[House Report 104-713]
[From the U.S. Government Publishing Office]
104th Congress Rept. 104-713
HOUSE OF REPRESENTATIVES
2d Session Part 1
_______________________________________________________________________
UNITED STATES-PUERTO RICO POLITICAL STATUS ACT
_______
July 26, 1996.--Ordered to be printed
_______
Mr. Young of Alaska, from the Committee on Resources, submitted the
following
R E P O R T
together with
DISSENTING AND ADDITIONAL VIEWS
[To accompany H.R. 3024]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 3024) to provide a process leading to full self-
government for Puerto Rico, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``United States-Puerto
Rico Political Status Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title.
Sec. 2. Findings.
Sec. 3. Policy.
Sec. 4. Process for Puerto Rican full self-government, including the
initial decision stage, transition stage, and implementation stage.
Sec. 5. Requirements relating to referenda, including inconclusive
referendum and applicable laws.
Sec. 6. Congressional procedures for consideration of legislation.
Sec. 7. Availability of funds for the referenda.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Puerto Rico was ceded to the United States and came under
this Nation's sovereignty pursuant to the Treaty of Paris
ending the Spanish-American War in 1898. Article IX of the
Treaty of Paris expressly recognizes the authority of Congress
to provide for the political status of the inhabitants of the
territory.
(2) Consistent with establishment of United States
nationality for inhabitants of Puerto Rico under the Treaty of
Paris, Congress has exercised its powers under the Territorial
Clause of the Constitution (article IV, section 3, clause 2) to
provide by statute for the citizenship status of persons born
in Puerto Rico, including extension of special statutory United
States citizenship from 1917 to the present.
(3) Consistent with the Territorial Clause and rulings of the
United States Supreme Court, partial application of the United
States Constitution has been established in the unincorporated
territories of the United States including Puerto Rico.
(4) In 1950 Congress prescribed a procedure for instituting
internal self-government for Puerto Rico pursuant to statutory
authorization for a local constitution. A local constitution
was approved by the people, amended and conditionally approved
by Congress, and thereupon given effect in 1952 after
acceptance of congressional conditions by the Puerto Rico
Constitutional Convention and an appropriate proclamation by
the Governor. The approved constitution established the
structure for constitutional government in respect of internal
affairs without altering Puerto Rico's fundamental political,
social, and economic relationship with the United States and
without restricting the authority of Congress under the
Territorial Clause to determine the application of Federal law
to Puerto Rico, resulting in the present ``Commonwealth''
structure for local self-government. The Commonwealth remains
an unincorporated territory and does not have the status of
``free association'' with the United States as that status is
defined under United States law or international practice.
(5) In 1953 the United States transmitted to the Secretary-
General of the United Nations for circulation to its Members a
formal notification that the United States no longer would
transmit information regarding Puerto Rico to the United
Nations pursuant to Article 73(e) of its Charter. The formal
United States notification document informed the United Nations
that the cessation of information on Puerto Rico was based on
the ``new constitutional arrangements'' in the territory, and
the United States expressly defined the scope of the ``full
measure'' of local self-government in Puerto Rico as extending
to matters of ``internal government and administration, subject
only to compliance with applicable provisions of the Federal
Constitution, the Puerto Rico Federal Relations Act and the
acts of Congress authorizing and approving the Constitution, as
may be interpreted by judicial decision.''. Thereafter, the
General Assembly of the United Nations, based upon consent of
the inhabitants of the territory and the United States
explanation of the new status as approved by Congress, adopted
Resolution 748 (VIII) by a vote of 22 to 18 with 19
abstentions, thereby accepting the United States determination
to cease reporting to the United Nations on the status of
Puerto Rico.
(6) In 1960 the United Nations General Assembly approved
Resolution 1541 (XV), clarifying that under United Nations
standards regarding the political status options available to
the people of territories yet to complete the process for
achieving full self-government, the three established forms of
full self-government are national independence, free
association based on separate sovereignty, or full integration
with another nation on the basis of equality.
(7) The ruling of the United States Supreme Court in the 1980
case Harris v. Rosario (446 U.S. 651) confirmed that Congress
continues to exercise authority over Puerto Rico as territory
``belonging to the United States'' pursuant to the Territorial
Clause found at Article IV, section 3, clause 2 of the United
States Constitution, a judicial interpretation of Puerto Rico's
status which is in accordance with the clear intent of Congress
that establishment of local constitutional government in 1952
did not alter Puerto Rico's status as an unincorporated United
States territory.
(8) In a joint letter dated January 17, 1989, cosigned by the
Governor of Puerto Rico in his capacity as president of one of
Puerto Rico's principal political parties and the presidents of
the two other principal political parties of Puerto Rico, the
United States was formally advised that ``. . . the People of
Puerto Rico wish to be consulted as to their preference with
regards to their ultimate political status'', and the joint
letter stated ``. . . that since Puerto Rico came under the
sovereignty of the United States of America through the Treaty
of Paris in 1898, the People of Puerto Rico have not been
formally consulted by the United States of America as to their
choice of their ultimate political status''.
(9) In the 1989 State of the Union Message, President George
Bush urged the Congress to take the necessary steps to
authorize a federally recognized process allowing the people of
Puerto Rico, for the first time since the Treaty of Paris
entered into force, to freely express their wishes regarding
their future political status in a congressionally recognized
referendum, a step in the process of self-determination which
the Congress has yet to authorize.
(10) In November of 1993, the Government of Puerto Rico
conducted a plebiscite initiated under local law on Puerto
Rico's political status. In that vote none of the three status
propositions received a majority of the votes cast. The results
of that vote were: 48.6 percent commonwealth, 46.3 percent
statehood, and 4.4 percent independence.
(11) In 1994, President William Jefferson Clinton established
the Executive Branch Interagency Working Group on Puerto Rico
to coordinate the review, development, and implementation of
executive branch policy concerning issues affecting Puerto
Rico, including the November 1993 plebiscite.
(12) There have been inconsistent and conflicting
interpretations of the 1993 plebiscite results, and under the
Territorial Clause of the Constitution, Congress has the
authority and responsibility to determine Federal policy and
clarify status issues in order to advance the self-
determination process in Puerto Rico.
(13) On December 14, 1994, the Puerto Rico Legislature
enacted Concurrent Resolution 62, which requested the 104th
Congress to respond to the results of the 1993 Puerto Rico
Status Plebiscite and to indicate the next steps in resolving
Puerto Rico's political status.
(14) Nearly 4,000,000 United States citizens live in the
islands of Puerto Rico, which have been under United States
sovereignty and within the United States customs territory for
almost 100 years, making Puerto Rico the oldest, largest, and
most populous United States island territory at the
southeastern-most boundary of our Nation, located astride the
strategic shipping lanes of the Atlantic Ocean and Caribbean
Sea.
(15) Full self-government for Puerto Rico is attainable only
through establishment of a political status which is based on
either separate Puerto Rican sovereignty and nationality or
full and equal United States nationality and citizenship
through membership in the Union and under which Puerto Rico is
no longer an unincorporated territory subject to the plenary
authority of Congress arising from the Territorial Clause.
