will be recognized under U.S. or international law as free and mutual,
or terminable at will. That would require separate sovereignty, it
cannot be done within the domestic political status framework of the
U.S. Constitution, without an amendment to create something other than
a state or territory.
So it is time to stop allowing arguments based on the fallacy of a
discredited ideological doctrine to disrupt an informed process of
self-determination. To prevent the local political gridlock in Puerto
Rico from further impeding democratic status resolution, Congress
should act now to confirm the status options embodied in H.R. 2499.
H.R. 2499 did not disenfranchise commonwealth supporters. Rejection
of status change by a majority in the first vote would have
strengthened the commonwealth party's position in seeking the
improvements to commonwealth it proposes. However, to placate
``commonwealth'' supporters who were pretending to be excluded, the
House added the current status to the second referendum under H.R.
2499. That gives the Senate leeway to act in concert with House to
define the actual options and recognize a local vote based on a 4
option ballot.
Those who want commonwealth do not have a right to prevent those
who want change from voting based on their freely conceived aspirations
for a new status. Self-determination is a right of individuals, not
political parties. The right to self-determination cannot be divvied up
or allocated based on ideological pedigree, much less how someone from
one party think voters from other parties will vote.
It is anti-democratic arrogance for commonwealth party leaders to
demand that statehood and independence voters be denied the right
democratically to express their common aspirations for a fully
democratic status, even if the new and more democratic status they seek
is not the same. Who appointed the commonwealth party to be the self-
determination police? Why are we even listening to these intellectually
empty arguments? Who told them they had a preemptive right to a
guaranteed first or second place finish?
The commonwealth party claim that H.R. 2499 is rigged against
commonwealth is actually a clever barely concealed demand for a process
that prevents majority rule on whether to seek a new status, and gives
commonwealth a manufactured plurality that preserves the status quo. In
a robust democracy, all ideas are equal coming out of the gate, but
some ideas cross the finish line last. Having post position when the
competitive race starts does not ensure an idea or proposal will win,
place or even show.
Indefinite territorial status is not a normative status option.
Real sovereign free association, independence and statehood are
normative status options. After decades of indulging this anachronistic
and regressive status doctrine, the record of its illegitimacy is
incontrovertible. After all, the ``improved commonwealth'' autonomy
proposal is an anachronistic and futile attempt to restore archaic
features of autonomy granted under Spanish colonial rule. The idealized
Spanish autonomy charter was non-binding and colonial, and the same is
true of the current commonwealth regime that is falsely touted as
sovereign autonomy. We cannot afford to indulge this pathetically
nostalgic historical revisionism any longer.
Commonwealth is territorial, always has been and always will be,
unless it is converted to statehood, independence or real sovereign
free association. Thus, the arguments being made against H.R. 2499 are
nonsense, and only seem compelling to those who do not understand the
record that has been created before Congress over the last two decades.
Protecting the Rights of Citizenship
Continued inaction to restore democratic consent principles cannot
be justified. This is the message we hoped the Obama Administration
members of the White House Task Force would take back to Washington:
Failure to act now to fix mistaken status policy for Puerto
Rico made decades ago would be yet another mistake of historic
proportions.
It would be wrong to base federal policy on the grand
deception that commonwealth is normative and statehood or
sovereign nationhood are non-normative, a doctrine that
exploits rather than corrects the mistakes and wrongs of the
past.
Above all, it would be an injustice if we fail to act now,
because gradualism may limit the solutions and options
available to the next generation.
Instead the Obama Administration failed to support H.R. 2499, even
though it complies with criteria in the 2005 and 2007 reports of the
White House Task Force and the Clinton Administration Executive Order
created the Task Force.
This is disturbing, because delay is not a substitute for change
that was needed. Failure to act may very well be prejudicial to the
aspirations of the next generation to preserve their rights and even
their status as American citizens. We have a duty of social
responsibility to end the status dilemma and free our children to
realize their own dreams as individuals and as a people.
As long as Puerto Rico remains a commonwealth with the status of a
territory ruled under the territorial clause power of Congress, the
only source of the current U.S. citizenship for our children born in
Puerto Rico is federal statutory law. This statutory citizenship
enacted pursuant to the sovereign federal territorial power and the
treaty of cession from Spain gives us a less than equal legal and
political status. Only application of the 14th Amendment to Puerto Rico
by its own force will secure for our descendants in perpetuity an
automatic constitutionally defined U.S. citizenship right, conferral of
which is beyond the reach of Congress. Those politicians and party
ideologues who urge delay, gradualism and experimentation to
``improve'' commonwealth do not seem to realize that the 14th Amendment
was adopted to end the power of Congress to define citizenship by
statute. Today, only those who do not acquire full constitutionally
conferred U.S. citizenship under the 14th amendment still acquire it
only by discretionary Congressional application of naturalization
statutes that are subject to amendment and repeal.
As never before we know that the world order changes, the national
agenda changes, and the day may come when a decision is made by
Congress to stop conferral of territorial American citizenship that
only creates a new and expanding disenfranchised class of U.S. citizens
in the territories. Those who are telling us to wait until the local
economy improves to make a decision about status cannot guaranty that
our grandchildren will acquire even the limited territorial
classification of U.S. citizenship conferred on our generation.
Commonwealth as a territorial status does not guaranty anything at
all. American nationality is the only nationality we have, but
commonwealth does not even guaranty in our homeland, within the only
nation we have, an equal legal status under federal law, much less
equal political and civil rights.
We are second-class territorial citizens in the nation that
exercises supreme and pre-emptive sovereignty over our homeland and our
people. We do not have national sovereignty like a real country or a
legitimate free associated state, and we do not have democratic
sovereignty as a people under the U.S. system of constitutional
federalism.
Real Choices
We challenge the defenders of commonwealth to justify delay and
gradualism, instead of federal sponsorship of a self-determination
process based on real options, when our people are not sovereign in our
homeland after nearly a century of U.S. nationality. Statehood,
independence and real free association based on separate national
sovereignty are the only options that reconcile our human rights with
our status as citizens subject to the sovereign power of the U.S. to
govern our lands and our people. Based on the record now there for the
whole world to see, the whole world knows that the status of Puerto
Rico will not be resolved unless the federal government sponsors a
self-determination process in Puerto Rico, based on options that are
defined by federal law.
Since federal law is supreme in Puerto Rico, and any status
solution must be mutually agreed and approved by Congress, self-
determination informed by governing law and status resolution itself is
legally impossible without federal facilitation. Thus, to oppose a
federally sponsored status resolution process is to oppose status
resolution for Puerto Rico.
Decades of federal governing measures reflecting ambivalence in
Congressional intentions as to status resolution have institutionalized
the contradictions and confusion in federal law and policy applicable
to Puerto Rico. In turn, this ambiguity in federal doctrine has been
mirrored in locally concocted status doctrines that exploit the long-
term confusion for short-term political gain.
The inconclusive results of all locally conducted status votes
reflect the confusing and fallacies of non-normative status doctrines
promoted by local political party leaders in the absence sound and
unequivocal federal policy. Congress and the Executive Branch must
actively and affirmatively provide for self-determination that meets
the democratic standards America has set for the rest of the world and
in its own domestic and international practices, with respect to
decolonization of dependent territories in the modern era. The U.S. has
been a leader among nations on self-determination for dependent foreign
client states and neo-colonial possessions.
At the very least Congress should be as favorably disposed to self-
determination for Puerto Rico as it was for foreign peoples and
territories during the U.N. decolonization process. Affirmative federal
measures to make resolution of Puerto Rico's status possible also
should conform to U.S. practices respecting status resolution for its
own former possessions, including the Philippines, Alaska, Hawaii, the
Canal Zone and the U.S. administered U.N. Trust Territory of the
Pacific Islands.
In this regard, the argument by commonwealth leaders against the
two tiered balloting process contemplated by H.R. 2499 was utterly
without merit. In fact, a tiered options balloting process comparable
to that anticipated under H.R. 2499 was employed by the U.S. with U.N.
oversight in the difficult but ultimately successful process for
approval of free association between the U.S. and the sovereign
Republic of Palau. The U.S. Congress confirmed the legitimacy of the
balloting process in Palau, and in 1986 ratified the compact of free
association with that former U.S. administered U.N. trust territory in
1985.
Multi-stage periodic votes were also enacted by Congress in the
status resolution process for the territories that became the states of
North Dakota, South Dakota and Washington. So the polemical accusation
that the original H.R. 2499 was some kind of scheme to force a majority
for statehood is based on historic ignorance. The House changed it so
we are moving forward with the bill as amended, but it remains true
that the original bill was the best way to enable a majority vote not
encumbered and impeded by false options that prevented majority rule in
the past.
Given the record of U.S. support for self-determination by the
people of former U.S. and foreign territories, the failure of Congress
to act on status in the case of Puerto Rico over the last few decades
is legally, historically and constitutionally non-normative and
unprecedented. It is a glaring abdication of constitutional
responsibility by Congress, and history will recognize it as such.
H.R. 2499 as passed but the House now gives the means for Congress
to restore the principle of government by consent of the governed. It
also will restore federal territorial law and policy to a democratic
standard consistent with both modern precepts of self-determination and
the anti-colonial principles of the Northwest Ordinance.
The Moral Imperative
The U.S. is fighting two wars for the right of citizens in Iraq and
Afghanistan to a national government that is democratic. Yet, for 110
years Puerto Rico has been a U.S. territory with no right to democratic
national government. Men and women from Puerto Rico are serving in the
military at a rate higher than 49 states. Some are dying on foreign
soil to defend rights they never had on American soil in Puerto Rico.
So, respectfully, our message is simple, urgent and emphatic: The
best way for President Obama to keep his promise for a federally
recognized self-determination process is to support passage of H.R.
2499 by Congress, or at least support action by Congress now to act to
define the available status options.
Our work to improve the local economy is no excuse to delay self-
determination. Progress on status is the best way to sustain recovery
and create jobs long term. H.R. 2499 is based on a strong historical
record of federal deliberations. It does not disenfranchise
commonwealth supporters. Those who want to keep and try to improve
commonwealth will be free to vote to preserve commonwealth.
Statehood and independence voters cannot be denied the right to
vote for change to a new status, even if their aspirations for an
ultimate status differ. The commonwealth party cannot demand a ballot
option for a status that does not exist. Commonwealth is and always
will be territorial. Statehood, independence or real sovereign free
association are the only non-territorial options. H.R. 2499 is the best
way for Congress to restore the principle of government by consent now,
even if it takes many years to fully resolve the status issue.
______
Statement of Alejandro J. Garcia-Padilla, on H.R. 2499
I appreciate the opportunity that the Committee has given me to
address the very important issues raised by H.R. 2499 regarding the
constitutional relationship between Puerto Rico and the United States.
For the reasons herein stated, I urge you to oppose the bill.
1. The true nature of H.R. 2499.--H.R. 2499 does not lead to
the exercise of the rights to self-determination of the people
of Puerto Rico. Much to the contrary, H.R. 2499 is a hoax to
such rights. H.R. 2499 is nothing but a disguised statehood
bill. I explain why:
2. Statehood.--Puerto Ricans have never favored statehood for
Puerto Rico. Several plebiscites have been held in the Island
since 1967 and statehood has never prevailed. The most telling
case was the plebiscite of 1998: The political party then in
power in the Island produced by itself--without taking into
account the views of the other parties--the alternatives to be
brought to a vote. Since the party in power favored statehood
for Puerto Rico, the definitions were charged in favor of that
alternative. But the electorate proved wiser, and the vote went
for `` none of the above.''
3. The intended involvement of Congress.--H.R. 2499 is a move
to seek the involvement of Congress in this new maneuvering to
produce a vote for statehood. H.R. 2499 sets forth a two-round
plebiscite process. The first round leads to a consolidation of
the supporters of statehood and independence--historically the
second and third choices of preference in Puerto Rico--to gang
against the historically preferred commonwealth option. In the
second round, H.R. 2499 intends to confuse commonwealth
supporters by, first, interjecting poorly defined alternatives
that evoke complex legal issues regarding the powers of
Congress to enter into political compacts with the people of
Puerto Rico, under the specific provisions of the Constitution
or under the pre constitutional powers enjoyed by Congress as
``necessary concomitants of nationality;'' and, second,
negating the intrinsic capacity of commonwealth to evolve and
reshape to provide better solutions to needs of both the
peoples of Puerto Rico and the United States.
4. The commitment of Congress.--H.R. 2499 does not articulate
the nature of the commitment made by Congress regarding the
implementation of the outcome of the plebiscite. If the
statehood supporters have not cared to define such
congressional commitment, then why have they come before
Congress with this vague proposal? The answer seems clear: H.R.
2499 pretends to convey to the people of Puerto Rico the wrong
message that the Congress of 3 the United States is committed
and ready to grant statehood to Puerto Rico if statehood takes
the majority of the vote in the proposed plebiscite. Is
Congress ready to assume that responsibility--legal or moral--
under the terms of H.R.2499? Are we all fully aware, for
instance, of the cost of statehood for Puerto Rico and for
Congress, are we aware, likewise, of the cultural issues at
stake?
