Congressional Record, Volume 144 Issue 26 (Thursday, March 12, 1998)

[Congressional Record Volume 144, Number 26 (Thursday, March 12, 1998)]
[Extensions of Remarks]
[Pages E370-E373]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

UNITED STATES-PUERTO RICO POLITICAL STATUS ACT

______

speech of

HON. PETER DEUTSCH

of florida

in the house of representatives

Wednesday, March 4, 1998

The House in Committee of the Whole House on the State of
the Union had under consideration the bill (H.R. 856) to
provide a process leading to full self-government for Puerto
Rico:

Mr. DEUTSCH. Mr. Chairman, recently, we have heard threats from the
Popular Democratic Party of Puerto Rico (PDP) that it will boycott any
referendum which does not include a definition of ``commonwealth'' that
does not conform to PDP doctrine. It seems to me that this would be an
ill-advised course for the PDP, because the elected constitutional
legislature of Puerto Rico has adopted two

[[Page E371]]

resolutions formally requesting that Congress define the options it is
willing to consider, and to authorize a status referendum on the basis
of those definitions. When a political party places itself at odds with
the will of the people acting through their constitutional process, and
threatens to boycott the democratic constitutional process because it
cannot dictate the terms of its participation, that political party is
risking its credibility.
Deliberations regarding H.R. 856 have created an open marketplace of
ideas on the Puerto Rico political status question, and I know the PDP
is doing some serious soul searching because these are matters of such
great concern to party leaders. However, the record of hearings and
deliberations in the Resources Committee establishes clearly that the
Ranking Minority Member, Mr. Miller, did all that is humanly possible--
and then some--to devise and win support for a definition of
commonwealth that is both constitutional and acceptable to the PDP.
The record of Resource Committee hearings on H.R. 856 in Washington,
San Juan and Mayaguez establish just as clearly that the PDP's ``New
Commonwealth'' definition simply cannot be salvaged due to fatal
constitutional flaws. In my own view, it is lamentable that the PDP
leadership has not been more flexible, because that would have been
more helpful to Mr. Miller and others who wanted to be fair and find a
definition with which the PDP could live.
When it became painfully obvious that the PDP would not adapt to the
legal and political realities which govern any legitimate definition of
commonwealth, Mr. Miller, Mr. Young, Mr. Romero and staff representing
the Clinton Administration decided on a definition that was as fair as
possible to the PDP. In the end, however, the definition had to be fair
to the real other party in interest with which Congress is dealing in
this matter--the people of Puerto Rico.
Indeed, the Young-Miller compromise definition goes much further to
accommodate the PDP than Mr. Young preferred. However, Mr. Miller went
the last mile to try to include a definition that with some creative
interpretation can be reconciled with the Federal constitution, and at
the same time embody a position that is as fair as possible to the PDP.
I support this definition of commonwealth and commend the bipartisan
process through which it was achieved.
Still, the PDP has rejected any definition it does not write.
However, the PDP was allowed to write its own ballot definition of
commonwealth in 1993, and even then its definition got less than a
majority of the votes in a plebiscite held under local law. The failure
of that local plebiscite to resolve the status issue is why H.R. 856 is
needed, but the PDP apparently does not want Congress to have its say
or work its will in defining the options in a Congressionally-
recognized referendum. Since commonwealth is a relationship to which
Congress is one of the two parties, this PDP inflexibility is
untenable.

