[JPRT 107-C]
[From the U.S. Government Printing Office]


107th Congress 
  1st Session    COMMITTEE PRINT           Serial No.



                          UNEDITED TRANSCRIPT
                         COMMITTEE ON RESOURCES

                            October 4, 2000
                             Washington, DC





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                         COMMITTEE ON RESOURCES

                    JAMES V. HANSEN, Utah, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,                   George Miller, California
  Vice Chairman                      Edward J. Markey, Massachusetts
W.J. "Billy" Tauzin, Louisiana       Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Peter A. DeFazio, Oregon
Elton Gallegly, California           Eni F.H. Faleomavaega, American 
John J. Duncan, Jr., Tennessee           Samoa
Joel Hefley, Colorado                Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado              Calvin M. Dooley, California
Richard W. Pombo, California         Robert A. Underwood, Guam
Barbara Cubin, Wyoming               Adam Smith, Washington
George Radanovich, California        Donna M. Christensen, Virgin 
Walter B. Jones, Jr., North              Islands
    Carolina                         Ron Kind, Wisconsin
Mac Thornberry, Texas                Jay Inslee, Washington
Chris Cannon, Utah                   Grace F. Napolitano, California
John E. Peterson, Pennsylvania       Tom Udall, New Mexico
Bob Schaffer, Colorado               Mark Udall, Colorado
Jim Gibbons, Nevada                  Rush D. Holt, New Jersey
Mark E. Souder, Indiana              James P. McGovern, Massachusetts
Greg Walden, Oregon                  Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho            Hilda L. Solis, California
Thomas G. Tancredo, Colorado         Brad Carson, Oklahoma
C.L. "Butch" Otter, Idaho            Betty McCollum, Minnesota
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana

                   Allen D. Freemyer, Chief of Staff
                      Lisa Pittman, Chief Counsel
                    Michael S. Twinchek, Chief Clerk
                 James H. Zoia, Democrat Staff Director
                  Jeff Petrich, Democrat Chief Counsel

                            C O N T E N T S


Hearing held on October 4, 2000..................................     1

Statement of Members:
    Burton, Hon. Dan, a Representative in Congress from the State 
      of Indiana.................................................     9
    Christian-Christensen, Hon. Donna M., a Representative in 
      Congress from the Virgin Islands...........................     5
    Dooley, Calvin M., a Representative in Congress from the 
      State of California........................................     5
    Doolittle, Hon. John T., a Representative in Congress from 
      the State of California....................................     8
    Romero-Barcelo, Hon. Carlos A., a Representative in Congress 
      from Puerto Rico...........................................     2
    Saxton, Hon. Jim, a Representative in Congress from the State 
      of New Jersey..............................................     7
    Young, Hon. Don, a Representative in Congress from the State 
      of Alaska..................................................     1

Statement of Witnesses:
    Dalton, Robert, Assistant Legal Advisor for Treaty Affairs, 
      U.S. Department of State...................................    19
    Dellinger, Walter E., Professor of Law, Duke University......    11
    Farrow, Jeffrey L., Co-Chair, The President's Interagency 
      Group on Puerto Rico.......................................    15
    Rodriguez, Charles A., President, Senate of Puerto Rico, San 
      Juan, Puerto Rico..........................................    42
    Rotger-Sabat, Angel E., Attorney General, San Juan, Puerto 
      Rico.......................................................    39
    Thornburgh, Dick, Kirkpatrick and Lockhart LLP...............    21
    Treanor, William M., Deputy Assistant Attorney General, 
      Office of Legal Counsel, U.S. Department of Justice........    16
                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                NICK J. RAHALL II, West Virginia
JIM SAXTON, New Jersey               BRUCE F. VENTO, Minnesota
ELTON GALLEGLY, California           DALE E. KILDEE, Michigan
JOHN J. DUNCAN, Jr., Tennessee       PETER A. DeFAZIO, Oregon
JOEL HEFLEY, Colorado                ENI F.H. FALEOMAVAEGA, American 
JOHN T. DOOLITTLE, California            Samoa
KEN CALVERT, California              SOLOMON P. ORTIZ, Texas
RICHARD W. POMBO, California         OWEN B. PICKETT, Virginia
BARBARA CUBIN, Wyoming               FRANK PALLONE, Jr., New Jersey
HELEN CHENOWETH, Idaho               CALVIN M. DOOLEY, California
WALTER B. JONES, Jr., North              Rico
    Carolina                         ROBERT A. UNDERWOOD, Guam
CHRIS CANNON, Utah                   ADAM SMITH, Washington
KEVIN BRADY, Texas                   WILLIAM D. DELAHUNT, Massachusetts
JOHN PETERSON, Pennsylvania          CHRIS JOHN, Louisiana
BOB SCHAFFER, Colorado                   Virgin Islands
JIM GIBBONS, Nevada                  RON KIND, Wisconsin
MARK E. SOUDER, Indiana              JAY INSLEE, Washington
GREG WALDEN, Oregon                  GRACE F. NAPOLITANO, California
DON SHERWOOD, Pennsylvania           TOM UDALL, New Mexico
ROBIN HAYES, North Carolina          MARK UDALL, Colorado
MIKE SIMPSON, Idaho                  JOSEPH CROWLEY, New York
THOMAS G. TANCREDO, Colorado         RUSH D. HOLT, New Jersey

                     Lloyd A. Jones, Chief of Staff
                   Elizabeth Megginson, Chief Counsel
              Christine Kennedy, Chief Clerk/Administrator
                John Lawrence, Democratic Staff Director
NOTE; The above list reflects the Committee's membership at the 
time of the hearing.
                          UNEDITED TRANSCRIPT

                         COMMITTEE ON RESOURCES

                      HEARING HELD OCTOBER 4, 2000

                       GUARANTEED CITIZENSHIP ACT


                       Wednesday, October 4, 2000

                       House of Representatives,

                        Committee on Resources,

                            Washington, D.C.


    The committee met, pursuant to notice, at 11:23 a.m., in 
Room 1324, Longworth House Office Building, Hon. Don Young 
(chairman of the committee) presiding.

                            STATE OF ALASKA

    The Chairman. The committee will come to order. Good 
morning, ladies and gentlemen, members of the committee. Today 
we will receive testimony from witnesses concerning H.R. 4751, 
legislation which presents, in bill form, a proposed political 
status formula for the Commonwealth of Puerto Rico and which 
would make legally permanent Puerto Rico's present commonwealth 
system of internal government.
    The definition of enhanced commonwealth and the enhanced 
commonwealth formula presented in H.R. 4751 is the formal 
proposal by the Popular Democratic Party of Puerto Rico, 
adopted by the party on October 15, 1998. It is the formula in 
which the party proposes its goal to be reached as Puerto Rico 
moves through its self-determination and political status 
resolution process.
    H.R. 4751 is the measure that Congress would have to 
approve to attempt to implement the party's enhanced 
commonwealth formula. Various versions of this enhanced 
commonwealth formula have been promoted in Puerto Rico for five 
decades as a theory of political status purporting to offer the 
benefits of both statehood and independence without the full 
burdens of either.
    The contention that this commonwealth formula might be 
legally possible and politically realistic is the subject of 
continuing debate within the Commonwealth. Today, we will focus 
on the many commonwealth status questions which arise in this 
long-standing debate.
    Let me point out that this hearing is not a hearing on the 
many other recommendations for resolving the status of Puerto 
Rico. This is not a hearing on the Independence Party's 
recommendations, nor a hearing on the New Progressive Party's 
recommendations, nor a hearing on the administration's 
recommendations. This is a hearing on H.R. 4751, the Popular 
Democratic Party's commonwealth status recommendations.
    The Popular Democratic Party was invited to testify at this 
hearing. Unfortunately, the president of the party declined our 
    [The prepared statement of Mr. Young follows:]
    ********** INSERT **********
    [The text of H.R. 4751 follows:]
    ********** INSERT **********
    The Chairman. At this point, I will recognize my good 
friend, the governor, for an opening statement.


    Mr. Romero-Barcelo. Thank you. Thank you, Mr. Chairman. Mr. 
Chairman, for the overwhelming majority of the 3.9 million 
loyal U.S. citizens in Puerto Rico who cherish democracy and 
love liberty and love this nation. This year has brought forth 
many feelings and emotions related to more than 100 years of 
territorial status. The strongest of these feelings and 
emotions for most in Puerto Rico has been a renewed resolve to 
complete the overdue task of forming a more perfect union with 
the rest of our nation based on equality. I say this because it 
is more clear than it has ever been that the desire of the U.S. 
citizens of Puerto Rico for equal justice and equal opportunity 
with all other U.S. citizens will not be fully realized until 
the status question is resolved.
    In 1998, I predicted that Congress would regret its failure 
to heed this committee and approve legislation establishing a 
process to resolve the status of Puerto Rico. This prediction 
is being proven correct. The lack of a Congressionally approved 
policy regarding the status of Puerto Rico is beginning to 
produce unpredictable results in the legal and political 
process that impacts U.S. national interests, and you can look 
at the record.
    On July 17 of this year, a Federal district court ruled 
that Federal law must be compatible with local law to apply in 
Puerto Rico. The court's order stated that Puerto Rico must 
give specific consent to application of Federal law since 
consent of the governed is denied to U.S. citizens in Puerto 
Rico by virtue of the fact that we lack voting representation 
in Congress. Although I believe that this decision will be 
overturned, however, it is a decision by the U.S. District 
    On August 4 of this year, a Federal district court decided 
that the U.S. citizens of Puerto Rico have a right to vote in 
election for the President and Vice President of the United 
States. The Legislative Assembly of Puerto Rico took it upon 
themselves to carry out the court's order by enabling the 
presidential vote to take place even if the vote will not be 
counted. If the court's ruling is overturned, this election 
will be an historic expression of the desire of the U.S. 
citizens of Puerto Rico for enfranchisement as enjoyed by our 
fellow citizens in the rest of the nation.
    The controversy over Vieques has provoked some in 
Washington and Puerto Rico to argue that Puerto Rico should 
separate from the rest of the nation and go its own way if it 
is unwilling to host national defense training exercises. This 
would not be said if citizens of an area in a State were to 
take the same stand regarding military operations in their 
area. Fortunately, cooler heads have prevailed, recognizing 
that the Vieques question is not that simple and that it 
directly involves the question of disenfranchisement and Puerto 
Rico's lack of sovereignty or lack of participation in the 
exercise of sovereignty.
    These court rulings which attempt to address the denial of 
equal democratic rights for 3.9 million U.S. citizens have 
something in common with the desperation born of deep 
frustration in the case of Vieques. These two very different 
problems are, in a sense, the same and best can be understood 
as a manifestation of the need for Congress to define the 
constitutionally valid options for resolving the status of 
Puerto Rico. Vieques could never have happened if the U.S. 
citizens of Puerto Rico were not disenfranchised under our 
present territorial status, which we euphemistically call 
    In a very different way, the introduction of H.R. 4751 is 
also a manifestation of the need for Congress to commit itself 
to a status resolution process. Regardless of the subjective 
motives of the sponsor, my colleague on the Republican side, 
Mr. Doolittle, on the objective level of fact, this bill 
contains the status formula adopted by the Popular Democratic 
Party of Puerto Rico in October 1998, just before the last 
status vote was conducted under local law, and this is what was 
discussed before the people of Puerto Rico. It is the 
commonwealth option that the leaders of the pro-commonwealth 
party offer the people of Puerto Rico, an option which accepts 
permanent disenfranchisement in exchange for a package of 
unrealistic and unattainable package of legislated rights.
    When Federal judges appointed by the President and 
confirmed by the Senate ordered judicial remedies for 
disenfranchisement under--
    The Chairman. Will the gentleman stop for a moment? Whoever 
has a cell phone in here, the rules are very clear. You will 
leave the room or else you will shut off all cell phones. That 
goes for the members as well as the people in the audience. It 
is impolite, offensive to me, and I do not think you want to 
offend this chairman.
    The gentleman can proceed.
    Mr. Romero-Barcelo. Thank you, Mr. Chairman. When Federal 
judges appointed by the President and confirmed by the Senate 
ordered judicial remedies for disenfranchisement under the 
current political status, when national defense operations are 
halted because the community impacted by training exercises has 
been left unprotected and denied justice for decades, when the 
leaders of a political party in Puerto Rico espouse a status 
formula that is based no special rights that cannot be 
guaranteed instead of equal rights that are guaranteed, these 
developments make manifest the need for Congress to meet its 
constitutional responsibility to establish a clear policy on 
the future status of Puerto Rico.
    The ultimate status of Puerto Rico and enfranchisement of 
its voters in our nation's democracy so that full self-
government is achieved is a political question for Congress to 
decide based on an informed process of self-determination by 
the voters. Congress can delay, Congress can run away from it, 
but in the end, it cannot hide from its constitutional duty to 
define a status resolution process.
    I represent all the citizens of Puerto Rico in this 
Congress and have no doubts that the status formula contained 
in H.R. 4751 is not constitutionally, legally, and politically 
    The people in Puerto Rico who propose this formula are 
quite aware that it is unprecedented and many realize it 
probably never will be implemented. Still, in the absence of a 
Congressional policy that defines the terms for continued 
commonwealth, statehood, and separate nationhood, many of our 
fellow citizens in Puerto Rico have concluded Congress will 
never open up a pathway to a permanent and constitutionally 
guaranteed status. That is why many have become beguiled and 
obsessed with the idea that Puerto Rico can have it both ways 
and enjoy the best features of Statehood and independence, at 
the same time with the full obligations of neither.
    As much as I disagree with that conclusion and as much as I 
oppose any status not based on equal citizenship for all, I 
want my constituents who support this formula to be shown 
respect and to be understood. We need to establish a record 
that shows Congress understands what it is that they are 
proposing, even if the party that proposed it is unwilling to 
defend its contents.
    Congress must recognize that the U.S. citizens in Puerto 
Rico who support this formula are good Americans who were 
taught to believe in the principle of government by consent. 
There understand that there is no substitute for consent of the 
governed, but they have been told that a substitute form of 
consent is available under the Constitution. It has been the 
failure of Congress, not the U.S. citizens of Puerto Rico, to 
honor and redeem the principle of government by consent of the 
governed as defined by the U.S. Constitution. That lack of a 
constitutionally valid definition of government by consent has 
created fertile ground for local political leaders affiliated 
with ``commonwealth'' to sow the seeds of confusion about how 
to achieve a permanent constitutional status based on consent.
    Congress has made this status formula called commonwealth 
to appear plausible by its ambivalence and silence on the 
status of Puerto Rico. Now events demand that Congress exercise 
its constitutional power and define the status options and the 
self-determination process through which the U.S. citizens of 
Puerto Rico can express and ultimately realize their 
aspirations for a fully enfranchised and fully self-governing 
    This committee should be commended for holding this hearing 
so that the U.S. citizens of Puerto Rico can see that the so-
called enhanced commonwealth formula would mean less 
participation for Puerto Rico in the U.S. national economy, 
less progress toward enfranchisement and equal citizenship 
rights, and even less certainty of political union and U.S. 
citizenship for our children in the future.
    The 3.9 million U.S. citizens of Puerto Rico need to know 
the truth about the enhanced commonwealth formula and this 
hearing should make the truth a matter of record in Congress. 
For the first time, the details of what the commonwealth 
supporters elite has proposed in Puerto Rico will be on record 
so that they may be fully understood by Congress. That should 
hasten the day when Congress and the U.S. citizens of Puerto 
Rico will agree on a legitimate process to complete the 
decolonization of Puerto Rico and finally resolve the issue of 
83 years of disenfranchisement of the U.S. citizens of Puerto 
Rico. Thank you, Mr. Chairman.
    The Chairman. I thank the gentleman for the outstanding job 
he has done on this issue.
    [The prepared statement of Mr. Romero-Barcelo follows:]
    ********** INSERT **********
    The Chairman. Mr. Dooley, I am going to recognize you 
because I understand you have someplace to go.