5. An exercise of statesmanship.--After a century of shared
history, the peoples of Puerto Rico and the United States
deserve better. Addressing the Puerto Rico status question is
not a matter that should be left to political maneuverings like
that present in H.R. 2499. It calls, instead, for the exercise
of serious statesmanship: the options to be presented to the
electorate must respond to the real preferences of the people
of Puerto Rico, the alternatives must be precisely defined, the
commitment of Congress must be clear. I urge you to engage with
all three political forces in the Puerto Rico in a process of
such dignity.
In the meantime, I urge you to oppose H.R.2499.
______
Statement of Luis Raul Torres-Cruz, Carlos Hernandez-Lopez, Luis Vega-
Ramos and Carmen Yulin Cruz-Soto, Puerto Rico House of Representatives,
on H.R. 2499
The undersigned are elected members of the Puerto Rico House of
Representatives. As such, we wish to express today to this Honorable
Committee that H.R. 2499, the so-called Puerto Rico Democracy Act of
2010, as approved by the U.S. House of Representatives, constitutes a
flawed vehicle that will not only fail to allow Puerto Rico to properly
exercise its right of self-determination, but will also, in a most
undemocratic way, skew the process in favor of a victory for a
Statehood option. We also wish to express our understanding that a much
better way for Congress to support a democratic exercise of the right
of self-determination would be by supporting the convening of a
Constitutional Assembly in Puerto Rico, and establishing a formal
process of negotiation with the People of Puerto Rico to implement the
results of said Constitutional Assembly.
We believe that a valid process of self-determination for Puerto
Rico must comply with applicable U.N. Decolonization Committee
resolutions, which are based on recognized international law
principles. As such, it is essential that any valid process originates
from Puerto Rico, not from the United States, and that it engages the
Congress and the Administration in an effective response mechanism to
the expressed will of the people.
H.R. 2499 would federalize our electoral process, which under US
Supreme Court decisions is unconstitutional, as it is also contrary to
the very nature of self-determination according to International Law.
In addition, H.R. 2499 would create a two-vote process in which the
first vote would be an unnecessary waste of valuable resources. Under
the first vote, the people of Puerto Rico would be asked to choose
between undefined change and the current state of relations between
Puerto Rico and the United States. It should be noted that no one in
Puerto Rico, not even our own Popular Democratic Party (``PDP''), which
is the historical defender of the Commonwealth status, advocates for a
continuation of Commonwealth as we know it today. In fact, in 1998,
given the choice of supporting today's territorial Commonwealth in a
status referendum, the PDP chose instead to support the ``None of the
Above'' alternative. Subsequently, the PDP has repeatedly stated its
support for changes to the current Commonwealth arrangement. Thus, the
first vote included in H.R. 2499 is unnecessary, a waste of valuable
and scarce resources, and offensive to the idea of a proper self-
determination procedure.
The second vote to be held under the terms of H.R. 2499 is equally
problematic. As originally drafted, the second vote did not contain an
alternative that would adjust to the expressed aspirations of the more
than 800,000 supporters of the PDP, one of the two main political
parties in Puerto Rico. Not having an alternative to support, PDP
voters would be left disenfranchised and without any motivation to
participate in the process. These would result in an artificial victory
for the Statehood option, generally the ``runner up'' in Puerto Rico's
political preferences. The addition of a ``status quo'' amendment in
the House of Representatives did not in any way cure that fatal flaw.
Now, instead of having three alternatives that do not adjust to the
expressed wishes of the members of the PDP, H.R. 2499 contains four
alternatives that do not so adjust. The only way to avoid the
disenfranchisement of PDP supporters would be to define an alternative
in a way that adjusts to the text of the PDP platform, which reads as
follows:
Sovereignty means that a nation's ultimate power over its
affairs resides with its people, its countrymen. The
undertaking of the issue of Puerto Rico's political status
should begin with the recognition that sovereignty rests with
the people of Puerto Rico. The concept of ``Estado Libre
Asociado Soberano'' (Sovereign Commonwealth or Free Associated
State) seeks that Puerto Rico and the government of the United
States agrees to specific terms that define the relationship
between them, with U.S. citizenship as a bonding element of the
political association. That effort will establish the extent of
the jurisdictional powers that the People of Puerto Rico
authorize to have in the hands of the United States.
Without an option that adjusts to the above-cited language, H.R.
2499 would leave the members of the PDP without a choice on the second
vote, undemocratically creating an artificial victory for an
alternative (Statehood) that has never had the support of the majority
of Puerto Ricans.
We also concur with those, like the Congressional Research Service
(CRS), who express concern as to the confusing nature of the so-called
``sovereignty in association'' option. When a serious process of self-
determination is entertained by this Senate, the middle ground option
between Statehood and Independence should be clearly outside the
Territorial Clause and as close as possible to the previous models of
association already adopted by the United States with three Pacific
nations. In that sense, H.R. 2499 fails to properly consider the
alternative of Free Association as suggested by Chairman Bingaman to
the Puerto Rican media on November of 2006.
Instead of the flawed process suggested in H.R. 2499, we propose
that a special Constitutional Assembly for self-determination be
convened by the People of Puerto Rico, in accordance to our laws,
institutions and our inalienable rights. This special Constitutional
Assembly shall be the vehicle of expression which allows the
articulation of non-territorial alternatives, based on the sovereignty
of the People of Puerto Rico and not bound by the straitjacket of the
territorial clause and its plenary powers. This proposal is consistent
with the PDP platform; in fact, we have filed a Bill in the Puerto Rico
House of Representatives, drafted by a multi-party special committee of
the Puerto Rico Bar Association (that would provide for the convening
and operation of such a Constitutional Assembly). Instead of wasting
time and resources with flawed processes as H.R. 2499, Congress could
also enact legislation that acknowledges the inalienable right of
Puerto Rico to convene such a convention and that establishes a formal
process to negotiate in accordance to what the People of Puerto Rico
express as a result of that Constitutional Assembly\1\.
---------------------------------------------------------------------------
\1\ This proposal was included in H.R. 1230, a bill introduced in
the previous Congress by Representative Gutierrez of Illinois and
Representative Velazquez of New York.
---------------------------------------------------------------------------
Finally, we denounce the effects of an English language amendment
included in the approved version of H.R. 2499. Said amendment mandates
our Election's Commission to instruct voters that if Puerto Rico
retains its current commonwealth status, ``it is the sense of Congress
that the teaching of English to be promoted in Puerto Rico as the
language of opportunity and empowerment in the United States in order
to enable students in public schools to achieve English language
proficiency''. Said amendment is another attack on the culture and
distinct identity of Puerto Rico, and by itself is enough reason to
defeat H.R. 2499.
We urge you to defeat H.R. 2499 for the various reasons that have
been explained on this written statement. Furthermore, we urge you to
work with the people of Puerto to truly fashion a self-determination
process that respects our natural right to determine our ultimate
political status.
______
Gregorio Igartua, Attorney, Aguadilla, PR, on H.R. 2499
I am an American citizen resident of Puerto Rico, and have been
pursuing the right to vote in Presidential Elections for the American
citizens of Puerto Rico since 1991. On Wednesday, June 24, 2009, your
Committee will be holding a public hearing regarding Puerto Rico's
status issue. I find it pertinent to bring to your attention, and that
of the other Members of the Committee, the following observations in
opposition to the proposed legislation:
1) Gradual Congressional Incorporation of Puerto Rico to the
United States ``as a State'' Since 1898.
Puerto Rico has met all of the requirements to become the 51st
State of the United States. Since 1898, when Puerto Rico was acquired
by the U.S. by the Treaty of Paris, as a result of the Spanish American
War, Congress has gradually incorporated Puerto Rico to be ``like a
state''. The native residents of Puerto Rico are American citizens by
birth, vote for their governor, and adopted by direct vote a
constitution in 1952, one that was approved by Congress, to rule their
internal affairs, just like American citizens do in the fifty states.
(See, US. Const. Art IV, Section 4). The Executive Branch operates
fully in Puerto Rico. All U.S. Federal laws have been applicable in
Puerto Rico since May of 1900. (See Foraker Law and Public Law 600).
All income from sources outside of Puerto Rico is subject to Federal
taxation. (See US. Tax Code). In addition, all employers and employees
in Puerto Rico pay Social Security (F.I.C.A.) and Medicare taxes. The
net result is that Puerto Rico is now contributing over five billion
dollars annually to the U.S. Treasury, more than residents of some
states do. (Verify with IRS Annual Income Report). Puerto Rico is so
incorporated as ``a state'' to the Nation that the Judicial Branch
operates fully in Puerto Rico as in the States. (Puerto Rico is subject
to the jurisdiction of the Federal District Court, First Circuit Court
of Appeals, and the United States Supreme Court.) As a result, the
American citizens residents of Puerto Rico have a federalist
personality, one associated with the Nation and one associated with
Puerto Rico, just like the American citizens in the states have. All of
these policies constitute acquired rights and obligations within the
American constitutional legal framework. Thus, Puerto Rico is ready for
an Enabling Act from Congress granting it the statehood franchise, so
that, in justice and after more than one hundred years, its four
million American citizens can send two senators and six congresspersons
to Congress, and vote in Presidential Elections. Taking into account
the spirit of the U.S. Constitution, and the democratic rights that our
Nation so arduously defends, domestically and abroad, this statehood
step is long overdue for Puerto Rico.
What is a clear and simple solution of the status question that is
for Puerto Rico to become a state is hindered by contradictions-
ignorance, bad faith, discrimination or a combination of these on the
part of local and national politicians debating the status question.
Particularly consider the following:
A. Some politicians are still confined to the dilemma of
whether Puerto Rico is an incorporated or non incorporated
territory of the United States, a judicial classification that
originated in the so called Insular Cases of 1901. These ignore
that Congress has incorporated Puerto Rico to be like a state
gradually over the years, as previously exposed. We were made
part of the American family when we were granted American
citizenship in 1917. (`` . . . The distinction between
incorporated and unincorporated territory is no longer
significant . . . [after] the conferral of citizenship on
persons born in Puerto Rico ( 1917, amended, 1939 and 1940)''.
3 Gordon and Rosenfeld, Immigration Law and Procedure 12 (1980
rev), Restatement of the Law, Vol. 1, Section 212 at 121). Even
the Federal Courts have judicially incorporated Puerto Rico to
the United States by applying US constitutional provisions in
their opinions, as if it is ``a state.'' (See eg: Mora V
Mejias, 11SF Supp 610, Trailer Marine Transport v Rivera
Vazquez, 977F 2d1, Calero--Toledo v Pearson Yacht Leasing Co,
416 US 663; Terry Tend Torres v Commonwealth of PR 442 US 46S).
Moreover, the U.S. Supreme Court established Puerto Rico is an
incorporated territory, Boumedine v. U.S. (US Sup Ct, June
2008).
B. The leaders of the Popular Democratic Party have insisted
for sixty years in promoting as legally viable a political
relation whereby Puerto Rico is a territory of the United
States with the privileges of internal free disposition of U.S.
constitutional areas as those exposed in U.S. Constitution Art
I, Section 8, which are exclusively delegated to Congress, and
which would, if allowed, constitute unequal treatment between
the American citizens residents in the states and those
residing in Puerto Rico. That is, making Amendments VI and
XIV's, equal protection clause inoperative. This proposal
pretends to revive in our Nation a confederate relation between
Puerto Rico and the National Government, a type of relation
that ended when the U.S. Constitution was ratified in 1789, and
which was reaffirmed by the outcome of the Civil War. Worst,
they are still searching for a status definition which mixes
American Citizenship with constitutional privileges not
acceptable to Congress because these do not fit into the
American constitutional framework.
C. If you evaluate different reports concerning the political
status of Puerto Rico from both Congressional and Executive
sources, including those by the White House, as well as the
opinions espoused by national and local politicians, you will
find them to be generally contradictory and confusing. Policies
are still adopted on the wrong premise that we do not pay
Federal taxes. Last year two congressmen opposed full voting
rights in the House to Hon. Luis Fortuno, then Puerto Rico
Resident Commissioner, on this wrong basis. (Ignoring US Const
Amend XXIV prohibiting the imposition of tax requirements as a
precondition to voting.) This may be due to ignorance of the
development of the legal relationship between Puerto Rico and
the United States and our present legal status as an
incorporated territory of the U.S.
D. Consider Congressman Luis Gutierrez and Congresswoman
Nydia Velazquez, both from Puerto Rico, with residence in
states, enjoying full citizenship rights, and opposing
statehood for their fellow American residents of Puerto Rico.
This political contradiction provokes confusion in Congress.
E. The political confusion created by a proposal by some in
the Popular Party of an associated republic, and the proposal
by others of a Republic for Puerto Rico, where both mean
independence from the United States, and included in the
proposed law. How can Congress include an independence states
to the American Citizens of Puerto Rico who have rejected it in
the last fifty years? What independence, with what: government
organization, emigration laws, coin, labor laws, etc.) On the
other hand, Puerto Rico needs to be a Republic in order to
freely negotiate an association with the United States or any
other Republic. Therefore the proposed associated republic
alternative is not legal. The proposed law offers a double
blank check to an independence alternative to a minority which
has not received more than three percent of the electoral vote
in the past two elections.