The real problem is that the PDP will not accept any definition of
commonwealth that is compatible with the U.S. Constitution.
The PDP does not accept the Federal supremacy under Article VI of the
Constitution because the PDP demands a veto power so it can nullify
future acts of Congress it does not want applied to Puerto Rico.
PDP leaders reject application of the Territorial Clause in Art. IV,
Sec. 3, Cl. 2 even though the U.S. Supreme Court has ruled in cases
that include Harris v. Rosario (1980) that the Territorial Clause still
governs Puerto Rico's status.
The PDP insists that Puerto Rico have separate sovereignty and
nationality, while also enjoying constitutionally guaranteed U.S.
nationality and citizenship and permanent membership in the Federal
union alterable only with consent of Puerto Rico.
Since Congress can not bind future Congress to a statutory
relationship of that kind, even if Congress wanted to do that it would
require an amendment to the U.S. Constitution. Since that is, in
addition to everything else, a really bad idea which would create a
permanent colonial appendage, amendment to the constitution to
accommodate the PDP's four decade effort to contrive a new category of
statehood seems quite implausible.
Instead of trying to reach agreement on the best definition possible
in order to sustain and improve the status quo, the PDP leadership has
chosen to re-package the ``unalterable bilateral pact'' theory in the
form of the ``New Commonwealth'' status definition presented to the
Committee on Resources in the House on March 19, 1997. The ``New
Commonwealth'' definition would give Puerto Rico functional separate
national sovereignty, but seeks to have the benefits of statehood and
dual Puerto Rican--U.S. citizenship permanently guaranteed by the
federal constitution.
This status would be a vested right of Puerto Rico beyond the reach
of Congressional legislative authority, protected for all time from
amendment without Puerto Rico's ``mutual consent.'' Puerto Rico would
not be a state, nor would it be a territory. It would be in a category
by itself, a political entity of separate national sovereignty but
within the federal union forever. There would be exemptions from
federal law applicable to the States, as well as foreign affairs
authority sufficient to enter into international agreements. The
specific scope of separate foreign affairs authority and exemptions
from federal law would be based on defined spheres of ``full self-
government'' (meaning separate national sovereign powers) as proposed
by Puerto Rico.
At the same time, ``New Commonwealth'' would be a permanent form of
political union equal to that which binds the States of the Union, and
it would extend full U.S. citizenship to a population of 3.8 million
people born and living outside the States of the Union. This
citizenship would be protected by the 5th Amendment as if it were a
fundamental constitutional right, and in addition it would be expressly
denominated constitutionally as equal to the citizenship of persons
born in the States of the Union. Residents of Puerto Rico would have
identical ``rights, privileges and immunities'' as all U.S. citizens
under the U.S. Constitution, including full parity in federal benefits
and entitlements. However, instead of federal taxation on the same
basis as the rest of the nation Puerto Rico would make an ``equitable
contribution'' to the federal government in connection with such
benefits ``as provided by law.''
This relationship would be binding on Congress in perpetuity--i.e.
forever. In other words, it would be separate sovereignty and
nationality like free association in the case of Micronesia--but with
permanent union, full U.S. citizenship and a status equal to the 50
States. ``New Commonwealth'' would include special preferences not
available to the states, including the ``mutual consent'' veto over
federal law.
That there is nothing ``new'' about this proposal is clear from the
letter of May 31, 1996, from the PDP President to Congressman Young,
stating that the ``commonwealth'' ballot definition in the 1993
plebiscite--which failed to receive a majority vote--was based on the
definition of ``New Commonwealth'' which was allegedly ``approved'' by
the House when it passed H.R. 4765 in 1990. Now, on March 19, 1997, the
President of the PDP has presented to Congress the same 1990 definition
of ``New Commonwealth.''
However, this ``New Commonwealth'' definition was not actually
included in the bill approved by the House in 1990. Rather, H.R. 4765
simply included the general option of a ``New Commonwealth Status''
without stating what that might mean. Separately from the bill, House
Report 101-790, Part 1, contained the ``New Commonwealth'' definition
as proposed by the PDP itself back in 1990. So the PDP is merely
playing back to the 105th Congress the same proposal it submitted to
101st Congress.
The assertion that this ``New Commonwealth'' proposal was approved by
the House in 1990 is disingenuous. Indeed, the 1990 Committee Report
stated that this PDP proposal would be considered, but that this did
not ``obligate this Committee or its counterpart Senate committee to
necessarily incorporate the . . . description . . . in the
legislation.'' Thus, in 1990 the House avoided any actual definition of
commonwealth.
Instead, under the 1990 House bill continuation of the current status
would have resulted from a majority vote for a ``None of the above''
option. This made the constitutional and political realities of the
current status invisible, and made the status quo seem to be a default
option in lieu of a ``New Commonwealth Status'' option which was not
actually defined by Congress in the legislation.
Instead, the PDP was allowed to ``fill in the blank'' with its own
definition in the Committee Report. While extremely prejudicial to
informed self-determination and unfair to the statehood and
independence parties, it is not hard to understand why the PDP would
like to go back to the 1990 approach.
Since H.R. 4756 was never enacted by Congress the process for
defining ``New Commonwealth'' in federal law ended there. However, the
PDP was able to ``fill in the blank'' again in the 1993 plebiscite, and
the result was a ``have it both ways'' definition that promised
everything and cost nothing. Still, to vote for that option required
devotion to the mythology of the unalterable bilateral pact rather than
an understanding of the constitutional and political process for
improving the current status.
By masquerading as a framework for full, legitimate and informed
self-determination when it was non-substantive and non-committal on the
true status options, and by linking its claim to be the vehicle for
self-determination to the false promise that the U.S. will accept
whatever the people of Puerto Rico choose in a referendum, H.R. 4756
was calculated to become the symbol but not the reality of a
declonization policy. Its very terms assured that it would not be
enacted into law. That is why passage on suspension without open debate
was engineered by Congressional staff.