                        THE STATE OF CALIFORNIA

    Mr. Dooley. Yes. I just want to associate myself with the 
remarks of Mr. Romero-Barcelo and have a statement I would like 
to include in the record.
    The Chairman. Without objection, so ordered.
    [The prepared statement of Mr. Dooley follows:]
    ********** COMMITTEE INSERT **********
    The Chairman. The lady from the Virgin Islands.


    Ms. Christian-Christensen. Thank you, Mr. Chairman, for the 
opportunity to make this opening statement.
    Mr. Chairman, I speak as a member who is from one of the 
offshore territories of the United States and the closest 
neighbor to Puerto Rico, with whom we share historical, 
cultural ties, and kinship through the many families who 
relocated to St. Croix and the Virgin Islands in the early part 
of the last century, ties that we celebrate even this week in 
my home district.
    Mr. Chairman, I understand that the author of H.R. 4751, 
our colleague on the committee, Mr. Doolittle, has said that he 
introduced this bill before us with the intention that it never 
become law but that he hopes the bill will provoke an honest 
discussion of Puerto Rico's future and the truth about its 
current status. That it certainly will, and not only for Puerto 
Rico but for all of us. But why this bill and why now?
    Despite opening statements, I fail to find an answer. On 
face value, while it looks like a bill that would define a 
status the majority of persons in Puerto Rico seem to support, 
it appears more likely instead to set up a train wreck which I 
think will sabotage the efforts of the people of Puerto Rico to 
freely and fairly determine their future status and their 
    Mr. Chairman, former Supreme Court Chief Justice Felix 
Frankfurter once wrote that ``history suggests a great 
diversity of relationships between a central government and a 
dependent territory.'' Yes, our citizens receive Federal 
subsidies and we do not pay direct Federal taxes. However, we 
do not get to have a direct say in who our Commander in Chief 
will be. We do not vote for the man or woman who, with the 
stroke of a pen, could order our sons and daughters to go and 
fight or die for our country, and we serve in this body with 
rules under which our Congressional representatives would not 
be able to vote yea or nay on whether we supported or opposed 
that action.
    Despite all I have said, Mr. Chairman, let me say to my 
colleagues and to the witnesses represented here today, who I 
also welcome, that I welcome the discussion that H.R. 4751 
would provoke. The residents of Puerto Rico, as well as the 
Virgin Islands and I would assume Guam, American Samoa, and the 
CNMI, we all deserve to know how our fellow Americans think we 
should be treated under this imperfect relationship that is 
ours. Our fellow citizens need to understand also that we are a 
part of this country and they need to know that our hopes and 
aspirations are very much the same as theirs.
    It is my hope that any negative consequences that could 
have been intended and any which might be foreseen will 
instead, because of the goodness, the fairness, and generosity 
of the American people, foster closer bonds between us and our 
fellow Americans.
    The people of the U.S. Virgin Islands have been a part of 
the United States since we were purchased from Denmark in 1917. 
We were denied American citizenship for the subsequent 10 
years, but have been Americans since then, and time and time 
again a majority of Virgin Islands citizens have expressed 
their desire to remain a part of this great country of ours. We 
deserve and expect, however, to be treated with the dignity and 
respect that our relationship with our mother country affords 
us. Our status is not a drain on the American taxpaying public. 
It is but a meager payment for our support of our country in 
peacetime and war, for the many contributions of our people, 
and for the position of not being able to control our own 
    We do not control our borders, natural resources, or when 
and if we fight in a war. Ours is not a perfect relationship, 
nor is it one of our exclusive choosing to date. We are, 
however, one family struggling to find a balance between full 
local self-government and the advantages and responsibilities 
of being under the sovereignty of a bigger mother country. That 
process in which each of us finds ourselves at different levels 
of involvement must be respected, and I do not find that this 
bill does that.
    I thank you again, Mr. Chairman, for allowing me to make 
this opening statement and I look forward to hearing from the 
    [The prepared statement of Ms. Christian-Christensen 
    ********** INSERT **********
    The Chairman. The gentleman from New Jersey, Mr. Saxton.

                          STATE OF NEW JERSEY

    Mr. Saxton. Thank you, Mr. Chairman. I want to thank you 
for holding this hearing today. I have been a Member of 
Congress for 16 years and during that period of time I have 
served with the chairman on numerous committees. I know that 
the chairman cares very deeply about self-determination for the 
people of Puerto Rico.
    I also want to thank my colleague, Mr. Doolittle, for 
introducing the bill at issue today. Like my colleague, Mr. 
Doolittle, I am not sure what Puerto Rico's ultimate political 
status should be, but I agree with him that we should consider 
and debate only those options that pass constitutional muster. 
In my opinion, this bill fails in that regard.
    The proposal, which I understand was originally put forward 
by Puerto Rico's Commonwealth Party, seeks to create a quasi-
nation within a nation. This new entity would have the 
authority to make all laws necessary for its own governance, 
regulate trade with foreign countries, and enter into treaties 
with other nations. On the other hand, the residents of this 
new entity would be U.S. citizens, use U.S. currency, and be 
protected from enemy attack by U.S. forces. If this entity 
sounds more like a State than a separate nation, consider that 
the citizens and businesses of this new entity would not have 
to pay U.S. income taxes.
    Now, it seems to me that if something looks like a duck and 
it acts like a duck and it talks like a duck, we all know that 
it is probably a duck. But if something would look like a 
territory, act like a nation, and walk like a State, I think we 
know what it is, too. It is unconstitutional and legislatively 
    The enhanced commonwealth plan appears to be nothing more 
than an attempt to gain political advantage by misleading the 
people of Puerto Rico into believing that they can have all the 
rights, privileges, and benefits they want without the duties, 
responsibilities, and obligations that go along with them. 
Congress is given the authority under the Constitution to make 
the needful rules and regulations governing territories.
    Mr. Chairman, I look forward to hearing from the witnesses 
today. I understand that the faction that devised the plan did 
not accept the committee's invitation to testify today. That is 
disappointing. Nevertheless, I look forward to hearing from the 
witnesses that are with us. Thank you very much.
    The Chairman. I thank the gentleman.
    If we may, we have witnesses waiting and I would suggest 
respectfully, unless you are from the territory, submit a 
statement. Mr. Pallone, is that all right with you or do you 
want to make a long statement?
    Mr. Pallone. I am sorry. You do not want us to do any more?
    The Chairman. No, really. I mean, we have got witnesses 
here that have to go.
    Mr. Pallone. If everybody else agrees to that, I have no 
    [The prepared statement of Mr. Pallone follows:]
    ********** INSERT **********
    The Chairman. Mr. Underwood, I would say, or my good friend 
from American Samoa, those two gentlemen have directly some 
real interest in this, and Mr. Doolittle, because you are the 
author of the bill, make it good and short. Mr. Doolittle?

                        THE STATE OF CALIFORNIA

    Mr. Doolittle. Thank you, Mr. Chairman. I thank you for 
agreeing to hold this hearing today. You have been tireless in 
your efforts to persuade Congress that it has a duty to help 
Puerto Rico achieve a permanent political status.
    I have a somewhat lengthy statement, Mr. Chairman, which I 
will not be able to abbreviate, so I will say this to you. 
Many, you and Mr. Saxton and Governor Romero-Barcelo, have 
expressed thoughts that I agree with. I will just say this. I 
would vote against this bill myself, but I introduced it for 
the purpose of provoking this discussion and of getting finally 
a focus by the Congress on these issues, because I think it is 
absolutely critical that we identify what the acceptable 
alternatives are, and in my opinion, this proposal reflected in 
the bill, really, which is the PDP's proposal, is absurd and 
unconstitutional on its face and we need to hear today from the 
experts in constitutional law and in policy and have them give 
us their seasoned opinions on these issues because the people 
of Puerto Rico do have American citizenship. They are entitled, 
I think, to know what the truth actually is.
    I am hopeful that out of this hearing today will come some 
positive momentum for resolving the political status of Puerto 
Rico. I will submit the rest of my statement, Mr. Chairman.
    The Chairman. I thank the gentleman for being 
    [The prepared statement of Mr. Doolittle follows:]
    ********** INSERT **********
    The Chairman. I also ask unanimous consent that the 
statement of Mr. George Miller be submitted for the record.
    [The prepared statement of Mr. Miller follows:]
    ********** INSERT **********
    The Chairman. I ask that the statement of Senator Larry 
Craig be submitted for the record.
    [The prepared statement of Senator Craig follows:]
    ********** INSERT **********
    The Chairman. I also ask that the statement of 
Representative Henry Bonilla be submitted for the record. 
Without objection, it is so ordered.
    [The prepared statement of Mr. Bonilla follows:]
    ********** INSERT **********
    The Chairman. At this time, we are honored to have the 
Honorable Dan Burton from the U.S. House of Representatives to 
be our first witness, and before you go ahead, Dan, I am moving 
Mr. Dick Thornburgh up on the first panel, coming right after 
Walter Dellinger. It will be five, and then the last two will 
be in the second panel.
    Mr. Burton?

                            STATE OF INDIANA

    Mr. Burton. Let me just say, Mr. Chairman, I have worked 
with you for a long time on the Puerto Rico issue. I admire 
your stand and your hard work and you are to be commended for 
holding this hearing. Mr. Doolittle, who is a good friend of 
mine, as well, I thank you for bringing this issue before the 
Congress and this committee because I think it is extremely 
important that the people of Puerto Rico, whom I love--I have 
been down there with the chairman a number of times and they 
are wonderful people--they deserve to know the facts about 
where they stand as far as this issue is concerned.
    This bill seeks to emphasize the need to address and 
clarify the definitions of the status options that are 
available to the U.S. citizens in Puerto Rico. Up until now, 
the lack of a Congressionally-mandated plebiscite to decide 
once and for all the political status of Puerto Rico has 
resulted in a waste of time and money, as previous debates and 
referendums have unfortunately been filled by inaccurate and 
potentially unconstitutional definitions. These definitions 
have misled the Puerto Rican people into believing in something 
that is just not feasible.
    An example of one such definition is the definition of 
enhanced commonwealth that we have before us today. In the 
past, this definition has been supported by the Popular 
Democratic Party, the Puerto Rican political party that 
promotes the status quo as the ultimate political relationship 
with the United States. Maybe the definition is the result of 
pure ignorance or maybe it is the brainchild of political 
opportunists seeking to confuse or complicate the issue. 
Regardless, it is our duty to clarify these statements that 
have misled millions of U.S. citizens and that have been 
perpetuated by the lack of Congressional action.
    The fact that a political faction in Puerto Rico promotes 
this definition as feasible is an affront to the truth and to 
our shared democratic principles. I suspect that if the 
``enhanced commonwealth definition'' was, in fact, 
constitutionally viable, the United States of America would not 
have 50 independent States, we would have 50 enhanced 
commonwealths rather than what we have today.
    Not allowing American citizens to decide their fate in a 
Congressionally-mandated referendum is an injustice, not just 
to 3.9 million of our fellow Americans in Puerto Rico, but to 
all Americans in general. There is no doubt that the U.S. 
Congress has the sole authority to solve this century-long 
dilemma that continues to project us as colonial rulers in 
front of the entire world.
    It is disturbing that over the past 101 years, Mr. 
Chairman, the U.S. Congress has considered a total of 92 bills 
regarding the status of Puerto Rico and yet there has been no 
resolution to the ambiguous relationship between Puerto Rico 
and the United States.
    I believe that the United States citizens of Puerto Rico 
have the right to choose to enjoy the full privileges and 
responsibilities that the rest of America's citizens are able 
to enjoy today, or in the alternative, they also can choose for 
themselves to establish a free and independent republic, a free 
    For that reason, I firmly believe that Congress should act 
now to give the people of Puerto Rico the ability to choose 
between the only real options for full sovereignty, statehood 
or independence. It is time that we take charge of our legal 
and moral obligations and enact legislation that will resolve 
Puerto Rico's political status by allowing them to decide their 
own future for themselves once and for all.
    We have been debating this, Mr. Chairman, for a long time. 
You and I have worked on it for a long time. There has been so 
much confusion down there that we have seen time and again when 
we have been down there that it is really time to resolve this 
issue and there are only two choices, in my opinion, and I 
think you agree with that, and that is independence or 
statehood. I believe truly that the wonderful people of Puerto 
Rico, when faced with that decision, will undoubtedly vote once 
and for all to become the 51st State of the Union. Thank you, 
Mr. Chairman.
    The Chairman. Thank you, Mr. Burton. I can agree with what 
you have said and I suggest also you have been a leader in this 
for a long, long time. For those in the audience, I will not be 
chairman of this committee next year but I will be on the 
committee and I will not give up on this issue. Everybody knows 
where I am coming from. I have been very right up front. We 
brought the bill to the floor and we will continue to work on 
this issue, and with your help, Mr. Burton, hopefully we will 
be able to solve these problems as time goes by.
    [The prepared statement of Mr. Burton follows:]
    ********** INSERT **********
    The Chairman. At this time, I am going to turn the 
committee over to Mr. Doolittle, author of the bill, and he 
will call the first panel that will appear before us. I have to 
go to another meeting. I will try to return as soon as 
possible. Mr. Doolittle, you will be chairman.
    Mr. Doolittle. [Presiding.] We will invite the members of 
panel one to take a seat at the table. We will have testifying 
today, in this order, Mr. Walter Dellinger, The Honorable Dick 
Thornburgh, Mr. Jeffrey Farrow, Mr. William Treanor, and Mr. 
Robert Dalton.
    We welcome all of you here and appreciate your arranging 
your affairs so that you could come and testify today on this 
important issue. We will begin with Mr. Dellinger, who is a 
professor of law at Duke University and I understand associated 
with O'Melveny and Myers in Washington, D.C. Mr. Dellinger?

                         LLP, WASHINGTON, D.C.