F. Many politicians ignore the fact that the territory of
Puerto Rico is fully incorporated to qualify as a state,
including with population requirements, contrary to the legal
status of other territories. The other territories are still
ruled by the United States under an Organic Act, and their
population does not meet the minimum required population to
elect one Representative to Congress, or one elector to vote in
Presidential elections.
2) Legal Considerations Opposing HR 2499
The December 2005 Report by the President's Task Force on Puerto
Rico's Status proposed as a solution to the status issue a Federally
sponsored plebiscite. One of the alternatives offered to the voters
would ask them to keep Puerto Rico as a territory, thus freezing the
incorporation process. Has your Committee consider the implications of
such proposal, of a political status of keeping the status quo of
American citizens residents of a territory within the U.S.
constitutional legal framework, such as: How would Congress establish
guidelines to determine the applicability of federal laws to Puerto
Rico; or, for the Courts to determine the extent and degree to which
our rights under the U.S. Constitution would be advanced, or withhold;
or, how will the Executive Branch operate in Puerto Rico, in a
territory where the applicability of laws, or advancement of legal
rights has been frozen? What is the constitutional provision which
allows such a discriminatory practice? There is no other similar
discriminatory policy that has been proposed to be applicable to
American Citizens residents of a territory in the history of our
Nation, nor to afroamerican American Citizens with respect to their
voting rights.
As the White House Report proposed this law also proposes a
political solution for the status of Puerto Rico that is not legally
viable, that is, a two tier referendum where the American citizens of
Puerto Rico would first decide on whether to stay as a territory of the
United States, and depending on the outcome of the first referendum, to
participate in a subsequent referendum to vote for either statehood or
independence, or an associated republic. This proposal promotes more
confusion on the status issue. Any attorney should be able to explain
to the Committee, as the U.S. Attorney General should, that you cannot
ask American citizens by birth to vote for an option that will continue
to subject them to government without consent. It is legally and
morally incomprehensible to promote a system based upon the proposition
that taxation without representation is a valid option for American
citizens, even when it expressly contravenes the very text of Amend
XXIV. In Puerto Rico's case to continue to be deprived of Congressional
representation and the right to vote in Presidential Elections while
being federally taxed for over 5 billion dollars annually.
Consider how contradictory it would have been for African Americans
in the U.S. to claim their rights in a fashion similar to the proposed
plebiscite during the U.S. Civil Rights Movement of the 1950's and
1960's. Imagine that a federally sponsored plebiscite had been held in
the states of Alabama and Mississippi in 1956 and that the African
American residents of those states would have been asked to vote
``yes'' or ``no'' to the following questions: Would you like to vote in
local, state and Federal elections? Only a small minority of African
Americans in those two states were allowed to vote freely in1956. It
was not until the passage of the Voting Rights Act in the 1960's that
they could vote in significant numbers. Up until then African Americans
in those and other states had government without the consent of the
governed. Another question would have been:
Would you like to continue living in segregated communities with
separate public facilities such as restaurants and rest rooms?
Segregation ended with the passage of the Civil Rights Act. Finally,
would you like to continue sending your children to inferior segregated
schools? The U.S. Supreme Court decision Brown vs. Board of Education
of 1954 ended segregation in schools, however, it required the
intervention of Federal troops to implement that decision.
It is evident that such a plebiscite would be absurd, illegal,
discriminatory, against the national democratic principles, and would
only lead to more confusion. The adoption by Congress of the proposed
referendum for Puerto Rico would be the equivalent of
institutionalizing the case of Plessy v. Ferguson, 163 US 537, to the
four million American citizens of Puerto Rico, or similarly the Insular
cases. Such is the one proposed for the four million Americans who live
in Puerto Rico, and the one endorsed by some pro statehood and pro
independence leaders, and considered by your Committee.
Even under international treaties, particularly those to which the
United States is signatory, and under international customary law, the
proposal is not only legally unviable, but rather disrespectful to the
four million American citizens residents of Puerto Rico, which have
contributed so much to the Nation, inclusively in armed conflicts to
ironically defend the democratic rights (government by consent) of
citizens of other countries (Iraq and Afghanistan--More than 60
American citizens from Puerto Rico have died already in these
conflicts.) That is, defending our flag under the embarrassing
condition of being denied those same democratic rights. (See Igartua v.
US. III, 407 F3d 30, Judge Torruellas and Judge Howard dissenting).
I wonder, why so many people seem to be confused with the political
status of Puerto Rico? I also wonder whether some politicians consider
whether the American citizens of Puerto Rico have dignity at all? We
are the first American citizens residents of a U.S. territory whose
acquired federal civil rights are still being considered for a
possibility of a move in a direction towards independence rather than
towards statehood. Only 3% of the voters hare favor independence in the
last 50 years. To the contrary, both the Pro-Statehood Party leaders
and the Popular Democratic Party leaders institutionallyparticipate
actively in National Politics. Ex Governor Rafael Hernandez Colon and
the leaders of his Popular Democratic Party have strongly expressed
their position against renouncing American citizenship. (See
transcripts of previous status hearing before the Committee). What
moral, legal, or logical justification does Congress has to even
contemplate the possibility of taking away our federal acquired rights,
our American citizenship from four million Americans also who are now
fourth, fifth, and sixth generation American citizens. Furthermore
taking into consideration the following:
1. Hundreds of thousands have served in the Armed Forces of
the U.S., many of whom have died in combat.
2. There is a constant flux of people to and from the
mainland to Puerto Rico for the purpose of education,
employment, business and leisure.
3. That independence would place an undue burden on the
residents of Puerto Rico (4 million American citizens), and
their relatives in the 50 states alike (4 million American
Citizens).
4. That there is no precedent in the history of the United
States to revoke or rescind American citizenship to American
Citizens against their will.
5. The political relation of Puerto Rico to the United States
where the U.S. Constitution has been made applicable in several
judicial decisions, including by the U.S. Supreme Court.
Notwithstanding everybody wants to propose solutions randomly. Some
Senators have even proposed a constitutional assembly, showing total
disregard for the one held in 1952, when we adopted a constitution to
govern our internal affairs, with a republican form of government like
in states, and where we expressed our loyalty to the U.S. Constitution.
(PR Constitution Preamble) This would be very convenient for the
independence Party, as similarly proposed by their leader Ruben Berrios
Martinez. Its a chance to turn back all the Federal incorporation
process. Most probably many of these proposals are made out of
ignorance of Puerto Rico's legal relationship as an incorporated
territory of the United States, from where four million other former
residents have moved to the fifty states. How can Congress ever
consider legislation for a constitutional assembly that will affect the
acquired federal rights of four million American citizens without a
specific agenda, or with the expectation that one that it will the
adopted at a later stage at the unilateral will of a few. Is this the
normal legislation procedure in Congress? To determine where we are
legally under the U.S. Constitution, and where we should go, is not
such a complicated endeavor. In this regard, I would respectfully
propose to this Honorable Committee to match the requirements imposed
to other territories in order to become a state. After such analysis,
your Committee would find that Puerto Rico has complied with all the
requirements to become a state as originally established in the
Northwestern Ordinance of] 789.
I invite you and the other Members of the Committee to evaluate
first all of the legal documents and judicial opinions in the cases of
Igartua v. 1LS, I, II, and III, litigated in the Federal Courts and
related to our right to vote in Presidential Elections. The U.S.
Department of Justice can provide you with the whole record. In any
case, I am at your disposition to provide these or any documents you
deem pertinent. (Igartua v Us, 404 F3 dl; 407 F3 d30; 229FS3 d80).
Chairman Rahall and the Honorable Committee, I urge you to analyze
the relationship of Puerto Rico with the United States within its
proper legal context. The Puerto Rico status issue is not like a blank
canvas where anyone can paint a custom made solution. Our relationship
has been developing since 1898 legally, socially, politically and
economically, and it is imperative that this process be taken into
account. The American Citizens residents of Puerto Rico have helped
built the Nation. Your Committee can contribute to our human rights and
make history by promoting a process that fully recognizes our legally
acquired rights as American citizens by birth and provide us with all
the benefits conferred by statehood. It is Congress obligation to treat
this issue within the context of the presently applicable legal
dispositions, that is, within a civil and human rights perspective, and
not within a purely territorial perspective more fitting for the latter
part of the 19th century.
Congress should work to complete the incorporation process by
adopting an Enabling Act for Puerto Rico. A Federally sponsored
plebiscite for Americans citizens to consent to government without
consent of the governed as an option would be asking us to choose a
status of political servitude, an illegal and unjust option to offer to
an American citizen. It would also show that the Committee does not
understand where we stand legally. Work for us considering what we
really are, four million American citizens who moved residence to the
States, and four million American Citizens of fifth and fourth
generation residing in Puerto Rico, U.S.A.
I am sure that both Honorable Governor Luis Fortuno, and Honorable
Resident Commissioner Pedro Pierlussi, and other statehood leaders,
have a genuine and honest interest in pursuing statehood for Puerto
Rico. I very respectfully oppose the alternative of HR 2499-for the
reasons set forth above.
I respectfully request that this communication be made part of the
official record of the Committee Hearing on Puerto Rico.
______
Statment of Michael A. Monagle, Christiansted, VI
Dear Committee Members and Delegate Christensen:
Let me begin by saying that I support the creation of a Virgin
Islands Constitution. I even testified at a meeting of the committee on
the legislature to express my opinion on how our senate should be
formed. Let me go a step further by saying that I respect many
individual delegates to the Constitutional Convention and admire their
hard work in helping to create such a document. Unfortunately there
were some members of the Convention who had an agenda that will
guarantee the failure, once again, of this worthwhile endeavor. I am
speaking specifically of the creation of classes of citizenship with
the attendant special privileges that such distinctions entail. The
delegates have put forward a document that will divide us into three
classes-Native Virgin Islander, Virgin Islander and Virgin Islands
Citizen. Already formed in the proposed Constitution are ideas such as
special tax privileges for Native Virgin Islanders and the premise that
our Virgin Islands Governor and Lieutenant Governor must be Native
Virgin Islanders. If the proposed Constitution is allowed to pass we
can expect more such enactments in our future, further degrading our
constitutional rights.
In the previous hearing before members of the House you had Gerard
Emmanuel, Adelbert Bryan and Gerard Luz James testifying, three men who
have been in the forefront of enacting the above mentioned sections of
the Constitution. Let me speak of the thoughts of the two who will not
be there today. First Mr. Emmanuel stated that we should restrict the
two elected executive offices to Native Virgin Islanders even if it
means bucking Congress. He stated ``The top office is something we
should have for our own. If people fight against that I don't think
they love the Virgin Islands.'' Mr. Bryan stated about the offending
sections ``Why we here wondering about what little handful of white
people not going to like it.'' (sic) Mr. James is now appearing in
front of your committee so please ask Mr. James if he agrees with those
quotes. Who does he and Mr. Emmanuel define as ``our own''? Is he
excluding many of our Arab citizens and many of our Hispanic citizens
and all of our Down Island citizens and almost all of our Caucasian
citizens? Are they not his own? Does he share the views of Mr. Bryan
about a ``little handful of white people''?
As you are aware, we live in a global world where people do not
stay within fifteen feet of where they were born. Such insular thinking
is not applicable to the way we all live today. In referencing the
section on our executive officers, if you look at the fifty five
governors under the U.S. flag, 24 were not born in the state or
territory where they govern, in fact three were born in foreign
countries. That is a total of 43%. This is a fact of life, people move
and denying them their rights and privileges because of that is
unconstitutional. Would Mr. James like to see reciprocal ceding of
rights for Native Virgin Islanders who moved to New Jersey or Oklahoma?
Should they have extra taxes levied against them in those states
because of these clauses? Shouldn't we include a clause in our
Constitution that would permit the citizens not allowed to run for
office to pay no taxes at all as they are not getting the rights and
privileges guaranteed to others?
What the proposed Constitution codifies on our islands is the
beginning of Apartheid, a government mandated way of life with
different rights for different classes of citizens. Apartheid in
Afrikaans means separateness or apartness. I don't believe that is what
we should be creating in our Constitution. At present you have several
options in regards to the document before you. I ask that you carefully
consider them and please do not allow this to become the law of the
land on our islands.
Thank you for allowing me to contribute my thoughts to your debate
on the issue at hand.
______
Statement of Mauro E. Mujica, Chairman of the Board, U.S. English,
Inc., on H.R. 2499
Chairman Bingaman and members of the Committee,
My name is Mauro E. Mujica, and I am Chairman of the Board of U.S.
English, Inc.
U.S. English was founded in 1983 by former U.S. Senator S.I.
Hayakawa. Since then, we have grown to more than 1.8 million members
who believe that public policy should emphasize the importance of our
common language, English. On behalf of our members, we oppose the
current version of H.R. 2499, the Puerto Rico Democracy Act. H.R. 2499
fails to address the serious official language questions pertaining to
Puerto Rico's status, and compounds this error by pretending to address
these issues. As with the vote in the House of Representatives, any
vote on H.R. 2499 will be featured prominently in the legislative
scorecard we distribute to our members before the November elections.
