[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.