[[Page E372]]

In contrast, H.R. 856 and S. 472 define what actually exists rather
than what does not. Thus, instead of a non-committal ``agreement to
agree'' on terms for a ``New Commonwealth,'' the current House and
Senate bills constitute informed self-determination. If the House
passes H.R. 856, it will supplant the evasion of real self-
determination under H.R. 4756 with a constitutionally sound process to
present real choices to the people of Puerto Rico.
H.R. 856 is not being passed in silence, this is a real and open
debate that in and of itself will educate Congress and the people of
Puerto Rico on the real work of decolonization that lies before us. The
choices aren't painless and sterile, they are difficult and H.R. 856
tells the truth about the choices for the first time.
The ``New Commonwealth'' definition remains a ``have it both ways''
option contrary to Supreme Court, Justice Department and CRS
constitutional analysis. The veil of ambiguity has been pierced as a
result of scrutiny focused on past Congressional measures and lower
court rulings influenced by PDP efforts in the 70's and 80's to make
the revisionist definition of a ``new'' or ``enhanced'' commonwealth a
fait accompli. The true nature of the current status and real options
are becoming clear after years of political
experimentation.***HD***Constitutional Implications of ``New
Commonwealth'' Proposal
From the standpoint of American constitutional federalism, the PDP
proposal of March 19, 1997, is best understood as a proposal to end
Puerto Rico's unincorporated territory status by creating a new
political status with some of the attributes of statehood and some of
the powers of separate nationhood. In essence, it is an attempt to
convert local constitutional self-government under the current
territorial status into separate national sovereignty and nationality
with permanent union and common citizenship. Unable to make a choice
between statehood and independence, Puerto Rico would have Congress
convert the international treaty-based relationship of free association
into a ``nation-within-a-nation'' status irrevocably guaranteed by the
Congress within the framework of the U.S. Constitution.

Comparison to Historical Constitutional Practice Regarding Statehood

The primary differences between the ``New Commonwealth'' for Puerto
Rico and the status of the rest of the states would be:
Permanent union and irrevocable citizenship would be created by
federal statute defining the commonwealth status as non-territorial,
rather than termination of territorial status through admission to the
union under clause 1 of section 3 in article IV of the Constitution.
Puerto Rico would enjoy the essential rights of states (binding on
Congress), but the commonwealth would enjoy ``autonomy'' (not be bound)
with respect to critical burden-sharing elements of membership in the
federal union. Thus, the benefits of statehood would be guaranteed, but
Puerto Rico's reciprocal obligations to the nation would not be
constitutionally defined. Puerto Rico's contribution to the nation
would be the subject of on-going negotiation and ad hoc decision-
making, the very conditions that led to undue influence by the Section
936 lobbyists and creation of the current status dilemma.
Congress could not change the initial negotiated terms of the
relationship based on changing national priorities. Specifically,
Congress would agree in the statute that in perpetuity every future
Congress will be bound by this ``New Commonwealth'' status, which is
``unalterable'' without consent of Puerto Rico.
This really means that once Congress and the people of Puerto Rico
have consented to the terms of the relationship the Supremacy Clause in
article VI of the Constitution would be suspended to the extent
required to enforce the rights, special preferences and exemptions from
laws and responsibilities of the states which would be provided to the
commonwealth (``associated free state'' in Spanish).

Comparison to Historical Constitutional Practice Regarding Territories

Since the period following the Northwest Ordinance of 1789 when the
process for admission of new states to union began, the purpose of
special measures to promote increased self-government in the U.S.
territories historically has been to promote a smooth transition to
full incorporation and statehood. Congress departed from this
tradition when the U.S. acquired the Philippines, Cuba, Guam and Puerto
Rico from Spain in 1899, and the U.S. Supreme Court defined them as
``unincorporated'' territories. Thus, in this century increased self-
government for unincorporated territories has meant separate nationhood
for Cuba and the Philippines, statehood for Hawaii and Alaska, and
varying degrees of local self-government for other unincorporated
territories.