    Mr. Dellinger. Mr. Doolittle and members of the committee, 
thank you very much for allowing me to appear today. I 
apologize in advance that I have a long-scheduled debate at 12 
noon sponsored by the American Bar Association and will, 
therefore, unfortunately have to leave, but I look forward to 
following this issue further.
    Mr. Doolittle, as you know, the people of Puerto Rico face 
very difficult decisions about their political status and their 
political future. The four million Americans who--
    Mr. Doolittle. Why do you not hold on for just a minute 
until we get the bells and all of this out of the way. We are 
going to have you go ahead and complete your statement and then 
we will decide what we are going to do.
    Mr. Dellinger. Good. I will be concise as I hear that you 
all are receiving your instructions from the voice of the 
whip's office.
    The people of Puerto Rico face difficult choices, and I 
would like to make it clear to the committee that though I have 
studied constitutional law and taught constitutional law here 
and abroad for nearly 30 years, that is the limit of my 
expertise and I do not have a view on what is best for the 
people of Puerto Rico or the people of the States as they work 
out their relationship. I come to testify today to take a look 
at H.R. 4751 and to see whether its provisions are consistent 
with the Constitution of the United States.
    Mr. Doolittle, over the 30 years I have been a professor 
and scholar of constitutional law, I have encountered a number 
of very difficult and uncertain questions of constitutional 
law, but this bill is not one of them. The propositions put 
forth by this bill, in my view, are so clearly unconstitutional 
that I do have concerns that the propositions put forward here 
would be misleading to the citizens and the people of Puerto 
Rico and anyone else who was concerned about this difficult 
    The basic propositions by which these proposals are clearly 
impossible under the United States Constitution are simply 
this. Congress has plenary authority under the Constitution to 
govern the territories of the United States and that is the 
basis upon which Puerto Rico is presently governed under a 
statutory framework.
    Secondly, there is no more fundamental proposition of the 
American Constitution than the democratic principle that a 
newly elected Congress is free to alter, revise, amend, revoke, 
repeal, or otherwise alter legislation passed by a previous 
Congress. If the people of the United States do not like the 
legislation they have, they get to elect a new Congress which 
passes new laws. Therefore, whether this bill creates something 
more like a separate nation or more like a nation within a 
nation, the guarantees put forth in this bill, for example, 
that the United States will provide the defense for Puerto Rico 
or that Puerto Rico will not have Congress legislate for it 
without the consent of governing officials there, they are 
simply not worth the paper they are written on because the next 
Congress, newly elected, or the same Congress a week later can 
reach a different judgment and reflect the views of the 
national constituency in a different way.
    I mean, this has been clear since the beginning of a 
republic, that the only way to make a permanent change in legal 
status is through an amendment to the Constitution or by having 
one of the territories of the United States become an 
independent nation, as the Philippines did, or become a State, 
as so many of our areas did after the first 13 formed the 
Union. So these are the two ways.
    But the reason these promises are so misleading, and I am 
afraid so disingenuous, is that they simply hold out something 
that cannot be done in the face of the continuing 
constitutional authority of Congress. As long as the area of 
Puerto Rico is neither a State nor an independent nation, then 
Congress has plenary authority to legislate as it will and none 
of the guarantees or provisions can be enforceable on a new 
    I would go on at greater length. I am happy to answer any 
questions you may have for me. But I think the issue is so 
clear and simple that the provisions put forward in the Popular 
Democratic Party provision are simply fundamentally 
incompatible with the Constitution of the United States that 
there is really not a lot of elaboration, I think, that is 
necessary to establish that proposition. Thank you, Mr. 
    Mr. Doolittle. Thank you, sir.
    [The prepared statement of Mr. Dellinger follows:]
    ********** INSERT **********
    Mr. Doolittle. If the committee will indulge me here, we do 
not have much time to ask questions of Mr. Dellinger. He will 
be gone by the time we come back because there are two votes. 
Is there anyone that wishes to pose a question to Mr. 
Dellinger? Yes, Mr. Underwood?
    Mr. Underwood. Just quickly, Mr. Dellinger, under your 
explanation, if Congress has plenary authority over the 
territories and cannot do this on a permanent basis, if it 
passed legislation like that, then it would simply be in effect 
until some future Congress changed it, is that correct?
    Mr. Dellinger. That is correct. It would be in effect until 
a future Congress changed it, though I would want to caution, 
Mr. Underwood, that some of the provisions, I think, would be 
subject to constitutional challenge immediately, that is, even 
before changed by a future Congress, that is, provisions that 
purported to give up the President's authority over foreign 
affairs or that made foreign affairs obligations, that 
delegated some executive powers that the Constitution puts in 
the executive branch of the national government. Some of those 
might be subject to constitutional challenge immediately. But 
the other more core provisions would exist until a future 
    Mr. Underwood. Would it make any difference if the 
legislation or the proposal said for a period of 25 years or 50 
years or if it gave a time frame?
    Mr. Dellinger. That goes right to the heart of the matter. 
A provision that guaranteed certain statuses to Puerto Rico for 
50 years could be repealed the next day after it had been 
enacted, and, therefore, it would no longer be law and there 
would be no guarantee. That is why a 50-year guarantee in 
legislation over an area with respect to which Congress has 
plenary authority is not effective.
    Mr. Underwood. But that applies to almost anything that 
Congress does, right?
    Mr. Dellinger. That is correct, except that with regard to 
the States of the Federal Union, they have rights as States 
under the Constitution that Congress may not constitutionally 
touch, so that there are, as we know, more and more--
    Mr. Underwood. That does not stop them from trying, though.
    Mr. Dellinger. What stops them from trying is the Supreme 
Court has been very protective of the sovereignty of the States 
and of their rights. I believe 24 acts of Congress have been 
invalidated in the last 5 years, many on the grounds that they 
try to touch or interfere with the sovereign role of the 
    Mr. Underwood. Thank you.
    Mr. Doolittle. I would like to recognize Mr. Tauzin for 
    Mr. Tauzin. I will be brief. I simply want to make sure I 
understand this. The bill, H.R. 4751, would attempt to confer 
perpetual rights of U.S. citizenship with all attendant Federal 
benefits without making those citizens subject to Federal 
income taxes, is that correct?
    Mr. Dellinger. That is the way I read it, Mr. Tauzin.
    Mr. Tauzin. That is the way I read it, too. Would it be 
permissible, Mr. Chairman, for me to amend the bill to include 
the great State of Louisiana?
    Mr. Doolittle. If this is constitutional, a number of us 
may. I like the part that says they do not have to abide by any 
Federal law if they choose not to. That is what South Carolina 
was trying to get in the last century, is it not?
    Mr. Tauzin. Can we pick the Federal laws we would like not 
to abide by? Thank you, Mr. Chairman.
    Mr. Doolittle. Thank you.
    Yes, Mr. Faleomavaega?
    Mr. Faleomavaega. I just want to ask a quick question of 
Mr. Dellinger. You mentioned about the unconstitutionality of 
the proposed legislation. Are you aware of the covenant 
relationship that Congress creatively has provided for the 
Commonwealth of the Northern Mariana Islands?
    Mr. Dellinger. I am aware of that, yes.
    Mr. Faleomavaega. And there are special provisions in this 
covenant relationship that goes well into the heart of the 
constitutionality of some of those provisions.
    Mr. Dellinger. That is true, but what that bill cannot 
establish, or the act about the Marianas cannot establish, is 
the fact that you and your colleagues might not decide to alter 
that tomorrow.
    Mr. Faleomavaega. The interesting thing about this, too, 
professor, is that the word ``commonwealth,'' and I am not an 
expert in Spanish, is a free association, and we get into a 
very interesting dialogue here about the Micronesian states 
that are now in free association with the United States. Call 
it what you want, but it seems to me it is a form of enhanced 
commonwealth status that we have with these uniquely 
established states like the Republic of the Marshall Islands, 
the Federated States of Micronesia, the Republic of Palau, and 
they seem to be functioning very well in our relationship with 
    Mr. Dellinger. Certainly, Congress may choose to have a 
relationship of that kind. It is clear that the Congress may 
choose to delegate, as it has done, for example, to the 
District of Columbia. Congress may choose from time to time to 
delegate authority. But we also know, we have seen many 
instances in Congress where if some Members of the Congress do 
not like something that the D.C. City Council does, there will 
often be a bill in Congress the next day to reverse or rescind 
what the District of Columbia has done.
    Now, the Marianas have the good fortune that they are 
further away and I think Congress pays less attention than they 
do to the laws that are passed. But even where you have as much 
a tradition of self-government as now in the District of 
Columbia, Congress shows its authority by passing laws 
nullifying what the City Council has done.
    Mr. Faleomavaega. I do not think distance is necessarily a 
factor here, professor, as you are well aware. Puerto Rico, as 
you know, became as a prize of war in the Spanish-American War. 
Similarly, also, the Northern Marianas and the Micronesian 
Islands, we call it a strategic trust, right after World War 
II, and under that basis, this relationship we have established 
is a very unique relationship with these Micronesian states. I 
am just curious, the Northern Marianas is a class example, 
which in many instances it is a form of enhanced commonwealth 
because the people of the Northern Marianas want to call 
themselves as the Commonwealth of the Northern Marianas in a 
very similar fashion that those who want to promote enhanced 
commonwealth status is the very reason why they are suggesting 
that maybe a similar legislation be drawn for those who are 
advocates or supporters of commonwealth status.
    Mr. Dellinger. Yes, I understand that.
    Mr. Faleomavaega. Thank you, Mr. Chairman.
    Mr. Doolittle. I am going to recess the hearing at this 
point, and Mr. Dellinger, I regret that you have to leave, but 
we know that you do.
    Mr. Dellinger. Thank you. I look forward to reviewing the 
    Mr. Doolittle. Thank you. If we have some other questions, 
we will send them to you and ask you to respond to us.
    With that, the hearing will be in recess for two votes.
    Mr. Doolittle. Ladies and gentlemen, the hearing will 
resume. I would ask our witnesses to return to the witness 
table. We may have another vote here in 45 minutes, but 
hopefully we will have made substantial progress by then.
    Mr. Thornburgh, I think with your indulgence, we will go 
with Mr. Farrow as the lead administration witness first. Mr. 
Farrow is Co-Chair of the President's Interagency Group on 
Puerto Rico here in Washington, D.C. Mr. Farrow, you are 

                     STATEMENT OF JEFFREY L. FARROW

    Mr. Farrow. I am Jeffrey Farrow, Co-Chair of the 
President's Interagency Group on Puerto Rico. I will present 
the executive branch's overall views. William Treanor of the 
Justice Department and Robert Dalton of the State Department 
will address some questions in greater detail. We are 
accompanied by Janice Podolny of the Immigration and 
Naturalization Service. I will also submit a letter from the 
Secretary of Labor, Alexis Herman.
    [The letter from Ms. Herman follows:]
    ********** INSERT **********
    Mr. Farrow. Our first point is that you are doing a great 
service by considering this bill. It raises issues that have 
prevented Puerto Rico's fundamental question from being 
resolved. It reflects the proposal of leaders of one of Puerto 
Rico's most supported political parties. They said votes for 
the ``none of the above'' column in the last status referendum 
would be votes for this proposal. They are now asking to try to 
have it implemented by July 25, 2002.
    Although it is called a commonwealth proposal, it is for a 
very different governing arrangement than the present one. It 
is also different from the commonwealth in the only other 
status referendum in Puerto Rico in recent decades, and it 
differs from the commonwealth proposal that the leaders of the 
party made to you in 1997.
    However, it reflects a desire for greater autonomy while 
retaining most of the benefits that the United States has 
provided that has been a major force in the island's public 
    The proposal's fundamental elements include Puerto Rico 
would be a sovereign nation but in a permanent union with the 
United States under a binding agreement; the United States 
would continue to grant citizenship and all assistance 
currently granted to residents; the Commonwealth would 
determine the application of other Federal laws and be able to 
enter into agreements with other countries.
    Many aspects of this proposal would require actions by the 
United States to be implemented, so Puerto Ricans should know 
the United States' views on it before they consider it.
    The proposal includes a combination of aspects of different 
statuses. Many people may find the combination attractive. As 
stated, though, the combination is an incompatible mixture of 
benefits of national sovereignty and benefits of a U.S. status. 
Many of the individual elements would be appropriate under one 
status or another, but others are impossible or unacceptable. 
My written statement explains some problems. Our other 
witnesses will explain others.
    The positions we are expressing cannot be expected to 
change. Most are based on requirements our government lacks the 
power to change or so basic that they are not really 
discretionary. Our positions were developed by permanent 
officials of the agencies involved as well as by administration 
appointees. They are generally consistent with bipartisan 
decisions of this committee and the Senate committee.
    We can only determine which elements of the proposal should 
be retained in a status option when the leaders of the party 
clarify which fundamental status they want. Is national 
sovereignty more desirable than permanent union, citizenship, 
and programs? It would be understandable if it is, but it is 
their choice. It also may be that with explanations, some 
elements of this proposal can be modified to make them 
acceptable, even if most cannot.
    Puerto Rico's parties should not be expected to draft a 
proposal that is acceptable as drafted, but it is our 
responsibility to advise them of the problems, as this hearing 
is doing, so they can develop a realistic proposal. We will 
also soon report on the viability of the proposals of Puerto 
Rico's other parties, as Chairman Young has requested.
    The President has additionally initiated a dialogue on the 
issue that will continue past his administration. He plans to 
act further to ensure this. The major candidates to succeed him 
have committed to continue the effort, so it should be expected 
    It is important to the United States as well as to Puerto 
Rico. The island's lack of votes raises questions of democratic 
rights. The uncertainty regarding its ultimate status raises 
questions of how economic and social policies should apply.
    If Puerto Rico is to be a nation, as this bill proposes, we 
should gear programs to eventual nationhood. If it is to be a 
permanent member of the United States family, we should work 
toward equal treatment. Puerto Rico's status to date is as much 
about what the Federal Government would implement as it is 
about which option would be best. It is so intense, it affects 
attention to the island's social and economic needs. This 
proposal is not an option, but the administration has no 
preference among the proposals that are--independence, free 
association, and statehood, as well as the Federal commonwealth 
governing arrangement.
    We strongly believe that Puerto Ricans should be enabled to 
obtain any of the options that would enable them to elect the 
officials who make their national laws, but we do not feel the 
current arrangement, which we respect, has to change until a 
majority has decided on one of those options. Instead, we 
should further clarify what the realistic options are so the 
people can make a fair, informed choice as they are ready to.
    Thank you. I will be pleased to answer any questions.
    Mr. Doolittle. Thank you.
    [The prepared statement of Mr. Farrow follows:]
    ********** INSERT **********
    Mr. Doolittle. Our next witness will be Mr. William M. 
Treanor, Deputy Assistant Attorney General, Office of Legal 
Counsel of the U.S. Department of Justice. Mr. Treanor?


    Mr. Treanor. Thank you very much, Mr. Chairman and members 
of the committee. I am pleased to be here today on behalf of 
the Department of Justice to respond to your request for 
testimony on the constitutional issues arising from H.R. 4751. 
I have prepared a written statement and I would like to ask 
that it be submitted into the record in its entirety.
    Mr. Doolittle. Yes. Without objection, so ordered.
    Mr. Treanor. The focus of my oral testimony will be the two 
principal constitutional issues raised by the bill. I will 
discuss the constitutionality of the statute's requirement, 
that its terms can only be modified by mutual consent, and the 
constitutionality of its treatment of United States 
    I will begin by discussing the framework of the 
Department's analysis. That framework embodies two premises. 
The first is that the Constitution recognizes only a limited 
number of options for the governance of an area. Puerto Rico 
could constitutionally become a sovereign nation, as the 
Republic of the Philippines did. Alternately, it could remain 
under United States sovereignty. It could do so in either of 
two ways. It can be admitted into the Union as a State, and the 
applicable constitutional provision is in Article 4, Section 3, 
Clause 1, or it can be governed pursuant to the Territories 
Clause, and the applicable constitutional provision is Article 
4, Section 3, Clause 2.
    The terms of the Constitution do not contemplate an option 
other than sovereign nationhood, Statehood, or territorial 
status. Currently, despite the great degree of autonomy and 
self-government in local matters that Puerto Rico enjoys as a 
commonwealth, it is from a constitutional point of view 
governed under the Territories Clause. The Supreme Court's 1980 
decision in Harris v. Rosario makes that clear, and that is 
also the longstanding view of the Department of Justice.
    The second premise of our Constitution analysis is that, as 
a general matter, one Congress cannot bind a subsequent 
Congress. The proposition is a well-established proposition of 
constitutional law and it traces back to the decisions of Chief 
Justice Marshall in the early 19th century, including Marbury 
v. Madison and the 1810 decision, Fletcher v. Peck.
    Because of these two premises, H.R. 4751's mutual consent 
provisions are constitutionally unenforceable. The requirement 
of mutual consent appears a number of times in the bill. For 
example, Section 2.1 provides that the Commonwealth of Puerto 
Rico is established ``in permanent union with the United States 
of America under an agreement which may not be unilaterally 
nullified or changed.''
    The precise way in which these provisions are 
constitutionally problematic turns on whether the proposed 
status is understood as contemplating recognition of Puerto 
Rico as a sovereign nation or whether it is understood as 
continuing current commonwealth status, although in an enhanced 
form. The bill seems to envision the creation of a new nation. 
If Puerto Rico is to become an independent nation, as a matter 
of domestic law, the relationship between the United States and 
Puerto Rico would necessarily be subject to alteration by a 
later act of Congress. Although the United States 
unquestionably has the power to make contracts and give 
consents bearing upon the exertion of governmental power, 
including contracts in the international field with other 
national sovereigns, the United States may not contract away 
its power to revoke such an undertaking or to suspend its 
    If, alternately, H.R. 4751 is read not as creating an 
independent country but as maintaining Puerto Rico's current 
territorial status, the mutual consent provisions are equally 
problematic. As I previously discussed, the Constitution 
contemplates territories and States. It does not contemplate a 
third status. Since Puerto Rico as an enhanced commonwealth 
would not be a State, it would necessarily remain subject to 
Congressional power under the Territories Clause. One Congress 
cannot prevent future Congresses from exercising a power that 
the Constitution gives Congress.
    With respect to citizenship, the central constitutional 
issues concern Section 2.1's provisions that United States 
citizenship would be non-revokable. Whether this provision is 
constitutionally enforceable turns in large part upon whether 
the United States citizenship held by the people of Puerto Rico 
is already non-revokable. Analysis of that issue, again, turns 
on whether H.R. 4751 is understood as envisioning the creation 
of an independent nation.
    If it would create an independent nation, the 
constitutional analysis is complicated. There is case law that 
indicates that a change in sovereignty severs the individual's 
ties with the country that had previously exercised sovereignty 
over the place that the person inhabits. At the same time, 
there is case law suggesting that Congress lacks power to sever 
citizenship over the ejection of one who is a citizen and who 
satisfied all preexisting conditions for citizenship, and the 
Supreme Court has not directly addressed the effects of 
granting independence to a former territory upon the continued 
United States citizenship of persons continuing to reside 
    The issue presents difficult questions involving the 
relationship between the United States citizenship held by 
people in Puerto Rico by virtue of the INA, Congress's power to 
impose conditions on retention of citizenship, and the 
assumptions of international law that nationality follows 
    If, however, the bill is understood as preserving United 
States sovereignty over Puerto Rico, the case law is more 
helpful. The leading case here is Afroyim v. Rusk, a 1967 
Supreme Court decision. The Court in Afroyim rejected the 
proposition that ``Congress has any general power, express or 
implied, to take away an American citizen's citizenship without 
his consent,'' and that is the end of the quote. The case does 
support the proposition that, with the exception of limited 
circumstances that are not applicable here, once citizenship is 
irrevocably granted, it cannot be taken away.
    We recognize that a counterargument may be made based on 
the Supreme Court's subsequent decision in Rogers v. Bellei, to 
which the Court upheld the loss of citizenship of an individual 
who was born in Italy and who acquired citizenship at birth 
under a Federal statute. But Afroyim appears to us to be the 
most relevant precedent and it supports the view that so long 
as Puerto Rico remains a part of the United States, citizenship 
that has been granted is constitutionally protected.
    Thank you for this opportunity to provide the views of the 
Department of Justice, and I am glad to answer any questions 
that you may have.
    Mr. Doolittle. Thank you.
    [The prepared statement of Mr. Treanor follows:]
    ********** INSERT **********
    Mr. Doolittle. Our next witness is Mr. Robert Dalton, 
Assistant Legal Advisor for Treaty Affairs of the U.S. 
Department of State in Washington, D.C. Mr. Dalton?