Our chief concern is that Puerto Rico's current policies with
respect to its official language have never been allowed for any
incoming state:
While English is mandatory in Puerto Rico's public schools,
it is taught as a foreign language, and instruction rarely
exceeds one hour per day. Unsurprisingly, just 20 percent of
Puerto Rico's residents speak English fluently. By comparison,
California has the lowest proficiency rate among the 50 states,
and its rate is 80 percent.
Puerto Rico's local courts and legislature operate entirely
in Spanish, with English translations available only upon
request.
Dr. Yolanda Rivera, Director of the linguistics program at the
University of Puerto Rico recently told the International Herald
Tribune that the cumulative force of these government policies is that
``English is a foreign language in Puerto Rico.''
No state has ever been allowed to come into the Union when its core
organs of government operate in a foreign language, and Puerto Rico
must not be an exception.
As your former colleague Daniel Patrick Moynihan wrote in his book
Pandaemonium: Ethnicity in International Politics, a formal or informal
requirement for all U.S. territories entering the Union has been that
English be the operational language of government. In most cases, it's
been an informal requirement: the vast majority of territories were
operating in English when they petitioned for statehood, so a
Congressional requirement would have been unnecessary.
However, when the language of the new state government was in
genuine doubt, Congress has always formally required English as a
condition for statehood. In 1811, President James Madison signed the
Louisiana Enabling Act, establishing the conditions under which heavily
French speaking Louisiana could become a state. Under the Act, the
laws, records, and written proceedings of the new state were to be
solely in English. Three of our most recent states have presented a
similar challenge: Oklahoma, Arizona, and New Mexico all entered the
Union with large and historically rooted non-English speaking
populations. In all three cases, Congress required English to be the
language of public school instruction before the territory voted on
whether or not to become a state.
Requiring similar changes would force a sea change in Puerto Rico.
While it is true that Puerto Rico technically has English as an
official language, we must ask what this means in practice. I visited
Puerto Rico's legislature last month, and I would encourage you to
visit as well. One would think that with English being an ``official
language'' that the legislative proceedings would be at least in both
English and Spanish. Instead, all the legislative proceedings are
conducted in Spanish. I was able to follow very well, since Spanish is
my native language. But if, like most Americans, I did not speak
Spanish, and I wanted a copy of the legislative proceedings in English,
I would have had to make a special request.
Some incoming states were allowed to keep their historical
languages for ceremonial purposes. For example, New Mexico was allowed
to keep Spanish and Hawaii to keep Hawaiian. Still, English was and is
the operational language of government in both states. In Puerto Rico,
it is the reverse: Spanish is the operational language, and English is
there for ceremonial purposes.
I am not criticizing Puerto Rico for their preference for Spanish.
The island has substantial autonomy as a U.S. commonwealth, and they
have the discretion to do what they think is best for the commonwealth.
But if they want to become a state, they must not be allowed to have
practices that no state in our history has ever held.
As such, the legislative language related to English that passed
the House of Representatives is woefully insufficient. The House
measure requires that the official language policies of the federal
government apply to Puerto Rico, as they would to all other states. I
very much wish the federal government had an official language-my
organization is trying to make it happen. But the federal government
does not have an official language, so this ``requirement'' is useless.
The House also defeated, by four votes, an amendment that would
have required English to be the sole official language as a condition
for Puerto Rico statehood. Make no mistake: without this amendment,
Puerto Ricans would vote in a federally sanctioned plebiscite believing
that they could enter the Union with their historically unprecedented
language policies intact.
That would mean a U.S. state in which American schoolchildren are
taught English only as a foreign language.
That would mean a U.S. state in which the state legislature and
state courts operate in Spanish and in English only by special request.
That would mean a U.S. state where only 20 percent of the
population can speak English, and where government policies are not
attempting to improve that number.
The question of language in Puerto Rico is actually bigger than
Puerto Rico. After all, how can the United States ask immigrants to
learn English when they come here if we allow a state where public
policy makes no attempt to achieve English fluency?
Some in the statehood movement have suggested that Congress
addressing the language question is premature, and that Congress should
only address it once a plebiscite has been held. But if the true
purpose of H.R. 2499 is to accurately assess Puerto Ricans' political
wishes, Congress must give the voters accurate information about what
each option entails. If Congress believes that Puerto Rico must truly
adopt English in its official practices, the time for addressing it is
now.
Endorsing Puerto Rico's political self determination does not mean
that Puerto Rico unilaterally determines the conditions under which it
becomes a state. As has always been the case, defining the contours of
statehood is up to the Congress. This Congress must make it clear to
Puerto Rico-before any vote-that statehood means joining all of the
other 50 states in operating their courts, schools, and legislature in
English.
The time for addressing these weighty issues of language and
national identity are now. Without these changes to H.R. 2499, I
respectfully ask that the Act be defeated.
______
Statement of John A. Regis, Jr., President of Puerto Rico-USA
Foundation, Inc., on H.R. 2499
On April 29, 2010, the U.S. House of Representatives passed H.R.
2499, a bill providing for federal recognition of the a political
status referendum conducted by the duly-constituted local government of
Puerto Rico on future political status options recognized by Congress
as compatible with the U.S. Constitution and federal law applicable to
Puerto Rico. We strongly supported H.R. 2499 and regard its passage as
a significant and historic step toward a long over due definitive
response by both Houses of Congress to the formal petitions in 1994 and
1997 of the Legislative Assembly of Puerto Rico, requesting Congress to
enable Puerto Ricans to vote on the legally valid status options
Congress is willing to consider for Puerto Rico.
Accordingly, it is now historically and legally imperative that the
U.S. Senate take up H.R. 2499 and act in concert with the House of
Representatives to define the future political status options Congress
is willing to consider for Puerto Rico. Given the history of past
status votes in Puerto Rico and the legislative record in both Houses
of Congress in response to those local votes, timely and effective
action by the Senate during this session of Congress clearly is
consistent with the authority and responsibility of Congress for
territorial status resolution under Article IV, Section 3, Clause 2 of
the U.S. Constitution.
Why the Senate Should Act
It no longer is credible or rational for Congress to expect much
less require the 4 million U.S. citizens of Puerto Rico to conduct a
referendum on future political status options in the absence of
Congressional confirmation of the legally valid available options. The
1994 and 1997 petitions by the people of Puerto Rico, acting through
the local constitutional process established under federal law, confirm
that meaningful and informed self-determination expressing the future
status aspirations of the people can not realistically be expected
unless and until Congress clarifies federal law and policy with respect
to the status options formulated in the local political and
constitutional process of Puerto Rico.
The history of confusing and inconclusive votes conducted on status
options formulated in the local constitutional and political process in
1967, 1993 and 1998 compelled the Legislative Assembly of Puerto Rico
to petition Congress to define the options to consider in 1994 and
1997. Adoption of H.R. 856 by the House in March of 1998 was followed
by U.S. Senate Resolution 279 in September of 1998, but the Senate
measure failed to confirm any specific status options. The local
government then sponsored a local status vote based on the legislative
record before Congress in 1998, with results that reflected, among
other things, the need for both Houses of Congress to act in concert to
confirm the status options Congress as a whole is willing to consider.
The action taken by the House in bringing H.R. 2499 to the floor
for a vote reflected the progress made since 1998 in creating a record
for federal law and policy. That record includes 12 years of
legislative and oversight hearings in the Senate and House on the
Puerto Rico status question, based on legislation that has been
introduced with bipartisan sponsorship, as well as the 2005 and 2007
reports by the President's Task Force on Puerto Rico's Status.
Based on that record, the principles that must govern federal law
and policy with respect to the status of Puerto Rico are clear:
By voting to adopt the current local constitution in 1952,
the U.S. citizens of Puerto Rico approved a form of limited
local territorial self-government under the ``commonwealth''
label, but that did not constitute consent of the governed to
indefinite territorial status without full self-government at
the national level.
A federal mechanism must be created to enable the U.S.
citizens residing in Puerto Rico to consent to continuation of
the current status, which consent must be based on majority
rule to be sufficient and sustainable as a form of government
by consent of the governed.
If a majority do not consent to continuation of the current
status as defined by federal law, there must be a mechanism
that makes possible the free democratic expression of the
wishes of a majority of voters regarding future status options
other than the current territorial ``commonwealth'' status that
Congress is willing to consider.
The U.S. citizenship rights of residents of Puerto Rico are
defined restrictively and are less than equal to citizenship
rights in the states due to the territorial status of Puerto
Rico, so only U.S. citizens residing in Puerto Rico should be
eligible to vote in a referendum on the status of Puerto Rico,
rather than enabling residents of the states with ties to
Puerto Rico to vote to influence the determination of the
status and rights of residents of the territory.
Any initial referendum mechanism on status in Puerto Rico to
ascertain consent to the current status or the freely expressed
wishes of the voters as to the options for a new status that is
not territorial will be advisory and not binding on Congress.
It is not consistent with the principles of informed self-
determination to present voters in a status referendum with
options that are not recognized under federal law. That denies
the right of self-determination to voters who want to vote on
legally valid options.
Voters who do not consent to the present status have a right
to combine their vote to end the current status, even if they
have different aspirations as to the ultimate future status of
Puerto Rico.
Majority rule on the status issue provides the most sound
basis for federal and local law and policy on the political
status issue, and it is not ``stacking the deck'' or creation
of a ``manufactured majority'' to enable voters favoring
different ultimate options to combine their vote to form a
majority to eliminate an option supported by less than a
majority.
The current territorial status and ``commonwealth'' regime
limits self-government to local matters not otherwise governed
by federal law, and includes the ability of the local
government to request improvements in federal-territorial
relations.
The local ``commonwealth'' party does not have a right to
demand that its party platform proposals to improve
``commonwealth'' by converting it to a non-territorial status
combing features of both statehood and sovereign nationhood be
included on a referendum ballot, because that local party
platform is not recognized under federal law as a legally valid
status option, and has been rejected by Congress and the
federal courts for 60 years.
House Debate of H.R. 2499
H.R. 2499 satisfied almost all of these criteria, developed through
the comprehensive deliberative committee oversight and legislative
hearing process in House. Indeed, the only provision of H.R. 2499
inconsistent with these principles was the extension of voter
eligibility in status votes under the act to Americans from Puerto Rico
residing in the states. We respect the sentiment behind that provision,
but do not believe it is consistent with the principle of government by
consent of the governed, because only the U.S. citizens residing in
Puerto Rico are governed by federal territorial law applicable to the
commonwealth under the current status.
By separating the threshold issue of consent to the current status
in a first stage vote, H.R. 2499 would have given supporters of the
current status and ``commonwealth'' the ability to preserve the status
quo and seek improvements to ``commonwealth'' as it has for 60 years.
As long as ``commonwealth'' supporters garnered a majority for that
option there never would have been a vote under H.R. 2499 for the non-
territorial status options recognized by Congress.
However, in the House debate representatives of the local
``commonwealth'' party in Puerto Rico opposed H.R. 2499, and supporting
proposed amendments intended to ensure continued minority rule and
artificially imposed plurality votes based on inclusion of a
``commonwealth'' option that is not recognized under federal law.
Fortunately, the House did not consider proposed amendments to include
the ``commonwealth'' status option of the local ``commonwealth'' party
that had appeared in locally conducted status votes in 1967 and 1993.
However, due primarily to confusion, misinformation and
misunderstanding of the two-tier ballot in H.R. 2499, created by
representatives of the local ``commonwealth'' party, the House did
amend H.R. 2499 to combine the current status with the ``commonwealth''
system of limited local self-government in the second stage vote on
non-territorial status options. This makes attainment of majority rule
on a valid status option more difficult, and increases the chances of
continued minority rule under plurality votes.
The most disingenuous argument made in the House debate on H.R.
2499 was that the voters of Puerto Rico had ``said no'' to statehood 3
times in the earlier status votes. The truth is that statehood gained
ground in the 1967 and 1993 vote against a ``commonwealth'' ballot
option that promised a ``fantasy island'' status combining feature of
statehood and independence that are not recognized under federal law as
consistent with territorial status, independence, true sovereign free
association or statehood. In 1998 statehood got the highest vote of any
status option, ``commonwealth'' as defined by federal law got less than
1%, and ``None of the Above'' got the highest vote. That record of
locally conducted status votes is the best proof that Congress needs to
end its silence on what status options are constitutionally and legally
plausible.
H.R. 2499 Makes Senate Action Imperative
But even with the amendments to H.R. 2499 that alter its original
framework it is an historic achievement, and provides the basis for the
Senate and the House of Representatives to reach agreement on a
mechanism to enable a local referendum process that can lead to
government by consent in Puerto Rico on the political status question.
Now the highest and most urgent priority is for the Senate to act
in concert with the House to define the status options that are
recognized under federal law, so an informed and meaningful act of
self-determination can occur in Puerto Rico. We look forward to working
with the Committee to achieve that goal during this session of
Congress.
______
Statement of Jorge I. Suarez Caceres, Senator, Commonwealth of Puerto
Rico, on HR 2499
Senator Jeff Bingaman, Chairman of the Committee, and all other
members. I make these remarks as State Senator of the Commonwealth of
Puerto Rico and member of the Popular Democratic Party (PDP).