SEC. 3. POLICY.
In recognition of the significant level of local self-government
which has been attained by Puerto Rico, and the responsibility of the
Federal Government to enable the people of the territory to freely
express their wishes regarding political status and achieve full self-
government, this Act is adopted with a commitment to encourage the
development and implementation of procedures through which the
permanent political status of the people of Puerto Rico can be
determined.
SEC. 4. PROCESS FOR PUERTO RICAN FULL SELF-GOVERNMENT, INCLUDING THE
INITIAL DECISION STAGE, TRANSITION STAGE, AND
IMPLEMENTATION STAGE.
(a) Initial Decision Stage.--A referendum on Puerto Rico's political
status shall be held not later than December 31, 1998. The referendum
shall be held pursuant to this Act and in accordance with the
applicable provisions of Puerto Rico's electoral law and other relevant
statutes consistent with this Act. Approval of a status option must be
by a majority of the valid votes cast. The referendum shall be on the
following questions presented on the ballot as options A and B in a
side-by-side format in Parts I and II:
``Part I
``Instructions: Mark the option you choose. Ballots with both options
marked in Part I will not be counted.
``A. Puerto Rico should continue the present Commonwealth structure
for self-government with respect to internal affairs and
administration, subject to the provisions of the Constitution and laws
of the United States which apply to Puerto Rico. Puerto Rico remains a
locally self-governing unincorporated territory of the United States,
and continuation or modification of current Federal law and policy to
Puerto Rico remains within the discretion of Congress. The ultimate
status of Puerto Rico will be determined through a process authorized
by Congress which includes self-determination by the people of Puerto
Rico in periodic referenda. If you agree, mark here ____.
``B. Puerto Rico should complete the process leading to full self-
government through separate Puerto Rican sovereignty or United States
sovereignty as defined in Part II of this ballot. Full self-government
will be achieved in accordance with a transition plan approved by the
Congress and the people of Puerto Rico in a later vote. A third vote
will take place at the end of the transition period in which the people
of Puerto Rico will be able to approve final implementation of full
self-government. This will establish a permanent political status under
the constitutional system chosen by the people. If you agree, mark
here: ____
``Part II
``Instructions: Mark the option you choose. Ballots with both options
marked in Part II will not be counted.
``If full self-government is approved by the majority of voters,
which path leading to full self-government for Puerto Rico do you
prefer to be developed through a transition plan enacted by the
Congress and approved by the people of Puerto Rico?
``A. Puerto Rico should become fully self-governing through separate
sovereignty leading to independence or free association as defined
below. If you agree, mark here: ____
``The path of separate Puerto Rican sovereignty leading to
independence or free association is one in which--
``(1) Puerto Rico is a sovereign nation with full authority
and responsibility for its internal and external affairs and
has the capacity to exercise in its own name and right the
powers of government with respect to its territory and
population;
``(2) a negotiated treaty of friendship and cooperation, or
an international bilateral pact of free association terminable
at will by either Puerto Rico or the United States, defines
future relations between Puerto Rico and the United States,
providing for cooperation and assistance in matters of shared
interest as agreed and approved by Puerto Rico and the United
States pursuant to this Act and their respective constitutional
processes;
``(3) a constitution democratically instituted by the people
of Puerto Rico, establishing a republican form of full self-
government and securing the rights of citizens of the Puerto
Rican nation, is the supreme law, and the Constitution and laws
of the United States no longer apply in Puerto Rico;
``(4) The people of Puerto Rico owe allegiance to the
sovereign nation of Puerto Rico and have the nationality, and
citizenship thereof; United States sovereignty, nationality,
and citizenship in Puerto Rico is ended; birth in Puerto Rico
and relationship to persons with statutory United States
citizenship by birth in the former territory are not bases for
United States nationality or citizenship, except that persons
who had such United States citizenship have a statutory right
to retain United States nationality and citizenship for life,
by entitlement or election as provided by the United States
Congress, based on continued allegiance to the United States:
Provided, That such persons will not have this statutory United
States nationality and citizenship status upon having or
maintaining allegiance, nationality, and citizenship rights in
any sovereign nation other than the United States;
``(5) upon recognition of Puerto Rico by the United States as
a sovereign nation and establishment of government-to-
government relations on the basis of comity and reciprocity,
Puerto Rico's representation to the United States is accorded
full diplomatic status;
``(6) Puerto Rico is eligible for United States assistance
provided on a government-to-government basis, including foreign
aid or programmatic assistance, at levels subject to agreement
by the United States and Puerto Rico;
``(7) property rights and previously acquired rights vested
by employment under laws of Puerto Rico or the United States
are honored, and where determined necessary such rights are
promptly adjusted and settled consistent with government-to-
government agreements implementing the separation of
sovereignty; and
``(8) Puerto Rico is outside the customs territory of the
United States, and trade between the United States and Puerto
Rico is based on a treaty.
``B. Puerto Rico should become fully self-governing through United
States sovereignty leading to statehood as defined below. If you agree,
mark here: ____
``The path through United States sovereignty leading to statehood is
one in which--
``(1) the people of Puerto Rico are fully self-governing with
their rights secured under the United States Constitution,
which is the supreme law and has the same force and effect as
in the other States of the Union;
``(2) the sovereign State of Puerto Rico is in permanent
union with the United States, and powers not delegated to the
Federal Government or prohibited to the States by the United
States Constitution are reserved to the people of Puerto Rico
or the State Government;
``(3) United States citizenship of those born in Puerto Rico
is guaranteed, protected and secured in the same way it is for
all United States citizens born in the other States;
``(4) residents of Puerto Rico have equal rights and benefits
as well as equal duties and responsibilities of citizenship,
including payment of Federal taxes, as those in the several
States;
``(5) Puerto Rico is represented by two members in the United
States Senate and is represented in the House of
Representatives proportionate to the population;
``(6) United States citizens in Puerto Rico are enfranchised
to vote in elections for the President and Vice President of
the United States; and
``(7) Puerto Rico adheres to the same language requirement as
in the several States.''.
(b) Transition Stage.--
(1) Plan.--(A) Within 180 days of the receipt of the results
of the referendum from the Government of Puerto Rico certifying
approval of a ballot choice of full self-government in a
referendum held pursuant to subsection (a), the President shall
develop and submit to Congress legislation for a transition
plan of 10 years minimum which leads to full self-government
for Puerto Rico consistent with the terms of this Act and in
consultation with officials of the three branches of the
Government of Puerto Rico, the principal political parties of
Puerto Rico, and other interested persons as may be
appropriate.
(B) Additionally, in the event of a vote in favor of separate
sovereignty, the Legislature of Puerto Rico, if deemed
appropriate, may provide by law for the calling of a
constituent convention to formulate, in accordance with
procedures prescribed by law, Puerto Rico's proposals and
recommendations to implement the referendum results. If a
convention is called for this purpose, any proposals and
recommendations formally adopted by such convention within time
limits of this Act shall be transmitted to Congress by the
President with the transition plan required by this section,
along with the views of the President regarding the
compatibility of such proposals and recommendations with the
United States Constitution and this Act, and identifying which,
if any, of such proposals and recommendations have been
addressed in the President's proposed transition plan.