                       STATEMENT OF ROBERT DALTON

    Mr. Dalton. Mr. Chairman, members of the committee, I am 
pleased to have this opportunity to discuss some aspects of 
H.R. 4751, the proposed legislation on the future status of 
Puerto Rico. My prepared statement has a discussion of three 
points and I ask that it be admitted into the record.
    Mr. Doolittle. Yes, without objection, so ordered.
    Mr. Dalton. I will briefly discuss elements of those three 
points. We are concerned about the foreign relations aspect of 
the legislation, particularly the proposed provisions regarding 
Puerto Rico's ability to enter into agreements with foreign 
nations and participate in international organizations. The 
sections of the legislation that cover this are Section 2, 
Paragraph 5, and Section 3, Paragraph 7. We are concerned, as 
other members of this panel have suggested, about implications 
of the proposal that residents of Puerto Rico be granted U.S. 
citizenship under Section 2, Paragraph 1, Section 3, Paragraphs 
6 and 13.
    And finally, Mr. Chairman, there are constitutional issues 
posed by the legislation as drafted with respect to executive 
branch prerogatives in the conduct of foreign relations. Those 
provisions are Section 3, Paragraphs 17, 21, and 22.
    The proposed legislation would purport to make the 
Commonwealth a nation legally and constitutionally and provide 
it with many trappings of a sovereign nation. Yet at the same 
time, the legislation would retain or create links to the 
United States that are inconsistent with sovereignty as that 
term is understood in international law. It is this hybrid 
nature of the arrangement contemplated in the legislation that 
renders it untenable as a functional matter.
    Under our system of government, the conduct of foreign 
affairs is constitutionally vested in the Federal Government. 
Just as with States of the Union, there are many types of 
foreign activities in which a U.S. territory or commonwealth or 
State may choose to engage. At the same time, however, the 
Federal Government is responsible internationally for the 
affairs of all its territories and for the affairs of 
territories and commonwealths in the same way as it is for the 
States of the Union. It is responsible for meeting commitments 
and ensuring that obligations to other nations are met and that 
rights of the United States under treaties are formed by other 
countries. So the efficacy of U.S. international relations 
depends on the foreign activities of territories and 
commonwealths as well as the States fitting into the framework 
of an overall United States foreign policy.
    It is essential that the component parts of U.S. foreign 
policy form a consistent and internally consistent whole. This 
cannot be accomplished if areas that are within U.S. control 
are populated primarily by U.S. citizens, conduct their own 
foreign affairs. It benefits neither the United States as a 
whole or the territories and commonwealths if the United States 
is perceived as speaking with many inconsistent voices 
    The Founding Fathers, based on the unhappy lessons learned 
under the Articles of Confederation, widely recognized this in 
framing the Constitution. The conclusion of international 
agreements, for example, is one of the most basic functions of 
foreign policy and the framers emphasized the exclusive 
authority of the Federal Government with respect to foreign 
policy functions by inserting the provisions of Article 1, 
Section 10, Clauses 1 and 3 in the U.S. Constitution.
    The juxtaposition of these provisions and of Article 4, 
Section 3, Clause 2, concerning the power of the Congress to 
make regulations concerning the territories, raise a number of 
issues. Should the rules with respect to making international 
agreements applicable to the States be narrower than those made 
to the territory? How broadly should the term ``agreement'' in 
Clause 3 of Article 1, Section 10, of the Constitution be read? 
Would the proposed legislation with respect to the making of 
international agreements be an unconstitutional delegation of 
authority by the Congress? These are questions that are 
    We are concerned with such a broad obligation in the 
international agreement field because it risks the existence of 
different, perhaps conflicting obligations to foreign 
countries. Such cases could make it impossible for the United 
States to fulfill its commitments and guarantee that all of its 
constituent units comply with U.S. treaty obligation.
    Under the current arrangements with Puerto Rico, matters of 
foreign relations and national defense are conducted by the 
United States, as they are with the States in the Union. We 
feel that the legislation would adversely affect that system, 
could result in inconsistent foreign policy commitments, and 
trouble our foreign relations.
    In sum, Mr. Chairman, we think that the hybrid nature of 
the status proposed for Puerto Rico would render it impossible 
for the United States to maintain a unitary foreign policy with 
respect to all areas under is control. Therefore, we oppose the 
provisions of the legislation relating to the foreign affairs 
powers to be conferred on Puerto Rico which would be untenable 
functionally in the overall context of the proposed 
    One of my colleagues on the panel spoke about citizenship 
issues, and those are the second areas in which the Department 
has concern. We have concern about the proposal that would 
legislate dual nationality for residents of Puerto Rico, since 
it appears to be grounded in the recognition of the conferred 
citizenship on citizens of another nation, which is 
incompatible with the notion of sovereignty. There are also 
problems that are explained in my testimony about the 
diplomatic protection of U.S. citizens who would be in Puerto 
Rico and the responsibilities that a United States embassy 
would have under U.S. law to protect those rights.
    Finally, Mr. Chairman, I turn to the third question, the 
question of the unconstitutional delegation of executive, or 
the unconstitutional interference with executive prerogatives 
in the negotiating area. The legislation appears to dictate the 
size and structure of the U.S. negotiating team. It would 
require that the executive branch sponsor membership for Puerto 
Rico in international organizations. We believe that these 
provisions interfere with executive branch authority and we, 
therefore, are opposed to them.
    This completes the high points of my remarks, Mr. Chairman, 
and I would be glad to answer any questions.
    Mr. Doolittle. Thank you.
    [The prepared statement of Mr. Dalton follows:]
    ********** INSERT **********
    Mr. Doolittle. Our final witness is Mr. Dick Thornburgh, 
who is with the firm of Kirkpatrick and Lockhart and a former 
distinguished Attorney General of the United States. Mr. 