The United States first claimed the Caribbean island of Puerto Rico
as a prize after its victory over Spain in the Spanish-American War in
1898. In 1952, the People of Puerto Rico and the Congress agreed to
turn Puerto Rico into a democratic, self-governing, Spanish speaking,
internationally recognized U.S. commonwealth. Since then, Puerto Ricans
have voted to reject statehood in 1967, 1993 and 1998.
On the first two instances Puerto Ricans were asked to vote on
their political status, we were given three options to choose from:
commonwealth, statehood or independence. In both instances, the
majority voted for commonwealth. As a result, in 1998, in an effort to
tilt the balance in their direction -after failing to move Congress in
their favor, a pro-statehood administration in Puerto Rico came up with
a new strategy. Instead of just three options, voters were given five;
four political status definitions and a ``none of the above'' option.
The plan was to dilute the commonwealth vote and win at least a
plurality for statehood. However, their ``divide and conquer'' strategy
failed embarrassingly when Puerto Rico's pro-commonwealth leaders urged
their supporters to vote for ``none of the above,'' which won the
majority of the votes. For a third time, statehood was rejected.
All three plebiscites were originated by Puerto Rico law. They were
not binding on the Congress. Millions of dollars were spent in
campaigning and in the process. The result: the political status of
Puerto Rico remains the same. Three plebiscites, three strikes,
Plebiscites are out!!! Statehood is out!!!
Nevertheless, in spite of the fact that history has shown that
plebiscites do not work, statehood proponents are back, this time
before the Congress, trying to ``divide and conquer''. In a new attempt
to engineer a victory for statehood, they are teaming up with the pro-
independence movement for a yes or no vote on commonwealth status.
Instead of proposing a new option, chosen via consensus, they are
proposing another plebiscite with a yes or no vote on commonwealth
status. If that plebiscite does not give them the desired result, then
they propose yet ANOTHER plebiscite.
H.R. 2499 is intended to transform the Island and its 4 million
mostly Spanish-speaking inhabitants into the first Hispanic state. H.R.
2499 would make Puerto Ricans vote on the issue of statehood yet again.
This time, however, statehood supporters are leaving nothing to chance.
They are pulling out all obstacles to rig the voting process in favor
of statehood.
H.R. 2499 authorizes a federally mandated plebiscite on whether
Puerto Rico should remain a commonwealth, become a state or become an
independent nation in association (or not) with the United States. A
majority of Puerto Ricans have never favored statehood, but the voting
scheme in H.R. 2499 is designed to guarantee that statehood finally
wins.
As the Senate Committee on Natural Resources prepares to mark up HR
2499 you should be aware that this bill was not the product of a
drafting process that was inclusive transparent nor fair. HR 2499, as
introduced, would set forth a predisposed process designed to get rid
of the Commonwealth option in order to steer the people of Puerto Rico
towards a predetermined outcome in favor of statehood. This latest
statehood bill proposes two plebiscites structured to knock out
Commonwealth early on hoping to create a bogus majority in favor of
statehood. Basically, in the first plebiscite voters would be asked
whether Puerto Rico should continue to have its present form of
political status (Commonwealth) or it should have a different one.
Although in theory this might be a fair question, what it does, in
effect, is to merge voters from the statehood and independence factions
and stack the deck against the Commonwealth supporters. Once the
Commonwealth option is eliminated the bill provides for a subsequent
plebiscite between Independence, Statehood and a nondescript
``sovereignty in association with the United States'', an option
without U.S. citizenship that ignores and does not represent the
aspirations of the largest group of Puerto Rico voters who like me
support and advocate for Commonwealth.
If you want to continue trying with plebiscites -which is absurd-
why not try with this: statehood, yes or no vote. A YES vote for
statehood would constitute a more robust petition to the Congress.
However, history has shown that plebiscites are costly and ineffective,
especially if they are designed to favor one option over the others.
Its time to try something else.
This bill not only endangers the democratic principles that are the
foundation of the United States of America but it also does not take
into account the will of the majority of the people of Puerto Rico. I
strongly believe HR 2499 is the wrong way for Congress to address our
political status issue since it does not signify a true, fair and
democratic process of self determination
This bill is designed to get rid of the Commonwealth option in
order to steer the people of Puerto Rico towards in favor of statehood.
All Americans believe in democracy. In Puerto Rico, we believe in
democracy, and the only thing we want is the right to decide for
ourselves our future in a level playing field.
Thank you.
______
Statement of J. Aloysius Hogan, Esq., Government Relations Director,
English First, on H.R. 2499
To The United States Senate Committee on Energy and Natural
Resources:
There are numerous substantive issues associated with the prospect
of Puerto Rican statehood. Some of these issues may be addressed only
in this testimony.
One of the most gauling aspects of this particular plan for Puerto
Rican statehood is that it turns the statehood process on its head-
rather than changing to assimilate into the United States, some Puerto
Ricans for statehood would have the United States itself change to
admit a state with a foreign language as its official language, which
admission has never been done before.
Previously other states have had to accept English to become
states, such as French-speaking Louisiana, as well as New Mexico,
Arizona, and Oklahoma.
As the Government Relations Director of English First, it is my
responsibility to raise some of these issues again.
I say ``again'' because the concept of statehood for Puerto Rico is
like a bad penny that keeps turning up. The issue arose during the late
Nineties when I served as Counsel to the House Resources Committee,
then chaired by Congressman Don Young.
The issue also arose about ten years before that and received much
attention in the press and elsewhere around 1989 and 1990. The issues
raised twenty years ago are valid today, and the included Issue Brief
from English First pertaining to that era is as fresh and pertinent
today as it was then.
Let me first highlight a few notable points and raise a few
questions that are addressed in more detail in the testimony below and
in the attachment:
1. Americans by huge margins favor making English the
official language of the United States. This issue must be
addressed when discussing Puerto Rican statehood.
2. The example of Quebec's bilingualism is not favorable.
3. A mandate of foreign translation is astronomically
expensive.
4. The United States Supreme Court has decided on multiple
occasions that conditions on statehood must be determined
BEFORE admittance to the union.
5. Congress could settle this matter in the same way that it
resolved the question of French-speaking Louisiana. The
Louisiana Constitution accepted by Congress when the state was
admitted to the Union clearly stated:
All laws that may be passed by the [state] Legislature,
and the public records of this state, and the judicial
and legislative written proceedings of the same, shall
be promulgated, preserved, and conducted in the
language in which the Constitution of the United States
is written.
6. The people of Louisiana, then and now, are free to speak
whatever language they choose, but the government and courts of
Louisiana are required to function in English.
7. Puerto Rico may have numerous Members of Congress were it
to be admitted as a state. Just how many would it have? Might
it be twice as many as represent West Virginia, the Chairman's
state? How do the people of West Virginia feel about that?
8. The average per capita income of Puerto Ricans has been
quite low, less than half that of our poorest state.
9. How much does Puerto Rico currently cost federal taxpayers
each year?
10. Puerto Rico's former Governor and Resident Commissioner,
Carlos Romero Barcelo, has written, in his book, Statehood is
for the Poor, that ``the island would take billions more out of
the federal treasury than it would put in,'' according to
Professor Antonio M. Stevens-Arroyo, writing in the January 22,
1990 issue of The Nation. Professor Stevens-Arroyo adds,
``[t]his is the bottom line statehooders try not to mention
when in Washington.
11. How devastating would the loss of U.S. corporate tax
exemption be for Puerto Rico?
12. What percentage of Puerto Rico's revenue derives from
industry versus tourism?
13. What is the unemployment rate of Puerto Rico?
14. What would the total budget effect be of admission of
Puerto Rico as a state? U.S. Senator Kent Conrad has been
dubious of rosy estimates.
Now allow me to delve more deeply into some of the history and
issues.
The State of Play: The Play for ``State''
If Puerto Rico, a Commonwealth of the United States, were to be
admitted as a state with a foreign language as its official language,
it would end the concepts of assimilation in America and of Americans
learning English.
We absolutely can stop this nefarious goal, and with your help we
must.
Lamentably the U.S. House of Representatives took a large step
towards this nefarious goal on April 29, 2010, when it passed a bill
toward making Puerto Rico a state. The bill, H.R. 2499, is misleadingly
titled (as is common) the Puerto Rico Democracy Act of 2010.
Throughout the process, Congress thwarted all attempts to have
Puerto Rico abide by the same type of English-language rigors as
Congress required Louisiana, New Mexico, Arizona, and Oklahoma to
undertake to become states.
Last summer neither side was willing to have even one witness who
opposed the bill when on June 24th, 2009, the House Natural Resources
Committee conducted a hearing.
In July of last summer, the same committee voted 30-8 to send the
bill out of committee and to the floor of the U.S. House of
Representatives. At that time the Natural Resources Committee voted
down an amendment by Congressman Paul Broun, an English First hero,
which would have made English the official language of Puerto Rico.
The Latest Development
I am pleased that you, the U.S. Senate Energy & Natural Resources
Committee, are hearing from opposing Puerto Rican political parties on
the bill and are allowing testimony from outside groups.
English First was the only group that submitted testimony opposed
to H.R. 2499 for the House hearing.
English First is again proud to submit this testimony opposed to
H.R. 2499 for this Senate hearing.
A Most Popular Issue
English as America's official language is and has always been one
of America's consistently highest polling issues, bringing moderates
and liberals and conservatives together.
Congress deserves this opportunity to have a real English-language
vote-a chance for a truly pro-America moment.
House Rules Pose A Problem
The problem lies in the ability of the majority in the U.S. House
of Representatives to thwart even reasonable amendments to a bill by
writing a ``rule'' for how a bill will be considered.
Rules for considering bills are written in the aptly titled Rules
Committee, which has 9 Democrats and 4 Republicans. That committee
make-up is intentionally the most lop-sided in all of the U.S.
Congress, so that the majority will never be at risk of losing control
of the proceedings in the House.
The minority obviously has a hard time ever winning a vote in the
Rules Committee.
The Puerto Rico statehood bill was one of the extremely rare bills
this Congress to allow any amendments at all.
The House Rules Committee has issued ``closed'' rules forbidding
any amendments for almost every bill considered on the House floor in
this two-year 111th Congress.
In fact, for this bill, the Rules Committee passed a rule allowing
8 amendments.
The Ranking Member of the House Natural Resources Committee and
Congressman Paul Broun's office led the charge for the English cause.
Congressman Paul Broun submitted four amendments, and Congressman
Steve King submitted one of his own. Additionally, Congressmen Steve
King of Iowa, Jason Chaffetz of Utah, and Gary Miller of California
each cosponsored a Broun amendment. For their leadership, these Members
of Congress are English First heroes.
The Dregs and the Ruse
Unfortunately, the amendments proposed by Congressmen Broun and
Steve King were shot down by the Rules Committee.
Most of the amendments allowed by the Rules Committee were the
dregs, as you might expect, but a few were helpful.
The worst amendment was submitted by Congressmen Dan Burton of
Indiana and Don Young of Alaska. The Burton/Don Young amendment was the
only amendment allowed on the English language, and it was a complete
ruse.
The Burton/Don Young destructive amendment was meant to give cover
to bilingualism and multiculturalism. The amendment had three parts.
The first part was completely useless and redundant because it
retained the requirement to have the ballots in English as well as
Spanish. The ballots were already required to be printed in English as
well as Spanish. Repeating this requirement was useless and intended to
make its supporters seem helpful to the cause of English when in
reality they were doing nothing whatsoever.
The second part of the amendment was also a complete ruse. It
stated a requirement that the Puerto Rico State Elections Commission
inform voters that if Puerto Rico retains its current status or is
admitted as a State, any official language requirements of the Federal
Government shall apply to Puerto Rico to the same extent as throughout
the United States. The ruse there is, as we all too painfully know, is
that there are no federal language requirements. As a result, it could
just as well have been written to inform Puerto Ricans that they have
no language requirements whatsoever.
The third part of the abominable amendment was a Sense of Congress
that the teaching of English be promoted in Puerto Rico in order for
English-language proficiency to be achieved. As they say inside the
District of Columbia beltway, that had no ``teeth.'' They might as well
have voted, ``Good luck with that.''
Hero Doc Hastings
The Ranking Member of the House Resources Committee Doc Hastings
proved to be a true hero of the English language by championing our
cause on the House floor. Congressman Hastings' discussion of the
abominable Burton/Young amendment demonstrates his merit:
Mr. HASTINGS of Washington. Mr. Chairman, I want to say that
this amendment is unnecessary, and really it masquerades a
whole debate on English, and let me explain why. This amendment
has essentially three components, and I will paraphrase what
those components are. They talk about all ballots used in the
plebiscite must be in English, number one. Number two,
prospective voters are informed that the official language
requirements of the Federal Government shall apply to Puerto
Rico. And number three, it has a sense of Congress that it is
in the best interest to promote English.
Now let me address each of those issues but let me suggest
that I believe this amendment is offered to only deny a
straight up-or-down vote on the issue of English as the
official language.
First of all, the language that my good friend from Indiana
read in support of this amendment is already in the bill. It is
on page 5. It says that the plebiscite will be carried out in
English. So we don't need that because it is already in the
bill.
The second provision is really meaningless. That is the one
that talks about Federal language requirements. We know there
is no Federal requirement in this country as to English, even
though 30 States have adopted that. There is no official one
from the United States. There should be, but there isn't.