(2) Congressional consideration.--The plan shall be
considered by the Congress in accordance with section 6.
(3) Puerto rican approval.--
(A) Not later than 180 days after enactment of an Act
pursuant to paragraph (1) providing for the transition
to full self-government for Puerto Rico as approved in
the initial decision referendum held under subsection
(a), a referendum shall be held under the applicable
provisions of Puerto Rico's electoral law on the
question of approval of the transition plan.
(B) Approval must be by a majority of the valid votes
cast. The results of the referendum shall be certified
to the President of the United States.
(4) Effective date for transition plan.--The President of the
United States shall issue a proclamation announcing the
effective date of the transition plan to full self-government
for Puerto Rico.
(c) Implementation Stage.--
(1) Presidential recommendation.--Not less than two years
prior to the end of the period of the transition provided for
in the transition plan approved under subsection (b), the
President shall submit to Congress legislation with a
recommendation for the implementation of full self-government
for Puerto Rico consistent with the ballot choice approved
under subsection (a).
(2) Congressional consideration.--The plan shall be
considered by the Congress in accordance with section 6.
(3) Puerto rican approval.--
(A) Within 180 days after enactment of the terms of
implementation for full self-government for Puerto
Rico, a referendum shall be held under the applicable
provisions of Puerto Rico's electoral laws on the
question of the approval of the terms of implementation
for full self-government for Puerto Rico.
(B) Approval must be by a majority of the valid votes
cast. The results of the referendum shall be certified
to the President of the United States.
(4) Effective date of full self-government.--The President of
the United States shall issue a proclamation announcing the
date of implementation of full self-government for Puerto Rico.
SEC. 5. REQUIREMENTS RELATING TO REFERENDA, INCLUDING INCONCLUSIVE
REFERENDUM AND APPLICABLE LAWS.
(a) Applicable Laws.--
(1) Referenda under puerto rican laws.--The referenda held
under this Act shall be conducted in accordance with the
applicable laws of Puerto Rico, including laws of Puerto Rico
under which voter eligibility is determined and which require
United States citizenship and establish other statutory
requirements for voter eligibility of residents and
nonresidents.
(2) Federal laws.--The Federal laws applicable to the
election of the Resident Commissioner of Puerto Rico shall, as
appropriate and consistent with this Act, also apply to the
referenda. Any reference in such Federal laws to elections
shall be considered, as appropriate, to be a reference to the
referenda, unless it would frustrate the purposes of this Act.
(b) Certification of Referenda Results.--The results of each
referendum held under this Act shall be certified to the President of
the United States and the Senate and House of Representatives of the
United States by the Government of Puerto Rico.
(c) Consultation and Recommendations for Inconclusive Referendum.--
(1) In general.--If a referendum provided in this Act does
not result in approval of a fully self-governing status, the
President, in consultation with officials of the three branches
of the Government of Puerto Rico, the principal political
parties of Puerto Rico, and other interested persons as may be
appropriate, shall make recommendations to the Congress within
180 days of receipt of the results of the referendum.
(2) Existing structure to remain in effect.--If the
inhabitants of the territory do not achieve full self-
governance through either integration into the Union or
separate sovereignty in the form of independence or free
association, Puerto Rico will remain an unincorporated
territory of the United States, subject to the authority of
Congress under Article IV, Section 3, Clause 2 of the United
States Constitution. In that event, the existing Commonwealth
of Puerto Rico structure for local self-government will remain
in effect, subject to such other measures as may be adopted by
Congress in the exercise of its Territorial Clause powers to
determine the disposition of the territory and status of its
inhabitants.
(3) Authority of congress to determine status.--Since current
unincorporated territory status of the Commonwealth of Puerto
Rico is not a permanent, unalterable or guaranteed status under
the Constitution of the United States, Congress retains plenary
authority and responsibility to determine a permanent status
for Puerto Rico consistent with the national interest. The
Congress historically has recognized a commitment to take into
consideration the freely expressed wishes of the people of
Puerto Rico regarding their future political status. This
policy is consistent with respect for the right of self-
determination in areas which are not fully self-governing, but
does not constitute a legal restriction or binding limitation
on the Territorial Clause powers of Congress to determine a
permanent status of Puerto Rico. Nor does any such restriction
or limitation arise from the Puerto Rico Federal Relations Act
(48 U.S.C. 731 et seq.).
(4) Additional referenda.--To ensure that the Congress is
able on a continuing basis to exercise its Territorial Clause
powers with due regard for the wishes of the people of Puerto
Rico respecting resolution of Puerto Rico's permanent future
political status, in the event that a referendum conducted
under section four is inconclusive as provided in this
subsection, or a majority vote to continue the Commonwealth
structure as a territory, there shall be another referendum in
accordance with this Act prior to the expiration of a period of
four years from the date such inconclusive results are
certified or determined. This procedure shall be repeated every
four years, but not in a general election year, until Puerto
Rico's unincorporated territory status is terminated in favor
of a recognized form of full self-government in accordance with
this Act.
SEC. 6. CONGRESSIONAL PROCEDURES FOR CONSIDERATION OF LEGISLATION.
(a) In General.--The Chairman of the Committee on Energy and Natural
Resources shall introduce legislation providing for the transition plan
under section 4(b) and the implementation recommendation under section
4(c), as appropriate, in the United States Senate and the Chairman of
the Committee on Resources shall introduce such legislation in the
United States House of Representatives, providing adequate time for the
consideration of the legislation pursuant to the following provisions:
(1) At any time after the close of the 180th calendar day
beginning after the date of introduction of such legislation,
it shall be in order for any Member of the United States House
of Representatives or the United States Senate to move to
discharge any committee of that House from further
consideration of the legislation. A motion to discharge shall
be highly privileged, and debate thereon shall be limited to
not more than two hours, to be divided equally between those
supporting and those opposing the motion. An amendment to the
motion shall not be in order, and it shall not be in order to
move to reconsider the vote by which the motion was agreed to
or disagreed to.
(2) At any time after the close of the 14th legislative day
beginning after the last committee of that House has reported
or been discharged from further consideration of such
legislation, it shall be in order for any Member of that House
to move to proceed to the immediate consideration of the
legislation (such motion not being debatable), and such motion
is hereby made of high privilege. An amendment to the motion
shall not be in order, and it shall not be in order to move to
reconsider the vote by which the motion was agreed to or
disagreed to. For the purposes of this paragraph, the term
``legislative day'' means a day on which the United States
House of Representatives or the United States Senate, as
appropriate, is in session.
(b) Commitment of Congress.--Enactment of this section constitutes a
commitment that the United States Congress will vote on legislation
establishing appropriate mechanisms and procedures to implement the
political status selected by the people of Puerto Rico.