As a result, instead of statehood like Hawaii or independence like
the Philippines, Puerto Rico remains in an unincorporated territory
status like Guam and the Northern Mariana Islands. Like the Northern
Mariana Islands, Puerto Rico has a ``commonwealth'' structure for
internal self-government under a local constitution adopted with the
consent of the people--who enjoy statutory U.S. citizenship. The
Philippines also had the ``commonwealth'' structure of internal self-
government from 1935 to 1946, ending in separate nationhood.
In this context it becomes clear that the idea behind the PDP ``New
Commonwealth'' proposal is to make a specific set of special rights for
an unincorporated territory permanent, rather than resolving the status
of the territory through independence or statehood. The essential
transaction between Congress and Puerto Rico, as proposed by the PDP,
is to mix-and-match the most beneficial features of statehood and
separate nationality, make it binding on the U.S. forever, and label it
as a non-territorial and therefore non-colonial status.
The primary differences between the ``New Commonwealth'' and the
historical practice of the U.S. concerning Puerto Rico and other
unincorporated territories would be:
Congress supposedly would no longer have the ability to exercise its
express power to determine the status of Puerto Rico and its
inhabitants under the Territorial Clause of the Constitution (Article
IV, Section 3, Clause 2). This proposed elimination of a constitutional
express power of Congress by statute supposedly would make the ``New
Commonwealth'' status a non-territorial.
The nationality and citizenship of the residents of Puerto Rico would
be guaranteed under the 5th and 14th Amendments on the same basis as it
is for persons born in the states rather than being determined by
Congress under statutory provisions enacted pursuant to the Territorial
Clause and article I, section 8 of the Constitution. At present,
statutory citizenship based on birth in Puerto Rico is subject to
regulation and termination at the discretion of Congress in accordance
with the U.S. constitutional process. See, Rogers v. Bellei 401 U.S.
815 (1971).***HD***U.S. Supreme Court and Department of Justice
Positions
On July 28, 1994, the U.S. Department of Justice stated in a legal
opinion that Congress is not bound by the current relationship with
Puerto Rico or the current status of the territory created under
federal statute. With respect to the concept of a binding pact based on
the ``mutual consent'' principle the DOJ memo addressed the Puerto Rico
questions as follows: ``The Department revisited this issue in the
early 1990's in connection with the Puerto Rico Status Referendum Bill
in light of Bowen v. Agencies Opposed to Social Security Entrapment,
477 U.S. 41 (1986), and concluded that there could not be an
enforceable vested right in a political status; hence the mutual
consent clauses were ineffective because they would not bind a future
Congress.''

In Puerto Rico, it is argued that P.L. 81-600 created an
``unalterable bilateral pact'' since the local constitution adopted
pursuant to that law was approved with the consent of the people in the
territory. The theory is that once the people consented to the form of
local self-government it can not be altered by Congress. From that
premise the leap is made that as a matter of federal law this
constitutes a fully self-governing status and that Puerto Rico is no
longer a U.S. territory. Consequently, the territorial clause no longer
applies and Congress can not apply even federal laws to Puerto Rico
without its consent.
The PDP definition of ``New Commonwealth'' is an attempt to
``perfect'' this ``bilateral pact'' relationship. The 1994 Department
of Justice memorandum is ignored in the testimony of the PDP leaders
which accompanied the new definition when proposed to the House
Committee on Resources on March 19, 1997. Instead of addressing the
constitutional issues, the PDP relies upon the following statement of
Felix Frankfurter in 1914 when he was an official at the War Department
in the days it administered Puerto Rican affairs: ``The present day
demand upon inventive statesmanship is to help evolve new kinds of
relationships so as to combine the advantages of local self-government
with those of a confederated union. Luckily, our Constitution has left
this filed of invention open.''
Of course, the field of invention Frankfurter was alluding to exists
under the Territorial Clause of the Constitution. In contrast, the PDP
proposes to convert the relationship created in 1952 by statute into a
permanent form of union which exists outside the Territorial Clause
authority of Congress.
In 1980 the U.S. Supreme Court ruled that Congress acts with respect
to Puerto Rico under the Territorial Clause (Harris v. Rosario, 446
U.S. 651). In U.S. v. Sanchez, 992 F. 2d 1143 (1993) the court stated
that Congress retains authority to determine the status of the
territory in accordance with the Territorial Clause and the Treaty of
Paris as it deems consistent with the national interest.
In Reid v. Covert, 354 U.S. 1 (1957), the U.S. Supreme Court
described territorial