Finally, I will concede at least a little point. The sense of
Congress language really has no statutory effect, but I will
concede this: It is at least timely. Why do I say that, because
just 3 days ago the Secretary of Education in Puerto Rico said:
``English is taught in Puerto Rico as if it were a foreign
language.''
In the 2005 Census, 85 percent of Puerto Ricans said they had
very little knowledge of English. As a practical matter, in the
Commonwealth legislature, and in its courts and classes in
public schools, Spanish is the primary language. So there is
nothing in this amendment that will change that. What should
have happened and didn't happen is the Rules Committee denied a
straight up-or-down vote on English as official language. That
was embodied in Mr. Broun of Georgia's amendment. But
unfortunately we were denied the opportunity because this is a
structured rule to at least have a debate on that. If the
intent of the Rules Committee is to say this is the one we
should have, I totally disagree with that. So for that reason,
I urge my colleagues to vote ``no'' on the amendment.
. . . the pertinent part of this amendment is already in the
bill, and that speaks to the ballot; the other two are really
meaningless. Frankly, this amendment does not even need to be
considered today; but if it's a cover, then it's a cover, and
let's call it what it is. [Emphasis added.]
Ruse Redux
Congressmen Burton and Don Young were actually reprising their
spoiler roles for English, which they first played back in March of
1998 by gutting English First Hero Congressman Gerry Solomon's good
English amendment during the previous Puerto Rico statehood debate.
To add insult to injury, these two masquerade their opposition to
English as the official language as support for English.
Delivering the Message
Congressman Paul Broun of Georgia spoke strongly against the
Burton/Don Young abominable amendment. In doing so he specifically
noted on the House floor the opposition of English First and other
groups to the amendment.
Historical Fact
Congressman Broun pointed out no state has ever been admitted to
the union with a language other than English as its official language.
A Walk through Puerto Rico's History
English was the sole official language of Puerto Rico after March
2, 1917, when President Woodrow Wilson signed the Jones Act to make
Puerto Rico a territory of the United States (``organized but
unincorporated''), to grant citizenship to Puerto Ricans, and to make
English the sole official language of Puerto Rico. English as the
official language of Puerto Rico effectively ended in 1946 when a bill
was passed ordering ``the exclusive use of the Spanish language for
teaching in all public schools.''
In 1950 Congress authorized Puerto Ricans to draft their own
constitution, establishing the Commonwealth of Puerto Rico.
In 1991, Puerto Rico declared Spanish the only official language.
In 1993, Puerto Rico declared English and Spanish both as the
official languages.
The Right Way and the Wrong Way to Become a State
The reality is that Puerto Ricans have repeatedly refused statehood
in four previous popular votes. In 1952, 1967, 1993 and 1998 the people
in Puerto Rico voted on statehood and they voted it down all four
times.
This bill was written to force TWO VOTES instead of one on what
status Puerto Rico should have. This never-used-before, double vote
rigged the effort to get a majority of Puerto Ricans to vote in favor
of statehood. The double vote was essentially a divide-and-conquer
technique to defeat the existing commonwealth status.
The idea was to aggregate all other options against the existing
commonwealth status in the 1st vote and then, with the most popular
option gone, to push statehood over the finish line in a 2nd vote. That
kind of crooked questioning wouldn't even cut it in a push poll. It's
just not a clean, simple, straightforward way to ask what people want.
Jose A. Hernandez-Mayoral who has served as Secretary of Federal
and International Affairs for the Popular Democratic Party of Puerto
Rico states, ``What is at play with this legislation is the railroading
of a self-determination process. . With the commonwealth option out of
the ballot, statehood is finally, albeit crookedly, assured a
victory.''
We don't want to be faced with the possibility that through a
grossly rigged vote with oppressive arm-twisting, statehood gets a bare
majority in a fifth try. States ought not to be admitted to the union
under such circumstances, when the population is teetering in its
opinion at best, even when skewed through the originally proposed
voting process.
New York Congressman Charlie Rangel stated on the House floor that,
``Tom Foley once told me when I thought that statehood was really going
to pass in Puerto Rico, I said, Mr. Chairman, how are we going to
handle this question with the Members? How are we going to handle the
question of what parties these people are going to belong to? He said,
`Forget it, Charlie. The only time we're going to have statehood is
when there is a mandate. We're not going to have a divided territory
become a State.' That was a guy who told me that from his background in
history that he was an expert in this type of thing.''
Well, Puerto Rico is divided on the issue of statehood.
It's close enough that even if enough votes for statehood were
garnered by hook or by crook this year, it could change next year or
the year after.
You don't want a situation where the state votes for statehood, and
a couple of years later most people don't want to be a state.
You could be faced with a brand new state fighting to exit the
Union.
That would be a disaster for which you on this committee would not
want to be responsible.
When Alaska and Hawaii were admitted, HUGE majorities favored
statehood. That's the right way to become a state.
The fact is that most Puerto Ricans feel a national identity.
I personally have lived in New Jersey, New York, Ohio, Florida,
Michigan, Indiana, the District of Columbia, and now I am a Virginian.
In contrast, when Puerto Ricans move about the United States, they
still consider themselves Puerto Rican.
What's missing is the assimilation.
This very bill you are hearing today reinforces this lack of
assimilation. Were Puerto Ricans ready to take their place as co-equal
with the 50 states, they would consider themselves New Yorkers after
having lived in New York for some time.
However, Resident Commissioner Pierluisi wrote the bill as
considering people who have lived in New York virtually their entire
lives to be Puerto Ricans and not New Yorkers. Even the Resident
Commissioner who is advocating statehood is not ready to recognize or
accept Puerto Ricans' assimilation.
Passage of a Key Amendment
We secured an upset victory on the House floor with passage of one
of the most helpful amendments.
Representative Virginia Foxx of North Carolina offered an amendment
to fix the rigged voting set up by the bill. Our victory in passage of
the Foxx amendment allows supporters of the commonwealth status quo the
option of voting their preference during the second stage of the
plebiscite. By making the vote fairer and nearer the actual wishes of
the people, the probability of statehood is diminished.
Winning that vote is a big success, because we must not have
statehood without AGAIN having English as the sole official language of
Puerto Rico.
Securing the Votes of ALL of the Minority Leadership
Furthermore, obtaining the actual votes of ALL of the Minority
Leadership and the Ranking Member is yet another discreet step.
That's especially difficult when a couple in the Minority
Leadership supported and even cosponsored the underlying bill. They
knew full well that our meritorious issue could prove a ``poison pill''
for the whole bill.
Yet the force of our communications and our combined suasion was
strong.
We indeed secured all of the votes from these key people.
Getting a Good Result on the Motion to Recommit
Indeed we only ultimately lost the Motion to Recommit by a 4-vote
margin, one of the best votes on a Motion to Recommit in this entire
two-year Congress.
Changing Hearts, Minds, and Votes
A full 58 Republicans cosponsored the Puerto Rico bill without any
provision for English.
That error will earn them a black mark in English First's vote
rating.
Changing Members' hearts and minds is very difficult after they
have put their name-their stamp of approval-on a piece of legislation.
It is exceedingly rare to see Members vote against bills they have
cosponsored. It can be quite embarrassing.
Rather than look at the Members' co-sponsorship mistakes as a
problem, English First saw opportunity.
Senator Everett Dirksen, a former Minority Leader who had a Senate
office building named after him, famously said ``I see the light when I
feel the heat.'' So it is with Congress-when Members hear from their
allies and constituents that they have made a mistake, they CAN be
persuaded to change course.
``Flipping'' Representative is one of the toughest challenges of
lobbyists and constituents.
We had amazing success.
Of the 58 Republicans who cosponsored H.R. 2499, the Puerto Rico
statehood bill, 32 did not support the bill in the end. 27 actually
voted against the bill they had cosponsored, and another 5 did not vote
at all.
In other words, we changed MOST of their minds!
Beware of ``The Tennessee Plan''
The University of Puerto Rico recently studied the process for
statehood. They explained an important phenomenon,
Several states, beginning with Tennessee in 1796, chose a
bold method of obtaining admission to the union. The states
which followed Tennessee's initiative undertook a uniform
course of action once they made a decision to seek statehood.
The `Tennessee Plan,' as it has come to be known, consists of
the following steps: . . .
Holding state elections for state officers, U.S. senators and
representatives;
In some cases, sending the entire congressional delegation to
Washington to demand statehood and claim their seats;
Finally, Congress, presented with a fait accompli, has little
choice but to admit a new state through the passage of a simple
act of admission. . . .
The statehood party in Puerto Rico, called the New Progressive
Party, has adopted the Tennessee Plan as its platform.
Carpe Diem
The upshot of intent to pursue the Tennessee Plan is that now is
the time that counts.
It's game-time, not scrimmage-time.
Without the appropriate changes now, Congress later would have
little choice but to admit Puerto Rico as a state and would have
difficulty holding up statehood for any conditions such as having
English as their official language.
If we admit a state with an official foreign language, efforts
toward a national language will be severely hampered. It might take
decades or a century to come back from such a withering defeat.
Don't let the sand run through our fingers! Seize the day!
OPPOSE PUERTO RICO STATEHOOD WITHOUT ENGLISH FIRST!
What We're Fighting For: A Way of Life for Us and Our Descendants
The battle is over multiculturalism.
Former Maryland Congressman Albert Wynn stated our opponents' point
of view most succinctly last time this Puerto Rico battle was fought in
1998, ``I think it is time we move forward to true multiculturalism and
accept that fact that we do not have to have an ordered language in our
society.''
Some statehood proponents want to end assimilation, our American
identity, and our common English language.
Let's stand up for American heritage and the American Way.
Don't let the sand run through our fingers! Seize the day!
OPPOSE PUERTO RICO STATEHOOD WITHOUT ENGLISH FIRST!
Thank you for the opportunity to raise these important points and
questions. Satisfactorily addressing each and every one of these points
is essential to moving forward with this bill. More attention is paid
in the Issue Brief which follows. Even more attention and perhaps more
hearings, such as in the Senate Finance Committee and the House
Committee on Ways & Means, is necessary.
______
Statement of Maj. Gen. Orlando Llenza, USAF (Ret.), Chairman, and
Justin O'Brien, Executive Director, United States Council for Puerto
Rice Statehood, on H.R. 2499
To The Honorable Members of the Committee on Energy and Natural
Resources:
Puerto Rico has now been a territory of the United States for 112
years, which gives it the dubious distinction of having been a
territory for half the life of this Republic since the U.S.
Constitution became operational in 1787, or 222 years ago.
Notwithstanding the progress that has occurred during the period of
Puerto Rico's relationship with the United States, the unequal
territorial reality of the island has not changed. Though the Congress
granted Puerto Rico a local constitution that affords limited local
self-governance, the island's American citizens remain subordinate to
the legislative will of Congress without their own sovereign
participation. Puerto Rico and Puerto Ricans remain in a state of
inequality and without sovereignty.
As equality and education advocates, equality and education are our
concerns. We believe that equality of citizenship and civil rights for
the four million Americans who live in Puerto Rico cannot be attained
without freely exercised self-determination, and self-determination
cannot be achieved without the Congress sanctioning, and providing
clarity to the process by which an island plebiscite will be carried
out and regarding the results returned by such a process. The Congress,
on various occasions through the decades, has merely expressed its
sense that Puerto Ricans should be allowed to exercise their right to
self-determination to articulate their wishes on the question of
status, but has never actually passed legislation sanctioning and
supporting a democratic vote in Puerto Rico to resolve the island's
unequal, second-class status. As originally written, H.R. 2499 would
have facilitated that by allowing the people of Puerto Rico to vote,
with congressional sanction and support, on what at a human level is
the most i mpactful daily issue of their lives: the status of their
collective Puerto Rican future. It is inconceivable that some 45 years
since the landmark Civil Rights Act of 1964 and the Voting Rights Act
of 1965, equality of citizenship and sovereign representation in the
affairs of the government that exercises control over their political,
economic, and civil rights are denied to four million of our citizens.
Puerto Ricans are proud Americans who suffer second-class
citizenship that is not constitutionally-guaranteed, and they deserve a
just opportunity to choose from constitutionally-viable, sovereign
status options. By virtue of unequal citizenship, the American citizens
of Puerto Rico also have unequal democratic, political, economic, and
civil rights. H.R. 2499, for the first time, will allow voters to
choose directly with their vote, and the support of congressional
sanction, whether they wish to maintain the current territorial status,
or seek sovereignty through a constitutionally-viable and acceptable,
permanent status option.
H.R. 2499, as originally submitted by Resident Commissioner for
Puerto Rico, Pedro Pierluisi, would have authorized a two-part
plebiscite that unquestionably provided an equal and unbiased
opportunity for Puerto Ricans to terminate or maintain the current
unequal territorial status or replace it with one of the three
constitutionally-valid, sovereignty-granting options: Independence,
Statehood, or Sovereignty in Free Association. If Puerto Ricans do
choose to continue their present territorial status, in the first vote
of the plebiscite, then H.R. 2499 prescribes and authorizes future
plebiscites to be carried out by the government of Puerto Rico every
eight years. Thus, the legislation would assure that the voters of the
island will be permitted and will have the opportunity to eventually
resolve the unequal status question, and it would make clear that the
current territorial status and the citizen inequality it maintains are
not acceptable in perpetuity. It is that simple. Now, however, it
appears that the effort to enfranchise four million Americans is to be
subjected to a farcical process where the territorial status would be
voted on twice, it having been cynically added to the sovereign-
granting choices comprising the second plebiscite that Puerto Ricans
would choose from; this second plebiscite being held in the event that
Puerto Ricans would choose to end the current territorial
``Commonwealth'' status in the first place.