(c) Exercise of Rulemaking Power.--The provisions of this section are
enacted by the Congress--
(1) as an exercise of the rulemaking power of the Senate and
the House of Representatives and, as such, shall be considered
as part of the rules of each House and shall supersede other
rules only to the extent that they are inconsistent therewith;
and
(2) with full recognition of the constitutional right of
either House to change the rules (so far as they relate to the
procedures of that House) at any time, in the same manner, and
to the same extent as in the case of any other rule of that
House.
SEC. 7. AVAILABILITY OF FUNDS FOR THE REFERENDA.
(a) In General.--
(1) Availability of amounts derived from tax on foreign
rum.--During the period beginning on October 1, 1996, and
ending on the date the President determines that all referenda
required by this Act have been held, from the amounts covered
into the treasury of Puerto Rico under section 7652(e)(1) of
the Internal Revenue Code of 1986, the Secretary of the
Treasury--
(A) upon request and in the amounts identified from
time to time by the President, shall make the amounts
so identified available to the treasury of Puerto Rico
for the purposes specified in subsection (b); and
(B) shall transfer all remaining amounts to the
treasury of Puerto Rico, as under current law.
(2) Report of referenda expenditures.--Within 180 days after
each referendum required by this Act, and after the end of the
period specified in paragraph (1), the President, in
consultation with the Government of Puerto Rico, shall submit a
report to the United States Senate and United States House of
Representatives on the amounts made available under paragraph
(1)(A) and all other amounts expended by the State Elections
Commission of Puerto Rico for referenda pursuant to this Act.
(b) Grants for Conducting Referenda and Voter Education.--From
amounts made available under subsection (a)(1), the Government of
Puerto Rico shall make grants to the State Elections Commission of
Puerto Rico for referenda held pursuant to the terms of this Act, as
follows:
(1) 50 percent shall be available only for costs of
conducting the referenda.
(2) 50 percent shall be available only for voter education
funds for the central ruling body of the political party,
parties, or other qualifying entities advocating a particular
ballot choice. The amount allocated for advocating a ballot
choice under this paragraph shall be apportioned equally among
the parties advocating that choice.
(c) Additional Resources.--In addition to amounts made available by
this Act, the Puerto Rico Legislature may allocate additional resources
for administrative and voter education costs to each party so long as
the distribution of funds is consistent with the apportionment
requirements of subsection (b).
purpose of the bill
The purpose of H.R. 3024 is to provide a process leading to
full self-government for Puerto Rico.
background and need for legislation
History of Puerto Rico's legal and political status
Puerto Rico and the Caribbean in American history
During the age of European discovery and colonialism, and
later in the Revolutionary period when the American political
culture was born, Puerto Rico and the Caribbean islands were
geographically, economically and politically an integral part
of the North American experience.
Puerto Rico was one of Christopher Columbus' landfalls, and
thus was an important part of the European discovery and
exploration of the New World. Ponce de Leon, the European
discoverer of Florida, was the first Spanish Governor of Puerto
Rico. Alexander Hamilton--aide de camp to General Washington
during the Revolutionary War, collaborator with Madison in The
Federalist Papers and the Constitutional Convention at
Philadelphia, and first Secretary of the Treasury of the United
States--was born and raised in the Virgin Islands adjacent to
Puerto Rico.
Although the Spanish American War was decided on Cuban
soil, by July of 1898 the progress of the war made the time
right for the U.S. invasion of Spanish-ruled Puerto Rico. An
armistice was signed by the belligerents on August 12, and
after securing Puerto Rico, the U.S. occupation forces
evacuated the Spanish governor-general on October 18, 1898. At
that time, Major General Nelson A. Miles, commanding officer of
the invading forces, issued a proclamation which informed the
people of Puerto Rico that:
We have not come to make war on the people of a
country that for several centuries has been oppressed,
but, on the contrary, to bring protection, not only to
yourselves but to your property, to promote your
prosperity, and to bestow upon you the immunities and
blessings of the liberal institutions of our
government.
Upon becoming law, H.R. 3024 will be the most significant
measure enacted by Congress in nearly 100 years for the purpose
of delivering on the promise of General Miles' pronouncement,
by finally offering full self-government to the people of
Puerto Rico.
Puerto Rico as U.S. possession
Puerto Rico was ceded to the United States by the Kingdom
of Spain under the Treaty of Peace ending the Spanish-American
War, signed at Paris on December 10, 1898, and proclaimed on
April 11, 1899. Consistent with the Territorial Clause powers
of Congress conferred by Article IV, Section 3, Clause 2 of the
U.S. Constitution, as well as long-established U.S.
Constitutional practice with respect to administration of
territories which come under U.S. sovereignty but are not yet
incorporated into the union, Article IX of the Treaty of Paris
provided that the ``civil rights and political status of the
native inhabitants of the territories hereby ceded to the
United States shall be determined by the Congress.''
Congress carried out its role under Article IX of the
Treaty of Paris by providing for civilian government and
defining the status of the residents under the Foraker Act (Act
of April 12, 1900, c. 191. 31 Stat. 77). Shortly thereafter the
Supreme Court ruled that Puerto Rico had the status of an
unincorporated territory subject to the plenary authority of
the U.S. Congress under the Territorial Clause, and that the
Constitution would apply in such U.S. possessions as determined
by Congress. Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v.
United States, 195 U.S. 138 (1904).
In 1904 the Supreme Court confirmed that under the Foraker
Act the people of Puerto Rico--as inhabitants of a territory
which had come under U.S. sovereignty and nationality--were not
``aliens'' under U.S. immigration law, and where entitled at
home or abroad to the protection of the United States, but for
domestic law purposes they were not citizens of the U.S. and
did not have equal political and legal rights under the
Constitution. Gonzales v. Williams, 195 U.S. 1 (1904). Under
the Jones Act of 1917 (Act of March 2, 1917, c. 145, 39 Stat.
961), Congress extended statutory U.S. citizenship to residents
of Puerto Rico, but continued the less than equal status of
Puerto Rican residents. The Jones Act also re-organized local
civilian government, but this did not change Puerto Rico's
political status.
The extent to which the people of Puerto Rico have rights
under the U.S. Constitution has been defined incrementally by
the Supreme Court. It has been recognized that Congress has
broad discretion in making rules and regulations for the
unincorporated territories, although the Supreme Court also has
recognized that the temporary nature of this territorial status
and the non-application of the U.S. Constitution as a whole
does not mean that the Federal Government can deny
``fundamental'' personal rights to residents of these ``U.S.
territories.'' Reid v. Covert, 354 U.S. 1, 13 (1957). The right
to due process of law is one of the fundamental rights
applicable in the unincorporated territories, including Puerto
Rico. Balzac v. People of Puerto Rico, 258 U.S. 298, 312-313
(1922). However, this does not preclude Congress from changing
the citizenship status which was extended by statute, or
unilaterally altering the political status of the territory.
Rogers v. Bellei, 401 U.S. 815 (1971); U.S. v. Sanchez, 992
F.2d 1143 (1993).