                      STATEMENT OF DICK THORNBURGH

    Mr. Thornburgh. Thank you, Mr. Chairman. I have submitted a 
statement with attachments that I ask be made part of the 
record. I am obviously not a spokesman for the administration, 
as my predecessors were, I guess more like a member of the 
government in exile. Nonetheless, I am pleased to note that 
there is a great deal of agreement and little variance between 
our position on the issues that you are addressing today.
    As Attorney General of the United States under President 
Bush, I testified before Congress nearly a decade ago on the 
need for a legitimate process of self-determination to resolve 
the political status of millions of United States citizens in 
Puerto Rico. I appear today as a private citizen, advising the 
Citizens' Educational Foundation of Puerto Rico on 
constitutional and self-determination issues. My views on the 
need for such a process, however, have only grown stronger with 
the passage of time and events.
    I want to take note first that there is a basic fallacy at 
the heart of the formula set forth in H.R. 4751. The fallacy is 
that there is somehow a third path to a non-territorial status 
other than Statehood or independence that can be achieved 
within the framework of our Federal system of national 
government under the United States Constitution. Let me be 
direct and make it very clear. Under U.S. constitutional law 
and our system of federalism as a form of domestic government, 
there is no third path to a non-territorial status. There is 
Statehood and there is territorial status. Congress can be 
creative in how it administers a territory and Congress can 
grant significant levels of autonomy to a territory. However, 
Congress does not have the power by statute to create a new 
form of permanent union or political status within the union 
that is binding on a future Congress.
    Simply put, Congress has no power to implement this formula 
or any formula based on the central elements of this proposal 
because it defines a status that is not available under the 
U.S. Constitution. To mislead people to believe that the only 
barrier to implementation of this formula is the attitude of 
Congress, when it is the rule of law that precludes it, merely 
perpetuates the colonial mentality about status options and 
    Under international law, free association can be thought of 
as a kind of third path to decolonization and an alternative to 
independence or Statehood. However, what Puerto Rico has now 
and what is proposed in this formula is not free association as 
it is defined in international law. Real free association would 
be a treaty-based relationship that would end U.S. sovereignty, 
nationality, and citizenship in Puerto Rico in favor of 
separate sovereignty, nationality, and citizenship for Puerto 
    In contrast to political union and the U.S. constitutional 
system of federalism, real free association is the same 
ultimate status as independence. While a close association by 
treaty can be negotiated, free association is terminable at 
will by either party consistent with the right of both parties 
to national independence. Otherwise, the association would not 
be free. If it were meant to be unalterable without mutual 
consent, that would mean each party would be able to deny the 
right of independence to the other. That would be a 
continuation of a colonial and territorial status by another 
    Thus, as a matter of U.S. and international law, the only 
way this proposal could be implemented by Congress would be 
through an amendment to the U.S. Constitution creating a new 
form of permanent political union under our Federal system 
other than Statehood. Even if that were accomplished, it would 
not solve the problem of disenfranchisement for the U.S. 
citizens of Puerto Rico unless the constitutional amendment 
also gave Puerto Rico proportional voting representation in the 
House, two members of the Senate, and voting rights in national 
elections for the President and Vice President.
    We can negotiate forever, but the central elements of this 
enhanced commonwealth formula remain unconstitutional and, 
therefore, non-negotiable. The central provisions which are 
constitutionally unavailable include permanent union other than 
Statehood, statutory guarantee of U.S. citizenship in the 
future without Statehood, binding Congress to the terms of this 
formula as an unalterable pact, a binding right of specific 
consent to changes in statutory policy or application of 
Federal laws, exemption of Puerto Rico from the Territorial 
Clause without Statehood, and exemption of Puerto Rico from the 
supremacy of Federal law in all matters. Trying to make these 
central provisions acceptable legally or politically without 
changing their meaning to conform to territorial status would 
frankly be a waste of time for Puerto Rico and for the 
    In closing, let me state, Mr. Chairman and members of the 
freedom loving nation, we cannot be comfortable with the 
exercise by Congress in perpetuity of Federal supremacy over 
U.S. citizens who cannot participate and compete in the 
American system on the basis of equality. Thus, we need to make 
a clear policy commitment to resolution of the territory's 
status on a basis that results in full enfranchisement of the 
citizenry under the applicable national constitutional process. 
This is the only approach to Puerto Rico's status that can be 
implemented by Congress on a bipartisan basis.
    Both major parties must live up to the unambiguous position 
in the two national party platforms for this election year 
regarding Puerto Rico's right to self-determination and the 
responsibility of Congress to sponsor an informed referendum 
process until the status question is resolved.
    Thank you very much for the opportunity to appear before 
you today, and I will be glad to answer any questions.
    Mr. Doolittle. Thank you.
    [The prepared statement of Mr. Thornburgh follows:]
    ********** INSERT **********
    Mr. Doolittle. I wish that we had had attend the 
representatives of the PDP, whose proposal we are really 
debating. I just stuck it into legislation so we could have 
this hearing. But let me ask the panel. I am trying to 
understand, on what possible basis could anyone argue that one 
Congress could bind another. I do not understand even where 
they think they could make that argument. Do you have some 
understanding of where that notion comes from, to any witness 
who would care to volunteer and answer?
    Mr. Thornburgh. My guess would be that the hope is that 
simply by saying it makes it so, but I quite agree with the 
chairman that there is no palpable basis for extending that 
kind of argument in this or any other area. As members well 
know, you are the ones who have the ultimate authority to lay 
down the rules for governance in this area and to change them, 
if necessary.
    Mr. Doolittle. Would anyone else disagree on the panel 
about that?
    Mr. Treanor. No. On behalf of the Department of Justice, we 
believe this strongly. There was a time, in particularly in a 
1963 opinion from the Department of Justice, from my office, 
the Office of Legal Counsel, that indicated that the exception 
to the general principle, which is called the Vested Rights 
Doctrine, would allow some kind of intermediate status, but 
that was based on the case law at the time. Based on the 
current case law, we believe that there is no intermediate 
status. It is simply territorial status, Statehood, or 
    Mr. Doolittle. Thank you. I think I heard all of you pretty 
much say this, but just for the purpose of clarification, 
without reference to the merits, do you agree that Congress has 
the constitutional authority currently to unilaterally revoke 
U.S. citizenship from the residents of Puerto Rico? Mr. 
    Mr. Thornburgh. Subject to due process and equal protection 
provisions, which are always built into Congressional action, 
that is absolutely right.
    Mr. Doolittle. Mr. Farrow, would that be the 
administration's belief, too?
    Mr. Farrow. I am going to let Mr. Treanor expand on what I 
say. Congress could discontinue the current granting of 
citizenship to the people of Puerto Rico. As he will explain, 
we do not believe that we can revoke the citizenship that 
persons who have it now have. Bill, do you want to expand?
    Mr. Treanor. And this is within the idea that Puerto Rico 
would remain subject to United States sovereignty, and our 
position is that the better view of the law is that the 
Congress, having granted citizenship to people, cannot take it 
away from those people. Again--
    Mr. Doolittle. So that would be the Vested Rights Doctrine 
    Mr. Treanor. I think that would be an example of the Vested 
Rights Doctrine. In other words, this is something that the 
individuals have. Now, the case law is not completely clear on 
that. As I said in my testimony, there is a Supreme Court case, 
Rogers v. Bellei, that says that under some circumstances, it 
is permissible to take away citizenship, but we believe that in 
the kind of situation that the bill contemplates, Congress 
could not take away citizenship so long as Puerto Rico remains 
part of the United States.
    If it were to go outside of the United States, if it were 
to become an independent nation, that is not a question that 
the Supreme Court has had occasion to examine. It would be a 
novel situation and it would present difficult questions. There 
is case law that indicates that sovereignty and citizenship are 
linked. Citizenship changes when sovereignty changes. But there 
is also case law that indicates that citizenship cannot be 
generally severed. So it would present a novel situation and 
there are difficult questions that would be raised by it.
    Mr. Farrow. Mr. Chairman, if I could add, if I could 
interject here--
    Mr. Doolittle. Yes.
    Mr. Farrow. I think this is a question that we need to look 
at not only from a constitutional point of view and the 
question of what Congress can do but what Congress would do and 
what is rational policy.
    Mr. Doolittle. Well, I understand that and I am not trying 
to get into rational policy. I am just trying to explore the 
full dimensions of Congress's authority here.
    Mr. Thornburgh, do you have any further comment on what you 
have heard?
    Mr. Thornburgh. I think when you look at the policy 
questions and what occurred in the Philippines when it changed 
from a commonwealth to a republic, Congress did not continue 
statutory U.S. nationality for residents of the Philippines and 
they did not create U.S. citizenship or provide by law or 
treaty for dual U.S. citizenship under the free association 
treaties with the Pacific Islands that we discussed earlier.
    I think these have to be looked at very carefully on a 
case-by-case basis, both in the Congress and certainly they 
would be looked at in that manner in the courts, though I think 
there is a degree of uncertainty. But I think that involves an 
examination of precisely what the parameters of due process 
protection and equal protection limits are under the 
Constitution, as well.
    So I cannot disagree with what my colleagues have said, but 
I think that this is an area that--citizenship is such a unique 
and valuable commodity that, on the one hand, it should not be 
treated lightly if one is to enforce a change in citizenship. 
But on the other hand, it is not something to be conferred 
lightly, particularly if a political entity has made its own 
decision to become independent and to adopt a separate path. So 
I do not know whether that helps or not, but let me say this. 
Let us hope that we have to face those questions under 
legislation adopted in this body and the other body soon.
    Mr. Doolittle. Just to sum up the intent of my question, 
let us say, then, while there is disagreement--well, there is 
not even disagreement. You are saying, those who have got 
citizenship, we may not be able to remove that as a Congress, 
but for example, what if we passed a law that said, in the 
future, people not yet having citizenship but subsequently born 
to parents in Puerto Rico would no longer be considered U.S. 
citizens. Do you all believe that that would be within our 
    Mr. Thornburgh. Yes, I do.
    Mr. Farrow. Yes.
    Mr. Doolittle. Okay. Thank you.
    Governor Romero-Barcelo, you are recognized for your 
    Mr. Romero-Barcelo. Thank you, Mr. Chairman. I just wanted 
to go a little bit further with what the chairman has asked and 
I would like to ask Mr. Treanor, because you have mentioned in 
your testimony that Puerto Rico is governed under the 
Territorial Clause, and also you made another statement which 
is one Congress cannot bind another Congress. Furthering the 
question that the chairman made, it is clear that it is very 
difficult for Congress to take away citizenship just by a 
statutory act, but the citizenship in Puerto Rico, is that a 
constitutional citizenship or is that a statutory citizenship?
    Mr. Treanor. There is a statutory grant of citizenship 
under the INA.
    Mr. Romero-Barcelo. And then Congress can always repeal or 
amend its own laws.
    Mr. Treanor. Congress can always repeal and amend its laws.
    Mr. Doolittle. INA is the Immigration and Naturalization 
    Mr. Treanor. That is right.
    Mr. Romero-Barcelo. Then the constitutionally acquired 
citizenship are whether you are born in a State or whether you 
are naturalized. Those are the only two moments for acquiring 
citizenship that are mentioned in the Constitution, am I 
    Mr. Treanor. That is correct.
    Mr. Romero-Barcelo. So Puerto Rico's citizenship is by 
virtue of the law passed, first of all, the first time in 1917. 
Now, that law can be repealed, and as we said here, those born 
in Puerto Rico after such and such a date will not be citizens 
by the fact that they are born in Puerto Rico. Congress can do 
that, is that correct?
    Mr. Treanor. Right. Actually, if I can just clarify that, 
what I say in my testimony is 14th Amendment citizenship, which 
is what you are referring to, that citizens of Puerto Rico are 
not citizens pursuant to the 14th Amendment, and that is based 
on Supreme Court case law and a number of Court of Appeals 
decisions recently. Then there is the separate question we also 
talk about the statutory grant of citizenship.
    What I was focusing on earlier was whether that having been 
granted to certain people can be taken away. It is a separate 
question and it would be one that I think would need further 
study, about once a statutory grant has been made to an area, 
and specifically to Puerto Rico, whether it could be rescinded 
prospectively, again, so long as--while Puerto Rico remains 
subject to United States sovereignty. I think that raises 
difficult questions and we would have to study them further in 
order to respond fully.
    Mr. Romero-Barcelo. In other words, I am talking about the 
people that are not born yet. Congress cannot say, well, we 
repeal the law of 1917. We set it aside and from now on, those 
that are born in Puerto Rico will not be U.S. citizens merely 
by birth. Do you have any doubts about that, that Congress can 
do that?
    Mr. Treanor. And this is, again, if Puerto Rico were to 
become an independent nation?
    Mr. Romero-Barcelo. No, either one. Right now, if Congress 
wanted to do it right now.
    Mr. Treanor. Again, I think if Puerto Rico remains subject 
to the United States sovereignty, I think it is a novel 
question. It is not something that the courts have had to 
    Mr. Romero-Barcelo. That probably will not happen, but that 
is something else. I am just talking in pure legal theory.
    Mr. Treanor. Right. In pure theoretical terms, and again, I 
think the critical kind of constitutional doctrine is the 
Vested Rights Doctrine that we talked about before, it leads to 
a statement in, for example, the insular cases where Justice 
White says what has been done cannot be undone. So the question 
would be, having granted statutory citizenship to people in 
Puerto Rico for a substantial period of time, would Congress be 
able to prevent prospective application of citizenship? And 
again, I think there are difficult questions that are raised by 
that and we do not have a clear answer to that.
    Mr. Doolittle. Will you yield on that?
    Mr. Romero-Barcelo. Yes.
    Mr. Doolittle. Are you not retrenching on what you just 
told me in my question? You all sat there and agreed that we 
could prospectively deny citizenship to children born in Puerto 
Rico. Am I misunderstanding what you said, because you are 
giving him a different answer than you gave me on the same 
question. Mr. Thornburgh?
    Mr. Thornburgh. I would suggest that part of the confusion 
is that in the cases used as a jumping-off point, Afroyim and 
Bellei, are fact-specific instances applying to individual 
citizens. They do not reach the question that you have posed, 
which is an element of the course that might be chosen by 
Puerto Ricans for an entire people, an entire nationality, if 
you will, and I think that quite different questions come into 
consideration there than in the individual case of a person who 
may have voted in another country or where they were, in 
Bellei, failed to comply with some specific regulation.
    Mr. Doolittle. And so in the case of where we are talking 
about an entire people, which is what the question is here, 
would it still be your opinion--
    Mr. Thornburgh. Yes. Yes.
    Mr. Doolittle. --that as you testified earlier, that we 
could do that?
    Mr. Thornburgh. The prospective denial of citizenship, it 
seems to me, is entirely within the power of a Congress.
    Mr. Doolittle. And then, Mr. Farrow, is that also still 
your position?
    Mr. Farrow. I think the context that--it is our position 
that as long as the U.S. flag flies in Puerto Rico, we ought to 
continue to grant citizenship. If Puerto Rico is to become a 
nation, then it would be in--I will not be the constitutional 
witness here, I will let Mr. Treanor do it for the Justice 
Department, but it would be--we have already taken the position 
and reiterated that we should not continue to grant citizenship 
and we can discontinue the grant of citizenship if Puerto Rico 
is to become a nation, if it is not to be a territory of the 
United States.
    Mr. Doolittle. Well, I am on the Governor's time, if he 
will allow me to continue. I am not talking about that. I am 
talking about the example where we decide to pass a law that 
says people born in Puerto Rico are not going to be citizens 
anymore, and you just a few moments ago said, yes, I agree with 
that, and now I am not hearing that.
    Mr. Farrow. Yes, in the context of Puerto Rico becoming a 
sovereign nation--
    Mr. Doolittle. No, but it was not in the context of that. 
It was in the present context, where they are, in essence, a 
territory of the United States and we decide on a whim that we 
are going to take away their prospective citizenship, not 
affecting the citizenship of those who are presently citizens 
but those who are now born after a certain date. I understood 
you to say, yes, we could do that, and your answer was 
unequivocal. Now I am hearing equivocation.
    Mr. Farrow. I was trying to expand at the time on the 
answer. As you may recall, Mr. Treanor will speak on the 
constitutionality of the question.
    Mr. Doolittle. Okay. Is it a yes or a no, Mr. Treanor?
    Mr. Treanor. There are two categories. One category is 
Puerto Rico not subject to United States sovereignty--
    Mr. Doolittle. No, I do not want to talk about that 
category. The only category I am interested in is whether it is 
subject to United States sovereignty. Yes or no, can we take 
away their prospective citizenship?
    Mr. Treanor. And the answer is, it is not clear.
    Mr. Doolittle. Well, it was clear.
    All right, Governor, back to you and we will give you some 
more time.
    Mr. Romero-Barcelo. In other words, you have doubt as to 
the answer on that one?
    Mr. Treanor. I am sorry?
    Mr. Romero-Barcelo. Your final answer is that you have 
doubts as to your answer on that one. You do not have a clear 
answer on that one?
    Mr. Treanor. We do not have a clear answer on that.
    Mr. Romero-Barcelo. In the bill that is before us, Section 
3, it says, upon agreement by Congress to recognize a 
unilateral bilateral pact with provisions describing Section 2 
by approval of this act, the following terms for its 
implementation shall apply. And then further on it says, the 
people of Puerto Rico in the exercise of their sovereignty, 
natural right to self-government and free will, et cetera, may 
reaffirm the validity and the force and effect of the 
commonwealth formula that was established in 1952 as an 
autonomous body which is neither colonial nor a territory in 
permanent political union with the United States under 
agreement that may not be set aside or altered unilaterally.
    Now, can a separate nation have an agreement which may not 
be set aside or altered unilaterally? Is that possible 
    Mr. Treanor. No. As a matter of domestic law, Congress 
cannot commit itself not to subsequently alter an agreement.
    Mr. Romero-Barcelo. So this would be--it would not be 
    Mr. Treanor. It would not be permissible.
    Mr. Romero-Barcelo. And then further on, do you know of any 
such thing as a permanent union other than with the State?
    Mr. Treanor. Again, it gets back to the same proposition. 
Permanent union is inconsistent with the notion of the limit of 
Congress's power to bind future Congresses.
    Mr. Romero-Barcelo. So there is a no such thing as a 
permanent union unless you are a State within the union?
    Mr. Treanor. That is right.
    Mr. Romero-Barcelo. Further on, it says, in Section 3, 
Subsection 6--Paragraph 6 of Section 3, it says, those persons 
born in the Commonwealth of Puerto Rico shall continue being 
United States citizens by birthright and such citizenship will 
continue to be protected by the United States Constitution. The 
right of United States citizenship cannot be unilaterally 
revoked by the United States, and this is under the terms of a 
separate nation. Would such a thing be allowable under the 
terms of the separate nation, unrevokable U.S. citizenship?
    Mr. Treanor. Unrevokable United States citizenship 
prospectively, if Puerto Rico is a separate nation, would not 
be allowed.
    Mr. Romero-Barcelo. Thank you. Thank you very much.
    Mr. Doolittle. Mr. Kildee is recognized.
    Mr. Kildee. Thank you, Mr. Chairman. What I cannot really 
understand is how can Puerto Rico actually be a real nation and 
at the same time rely upon U.S. programs and rely upon U.S. 
citizenship. I mean, it is just baffling. That is more of a 
statement on my part. I do not see how it can actually be a 
real nation and depend on the programs which Congress passes 
here regularly in the Education and Labor Committee and 
Resources Committee and really rely on those U.S. programs and 
rely on U.S. citizenship and be a real nation.
    Let me ask you this question. If Puerto Rico is considered 
to be a nation under this proposal, could it apply for 
membership to the United Nations? Mr. Thornburgh, maybe you 
could answer.
    Mr. Thornburgh. Yes.
    Mr. Kildee. It could apply. So then we could have a U.S. 
citizen as the representative to the United Nations voting 
against another U.S. citizen who is the representative of the 
United States?
    Mr. Thornburgh. If that citizenship is carried forward.
    Mr. Kildee. So under this proposal, if this could be done, 
which I do not think it can be done under the Constitution--
    Mr. Thornburgh. No.
    Mr. Kildee. --but if it could be done, you could have a 
U.S. citizen from Puerto Rico actually being a delegate to the 
General Assembly voting against another U.S. citizen from the 
United States?
    Mr. Thornburgh. But that all is built on the thin read that 
this can be done, and I think the whole thrust--
    Mr. Kildee. I know. I do not believe it can be done, but 
under this proposal--I think this proposal is legal fiction, at 
best, and a hoax, at worst. I do not see how it can be done. 
But if it could be done, if this legal fiction somehow could be 
defictionalized, then you could have that theoretical situation 
of one U.S. citizen voting against another U.S. citizen in the 
U.N. It is never going to happen because I think this thing is 
patently unconstitutional. It is a bit of legal fiction, as I 
say, and it is a hoax, really. But if this were not legal 
fiction or not a hoax and could be done, that theoretically 
could happen, could it not, that situation?
    Mr. Thornburgh. I think there are a whole string of similar 
anomalies that could be played out, all of which, I think, 
underscores the notion that this is not a constitutionally 
permissible process because the series of relationships that 
might be set up under such anomalies would be inconsistent with 
our Constitution and the notion of federalism.
    Mr. Kildee. They could join NATO and have a NATO 
representative and we would have a NATO representative, maybe 
at odds with one another. I mean, I really believe that this is 
such a bit of legal fiction. I am glad, however, that we are 
having this hearing because I think it is important that the 
people of Puerto Rico know what real valid options are 
available to them.
    Mr. Thornburgh. Yes.
    Mr. Kildee. And I will support whatever they choose, but 
this is not a valid option available to them. It is legal 
fiction or a hoax.
    Thank you, Mr. Chairman.
    Mr. Doolittle. Thank you. Mr. Faleomavaega?
    Mr. Faleomavaega. Thank you, Mr. Chairman. I have a couple 
of questions for our panel and certainly want to thank the 
members of the panel for their statements. I just wanted to 
ask, and anyone can respond to my question, under international 
law, what was Puerto Rico's political relationship with Spain 
prior to and after the Spanish-American War? Was Puerto Rico a 
territory? Was it an almost independent nation? What was its 
status before, during, and after the Spanish-American War?
    Mr. Farrow. Before the Spanish-American War, it was Spanish 
territory that Spain ceded to the United States. It had some 
autonomy in its territorial status. I am not familiar with the 
constitution of Spain at the time to be able to describe the 
precise terminology. Certainly after the Spanish-American War, 
Spain ceded Puerto Rico to the United States.
    Mr. Faleomavaega. So all of Spain's sovereign rights and 
everything under international law was ceded to the United 
States as far as Puerto Rico was concerned?
    Mr. Farrow. Yes.
    Mr. Faleomavaega. When was U.S. citizenship granted to 
Puerto Ricans? Was this in 1917 or 1950? I am not sure.
    Mr. Farrow. Seventeen.
    Mr. Faleomavaega. In 1917, they became U.S. citizens. Is 
not Puerto Rico no longer a self-governing territory under the 
provisions of the United Nations charter?
    Mr. Farrow. No. Puerto Rico was taken, in 1953, taken off 
the list of non-self-governing territories for which the United 
States had to report annually. We no longer report to the 
United Nations on the political status of the territory. Puerto 
Rico has local self-government similar to that of a State. It 
does not elect its national government officers, the people who 
make and implement its national laws.
    Mr. Faleomavaega. Now, was this at the request of the 
Puerto Rican people and their leaders, that they be taken off 
the United Nations status as a non-self-governing territory, or 
was this something that was unilaterally done by our national 
    Mr. Farrow. The United States made the request to the 
United Nations in consultation with the government of Puerto 
    Mr. Faleomavaega. I hear so much about the people and their 
right of self-determination. Under international law, when does 
self-determination come into play and at what point do we say 
that people have been given their right of self-determination, 
Mr. Thornburgh or some of the legal experts there, or Mr. 
    Mr. Thornburgh. Well, I think we have to look first to our 
own Constitution, which on numerous occasions has seen 
territorial status ripen into Statehood, for example, and in 
other cases seen territorial status change to independence. I 
think the thrust of what my testimony today and heretofore has 
been is that it is unacceptable for the United States to 
continue to exercise authority and jurisdiction over Puerto 
Rico in its present posture and that the people of Puerto Rico 
ought to be given--in fact, the time has long since past when 
they should be given the right to choose to make their own 
determination about what their form of government should be and 
what that relationship should be with the United States.
    Mr. Faleomavaega. Well, I think--
    Mr. Thornburgh. The thrust of our examination, if you will 
just permit me a moment--
    Mr. Faleomavaega. Sure.
    Mr. Thornburgh. --the thrust of our examination of the 
proposal that is before you today is to determine whether that 
is a viable choice, among others, to place before the people of 
Puerto Rico, and what you have heard, I think, from every 
witness here today is that it is not and that there really are 
only three choices that are viable. One is continuance of 
current commonwealth status. The second is Statehood. And the 
third is independence.
    Mr. Faleomavaega. I think there have been basically three 
major plebiscites taken, and I suppose this is where the issue, 
or at least I feel is where the problem lies. The right of free 
determination in the plebiscite of 1967, 60 percent for 
commonwealth, 38 percent for Statehood. And then the plebiscite 