[[Page E373]]

clause status as a ``temporary'' condition regulated by Congress until
institutions of self-government are established.
The response of the PDP to the Supreme Court ruling in Harris is to
cite various 5th Amendment federal property rights cases involving
commercial disputes and the enforceability of contract obligations,
rather than political status questions. In addition, the PDP continues
to rely on dictum from federal lower court decisions which actually
went against the ``unalterability'' theory of commonwealth, but
acknowledged the unique nature of the highly evolved federal-
territorial relationship and the local self-governing status of Puerto
Rico. See, for example, U.S. v. Quinoes, 758 F.2d 1143 (1993).
The cases cited by the PDP merely confirm the ambiguity and confusion
in Congress and the courts due too much ``inventive statesmanship''
regarding the status of Puerto Rico over the years. It is time to sort
it out through the deliberative process of our constitutional system.
The fact that Congress can be inventive does not necessarily mean
that it serves the national interest or redeems the dignity of the
concerned territorial population to do so. This is especially true when
some in Puerto Rico and the federal government have attempted to
convert temporary invention into a permanent extra-constitutional
status. The ``New Commonwealth'' proposal is the last gasp of that
doctrine.
The PDP also rejects the Young-Miller compromise definition because
it tells the truth to the voters at the expense of certain long-held
PDP positions. For example, it recognizes that the current statutory
citizenship is statutory, and in the future Congress could change the
current policy of conferring U.S. citizenship on persons born in Puerto
Rico. This is not to undermine the PDP, but because it is the truth. If
people in Puerto Rico are going to continue to have citizenship which
is permissive under the discretion of Congress rather than of right by
constitutional guaranty, they should know that is what they are voting
to approve.
Thus, the current statutory citizenship is secured by the U.S.
constitution only in the sense that Congress can not end the conferral
of U.S. citizenship on persons born in Puerto Rico without due process
law. An act to amend or repeal 8 U.S.C. 1402, in other words, must be a
valid exercise of Federal authority, involving legitimate Federal
interests and measures reasonably related thereto.
Just as Congress extended U.S. nationality but not citizenship to
Puerto Rico and the Philippines under the same Treaty of Paris
provisions that still govern the civil rights and political status of
persons born in Puerto Rico, Congress could alter the status of the
territory and its population in the future. Existing policy is not
irrevocable. Those currently having U.S. citizenship by statutory
policy must be treated in accordance with due process and equal
protection, but those born in the future have no right that would
prevent Congress from altering the future policy on the status of the
territory or persons born there.
Similarly, the Young-Miller compromise definition of commonwealth in
H.R. 856 as offered by Mr. Young in the nature of a substitute for
passage also recognizes that U.S. citizens in Puerto Rico enjoy the
rights, privileges and immunities of citizens in the states except
where limited by the U.S. Constitution to citizens in the states. In
addition to voting rights in national elections for President and Vice
President and voting representation in Congress, the limitation on the
rights, privileges and immunities of U.S. citizens in Puerto Rico
include the absence of any reservation to the people of Puerto Rico
under the 10th Amendment to the Federal constitution.

For as the Supreme Court made clear in the 1980 case of Harris v.
Rosario, as long as Puerto Rico is within U.S. sovereignty but is not a
state of the union Congress will retain the authority and
responsibility under the Territorial Clause to determine the civil
rights and political status of persons born in the territory. The
statutory arrangements and policies adopted by one Congress are not
binding on a future Congress. Thus, the Foraker Act governed the status
of Puerto Rico from 1900 to 1917, then Congress altered that policy and
replaced it with the Jones Act.
P.L. 81-600 replaced the Jones Act in 1950 and led to establishment
of internal self-government, but Congress could change that policy as
well. Congress could decide that Puerto Rico will never be a state, as
it did in the case of the Philippines in 1916. In that case it would be
reasonable and rational if Congress decided to stop conferral of U.S.
citizenship which has been creating a large population of
disenfranchised citizens who have no right to equality or prospect of
self-determination through which such disenfranchisement can be ended.
In this regard, the Young-Miller compromise definition of
commonwealth also recognizes that the current commonwealth relationship
is not a constitutionally guaranteed status, but implements current
policy. It is policy not to dissolve the commonwealth without consent
of the people, but commonwealth is not a permanent status like
statehood under the federal structure of government.
Thus, a future Congress could determine that separate sovereignty is
the only alternative to commonwealth, and that if commonwealth is to
continue taxes must be imposed. That would alter the commonwealth
relationship and current policy, and the Young-Miller compromise
recognizes that this could happen. No one expects that to happen any
time soon, but the voters need to know where they stand under
commonwealth in order to make an informed choice in the exercise of the
right of self-determination.
I want to applaud what Mr. Young and Mr. Miller have accomplished.