Puerto Rico's ``Commonwealth'' status as a territory under
Federal law
The current ``Commonwealth of Puerto Rico'' structure for
local self-government was established through an exercise of
the authority of Congress under Article IV, Section 3, Clause 2
of the U.S. Constitution (``Territorial Clause''), pursuant to
which the process for approval of a local constitution was
prescribed and the current Puerto Rico Federal Relations Act
was enacted. (See, U.S. Public Law 600, July 3, 1950, c. 446,
64 State. 319; codified at 48 U.S.C. 731 et seq.)
Public Law 600 comprised the process for democratically
instituting a local constitutional government in Puerto Rico.
The process prescribed by Congress included authorization for
the people of Puerto Rico to organize a government under a
constitution approved by the people. Congressional amendment
and conditional approval of the locally promulgated
constitution also was an element of the process, as was
acceptance of the Congressionally-determined amendments by the
Puerto Rican constitutional convention. This method of
establishing a local government charter with consent of both
the people and Congress is the basis for the language in
Section 1 of Public Law 600 (48 U.S.C. 731b) describing the
process as being in the ``nature of a compact'' based on
recognition of the ``principle of consent.''
The subject matter of Public Law 600 was limited to
organization of a local government as authorized by Congress
under the Territorial Clause, and the very existence--as well
as the actions of--the local government are subject to the
Supremacy of the Federal Constitution and laws passed by
Congress. Thus, the authority and powers of the constitutional
government established under through the Public Law 600 process
are a creation of Federal process, and the legal effect of the
exercise of the rights of the people in approving the local
constitution is that there was consent to a form of self-
government over internal affairs and administration. Although
Congress presumably would include some procedure which
recognizes the principle of consent in changing the structure
for local self-government in the future, the existing statutory
authority for the current ``commonwealth'' structure can be
rescinded by Congress pursuant to the same Territorial Clause
power exercised to create it in the first place. Public Law 600
merely revises the previously enacted territorial organic act
adopted by Congress under the Jones Act in 1917, and changes
the name to the ``Puerto Rico Federal Relations Act'' (PRFRA).
See Historical and Statutory Notes, 48 U.S.C. 731b-e.
The preceding assessment is confirmed in the ``Historical
and Statutory Notes'' found at section 731b, title 48, United
States Code Annotated, which state that PRFRA was approved
based upon the understandings expressed in House Report 2275,
which states:
The bill under consideration would not change Puerto
Rico's fundamental political, social, and economic
relationship to the United States. Those sections of
the Organic Act of Puerto Rico [this chapter]
pertaining to the political, social, and economic
relationship of the United States and Puerto Rico
concerning such matters as the applicability of United
States laws, customs, internal revenue, Federal
judicial jurisdiction in Puerto Rico, Puerto Rican
representation by a Resident Commissioner, etc., would
remain in force and effect, and upon enactment [the
bill] would be referred to as the Puerto Rican Federal
Relations Act [this chapter]. The sections of the
organic act which Section 5 of the bill would repeal
are the provisions of the act concerned primarily with
the organization of the local executive, legislative,
and judicial branches of the government of Puerto Rico
of other matters of purely local concern.
Based upon the present status of Puerto Rico under the
PRFRA, the Federal courts have ruled that for purposes of U.S.
domestic law this arrangement for local territorial government
has not changed Puerto Rico's status as an unincorporated
territory subject to the plenary authority of Congress under
the Territorial Clause; that the right to equal protection of
the law applies to Puerto Rico, but under the Territorial
Clause Congress has discretion to provide Federal benefits to
U.S. citizens in Puerto Rico at a lower level than benefits are
provided to citizens residing in the States; that the authority
of the Government of the Commonwealth of Puerto Rico is limited
to purely local affairs; and that the establishment of local
constitutional self-government with the consent of the people
was an exercise of Congressional discretion under the
Territorial Clause which could be revoked at will by Congress.
Harris v. Rosario, 446 U.S. 651 (1980); Examining Board v.
Flores de Otero, 426 U.S. 572, 600 (1976); U.S. v. Sanchez, 992
F. 2d 1143 (1993).
Relying on Rogers v. Bellei, 401 U.S. 815 (1971) and other
Supreme Court rulings interpreting Congressional powers under
the Territorial Clause and defining the Constitutional rights
and status of persons born in Puerto Rico, the Congressional
Research Service (CRS) has concluded that, absent recognition
of fully equal citizenship status for people born in the
territory protected Constitutionally in the same manner as
nationality and citizenship arising from birth in one of the 50
States, the statutory citizenship of the residents of Puerto
Rico (now codified at 8 U.S.C. 1402) could be restricted,
modified or even withdrawn by Congress as long as the
fundamental rights test of the Insular Cases as cited above is
met, based on the existence of a legitimate Federal purposes
achieved in a manner reasonably related to that purpose. Thus,
for example, the CRS legal analysis confirmed that
establishment of separate Puerto Rican sovereignty would
provide the legal basis for Congress to withdraw statutory
citizenship without violating due process. See, Legal
Memorandum of John H. Killian, Senior Specialist, American
Constitutional Law, CRS, American Law Division, November 15,
1990.
Puerto Rico's international legal status
The foregoing discussion makes it clear that to the extent
the process for approval of the new constitution by the people
of Puerto Rico and Congress in 1952 was ``in the nature of a
compact,'' its purpose and scope was to establish a local
government of limited authority subject to the supremacy of the
Federal Constitution and laws. The notion that the actions and
statements of diplomatic representatives in the United Nations
(U.N.) characterizing this new constitutional status for
purposes of the U.N. decolonization process somehow expanded
the legal effect beyond the clear intent of Congress is not
supported by the formal measures adopted by the U.N. in this
matter. To understand the international dimension of Puerto
Rico's status, a review of the relevant international
instruments and the U.N. record regarding Puerto Rico is
necessary.
As noted above with respect to Puerto Rico's status under
U.S. domestic law, the Foraker Act of 1900, the Jones Act of
1917 and Public Law 600 each constitute measures to implement
Article IX of the Treaty of Paris adopted by Congress in the
exercise of its plenary authority over unincorporated
territories under the Territorial Clause. However, the Treaty
of Paris no longer is the only relevant international agreement
regarding the status of Puerto Rico to which the U.S. is a
party. Specifically, after the United States became a party to
the United Nations Charter, Puerto Rico was classified as a
non-self-governing area under Chapter XI of the Charter,
``Declaration Regarding Non-Self-Governing Territories.'' As
such, the U.S. was designated to be a responsible administering
power obligated under Chapter XI of the Charter to adhere to
U.N. decolonization procedures with respect to Puerto Rico.