of 1993, 48.6 percent for commonwealth and 46.4 for Statehood 
and 4.5 percent for independence. Then the 1998 plebiscite, I 
think it was boycotted by the pro-commonwealth advocates, at 
0.1 percent they got and 46.5 percent Statehood and 50.2 
percent none of the above, including free association of 
    So I suppose the question I am raising, it is not until 
1967 that we really found a clear majority. If we are looking 
at majority as the basis of saying this is the right of self-
determination, where a people by majority have said, opted for 
an option, and clearly in 1967, there was that option. And then 
in 1993, it was just by a 2-percent margin difference, but 
there was majority. And then in 1998, there was another clear 
question also in terms of the advocates of commonwealth not 
even participating.
    So is this not really where the problem lies, that we 
really have not gotten a clear will of the majority of the 
Puerto Rican people as to what option they really want to 
pursue? And if so, let us say for the sake of argument that the 
pro-commonwealth people get a majority, if a future plebiscite 
should ever take place, under the Constitution, is not really 
the only option possible within the framework that there has to 
be some kind of a negotiable treaty relationship to then allow 
these negotiables, I suppose, with our government when you talk 
about citizenship, talk about trade, and all these others. This 
bill presupposes that we give all these things to this status 
that is being sought by the pro-commonwealth rather than being 
negotiated under a treaty relationship. Then it will better 
clearly define what our options and what we may or we may not 
want to do as a country in relation to the people of Puerto 
    Mr. Thornburgh. I think a lot of these features set forth 
in this legislation put the cart before the horse.
    Mr. Faleomavaega. Right.
    Mr. Thornburgh. The problem is that there has been no 
legally binding Congressionally defined choice given to the 
people of Puerto Rico in these referenda that you refer to, and 
I think the thesis that is obviously contained in the platform 
of both Presidential candidates and their parties and what you 
have heard today is that it is time for the Congress to 
carefully define these alternatives. Once they have been voted 
upon and a status has been divined for the future of Puerto 
Rico, then the relationships that ensue can be on the agenda 
for policy determination. But I think what we are urging today 
is that a constitutional process contemplates that the 
Congress, the ultimate sovereign, if you will, for the time 
being, enunciate those choices in a clear and constitutional 
    Mr. Faleomavaega. Just one quick question, Mr. Chairman. I 
know my time is up. You heard earlier Mr. Tauzin from Louisiana 
said, if all these things are to be given to Puerto Rico, will 
this allow other States to negotiate similar compacts? We do 
not have to pay Federal income taxes, we can go ahead and 
establish trade relations with other countries, all these 
goodies that are contained in this proposed package. Will this 
set a precedent that will allow other States to also claim 
similar rights under the Constitution if we were to grant this 
kind of a status to Puerto Rico?
    Mr. Thornburgh. I think to ask the question is to answer 
it, Congressman.
    Mr. Faleomavaega. Thank you, Mr. Chairman.
    Mr. Doolittle. Thank you.
    Mr. Underwood?
    Mr. Underwood. Thank you, Mr. Chairman, and I must 
congratulate you on introducing legislation you do not agree 
with and then finding a way to hold a hearing on it.
    Mr. Underwood. I have several ideas I know you do not agree 
with that I would like to see a hearing on.
    We have had a lot of discussion about the nature of the 
political status arrangements and the nature of citizenship. I 
guess as we look around here, conceivably, I suppose, under the 
distinction between statutory citizenship and constitutional 
14th Amendment citizenship, there are maybe two of us on the 
panel here that are statutory citizens. So trying to understand 
the dynamics of that is very critical, because citizenship is 
the linchpin of much of these discussions about the kind of 
relationship that we are envisioning and other areas aspire to, 
as well.
    If U.S. citizenship is not individually revokable, and 
certainly that is not likely to happen under any scenario, but 
Congress can take away the capacity to make citizens in the 
territories and I think there is general consensus on that, 
although perhaps the chairman caught a little bit of shifting 
of ground there in the process of that discussion.
    I want to introduce another novel situation which Mr. 
Thornburgh sort of touched on in his characterization of what 
happened with the Philippines, and people in the Philippines 
did not have citizenship prior to becoming independent. But 
there was the hint that perhaps in that arrangement or in that 
arrangement that we have seen with the freely associated states 
that under perhaps a negotiated arrangement, that it is legally 
possible to extend citizenship to a freely associated country. 
I know that presents kind of a new novel situation that Mr. 
Treanor refers to, since we are trying to explore all the 
possibilities of that. How would you respond to that, Mr. 
Treanor? Is it possible to extend just citizenship to a freely 
associated state?
    Mr. Treanor. Our position is that it would be, as a matter 
of constitutional law, as opposed to--there are serious policy 
concerns that others--
    Mr. Underwood. I know the policy concerns well, believe me.
    Mr. Treanor. But as a matter of constitutional law, 
Congress has the power to grant citizenship and there is no 
textual limitation to that power. So the answer would be yes.
    Mr. Underwood. Mr. Thornburgh, you have discussed in the 
context of the two political platforms for this upcoming 
Presidential election that special mention has been made that 
the Congress is responsible for this, and I quite agree. If we 
do not have a Congressional process for self-determination, 
then we are not going to have a real process for self-
determination. This is not a best two-out-of-three elections. 
It has to be viewed as a single process and what we have to 
date, as Mr. Faleomavaega has outlined, several election 
results. I keep thinking that people think that we will keep 
having these elections until we get the result we want and then 
we will stop. That is not the way this is supposed to work. It 
is supposed to be a Congressionally mandated responsibility 
that is consistent with the international understanding of 
    That is why I find it very, very ironic that despite all 
the protestations to the contrary, that clearly Puerto Rico is 
just another territory, just like Guam or American Samoa or the 
Northern Mariana Islands, and if we all understand that, why do 
we not put them back on the non-self-governing list at the 
United Nations because that is where the other territories are 
at because it is clear that we were all grouped together there 
to begin with. If we all accept the fact or we all accept the 
notion that nothing fundamentally has changed, there is still 
no consent of the governed of laws that apply over Puerto Rico 
or any of the other small territories in Federal law, then I 
still think they are non-self-governing.
    But Mr. Thornburgh, you mentioned those particular items in 
the political platforms, and you mentioned that what we have 
done with Puerto Rico is unacceptable. Would you extend that 
same characterization to the other territories, that, indeed, 
we should get a Congressionally mandated process for the small 
territories and get them to make a choice between Statehood and 
    Mr. Thornburgh. I think as a general matter, that is 
probably a position that is consistent with our history and the 
commitment of our Constitution. I must admit that I am not as 
familiar with the background and history of those territories 
as I am with Puerto Rico, where my interest has been 
longstanding. But as a general principle, I cannot quarrel with 
    Mr. Underwood. Well, that is very heartening, because for 
those of us who are smaller territories, and as much as we love 
our friends from Puerto Rico, they are sometimes the 800-pound 
gorilla when it comes to insular policy. But there are other 
flags represented in this committee room behind the chair and 
the responsibility to deal with this issue in a serious way, 
that should not be impeded by notions about size or about the 
individual characteristics of each territory. If we believe in 
firm principles regarding self-determination and we believe 
that democratic principles and consent of the governed should 
apply to all areas, then they should apply to all areas 
regardless of size.
    Mr. Faleomavaega. Will the gentleman yield?
    Mr. Underwood. Yes, I would be happy to yield.
    Mr. Faleomavaega. I think it was some years ago, if I 
recall, over 10 years ago, the people of Guam by plebiscite--
what was the percentage? It was about 85 percent voted and 
opted for commonwealth status. For the past 15 years, from past 
administrations, even the current administration, the people 
and the leaders of Guam have gone nowhere in trying to 
implement what the will of the people of Guam have wanted for 
all these years and I wanted some responses from the panel. 
What do you suggest? Here is the representative from Guam, has 
been for how many years now, and our own government has failed 
to allow the people of Guam to go through with it. I mean, they 
have already made their decision, years ago. We still have not 
gotten even to first base.
    Mr. Farrow. Congressman, the people of Guam voted for a 
particular piece of legislation that members of this committee 
urged caution before they voted for a specific piece of 
legislation. Both the Bush administration and the Clinton 
administration have worked hard on that proposal and responded 
to the proposal. The responses have been similar from the Bush 
administration and the Clinton administrations of what the 
executive branch would agree to of those proposals. The people 
of Guam have not accepted or agreed to the extent to which 
either administration has agreed to the proposals. There was a 
similar effort when the people of Guam first voted on this 
proposal, done in this committee, and this committee also 
advised the government of Guam at the time to what extent it 
found the proposals acceptable.
    So I think we do have a serious problem to continue to work 
on and there is a commitment and a willingness of this 
administration to do that. The President has said, he has gone 
out to Guam and said it and told the Governor, as well, that he 
is willing to work on the issues and bring them to closure to 
the extent he can. But the territory, like Puerto Rico, cannot 
unilaterally determine what changes in Federal policy there 
should be or how the structure of the Federal Government should 
change. That has been the essence of the problem with that 
specific proposal. It is largely the problem with this 
proposal, as well.
    If I may, I would like to add, as well, a comment with 
respect to your--
    Mr. Faleomavaega. I am on Mr. Underwood's time. I am sorry, 
Mr. Farrow.
    Mr. Farrow. With respect to self-determination, because you 
raised that, the U.N., there are two basic tests on self-
determination for a territory. One is that the people of the 
territory freely choose their form of government, and the 
Puerto Ricans did that and they have not yet chosen another 
form of government. The other basic question that is out there 
and continues until it is answered is that the people of a 
territory elect the people who make and implement their 
national laws. That is clearly not the case with Puerto Rico.
    And yes, in 1967 there was a referendum in Puerto Rico on 
status options and a majority voted for commonwealth. There 
have been two referenda since. There has been no majority, 
including for the current governing arrangement, and as you 
noted, in the last vote, the vote was one-tenth of 1 percent 
for the current governing arrangement. In 1993, there was a 
plurality for a commonwealth proposal and the proposal was in 
essence the following, that the Congress would restore tax 
benefits for U.S. companies operating in Puerto Rico that it 
had repealed 2 months earlier, a multi-billion-dollar proposal, 
that Supplemental Security Income would be extended to Puerto 
Rico under the new Commonwealth, which aid to the needy, aged, 
blind, and disabled cost about $900 million, that Puerto Rico 
would be treated equally in the food stamps program, gets now a 
block grant in lieu of food stamps, that would have cost at 
that point about $600 million, and that there would be 
protection for Puerto Rican agricultural products from 
competition from abroad.
    None of those proposals were acceptable either to this 
Congress, and there was some consideration here, or to the 
executive. That is why the President responded by saying that 
we ought to clarify what viable options are in response to 
Puerto Rican proposals and we ought to put that choice to the 
people of Puerto Rico. That led to Chairman Young's bill 
offering options. Our administration insisted that the Popular 
Democratic Party, the Commonwealth Party of Puerto Rico, be 
able to offer its proposal to the committee. It did. The 
committee worked its will and we reached agreement with the 
bipartisan leadership of this committee on what a viable 
commonwealth option is.
    The commonwealth that is contemplated in this bill is 
vastly different than what the committee agreed to and the 
House agreed to in 1998, several Senators agreed to in 1998. It 
is different than the commonwealth entirely that was on the 
ballot in 1993 and different entirely than the commonwealth 
that was on the ballot in 1967. I do not know that there has to 
be consistency between the parties' proposals, but it is our 
obligation to say what is realistic in a proposal so that when 
people vote, they vote for something that has some chance of 
being implemented and is somewhat viable, and that is precisely 
the problem that occurred in the case of Guam and it is 
precisely the reason that the President does not want to go 
through that again. He is very sensitive to the situation with 
Guam, would like to develop the status, but does not want to 
have a situation where people vote for something that is not 
    Mr. Underwood. Mr. Farrow, I do not want to go over old 
ground on this particular issue--
    Mr. Farrow. Right.
    Mr. Underwood. --but basically, the problem was that from 
the beginning, the people of Guam were indeed advised by 
members of this committee and the administration at the time to 
put in everything, including the kitchen sink, and they did. 
Now, since that time we have dealt with it as legislation, and 
perhaps what is needed is to stop dealing with it as 
    So I would respectfully suggest that the way to proceed 
with it in whatever administration we have next is to put 
together an office of a status negotiator to discuss these 
various options, because it is obvious that we are not going to 
do it by dealing with the programmatic managers at the 
Department of Interior or dealing with it as legislation as we 
would any other particular piece of legislation, so thank you 
very much.
    Thank you very much, Mr. Chairman.
    Mr. Romero-Barcelo. Mr. Chairman, can I--
    Mr. Doolittle. Mr. Romero-Barcelo?
    Mr. Romero-Barcelo. Mr. Chairman, I would like to introduce 
some documents. The clerk already has them. There are two 
Congressional Research memos on citizenship. One is dated March 
9, 1989. The other one is dated November 15, 1990. Also, Mr. 
Chairman, I would like to submit with unanimous consent the 
Department of Justice memo of July 28, 1994, on mutual consent 
provisions, and also two articles, one in the Orlando Sentinel 
which is about this process, which came out on the 25th of 
September of this year, and also an editorial from the San Juan 
Star on September 22 of this year.
    [The information of Mr. Romero-Barcelo follows:]
    ********** INSERT **********
    Mr. Doolittle. Let me just add to that list, I have some 
material that I want to submit and I would like to, by 
unanimous consent, if you approve, I would like to hold the 
record open for us to submit supplementary material for, say, 2 
weeks after--how about October 21, 2000. Is there any objection 
to that? Statements for the record will be accepted until that 
date. Without objection, so ordered.
    [The information of Mr. Doolittle follows:]
    ********** COMMITTEE INSERT **********
    Mr. Romero-Barcelo. Mr. Chairman, I would also like to be 
clear for the record, just to make sure that people understand 
it, when we talk about the Republic of Palau and the Federated 
States of Micronesia and the Republic of the Marshall Islands 
and the different rights that they have under some agreement, 
the residents of those islands are not U.S. citizens.
    It would be the same as they expect in this bill, the 
Puerto Rico will be Puerto Rican citizens. It would be a 
separate nation. But they also want to be U.S. citizens. I will 
read from the bill itself where it talks about the 
irrevocability of the citizenship but it also talks of all of 
the people born in Puerto Rico are Puerto Rican citizens by 
birth, so they are Puerto Rican citizens but they also want to 
have U.S. citizenship and that is where the conflict begins.
    I would like to finally just make some points regarding the 
international trade. The bill says that the Commonwealth shall 
control its international trade and establish a policy that 
will foster its maximum growth. Now, can there be such a 
control of international trade and still be under the same 
customs system as the United States? First of all, Mr. Farrow, 
can you address that issue?
    Mr. Farrow. I think--are you asking it legally or in terms 
of whether the U.S. would do it? We oppose the idea that--we 
are completely in favor of Puerto Rico controlling its 
international trade if Puerto Rico becomes a sovereign nation. 
That is one of the attributes of sovereignty. At the same time, 
we would oppose it being part of the--having the same customs 
status that it has today, which the bill proposes, because that 
would be incompatible with its national status. It would 
enable, in effect, Puerto Rico to determine what products get 
into--the sovereign Puerto Rico would be able to determine what 
products get into the sovereign United States and it would 
create enormous trade problems in our international 
relationships as well as for our domestic industry.
    Mr. Dalton, do you want to add to that?
    Mr. Dalton. Yes. There are some additional problems, as 
well. Generally, when we do trade agreements, they apply to all 
our territories. Many of these trade agreements have in them 
what are called most favored nation clauses and they promise to 
other parties that they will get the best treatment that we 
give to anyone. If Puerto Rico does agreements that give better 
treatment to somebody than the United States has given, 
countries are going to come in and say, well, we are entitled 
to this better treatment that is being accorded in Puerto Rico, 
and that is a system that we really cannot live with and that 
is a practical illustration.
    Tomorrow, for example, the Senate is going to take up five 
bilateral investment treaties. If this provision were to become 
law and Puerto Rico were to do agreements giving more favorable 
benefits to a Caribbean neighbor than most of our bilateral 
investment treaties, that would trigger an obligation for the 
United States that it does not currently have and that is the 
problem that we have with giving the international agreement 
power to something other than the Federal Government.
    Mr. Romero-Barcelo. Thank you. Mr. Thornburgh, would you 
like to add what you have to say about this?
    Mr. Thornburgh. I think this is the kind of devil that 
resides in the details that is not often addressed and I think 
it is useful to consider what the implications of these kinds 
of arrangements would be. I must admit that I had not thought 
directly about the most favored nation provisions and I think 
it is useful to factor that into consideration of the non-
feasibility of this type of arrangement.
    Mr. Romero-Barcelo. I am not sure I understand your answer. 
Let me pose my question again to you. The bill reads that the 
Commonwealth shall control its international trade and 
establish a policy that will foster its maximum economic 
growth, and that would be consistent with being part of the 
customs system of the nation, establishing its own 
international trade and its own policy, international trade 
    Mr. Thornburgh. I think the short answer is no.
    Mr. Romero-Barcelo. That is what I wanted to find out, what 
you felt about it, because, obviously, as Mr. Farrow stated and 
Mr. Treanor stated, goods coming into Puerto Rico on a 
different basis would then have free access to the United 
States and that will be a very serious consideration. Yes?
    Mr. Treanor. Then one final constitutional point.
    Mr. Romero-Barcelo. Sure.
    Mr. Treanor. There are provisions in the Constitution that 
come into play, again about Puerto Rico and sovereignty. One is 
no State shall enter into any treaty, so there is that 
limitation. There is also a provision that says no State shall, 
without the consent of Congress, and then it goes on, enter 
into agreements or compacts. So the question there would be, is 
what is contemplated by the bill a treaty as opposed to a 
compact or agreement, and also can Congress delegate 
respectively in the way that the bill would contemplate to 
Puerto Rico this power.
    Mr. Romero-Barcelo. There is no doubt, there are a lot of 
other little issues, but one thing that is not mentioned 
specifically but it is mentioned as a right that the people of 
Puerto Rico have over and over a couple of times in the bill. 
This is called fiscal autonomy. What they mean by fiscal 
autonomy, at least what it said at home, is that the Congress 
has no authority to impose taxes on Puerto Rico unless Puerto 
Rico consents to those taxes.
    Now, I would like to ask, first of all, Mr. Thornburgh, 
what is your opinion about that statement that is made in 
Puerto Rico continuously by people who propose this so-called 
enhanced commonwealth, which is a separate nation? At the 
present time, there exists a fiscal autonomy, that Congress has 
no authority to impose taxes on Puerto Rico.
    Mr. Thornburgh. Well, I think, echoing Congressman Tauzin's 
wish list for his State, if any such principle were to find its 
way into our constitutional regimen, it would be quickly 
availed of by every one of the 50 States. The point here is the 
Federal Supremacy Clause with regard to matters that relate to 
overall national policy, and by providing that no taxes could 
be imposed or a particular class could be imposed in a 
territory, you run smack into the provisions of the 
Constitution that relate to the governance of territories, in 
essence by the Congress of the United States. And to require an 
additional approval of a fiscal measure by the governing body 
of the territory does not compute. It is not allowed for under 
the Constitution. I think that is manifestly clear.
    Mr. Romero-Barcelo. In other words, the only reason why 
there is no Federal income taxes in Puerto Rico is because the 
    Mr. Thornburgh. Because the Congress has not imposed it.
    Mr. Romero-Barcelo. --has not imposed it.
    Mr. Thornburgh. And it does not say that you could not do 
that tomorrow.
    Mr. Romero-Barcelo. Mr. Treanor, do you have any statement?
    Mr. Treanor. No. I think the point there is that kind of 
the critical constitutional clause is the Uniformity Clause, 
which applies to States. That says that acts in the States have 
to be uniform, and the Supreme Court, and this is at the turn 
of the century in the insular cases, said that Puerto Rico is 
not covered by the Uniformity Clause. So Congress has the power 
to treat it differently as a result of that.
    Mr. Romero-Barcelo. In other words, it can impose or not 
impose taxes as it sees fit.
    Mr. Treanor. Right. Right. So, I mean, again, in terms of 
Congress's authority, Congress's authority over the territories 
is plenary, which means it is complete. So that judgment then 
lies in Congress. Part of the concern of the bill would be if 
Congress is giving that away kind of irrevocably, that runs 
afoul of the principle that I have talked about at a number of 
points here, which is one Congress cannot do something like 
that. It cannot give away power that the Constitution gives 
    Mr. Romero-Barcelo. In other words, Congress cannot 
irrevocably give away its power to tax Puerto Rico or 
    Mr. Treanor. That is right.
    Mr. Romero-Barcelo. Thank you.
    Mr. Doolittle. If the committee will bear with me, I had 
not planned to enter into a second round of questioning, only 
because we have been at this for two-and-a-half hours and we 
have got one more panel to go. May we move on to the next 
panel, or what do you think, Mr. Faleomavaega? All right. You 
are recognized.
    Mr. Faleomavaega. I appreciate the chairman's indulgence. 
Gentlemen, I may be moving the cart before the horse or the 
horse before the cart and realize that there is consensus we 
have got some very serious constitutional problems with the 
proposed bill. So my next question to the panel is, should 
Congress be charged with administering another plebiscite or 
should we have a plebiscite on this whole question of self-
determination for the people of Puerto Rico in the future?
    Mr. Farrow. Congressman, the President feels very strongly 
that the people of Puerto Rico should be enabled to choose 
their future political status. The referendum that was 
conducted in 1993, the referendum that was conducted in 1998, 
both had serious flaws.
    In the case of the 1998 referendum, the majority of the 
people did not choose any status. As I have explained, they 
were encouraged to do that by a party that advocated this 
proposal and said the referendum was unfair because this 
proposal was left off the ballot. But this proposal was not an 
option. The proposal in 1993 made proposals that were not 
    What will be meaningful, and the President is for a 
meaningful choice, which is among viable options, and so, yes, 
we should enable the people of Puerto Rico to have a choice 
that is meaningful, which would be a choice limited to viable 
    Mr. Faleomavaega. Well, I do not know if that answered my 
question. Should the Congress be in charge of administering 
another plebiscite or should it be left to the people of Puerto 
Rico or a third party?
    Mr. Farrow. Our position is that the government of Puerto 
Rico ought to conduct the referenda, that the Federal 
Government ought to clarify the options, but it is the 
government of Puerto Rico that has the mechanisms by which a 
referendum could be conducted and they ought to conduct it as 
they are ready. We ought to discharge our responsibility, which 
is answering the questions that Puerto Ricans have asked for 
years about what their options are, and say to them, if you 
select one of these options, we will then act. But the people 
of Puerto Rico should conduct the referendum itself.
    Mr. Faleomavaega. One of the things that I, as a matter of 
observation, Mr. Chairman, is that we concocted this concept or 
this new relationship of a commonwealth status simply because 
the Congress was not about to grant Statehood for the people of 
Puerto Rico. It seems that we never really gave the people of 
Puerto Rico that option historically, whether to become 
independent or to be granted Statehood. Did we ever 
historically allow the people of Puerto Rico to vote on those 
    Mr. Farrow. The people of Puerto Rico never voted on the 
commonwealth option when it was created. That was not the 
question that Puerto Ricans voted on 50 years ago. What they 
voted on--what the Congress authorized was the people of Puerto 
Rico to adopt a constitution to organize their local government 
and to accept a number of Federal policies concerning the 
islands. That is what they approved. The constitution and the 
constitutional convention named the local government the 
commonwealth in terms of the name of that local government. In 
English, you have already mentioned--in Spanish, it literally 
translates into the free associated State of Puerto Rico. There 
were not status options per se that were offered.
    The Congress, the legislative history written by this 
committee, the Senate committee, the executive branch at the 
time, and the testimony of the Puerto Rican witnesses at the 
time was that it was not a change in political status. It is a 
change within a political status, but was not a change to a 
different political status.
    Mr. Faleomavaega. Mr. Chairman, I am not going to pursue 
this more.
    Mr. Doolittle. All right, thank you.
    Gentlemen, we appreciate the time and the valuable insights 
that you have offered. We will hold the record open for 
supplementary questions that we may tender to you and would 
invite your expeditious response. We thank you for being here 
and excuse you now. Thank you.
    Mr. Doolittle. I would like to, as soon as it is possible 
to do so, to invite panel number two to come forward.
    We have two witnesses for panel number two and we will 
begin with the Honorable Angel E. Rotger-Sabat, Attorney 
General of Puerto Rico in San Juan. Mr. Sabat?