In keeping with the 112 years to date, indications from the Senate
are that its members are not inclined to bring the legislation to a
vote, the net result of which will be continued inequality for four
million and no congressional sanction for Puerto Ricans moving forward
to resolve the issue. In light of this possibility, the most that
Puerto Ricans on the island and mainland Americans alike can hope for
in place of congressional sanction are clear statements on what non-
territorial and permanent status choices are acceptable. Certainly,
Puerto Ricans in Puerto Rico can debate, discuss, and act, but in the
absence of clear language from the Congress, the public discourse in
Puerto Rico will be muddied by opponents of self-determination for
narrow political ends with the goal of negating principled public
discussion on citizenship rights, equality and sovereignty.
Successful passage of H.R. 2499 will also dispel the dishonest
argument that the four million American citizens on the island are, and
should be, content to live with second-class citizenship,
disproportionate unenfranchised representation, and perpetual
inequality. To suggest that second-class citizenship is or should be
acceptable as a matter of choice by virtue of limited self-governance
in Puerto Rico must be recognized as a false choice and anathema to the
just and right-minded.
Puerto Rico has been a territory since 1898 and Puerto Ricans have
been American citizens since 1917. In the years since, Puerto Rico's
seemingly greatest political rights accomplishments were the creation
of a constitutionally limited local government and being granted the
ability to elect and send a non-voting delegate, the Puerto Rico
Resident Commissioner, to the U.S. House of Representatives. Puerto
Rico remains unrepresented in the U.S. Senate. In addition to the
absence of proportionately equal, enfranchised representation in the
legislative branch, Puerto Ricans cannot vote for their President,
their head of state. The American citizens of Puerto Rico have served
in every military conflict that our country has participated in since
World War I, in all branches of the U.S. Armed Forces. Today, hundreds
of thousands of American veterans live in Puerto Rico, but they cannot
enjoy the very rights they fought for and served in defense of
throughout the world under the American flag. Puerto Ricans are U.S.
citizens, and despite an exceptionally strong history of national
service in the Armed Forces, the current unequal status precludes the
people living on the island from voting for their Commander-in-Chief.
As our organization's name suggests, the U.S. Council for Puerto
Rico Statehood supports statehood as the preferred and specific
permanent status option best for and in the interests of Puerto Rico,
Puerto Ricans, and all Americans. However, our support for H.R. 2499
did not emanate from the idea that it was a ``statehood bill'' as
opponents of self-determination have chosen to publicly characterize
it, as quite clearly it was not and is still not. On the issue of
outcomes, the bill is and has been decidedly neutral. Rather, the
Council's strong support for H.R. 2499 derived from the legislation's
ability to provide an unbiased opportunity for the people of Puerto
Rico to exercise their right to free self-determination in a fashion
that settles the confusions that have marred past local plebiscites and
decision-making in the island's electoral processes.
During committee proceedings in the U.S. House of Representatives,
the bill's author, Resident Commissioner Pierluisi, described talk of
results and majoritarianism and pluralism as premature. Such talk
remains premature. All constitutionally-valid options were presented
equally and neutrally in H.R. 2499. As equality advocates, it is our
position that if statehood is construed as a preferable option over
others, then it is merely because it is the status alternative that
represents the interests of all Americans better than any other option,
but most certainly not because the Congress wants to impose statehood
on Puerto Ricans. Imposition does not represent self-determination and
this legislation clearly, without bias or prejudicial determination,
provides for the majority expression of Puerto Ricans as to their
desired status choice.
Opponents of the legislation, who indeed are opponents of any self-
determination process, whether there is congressional sanction or not,
argue that H.R. 2499 creates ``an artificial majority for statehood''
because the territorial ``Commonwealth'' option is, or was not
competing directly with the other options. Of course, the subordinate
territorial status was separated from sovereignty-granting options in
the original version of the legislation. With the insertion of the
``Commonwealth'' option in the second part of the plebiscite process
that resulted from the Foxx Amendment, an amendment that process
opponents themselves asked to have included, this argument is now moot.
However, despite the Foxx amendment's inclusion, these same opponents
still refuse to support the legislation and any self-determination
process. This has been expressed publicly and on the record during the
Senate Committee hearings of May 19, 2010. Given these documented
facts, is there any way to construe these actions and participation in
the Page 4 of 15 process as other than disingenuous? In light of these
facts, can this engagement in public discussion and debate on the
status argument be considered sincere?
The ``other options'' as presented in the second part of the
proposed plebiscite process are all permanent and non-territorial in
nature, and the ``Commonwealth'' option is not. If the people of Puerto
Rico are to decide on a permanent sovereignty-granting option, how,
then, could the status quo be permitted to appear amongst sovereign-
granting options without giving Puerto Ricans the impression that the
``Commonwealth'' option is an equality-granting, permanent, sovereign
option? Further, are we to ask the Puerto Rican electorate to self-
determine themselves out of self-determination by ``voting'' to remain
an unequal, subordinate territory having already expressed that they do
not wish to remain so in the first instance? The first question of the
plebiscite would directly ask the people of Puerto Rico if they wish to
keep the current territorial status. If so, then Puerto Ricans can vote
to do so accordingly. Ultimately, all constitutional and permanent
status options would have been on the ballot with the process spelled
out by H.R. 2499, so the people of Puerto Rico would have been
permitted to vote and make their sentiments clear, with the blessing of
Congress!
Critically, H. R. 2499 was legislation that neutrally put forth to
the voters of Puerto Rico all of the sovereignty-granting options
accepted under the U.S. Constitution in an equal and balanced way. That
balance and equality has been undone with the inclusion of the
territorial status option in the second plebiscite. The only
differences that exist between one constitutionally-valid status option
and the others are the differences that are naturally inherent in each,
and the Congress cannot be expected to, nor should, ``water down'' a
legitimate self-determination process or any one legitimate option
simply because opponents of citizen equality present it as ``too
good,'' holding too much promise, or suggest that it puts the other
options at a disadvantage. To behave otherwise is to pretend to level a
playing field that is neither level nor equal in the first instance.
As advocates of citizen equality for Puerto Ricans within the
Union, we are confident in the facts favoring statehood as they stand.
To concoct fantastic alternatives, or to suggest that yet-undiscovered
status alternatives exist, and engage in endless debate on what is or
is not possible, more than a century since Congress assumed control of
the destiny of the Puerto Rican populace, can only be described as a
ploy to avoid facing the facts regarding what is constitutional and
what is not. Avoiding the facts will definitively result in perpetual
inequality for Puerto Ricans. Beyond discussions of constitutionally-
viable and acceptable status alternatives, and in the context of
decolonization and the perspective of international law United Nations
Resolution 1541, approved by the United Nation' General Assembly in
1960 is very clear on the matter at hand; there are only three
acceptable status alternatives that provide citizen sovereignty. The
resolution defines the three legitimate options for full self-
government as Free Association with an independent State, integration
into an independent State, or independence.
The complexity of Puerto Rico's unequal status has made it possible
for a variety of groups to impart myths, opinions, and inaccurate
information as erstwhile truths, which unfortunately has been made
easier because the Puerto Rico status issue has now spanned an entire
century and forty-eight Congresses. The sole political group in Puerto
Rico that refuses to directly and openly recognize the Congress'
Territorial Clause powers over the island territory is composed of
status quo (or by its English misnomer, ``Commonwealth'') supporters,
represented electorally by the Popular Democratic Party. This is
despite the facts that the Territorial Clause of the U.S. Constitution
and a succession of public expressions by the mainland's political
leadership over a period of decades have made clear that Puerto Rico
remains--despite limited local autonomy--a territory of the United
States subject to the authority of the Congress. As has been
articulated by Commonwealth adherents and their leadership, it is their
firm belief that Puerto Rico is already a sovereign body politic, and
any changes to Puerto Rico's relationship with the United States of
America must have their blessing as the would-be caretakers of the
status quo alternative. Adherents to the territorial status quo contend
that sovereignty was granted to Puerto Rico through a ``compact'' in
Public Law 600, in 1950, even though the U.S. Congress was quite
explicit in its intentions when it said:
[Public Law 600] would not change Puerto Rico's fundamental
political, social, and economic relationship to the United
States. Those sections of the Organic Act of Puerto Rico
concerning such matters as the applicability of United States
laws, customs, internal revenue, Federal judicial jurisdiction
in Puerto Rico, representation in the Congress of the United
States by a Resident Commissioner, et cetera, would remain in
force and effect. [ . . . ] The sections of the Organic Act
which [Public Law 600] would repeal are concerned primarily
with the organization of the insular executive, legislative,
and judicial branches of the government of Puerto Rico and
other matters of purely local concern.
S. Rept. 81-1779, at 3-4. (almost verbatim on H.
Rept. 81-2275, at 3.)
Opponents of self-determination, seek to maintain the status quo at
all costs, irrespective of whatever principles may be compromised. This
is evidenced in the variety of actions by status quo proponents in the
period running up to the floor action on H.R. 2499 in the U.S. House of
Representatives and since. If passed, island actions pursuant to the
provisions of H.R. 2499 would potentially bring change. Accordingly,
status quo proponents rejected the bill as biased and unfair. However,
these same proponents then insisted on participating in the legislative
process nonetheless, actively working to have the bill amended to
include the current territorial status a second time, in the second
vote, regardless of a possible defeat in the first. They were
successful in having the Foxx Amendment included. The president of the
pro-status quo ``Commonwealth'' party, the Puerto Rico House of
Representatives Minority Leader Hector Ferrer, has described in the
press and media how he used his relationship with the University of
North Carolina System, to urge Congresswoman Foxx from North Carolina
to include the amendment that adds the unequal territorial status
option a second time in an authorized self-determination process by
adding it to the second round of voting. Yet, in the Senate Energy and
Natural Resources Committee proceedings, Mr. Ferrer stated for the
record that he and his party still do not support the legislation or
the process. It is reasonable to suggest that a mockery is being made
of our government, and clear that the rights of four million American
citizens are being toyed and played with for political ends.
It is also evident that adherents of the current unequal status
would suggest that U.S. citizenship without full and equal rights as
citizens should be acceptable to all, even though as has been
demonstrated for decades in the island's electoral and plebiscite
processes, such a position does not command the support of the majority
of Puerto Ricans. While it can be academically argued that Public Law
600 represented a `compact' inasmuch as Puerto Rico residents were
consulted in the acceptance or rejection of the island's constitution,
this definitively cannot be construed as a treaty or any other
agreement of full and equal partnership between a separate Puerto Rico
and the United States. The constitutional facts speak for themselves
and the acceptance of the congressionally-approved island constitution
through Public Law 600 does not negate congressional plenary authority
and responsibility over and for the territory.
Although supporters of the territorial status will not openly
recognize Puerto Rico's territorial status, elements within this
grouping seek to ``enhance'' or ``develop'' the current
``Commonwealth'' territorial status in an attempt to remake a
constituency base and regain community power. As such, they seek to
maintain veto power over self-determination legislation that is not of
their making. Despite having had decades to develop, discuss, offer, or
propose an alternative in this mode, regardless of such a notion's lack
of constitutionality, no such proposal has ever been crafted or offered
to the Puerto Rican public for its approval or disapproval. Only with
successive efforts to afford Puerto Ricans on the island an unequivocal
opportunity to support or reject the current territorial status has
rhetoric been conveniently resuscitated to muddy public discussion.
Proponents of the concept of ``enhanced Commonwealth,'' amongst
status quo adherents, seek to gain a veto power over federal laws,
while simultaneously maintaining constitutionally guaranteed American
citizenship and continued preferential tax treatment from the federal
government. In other words, supporters of inequality seek to continue
to make good on the intellectual falsehood and congressionally-rejected
promise to the Puerto Rican electorate that a new, undiscovered status
alternative can be fashioned and negotiated with the U.S. Congress.
``The Best of Both Worlds,'' as the new compromise has been called, is
an attempt to obtain rights and freedoms that no single state of the
Union enjoys, and it seems incredible that Congress would ever support
it. In so doing, they would seek to avoid an electoral showdown on
constitutionally-valid status options.
Such aspirations for Puerto Rico, which amount to seeking to make
the island ``The Independent Republic of the State of Puerto Rico,''
must be viewed as a constitutional mockery. This perversion of the
American electoral process, in effect a would-be constitutional
abomination, can only be viewed by all Americans as a mockery of the
democratic process of self-determination for Puerto Rico, and
contemptible to the intelligence of members of the United States
Congress, mainland taxpayers, and their island opponents who are
offering constitutionally-viable alternatives. How else could any group
seek to unilaterally create some new and fantastic, notional concept of
constitutionally-viable status?