This included the specific requirement to transmit reports
to the U.N. regarding conditions in the territory under Article
73(e) of Chapter XI of the Charter. In 1953 the U.S. informed
the U.N. that it would cease to transmit information regarding
Puerto Rico pursuant to Article 73(e) of the Charter based upon
establishment of local constitutional government in Puerto Rico
under Public Law 600. See, Appendix IV, ``Memorandum by the
Government of the United States of America Concerning the
Cessation of Transmission of Information Under Article 73(e) of
the Charter with regard to the Commonwealth of Puerto Rico,''
Constitutional Documents, Puerto Rico Federal Affairs
Administration, Doc. 90, 1988. Based on that communication from
the United States, on September 27, 1953, the General Assembly
of the United Nations, by a vote of 22 to 18 with 19
abstentions, adopted Resolution 748 (VIII), accepting the U.S.
decision to cease transmission of reports regarding Puerto
Rico.
The formal United States notification to the United Nations
that reporting on Puerto Rico would was based on the detailed
memorandum to the U.N. Secretary-General put the Members of the
U.N. on notice that, among other things, the new constitutional
arrangements in Puerto Rico were subject to the applicable
provisions of the U.S. Constitution, that the new local self-
government would be administered consistent with the Federal
structure of government in the U.S., and that the precise legal
nature of the relationship and Puerto Rico's status was subject
to judicial interpretation in the U.S. courts. Thus, those who
suggest that U.S. diplomats overstated the degree of self-
government achieved under the Constitution to get the U.N. to
go along may be partially right, but that is why countries
submit written statements to clarify ambiguities and set the
record straight. The formal, written communication which
notified the U.N. of the U.S. position clearly and expressly
limited the scope of constitutional self-government to local
affairs and required compatibility with the Federal
Constitution, including judicial interpretation of the
relationship by the Federal courts. The United States told the
truth to the United Nations in 1953.
The following critical elements of Resolution 748 reveal
that while there may have been a meeting of the minds between
the United Nations and the United States as to the result of
Resolution 748 for the international purposes of the world
body, the tension created between the U.S. Constitutional
process for administering non-state areas under the Territorial
Clause and the terms of reference employed by the U.N. in the
resolution would contribute to decades of ambiguity which has
been actively exploited in the debate between local political
parties in Puerto Rico. The failure of Congress to more
actively seek to resolve these ambiguities and the overall
political status issue also has contributed to the confusion
related to the non-binding but politically relevant U.N.
measures adopted in 1953.
The most critical elements of Resolution 748 include the
following passages:
The General Assembly * * * Bearing in mind the
competence of the General Assembly to decide whether a
Non-Self-Governing Territory has or has not attained a
full measure of self-government as referred to in
Chapter XI of the Charter * * * Recognizes that the
people of the Commonwealth of Puerto Rico, by
expressing their will in a free and democratic way,
have achieved a new constitutional status * * *
Expresses the opinion that it stems from the
documentation provided that the association of the
Commonwealth of Puerto Rico with the United States has
been established as a mutually agreed association * * *
Recognizes that, in the framework of their Constitution
and of the compact agreed upon with the United States
of America, the people of the Commonwealth of Puerto
Rico have been invested with the attributes of
political sovereignty which clearly identify the status
of the self-government attained by the Puerto Rican
people as that of an autonomous political entity * * *.
The meaning and significance of this language from
Resolution 748 must be understood in the context of Resolution
742 (VIII), also adopted by the General Assembly on September
27, 1953. That general resolution is entitled ``Factors which
should be taken into account in deciding whether a Territory is
or is not a Territory whose people have not yet attained a full
measure of self-government.'' Resolution 742 establishes the
criteria of general application for the General Assembly to
determine ``whether any Territory, due to changes in its
Constitutional status, is or is no longer within the scope of
Chapter XI of the Charter, in order that, in view of the
documentation provided * * * a decision may be taken by the
General Assembly on the continuation or cessation of the
transmission of information required by Chapter XI of the
Charter.'' In prescribing the conditions which provide a basis
for, inter alia, cessation of reporting under Article 73(e),
the provisions of the resolution regarding association between
a Territory and an administering power include the following
statements of criteria:
The General Assembly * * * Considers that the manner
in which Territories referred to in Chapter XI can
become fully self-governing is primarily through the
attainment of independence, although it is recognized
that self-government can also be achieved by
association with another State or group of States if
this is done freely and on the basis of absolute
equality * * * and the freedom of the population of a
Territory which has associated itself with the
metropolitan country to modify at any time this status
through the expression on their will * * * Association
by virtue of a treaty or bilateral agreement affecting
the status of the Territory, taking into account (i)
whether the Constitutional guarantees extend equally to
the associated Territory, (ii) whether there are powers
in certain matters Constitutionally reserved * * * to
the central authority, and (iii) whether there is
provision for the participation of the Territory on a
basis of equality in any changes in the Constitutional
system of the State * * * Representation without
discrimination in the central legislative organs on the
same basis as other inhabitants and regions * * *
Citizenship without discrimination on the same basis as
other inhabitants * * * Local self-government of the
same scope and under the same conditions as enjoyed by
other parts of the country.
As the U.S. domestic legislation which determined the
nature of the relationship between the U.S. and Puerto Rico,
Public Law 600 authorized the people of Puerto Rico to approve
a constitution through a process which would be ``in the nature
of a compact.'' However, the ``compact'' was for the creation
of a form of local constitutional self-government, which
represented progress toward, but did not fulfill or completely
satisfy, U.N. criteria for full self-government.
The conditions supporting this conclusion include the
statutory citizenship status of the inhabitants of Puerto Rico
which is not equal, full, permanent, irrevocable citizenship
protected by the 14th Amendment, the lack of voting
representation in Congress as the legislative body which
determines the form of government and law under which the
people of the territory live, the lack of vote for President or
Vice President, rights of equal protection and due process
which are not the same rights enjoyed by citizens in the
States, and retention by Congress of discretion unilaterally to
determine the disposition of the territory pursuant to the
Territorial Clause of the Constitution, with a procedural
rather than legally binding substantive commitment to ascertain
the wishes of the people.
It can be argued that the discrepancy between the
interpretation of information provided to the U.N. by the U.S.
in 1953 about Puerto Rico's new constitutional status and the
reality of Puerto Rico's status under the U.S. Federal
political system was the result of a very sophisticated
misunderstanding. In other words, perhaps the U.N. simply did
not understand the Territorial Clause regime under the U.S.
Constitutional process. An alternative view is that the close
vote on approval of a somewhat equivocal resolution represented
a practical diplomatic accommodation of U.S. insistence in 1953
that Puerto Rico's status should not be subject to U.N.
oversight. Neither of these views, however, alter the result.
In any event, on December 15, 1960, the General Assembly
adopted Resolution 1541 (XV), which is entitled ``Principles
which should guide Members is determining whether or not an
obligation exists to transmit the information called for under
Article 73 of the Charter.'' This resolution clarifies U.N.
standards for determining when the non-self-governing status of
a territory has been terminated in favor of full self-
government, and defines the options available to territories
seeking full self-government. Puerto Rico's current status does
not meet the criteria for any of the options for full self-
government under Resolution 1541, but H.R. 3024 defines a
process which could lead to establishment of full self-
government consistent with the three status alternatives which
have been formally recognized by the United States in
consideration of Resolution 1541: full integration on the basis
of equality, free association based on separate sovereignty, or
absolute national independence.