                           JUAN, PUERTO RICO


    Mr. Rotger-Sabat. Good afternoon, Mr. Chairman and members 
of this committee. My name is Angel E. Rotger-Sabat and I am 
the Attorney General of Puerto Rico. On January 1 of the year 
2000, the Governor of Puerto Rico, the Honorable Pedro 
Rossello, appointed me as the Attorney General, after serving 
for more than 2 years as Puerto Rico's Chief Deputy Attorney 
General under former Attorney General Mr. Jose A. Fuentes-
Agostini. On behalf of the government of Puerto Rico, I thank 
you for the opportunity to appear before you today.
    I have submitted my written statement for this hearing and 
ask that it be made part of the record and will now confine my 
remarks to a brief summary of the legal principles therein 
explained regarding the 102-year-old relationship between 
Puerto Rico and the United States. It is my pleasure to address 
the legal questions that arise from this bill, mainly based on 
the jurisprudence of various Federal courts. Why the Federal 
courts? Because the questions of Puerto Rico's political status 
in relation to the United States and of the Congressional 
powers associated with that status are inherently and 
fundamentally questions of Federal law. As I will further 
explain, the historical, legislative, and judicial background 
of the relationship between the United States and Puerto Rico 
undoubtedly presents at its core a Federal question, one which 
only Congress can lay to rest.
    Puerto Rico became subject to the jurisdiction of the 
United States as a result of the Treaty of Peace of December 
10, 1898, also known as the Treaty of Paris, which ended the 
Spanish-American War. Article 9 of that treaty states that the 
civil rights and political conditions of the natural 
inhabitants of Puerto Rico and other territories ceded to the 
United States shall be determined by the Congress. Congress 
thereafter began to legislate for Puerto Rico pursuant to 
Article 4, Section 3, Clause 2 of the United States 
Constitution, also known as the Territorial Clause, which 
authorizes Congress to dispose of and make all needful rules 
and regulations respecting the territory of the United States.
    In 1900, Congress enacted the Foraker Act, establishing a 
civil government for Puerto Rico, consisting of an elected 
legislature with limited powers and a governor and a supreme 
court appointed by the President of the United States. Then in 
1917, Congress granted statutory citizenship to Puerto Rico 
residents and provided for an enhanced bicameral elected 
legislature when it enacted the Jones Act. Thirty years later, 
Congress once again took a further step in delegating a greater 
degree of internal autonomy for local self-government in Puerto 
Rico when it enacted the Elective Governor Act, authorizing the 
Puerto Rico residents to elect their own governor.
    These limited actions by Congress did not alter the 
constitutional status of Puerto Rico, which was then defined by 
the United States Supreme Court in the so-called insular cases 
as that of an unincorporated territory of the United States. 
Puerto Rico's limited powers of local self-government existed 
as a matter of Congressional grace, not constitutional right. 
Congress's power thus remained plenary under the Territorial 
    The current structure of local government in Puerto Rico 
resulted from the enactment of Public Law 600, also known as 
the Puerto Rico Federal Relations Act. This law provided 
Federal statutory authorization for the citizens of Puerto Rico 
to write their own constitution, subject to Congressional 
approval. A local constitutional convention drafted a 
constitution for Puerto Rico, which was ratified by the people 
of Puerto Rico and later submitted to Congress for approval. 
Congress, exercising its power under the Territorial Clause, 
amended several sections of the Puerto Rico constitution draft 
and ultimately approved the revised version by means of Public 
Law 447.
    It is worth noting that the legislative history of Public 
Law 600 leaves no doubt that even though its passage allowed 
the grant of internal self-government to Puerto Rico, no change 
was intended in Puerto Rico's territorial status and Congress 
continued plenary power over Puerto Rico.
    During the hearings prior to the enactment of Public Law 
600, Mr. Antonio Fernos Insern, then Puerto Rico's Resident 
Commissioner before Congress, testified that the bill, and I 
quote, ``would not change the status of the island of Puerto 
Rico relative to the United States. It would not alter the 
powers of sovereignty over Puerto Rico under the terms of the 
Treaty of Paris.'' He and Mr. Luis Munoz Marin, then Governor 
of Puerto Rico, expressed their understanding that Congress 
unilaterally would retain authority to revoke or modify Puerto 
Rico's constitution. The then-Secretary of the Interior, the 
then-Chief Justice of the Supreme Court of Puerto Rico, the 
Senate report accompanying the Senate version of Public Law 
600, and the Senators who sponsored it, Senators O'Mahoney and 
Butler, all explicitly stated that the new bill would not 
affect the underlying political, social, and economic 
relationship between Puerto Rico and the United States.
    Congress has never strayed from holding the same view as it 
having the final authority to define the juridical status of 
Puerto Rico. The Federal courts have also recognized Congress's 
plenary power over Puerto Rico under the Territorial Clause.
    The United States Supreme Court held in Harris v. Rosario 
that Congress under the Territorial Clause may treat Puerto 
Rico differently from the States so long as there is a rational 
basis for its action. Following the holding in Harris, the 
United States Court of Appeals for the First Circuit has 
recognized as recently as twice in this year that Puerto Rico 
is a territory subject to the plenary powers of Congress under 
the Territorial Clause.
    Some may argue that there are First Circuit cases that cast 
some doubt regarding Puerto Rico's post-1952 constitutional 
status and Congress continuing plenary power over Puerto Rico 
as a territory. They may argue that with the enactment of 
Public Law 600 and the approval of the revised Puerto Rico 
constitution, the island ceased to be a territory and 
Congress's authority over Puerto Rico emanates thereafter from 
the compact between Puerto Rico and the United States, which 
Congress cannot unilaterally amend.
    This doubt should have been long ago dissipated in light 
of, as I have previously pointed out, the legislative history 
of Public Law 600, the Supreme Court's ruling in Harris v. 
Rosario, which was not cited in the cases that I have referred 
to previously, and the consistent trend of the First Circuit 
Court explicitly recognizing the territorial status of Puerto 
Rico. The historical and legislative background in this matter 
contains overwhelming evidence proving that before, during, and 
after the approval of Public Law 600, Congress did not intend 
to change the fundamental status of Puerto Rico from that of an 
unincorporated territory or to relinquish its plenary power 
over the island.
    Almost 2 years ago, the Federal courts addressed the core 
issue of Puerto Rico's status. On August 17, 1998, the Puerto 
Rico legislature enacted Act. No. 249, which provided for a 
plebiscite to be held that year wherein the voters of Puerto 
Rico could express their preferences concerning the 
Commonwealth's ultimate political status. Once Governor 
Rossello signed into law Act No. 249, the Popular Democratic 
Party filed suit before a Commonwealth court, seeking 
declaratory and injunctive relief against the conduct of said 
plebiscite. Because of the substantial Federal question 
addressed in the suit, the Commonwealth removed the case to the 
Federal District Court. The United States District Court agreed 
with our position, denying the Popular Democratic Party's 
motion to remand. The court held that the causes of action of 
the complaint raised Federal, constitutional, and statutory 
questions of the highest order, implicating the power of 
Congress over Puerto Rico pursuant to the Territorial Clause 
and the Supremacy Clause of the Constitution of the United 
    The Popular Democratic Party filed a petition for a writ of 
mandamus jointly with a motion to expedite its consideration 
before the United States Court of Appeals for the First 
Circuit, requesting an order to remand the case to the local 
court. The Court of Appeals denied the petition, announcing 
that a written opinion would follow in due course. But the 
Popular Democratic Party filed a motion for voluntary dismissal 
of the case, and consequently, the clerk of the Court of 
Appeals entered an order stating that in light of the voluntary 
dismissal, no written opinion on the denial of the petition of 
writ of mandamus would be issued. Nonetheless, the fact that 
the Court of Appeals denied the mandamus petition certainly 
evidences that this higher court must have concluded that the 
District Court's opinion was not clearly erroneous, as this is 
the standard applied by the courts when reviewing a petition of 
this nature.
    Mr. Chairman and members of this committee, the future 
political status of Puerto Rico and its approximately four 
million U.S. citizens can only be resolved by an action of 
Congress, exercising its plenary authority over this territory. 
Any bill that raises the issue of the relationship of Puerto 
Rico with the United States deserves the utmost serious and 
careful attention. As I have explained this afternoon, it is a 
matter of Federal law that can only be addressed through the 
legislative action from Congress.
    I appreciate your invitation to address the committee and 
sincerely express my availability to answer any questions or 
observations you have regarding today's statement. Thank you.
    Mr. Doolittle. Thank you.
    [The prepared statement of Mr. Rotger-Sabat follows:]
    ********** INSERT **********
    Mr. Doolittle. Our final witness is the Honorable Charlie 
Rodriguez, President of the Senate of Puerto Rico in San Juan. 
Senator Rodriguez?