Opponents of equality in Puerto Rico have concocted various thin
arguments in favor of continuing, even ``improving,'' the now-debunked
``Commonwealth'' status, and at the same time have sought to confuse,
obstruct, and obfuscate the issues and legislative process in order to
derail congressional sanction and support for a self-determination
process. This quest clearly continues as evidenced by continued
opposition to all attempts to bring either self-determination or
equality to these four million citizens. The movement for the
compromise formulated as a temporary solution to Puerto Rico's status
question, between independence and statehood in the 1950s, has now
found comfort in its social standing, and its representative grouping
is unwilling to relinquish its grip from the originally temporary
status. Every argument fabricated by the opponents of equality has been
fairly and honestly discredited, and at each successive turn and effort
towards the provision and attainment of citizen equality, yet another
different argument is introduced to further stall any possible
progress. All of these arguments and objections come with the explicit
goal of keeping the four million second-class American citizens living
in Puerto Rico from having the opportunity to end the territorial
relationship through democratic self-determination at the ballot box
while simultaneously maintaining political viability. A recently
introduced new argument seems to revolve around some notion of
``Consensus.''
It is reasonable to enquire what the acceptance of this notion
means in the context of the unfinished Puerto Rico status debate. It is
clear from data and conjecture that there is consensus on the island
that the current territorial status in unacceptable to a majority of
the people. There is also consensus among the mainland political
parties as evidenced in their 2008 platforms that self-determination is
a worthy undertaking in the name of freely-exercised enfranchisement.
It is reasonable to ask whether veto power should be afforded to
enfranchised mainland legislators in relation to the right to self-
determination of four million citizens with neither franchise nor
sovereignty of their own.
To suggest that proponents of the constitutionally-valid status
alternatives must agree to mutually recognize an as-yet-undetermined
status alternative, an alternative that has not been identified as
constitutionally-valid to date during the 222 years of the Republic,
can only be viewed in the realm of the ridiculous. Successive
interagency working groups and presidential task forces on the status
of Puerto Rico, traversing multiple administrations of different
political parties, have definitively reported that constitutionally-
valid status options to be used in island plebiscites or referenda do
not include possibilities beyond what is constitutional. For decades,
Congress and differing administrations have consistently rejected with
clarity, attempts to include such options.
Organizations devoted to soiling Puerto Rico's image and
denigrating the human worth of Puerto Ricans because Puerto Ricans
speak Spanish as a matter of heritage, culture, and custom have decided
to wave ``a cautionary flag'' about Puerto Rican statehood in the
context of the congressional discussion on H.R. 2499. Inasmuch as H.R.
2499 is clearly not about Puerto Rican statehood, but rather freely
exercised self-determination, non-partisan observers such as the
Council cannot help but see this new attack against Puerto Rico as
another attempt by those who would deny equality to try to confuse,
obstruct, and derail opportunity for self-determination and subvert the
century-long struggle for equal rights.
The submission of statements that have not been redacted in over a
decade demonstrates a lack of knowledge about the status issue and
Puerto Rico. They further illustrate that their commitment is not to
equality or affording sovereign rights to four million American
citizens. For such organizations as English First, the issue of Puerto
Rico's status is not about equal democratic, political, economic, and
civil rights for all American citizens, no; rather, in their own words,
Puerto Rico's status is simply ``a bad penny that keeps turning up.''
It is evident that second-class citizenship for Puerto Ricans is
acceptable to this group.
The U.S. Council for Puerto Rico Statehood unequivocally rejects
the ideas advanced by organizations such as English First that American
citizens in a Spanish speaking U.S. territory are less American and
less able to fulfill their duties as citizens of a state of the Union.
We believe that such ideas are at best misguided and at worst rooted in
bigotry and xenophobia. These ideas also disregard the history of our
western and southwestern states. Equality of citizenship and civil
rights within the union and federation of the states, our United
States, can only be accomplished for Puerto Rico through equal standing
within the American union. This equal standing can only be enjoyed
through sovereign voting representation in both chambers of the U.S.
Congress on a par with those of the states.
Although it has now been 50 years since the most recent new
admissions to the Union, it is often overlooked that some five states
joined from 1900 to 1959 with two non-contiguous territories joining
that year: Alaska and Hawaii. Importantly, two of the five, Hawaii and
New Mexico, are officially bilingual states. The recognition of an
official language, or none, is now an established right of the states.
The idea that the costs of translation, if any, in any public process
or proceedings must be viewed as prohibitive, is negated, for example,
by bilingual presentations online and otherwise by the preponderance of
federal government departments and agencies, multilingual drivers exams
in states nationwide, and other forms of multilingual access provided
today throughout the United States. Similarly, arguments that the entry
of Puerto Rico to the Union would have catastrophic national socio-
cultural effects belie the facts of Hawaii, New Mexico, Louisiana,
Texas, Florida and numerous other territories' entry and full
integration to the Union. It is evident that equality opponents,
whether on the island or their allies on the mainland seek to project a
`state-based' or `state-oriented' issue as some sort of a national
problem.
It must also be considered that these arguments bear little
relevance to the issue of equality and the enfranchisement of four
million United States citizens unempowered for more than a century.
Though H.R. 2499 is really about the issue of self-determination for
democratic equality, ancillary commentary and baseless arguments are
foisted upon the public in opposition to statehood for the sole reason
that Puerto Rico self-determination has both currency and validity.
Misplaced arguments that refer to statehood without context, given the
transparent neutrality that H.R. 2499 represents, underscore an intent
tobfuscate the serious issues at stake.
Economic arguments offered against statehood in debate of this
legislation in the House proceedings were not germane to a self-
determination discussion, which is what H.R. 2499 is about. Section 936
of the United States Tax Code continues to be frequently treated in
depth in submitted statements in opposition to legislation that
supports self-determination, even though Section 936 no longer exists
in Puerto Rico. The U.S. Congress instituted a 10-year phase-out of
Section 936 in the mid-1990s. It has been claimed that statehood for
Puerto Rico would end the special tax status of Section 936, and
eventuate ``still more unemployment in Puerto Rico [and] more costs to
U.S. taxpayers.'' These projections from over a decade ago have been
proven wildly incorrect and the facts speak for themselves: 1990
unemployment figures offered as a basis to reject self-determination
and future statehood by English First were 14.6 percent, with the
projection that unemployment would effectively double to almost 30
percent if Section 936 were to be repealed! Today, according to the
April 2010 estimates by the Bureau of Labor Statistics, unemployment in
Puerto Rico stands at 17.2 percent. An article written in 2005 by Gary
Bingham for BusinessFacilities.com offers an alternative view of what
really happened shortly after the Section 936 phase-out was set to
conclude in 2005:
Fortunately for Puerto Rico, the 936 phase-out did not kill
investment. Tax professionals did their research, the
government of Puerto Rico updated its incentives, and as a
result, Puerto Rico's GDP has grown over 70% since the phase
out of 936 began in 1996. During the same 10-year period,
outbound shipments increased 140% to over $55 billion, and
inbound shipments rose 104% to almost $40 billion. One reason
for this phenomenal growth is that although Section 936 will
sunset this December, another section of the IRC has found new
life. The section concerns Controlled Foreign Corporations
(CFCs). The section on CFCs had been part of the tax code for
years, but the benefits under Section 936 were so good that
many tax professionals simply ignored CFCs.''
Life after 936
Further, Bingham goes on to explain why the focus on IRS Section
936, and tax incentives in general, was misdirected to begin with and
what the real reasons are for U.S. companies relocating to Puerto Rico:
Tax advantages, however, are not the primary reason companies
continue to invest in Puerto Rico. Companies selling into the
U.S. benefit from being within the U.S. Customs area, thus
providing easy access to the mainland U.S. market. Puerto Rico
operates in U.S. dollars, eliminating currency exchange risk.
Companies on the island also have U.S. legal protections, which
are particularly important for intellectual property
concerns.''
Life after 936
Though the ``Section 936 Argument'' offered by English First is
irrelevant in the contemporary and is rendered moot by exposing it to
reality, there is yet another argument that originates from its
pronouncements that serve to confuse and obstruct the process of
democratic self-determination for the people of Puerto Rico. The
argument that a post-Puerto Rico statehood phase-out of Section 936
would ``not survive Constitutional scrutiny at all,'' must also be
viewed as an attempt to frustrate and confuse the process of self-
determination by sowing the seeds of doubt wherever possible,
irrespective of how irrelevant or non-germane they are to the facts of
the discussion.
Both the U.S. Supreme Court and the Congress have addressed the
issue of preferential tax treatments as part of a transitional
statehood package before. This issue was exposed during previous
hearings on the issue of Puerto Rico's territorial status. Hearings
before the U.S. Senate Committee on Finance on November 14 and 15,
1989, settled this question on the constitutionality of special tax
treatments in relation to newly-admitted states. A quick look at the
record regarding S.712 provides the answer. The Committee on Finance
and the Committee on Energy and Natural Resources concurred on the view
that:
Congress has substantial authority under the territorial and
statehood clauses of the Constitution to provide for non-
identical economic treatment under statehood if such treatment
is reasonable, transitional, and necessary. [The Uniformity
Clause notwithstanding!]
S. Rep. No. 101-120, at 39.
It is well-established in the Congressional Record that the
Congress' powers to accept new states into the Union (Article IV,
section 3, clauses 1 & 2) give it ``substantial'' powers over the issue
of admission. Subsequently, the Uniformity Clause of the U.S.
Constitution (Article I, section 8, clause 1) does not prohibit the
Congress from designing solutions to what the U.S. Supreme Court has
referred to as ``geographically-isolated problems,'' and in the context
of the admission of new states, the Court's reading applies. As such,
arguments by those who would thwart self-determination for Puerto
Ricans are neither academically nor intellectually sustainable in light
of factual reality.
Again, it is our own view that H.R. 2499 has never been about
congressionally-imposed statehood and that any thoughtful analysis of
the legislation as presented debunks any notion to the contrary.
Rather, it is about congressionally-sanctioned action on whether or not
the four million American citizens in Puerto Rico deserve to have a say
in their political, democratic, social, civic, and cultural future.
America's values demand that the U.S. Congress remove the blight of
Puerto Rico's unequal territorial status. Surely our American values
and citizenship rights are important enough for the Congress to insist
that four million citizens be provided a sanctioned choice amongst the
territorial status quo or ``Commonwealth,'' statehood, and sovereign
independence, with or without an association agreement. As with all
such agreements, association would be unilaterally revocable should
Congress or Puerto Rico decide to part ways, but that is a choice that
cannot stand in the way of the principal goal of this legislation,
which is offering a just and balanced opportunity to continue or end
the undemocratic territorial status of Puerto Rico and the damage it
wreaks on our national and international credibility.
The U.S. Council for Puerto Rico Statehood does not stand alone in
its desire to see our fellow citizens in Puerto Rico afforded the right
and opportunity for self-determination and by extension the opportunity
to free themselves of the indignity of second-class citizenship. The
platforms of both the Democratic and Republican parties include clear
and specific language that speaks to the issue of Puerto Rico self-
determination. The platforms' language is instructive and self-evident:
We recognize that Congress has the final authority to define
the constitutionally valid options for Puerto Rico to achieve a
permanent non-territorial status with government by consent and
full enfranchisement.''
Republican Party Platform 2008
We believe that the people of Puerto Rico have the right to
the political status of their choice, obtained through a fair,
neutral, and democratic process of self-determination.''
Democratic Party Platform 2008
While, clearly, the expression of self-determination is a matter
about the unenfranchised citizens of the island, and they alone should
decide whether they wish to change the current territorial status,
national support for self-determination for Puerto Rico has been
documented and is long-standing amongst and across a myriad of
community and state government organizations countrywide. Organizations
expressing solidarity and common cause in the quest for Puerto Rican
self-determination include: The League of United Latin American
Citizens (LULAC); the U.S. Hispanic Chamber of Commerce; the National
Governor's Association (NGA); Young Democrats of America; the
Republican National Hispanic Assembly (RNHA); the National Association
of Hispanic Publications; Vietnam Veterans of America; the National
Hispanic Policy Forum; the Southern Governors Association; the American
G.I. Forum; and the National Hispanic Caucus of State Legislators
(NHCSL) amongst many others.
In closing, as fellow Americans, we would like to once again
express the following points:
Puerto Rico has been a territory of the United States for
half the life of the Republic since the adoption of the United
States Constitution.
Puerto Ricans are United States citizens who have been
forced to endure unequal citizenship and the current unequal
territorial status because Congress has failed to act
decisively and conclusively on this issue to date.
Puerto Rican self-determination has never been provided
official sanction by the Congress that continues to exercise
sovereign authority over the territory and its four million
inhabitants without their sovereign input and franchise.
Neither self-determination nor equality will be afforded to
our fellow citizens in Puerto Rico without definitive support
and a clear message from the Congress of the country to which
the overwhelming Puerto Rican majority's allegiance is
unquestionable.
Successful passage of H.R. 2499 will for the first time
demonstrate congressional support for self-determination and
allow Puerto Rican voters to directly choose to maintain the
current territorial status or seek sovereignty.
We thank the Committee for the opportunity to share these views and
this statement, and hope that they assist in securing additional
support for Puerto Rican self-determination and this critically
important legislation.