As a consequence of how international standards regarding
decolonization have evolved since 1953, and in view of how the
political branches of the Federal Government and the courts
have implemented and interpreted the ``compact'' for local
self-government under the Puerto Rico Federal Relations Act,
the United States has recognized that Puerto Rico did not
achieve full self-government in 1952. While Puerto Rico has not
been reinscribed on the U.N. list of non-self-governing
territories, this recognition that the territory's ultimate
political status has not been resolved has been expressed by
every recent President. For example, on November 30, 1992,
President George Bush issued a Memorandum for the Heads of the
Executive Departments and Agencies which stated that:
On July 25, 1952, as a consequence of steps taken by
both the United States Government and the people of
Puerto Rico voting in a referendum, a new constitution
was promulgated establishing the Commonwealth of Puerto
Rico. The Commonwealth structure provides for self-
government in respect of internal affairs and
administration, subject to relevant portions of the
Constitution and laws of the United States. As long as
Puerto Rico is a territory, however, the will of its
people regarding their political status should be
ascertained periodically by means of a general right of
referendum * * *.
On March 6, 1996, H.R. 3024 was introduced in the U.S.
Congress, accompanied by a statement signed by four committee
and subcommittee chairmen of the House of Representatives with
jurisdiction and interest in the status of Puerto Rico. See,
Appendix III, Congressional Record, March 6, 1996, E299-300.
This bill and the statement included by its sponsors in the
Congressional Record are strong evidence of U.S. recognition
that Puerto Rico's decolonization process has not been
completed as a matter of international or domestic law.
However, it is irrefutable that the United States has
provided for an unprecedented level of local self-government in
Puerto Rico since 1952. During the past four decades there have
been continuing elections conducted pursuant to democratic
processes under Puerto Rico law often resulting in changes in
government. Puerto Rico has indeed administered internal
affairs and local matters without intrusion by the United
States beyond that which is exercised by the Federal Government
in the States of the Union. Although Puerto Rico has not yet
achieved a permanent political status, given the local self-
governance of the territory and the domestic nature of the
United States-Puerto Rico relationship, there is no basis for
the United States to resume annual reporting to the United
Nations. The United States-Puerto Rico Political Status Act can
ultimately result in full self-government for Puerto Rico.
On December 14, 1994, the Legislature of Puerto Rico
adopted Resolution 62, requesting that the U.S. Congress
respond to the results of a political status plebiscite
conducted in the territory under local law in 1993 (see
Appendix I). In that plebiscite, definitions of the three
status options of independence, statehood and the current
territorial status under the ``commonwealth'' label as
presented to the voters on the ballot were formulated by local
political parties which support each such status alternative.
Unfortunately, the ballot developed in this manner included
proposals which were both unrealistic and in some cases simply
unconstitutional.
As a consequence, the results of the 1993 vote
(Commonwealth 48.6 percent, Statehood 46.3 percent,
Independence 4.4 percent) were extremely difficult to
interpret. For example, the ballot definition of
``commonwealth'' included elements attainable only through
statehood, such as permanent union with the U.S. and guaranteed
irrevocable U.S. citizenship equal that conferred on persons
born in a State of the Union. At the same time, the
``commonwealth'' option included elements that would amount to
a treaty based government-to-government relationship consistent
with separate Puerto Rican sovereignty or independence, as well
as exemptions from Federal taxation, increased Federal programs
and benefits, and a Constitutionally unsustainable binding
territorial veto power over Federal laws. The independence and
statehood definitions were more discernible, but without a
framework for status resolution prescribed by Congress, none of
the 1993 ballot options alone provide a basis for orderly
change based on self-determination.
Although some Members of Congress spoke out before and
after the 1993 vote about the internal inconsistencies in the
ballot definitions (see, Congressional Record of November 10,
1993, and September 30, 1994, Appendix II), the 103rd Congress
adjourned more than a year after the 1993 plebiscite without
breaking its silence regarding the results of that plebiscite.
For that reason, in Resolution 62 the Legislature of Puerto
Rico expressly requested the 104th Congress, if it did not
``accede'' to the 1993 ballot definitions and resulting vote,
to determine ``the specific status alternatives'' the United
States ``is willing to consider,'' and then to state what steps
the Congress recommends be taken in order for the people of
Puerto Rico to establish for the territory a ``process to solve
the problem of their political status.''
Resolution 62 must be understood for what it is: a formal
request by the duly-constituted Legislature of Puerto Rico that
Congress address itself to resolving the status of 3.8 million
people who have statutory U.S. citizenship and reside in a
territory governed by Federal law, but who do not have equal
legal and civil rights with citizens in the states, guaranteed
citizenship, or permanent standing within the U.S.
Constitutional system. In the nearly 100 years in which the
U.S. has exercised sovereignty over this territory under the
Treaty of Paris, Congress has never afforded the people an
opportunity freely to express their wishes regarding a
permanent and fully self-governing political status. This
includes the last 40 years, during which, as a signatory to the
United Nations Charter, the U.S. has had an obligation to
respect self-determination and promote establishment of full
self-government in Puerto Rico. The current ``commonwealth''
arrangements for local self-government which exist at the
pleasure of Congress and subject to its plenary authority under
the Territorial Clause power (Art. IV, Sec. 3, Cl. 2)
represented progress when adopted in 1952, but to the
disappointment of all concerned it has not fulfilled the U.S.
commitment to promote and ultimately deliver on the promise of
full self-government for Puerto Rico.
Indeed, the current unincorporated territory status and
``commonwealth'' system of local self-government, as well as
the present statutory citizenship without equal legal and
political rights, must be viewed as a temporary and
transitional condition which will end upon approval by the
people of Puerto Rico and Congress of a change of status in
favor of full self-government consistent with incorporation
into the U.S. Constitutional system on the basis of equality,
or through the establishment of separate sovereignty,
nationality and citizenship. To the greatest extent and at the
earliest time possible, the rights of people subject to Federal
authority must be Constitutionally protected and guaranteed,
rather than existing at the pleasure of Congress. If full
Constitutional status and the attendant protections along with
equal citizenship for the people of Puerto Rico is not
intended, then the option of achieving full citizenship through
separate sovereignty and nationality must be made available.
The year 1998 will mark the end of an entire century since
the cession of Puerto Rico to the U.S. by Spain. Before a
second century of territorial administration begins, Congress
has a responsibility to establish a process of self-
determination that will empower the people to end territorial
status of Puerto Rico in favor of a permanent political status.
Under relevant resolutions adopted by the General Assembly of
the United Nations and customary international law recognized
by the United States, as well as U.S. Constitutional law and
practice with respect to territories under U.S. sovereignty but
not incorporated into the union, the status alternatives
available to people with a colonial or non-self-governing
history and aspiring to achieve full self-government are: i)
integration into an existing nation on the basis of equality;
ii) free association based on separate sovereignty, nationality
and citizenship; or iii) fully independent nationhood. Of
course, if the people are not ready to complete the transition
to full self-government and prefer to remain in a temporary
unincorporated territory status, that result must be due to the
freely expressed wishes of the people rather than failure of
Congress to make available to the people the choice to become
fully self-governing.