    Mr. Rodriguez. Thank you. Mr. Chairman, Governor Romero-
Barcelo, distinguished members of the committee, although I 
currently serve as President of the Senate of Puerto Rico, I 
come before you today on behalf of Dr. Carlos Pesquera, 
President of the New Progressive Party and its members. I have 
submitted a longer written statement. I will try to summarize 
the same at this moment.
    H.R. 4751 intends to give the present commonwealth status 
the following: Permanent union with the United States, 
sovereign powers to Puerto Rico as a nation, and an irrevocable 
guarantee of the United States citizenship to all persons born 
in Puerto Rico.
    First, we welcome this bill only as a vehicle to provide 
and gather information on the complexities of the status issue 
of Puerto Rico and as a discussion tool on that matter. In 
fact, Mr. Chairman, you stated when you introduced this bill 
that it was, and I quote, ``a vehicle to begin a debate 
regarding the current and proposed commonwealth status.''
    Secondly, from the details of the enhanced commonwealth 
formula as introduced in this bill, it pretends to establish a 
segregated and a separate jurisdiction of U.S. citizens. It 
goes on to establish a second-class citizenship for Puerto 
Ricans living in Puerto Rico, a citizenship not envisioned by 
the Constitution or the Founding Fathers.
    The Popular Democratic Party, PDP, has the responsibility 
to explain to Congress how this formula can be implemented 
consistent with the U.S. Constitution. This bill as it is 
written is a blueprint for the perpetuation of the apartheid 
policy established in 1952 with the so-called free associated 
state or Commonwealth of Puerto Rico, whose citizens responded 
with patriotism when our nation was involved in World War I, 
World War II, Korea, Vietnam, Libya, Somalia, the Persian Gulf, 
and Bosnia. More than 1,300 Puerto Ricans gave their lives in 
defense of our nation, democracy, and freedom, and thousands 
more were injured in combat.
    Third, this bill once more reaffirms the political reality 
that all three political parties of Puerto Rico agree that the 
current commonwealth status is colonial in nature and maintains 
the discredited and unconstitutional segregationist policies of 
the 1950's and the 1960's. Even the PDP, the pro-commonwealth 
party, recognizes that it is necessary to perfect or culminate 
the associated nation-state pact of permanent union. After five 
decades of failure to convert a territorial commonwealth into a 
non-territorial status, as if by magic, the PDP has repackaged 
a failed political theory as a program to perfect a status 
proposal that is not attainable under the Territorial Clause of 
the Constitution.
    Fourth, this bill derails, contradicts, and opposes the 
spirit and the objective of H.R. 856, approved with bipartisan 
support in 1998, which provided clear status definitions for 
the three political currents. The three options must reflect 
what is constitutionally attainable within the powers of 
Congress under the Territorial Clause. The definitions must 
honestly describe to the people of Puerto Rico what is legally 
possible and acceptable to Congress from a public policy 
standpoint. For example, guaranteed U.S. citizenship cannot 
exist in a status formula with sovereign powers. There is no 
constitutional precedent for such an occurrence.
    Maybe this explains why our locally held referendums do not 
produce clear majorities. Now perhaps Congress can begin to 
understand that meaningful and informed self-determination in 
Puerto Rico is precluded as long as Congress tell us, we will 
respect whatever you people support with a majority vote, just 
as there was no clear majority vote in Wisconsin in the 1840's 
or in what is now the State of Washington in the 1860's until 
Congress clarified the terms for resolving the political status 
of those territories. It will be difficult to achieve a 
decisive majority for any option in Puerto Rico until Congress 
fulfills its responsibility under the Territorial Clause by 
defining the terms for enhanced commonwealth or transition to 
Statehood or independence.
    Fifth, this legislation is in direct opposition with the 
public statements of Presidential candidates George W. Bush and 
Albert Gore. Both candidates support the self-determination 
policy established by President Carter and ratified by 
President Bush. At the same time, both the Democratic and 
Republican platforms defend the right of self-determination and 
the right of the American citizens in Puerto Rico to choose. 
This legislation is a carbon copy of the campaign promise of 
the PDP for perfecting or enhancing the present commonwealth 
status, a formula rejected by all Puerto Ricans who voted in 
the 1998 plebiscite.
    It is not unfair to the PDP or any ideological sector in 
Puerto Rico for Congress to tell the truth about what the U.S. 
Constitution will allow and what it will not allow. That is all 
we are asking you to do. Only Congress can define the 
constitutionally valid status options it is willing to 
consider. The legislative assembly of Puerto Rico has formally 
petitioned Congress repeatedly to exercise its exclusive power 
to prescribe legitimate self-determination options for Puerto 
Rico and sponsor a status resolution process. Now Congress must 
tell the truth about what the U.S. Constitution will allow.
    Finally, I strongly recommend and urge this committee to 
think in time. Puerto Rico is the last colony on the planet. It 
is not within the spirit of the Constitution to maintain a 
jurisdiction of nearly four million American citizens in the 
21st century, segregated and living in an apartheid regime with 
some civil rights.
    I would like to make the following recommendations. We 
strongly urge the establishment of a Presidential and 
Congressional decolonization policy for Puerto Rico based on 
United Nations Resolution 1541 and H.R. 856. For the 
implementation of this decolonization policy, Congress should 
establish without delay, and with all deliberate speed, a 
federally mandated plebiscite to finally resolve our present 
colonial, segregated, and apartheid condition, which violates 
the basic principles of our Constitution and the democratic 
ideals we have defended in the U.S. conflicts abroad.
    The United States must not continue with this charade to 
perpetuate a commonwealth with all the elements of the 
internationally discredited Rhodesian apartheid policy. The 
time is now for the establishment of a decolonization policy to 
guarantee four million, almost four million Americans, their 
undeniable right to self-determination with clearly defined and 
attainable formulas within the framework of the Constitution. 
This policy and ensuing process will erase the injustice of 
having a second-class citizenship under the present condition 
and will open the door for our people to become the 51st State 
of the Union, a totally independent country, or an associated 
    In closing, I ask you to reflect on the statement made by 
Abraham Lincoln in a letter addressed to Joshua Speed on August 
24, 1855, and I quote, ``As a nation, we began by declaring 
that all men were created equal. We now practically read it, 
all men are created equal except Negroes. When the know-
nothings get control, it will read, all men are created equal 
except Negroes and foreigners and Catholics. When it comes to 
this, I shall prefer emigrating to some country where they make 
no pretense of loving liberty.''
    Thank you, Mr. Chairman and members of the committee.
    Mr. Doolittle. Thank you.
    [The prepared statement of Mr. Rodriguez follows:]
    ********** INSERT **********
    Mr. Doolittle. I am going to reserve my comments until the 
end and recognize Governor Romero-Barcelo for his questions.
    Mr. Romero-Barcelo. Thank you, Mr. Chairman.
    I just want to thank Angel Sabat for his testimony and 
Charlie Rodriguez for his testimony. I agree with you. I do not 
have any questions to ask of you other than those probably 
self-serving questions, and that might not look proper. They 
might be much more subject to criticism than otherwise. So I 
just want to thank you for being here and thank you for your 
    Mr. Doolittle. Thank you.
    Mr. Faleomavaega is recognized.
    Mr. Faleomavaega. I would like to follow the same tact that 
Governor Barcelo has proceeded with and thank both gentlemen 
for their testimony. I had hoped, Mr. Chairman, that maybe 
someone from the Popular Democratic Party would be here to 
testify to perhaps kind of explain what their thinking is about 
the enhanced commonwealth as proposed in the bill, but maybe on 
another occasion we will have this.
    Just one real quick question of Mr. Sabat, and I have been 
very intrigued by this term that we keep using, and that is as 
an unincorporated territory. I believe it was Justice Brown who 
issued this decision in the Supreme Court giving a very unique 
status to territories, a territory that is incorporated and a 
territory that is unincorporated, and I wonder if Mr. Sabat 
could respond to this. What is an unincorporated territory?
    Mr. Rotger-Sabat. Yes, Congressman. An unincorporated 
territory is the term used from the early 1900's in a series of 
insular cases, what are the so-called insular cases, in which 
it is a transition in which it is acknowledged full sovereignty 
of the United States over that territory, but it is still not a 
direct part of the Union as a whole, but it is an 
unincorporated territory. It is a step before becoming part of 
the Union, but exclusively under the sovereignty of the 
Territorial Clause.
    Mr. Faleomavaega. In the readings of these insular cases, 
there was also another opinion rendered as an unincorporated 
territory, that territory will never see the day of becoming a 
State in the future, as opposed to incorporated territories. 
Every one of them have become States. In other words, with the 
intention of the Congress if at some future date, some period 
of time that that territory will become a State, and I was just 
curious. It is an interesting interpretation. I was just 
curious about that.
    Mr. Rotger-Sabat. It reflects a statement of the time.
    Mr. Romero-Barcelo. Will the gentleman yield?
    Mr. Faleomavaega. I gladly yield to my friend.
    Mr. Romero-Barcelo. The term unincorporated territory, I 
think my own personal opinion after having read the cases also 
is that it was a prejudiced statement. In other words, the U.S. 
Supreme Court did not feel that Puerto Rico, because we were a 
Spanish-speaking society, we were Catholic, there were more 
black and browns than there were in the rest of the nation, 
that we would really be accepted into the nation. We were not 
U.S. citizens when the first insular case was decided. So that 
was a way of keeping us out of the Union, and that is why the 
unincorporated territory was an invention of the U.S. Supreme 
Court. There is no such thing in the Constitution. So that is 
where this term comes from, and that is my interpretation, 
reading the insular cases.
    Mr. Faleomavaega. And I want to echo the same sentiments 
that Governor Barcelo did. The legal fiction that this U.S. 
Supreme Court adopted by judicial legislation made that at the 
point in time because of the strong Spanish culture that 
existed in Puerto Rico, and if there was any consideration of 
Statehood, I believe that this legal fiction was adopted by the 
U.S. Supreme Court in the same way that they did the equal but 
separate clause that denied so many African-Americans their 
civil rights in so many instances. I thank the Governor for his 
    Mr. Romero-Barcelo. Would the gentleman yield?
    Mr. Faleomavaega. I would be glad to yield to the Governor.
    Mr. Romero-Barcelo. Thank you. I just wanted to make sure 
that I made this also clear, because we are talking here about 
the proposals that were made under the Popular Democratic Party 
and they have not appeared to defend their proposal. They were 
invited by this committee. In Puerto Rico, the press 
continuously asked them if they were coming. The president of 
the Popular Democratic Party, which are the ones that proposed 
the commonwealth, said that they would not be coming.
    The reason I feel also that they are not coming is because 
they realize that their proposal is indefensible. They can only 
propose this new enhanced commonwealth, as they call it, 
publicly from a platform and speaking to their own people and 
do it on the radio and the television. But to come into a place 
where they are going to be asked hard questions about all of 
these things that they propose, they would be very, very hard--
in a very difficult position to answer in a serious, logical, 
and enlightened manner. So that is why they shy away from 
coming here to testify and they refuse to confront the issue. 
This proposal was never submitted as such to this committee 
when we were discussing the options the last time. This 
proposal came out afterward of the plebiscite.
    Mr. Faleomavaega. I thank the gentleman from Puerto Rico 
for elaborating on that, because I was just curious, at least 
for the record. I was not informed that that was the problem 
and I thank him.
    Just for the matter of the record, Mr. Chairman, it is 
interesting that American Samoa is an unorganized and an 
unincorporated territory. In every instance, we find that 
territories who later became States were all incorporated 
territories, and that is the reason why I raised the issue just 
then and I want to thank the Governor for his assistance in 
    Thank you, Mr. Chairman, and I thank the gentlemen for 
their testimony.
    Mr. Doolittle. Thank you. I think we close this hearing 
with a very solid record that this status formula embodied in 
H.R. 4751 cannot be implemented as proposed by the PDP. First, 
there is no political will in Congress to give a territory a 
status that is based on permanent disenfranchisement of U.S. 
citizens. I think there is bipartisan agreement on that much.
    I also do not think we want the U.S. to govern another 
nation within our nation or to give a territory special 
constitutional rights that are unfair to U.S. citizens within 
the States.
    But even if we did wish to do all of that, under the U.S. 
Constitution, the Congress does not have the power to implement 
this status formula by statute or by treaty. We can talk about 
valid status definitions and the overall status resolution 
process another day, but today, I think we established that the 
core elements of this formula in its entirety and in the 
combination proposed by the PDP are unconstitutional.
    I especially appreciate the testimony of Mr. Dellinger and 
Mr. Thornburgh in this regard and I invite them and all of our 
other witnesses and members of this committee to submit further 
supplementary testimony for the written record.
    We thank you gentlemen on this panel for your testimony and 
your time in preparing it and presenting it.
    Before adjourning, I would like to submit a statement for 
the record from Congressman Rush Holt.
    [The prepared statement of Mr. Holt follows:]
    ********** INSERT **********
    Mr. Doolittle. I would also like to submit a statement from 
Congressman Adam Smith.
    [The prepared statement of Mr. Smith follows:]
    ********** INSERT **********
    Mr. Doolittle. Finally, I would like to submit a statement 
from Congressman Benjamin Gilman.
    [The prepared statement of Mr. Gilman follows:]
    ********** INSERT **********
    Mr. Doolittle. With that, this hearing is adjourned.
    [Whereupon, at 2:01 p.m., the committee was adjourned.]