On October 17, 1995, the Subcommittee on Native American
and Insular Affairs, Committee on Resources, and the
Subcommittee on Western Hemisphere, Committee on International
Relations, held a joint hearing in Washington, D.C. on the
results of the 1993 plebiscite. All political parties were
represented in the hearing, and all interested organizations
and individuals were allowed to submit written statements for
the record of that hearing. Based upon the testimony and
materials submitted at that hearing, the approach embodied in
H.R. 3024 was developed to enable Congress to define a process
of legitimate self-determination for Puerto Rico. In addition,
on February 29, 1996, a formal statement addressed to the
Legislature of Puerto Rico with respect to the subject matter
of Concurrent Resolution 62 was transmitted by the four
chairmen of the committees and subcommittees in the House of
Representatives with primary jurisdiction over the status of
Puerto Rico. The statement of February 29, 1996, subsequently
was included in the Congressional Record to accompany
introduction of H.R. 3024 on March 6, 1996 (See, Cong. Rec.,
March 6, 1996, E299-300, Appendix III).
Differences between H.R. 3024 and other political status
proposals for Puerto Rico
H.R. 3024, the ``United States Puerto Rico Political Status
Act,'' is firmly grounded in U.S. practice regarding self-
government for unincorporated territories over which this
nation exercises sovereignty. The current territorial regime
and less-than-equal citizenship status of Puerto Ricans does
not constitute full self-government, and will not lead to a
permanent status with guaranteed rights until one of the
recognized forms of self-government is established through a
process of self-determination.
After the U.S. Congress failed to approve legislation on
Puerto Rico's political status in 1992, the Legislature of
Puerto Rico authorized a local status vote in 1993. Under the
local referendum law, each principal local political party in
Puerto Rico was allowed to formulate the ballot definition for
the political status option it endorses. The local political
party endorsing ``Commonwealth'' adopted a ballot definition
which promised:
The terms of the ``Commonwealth'' relationship are
binding upon Congress in perpetuity, enforceable under
an unalterable ``bilateral pact'' giving Puerto Rico a
``mutual consent'' veto power over acts of Congress.
Conversion of the current temporary unincorporated
territorial status and limited statutory citizenship
into permanent union with the U.S. and fully guaranteed
citizenship equivalent to birth or naturalization in
one of the States.
Increases in Federal outlays to give Puerto Rico
parity with the states in taxpayer-funded social
spending in Puerto Rico, while at the same time
continuing exemption from Federal taxation for U.S.
citizens and corporations in Puerto Rico.
Continuation of the possessions tax credits (Section
936 of the Internal Revenue Code), as well as
entitlement to Federal programs and services, at the
same time guaranteeing a right to fiscal autonomy and
cultural separatism from the United States.
Given the unrealistic and misleading ``have it both ways''
nature of this definition, the most remarkable thing about the
result of the 1993 referendum is that the ``Commonwealth''
option received only a slim plurality and less than a majority
of the votes cast.
Unlike the 1993 plebiscite, the political status process
contemplated by H.R. 3024 recognizes that resolution of Puerto
Rico's political status is not something that is going to
result from unilateral action by Puerto Rico. Certainly, there
has been no suggestion to date that there will be a change of
status that is not approved by the people in a valid act of
self-determination, but H.R. 3024 also establishes that the
U.S. has a right to self-determination in its relationship with
Puerto Rico. That is why a legitimate self-determination
process requires a give-and-take between Congress and Puerto
Rico to define and approve the options for change.
H.R. 3024 also recognizes that the current status of Puerto
Rico is that of an unincorporated territory under U.S.
sovereignty exercised by Congress under the Territorial Clause
power, and that defines its relationship to the United States.
The current ``Commonwealth'' system of local self-government
has not altered the status of Puerto Rico or the underlying
Constitutional relationship. While the territorial status and
relationship has lasted nearly 100 years, the ``Commonwealth''
structure for local self-government organized under a
territorial constitution authorized by Congress in the Puerto
Rico organic statute is a 40 year arrangement which has not
resulted in full self-government.
This ``Commonwealth'' status was a significant improvement
over previous civil administration under the prior organic law,
and the new local constitutional arrangements established in
1952 has had strengths of which the U.S. and Puerto Rico
properly have been proud over the years. The problem that
arises is that those who wish the ``Commonwealth'' arrangements
were something other than what it is attempt to impose their
theories and doctrines on the people of Puerto Rico and the
people of the United States at the expense of accuracy and
objectivity. Thus, as already discussed, any ballot option
regarding ``Commonwealth'' must be formulated carefully based
on realistic and correct statements of current law.
Since the current ``Commonwealth'' unincorporated status is
not a basis for achieving full self-government, the original
version of H.R. 3024 did not present the status quo as an
option. Instead, a decision by the people not to approve any of
the legally recognized alternatives for full self-government
would have meant that the status quo would continue, and that
any changes to the current relationship proposed by Puerto Rico
would be made by Congress under the Territorial Clause. This
approach mistakenly was perceived by some as one intended to
exclude the ``Commonwealth'' option which received a plurality
of votes in the 1993 local plebiscite. Of course, the 1993
definition of ``Commonwealth'' failed to present the voters
with a status option consistent with full self-government, and
it was misleading to propose to the voters an option which was
unconstitutional and unacceptable to the Congress in almost
every respect.
Still, to avoid even the perception of unfairness by
otherwise rational people who might not appreciate the history
of these issues, the version of H.R. 3024 which has been
reported to the full House of Representatives expressly
provides that the voters will have an opportunity in the form
of ballot options to preserve the current ``Commonwealth''
status, defined in a manner consistent with the rulings of the
U.S. Supreme Court regarding Puerto Rico's present status. In
addition, on June 4, 1996, Congressman Elton Gallegly (R-CA),
cosponsor of H.R. 3024 and Chairman of the Subcommittee on
Native American and Insular Affairs, included in the
Congressional Record a statement about this 1993 ballot
definition of the ``Commonwealth'' status option (See, Appendix
VII, Congressional Record June 4, 1996). Consistent with that
statement, the 1993 ballot definition of ``Commonwealth'' was
offered as an amendment to H.R. 3014, only to be unanimously
rejected by the Subcommittee of Native American and Insular
Affairs at its mark up of this bill on June 12, 1996.
To understand H.R. 3024, Congress must realize it is the
official position of the party of ``Commonwealth'' in Puerto
Rico that there is no need for further self-determination in
Puerto Rico. This position runs deeper than the short-term
tactic of insisting that H.R. 3024 is unnecessary because ``the
people have spoken'' and the 1993 definition of
``Commonwealth'' simply should be implemented. Everyone knows
Congress is not going to implement a ballot option which not
only received less than a majority of votes cast, but is
unconstitutional and unacceptable as well.
The long-term strategy of the local party identified with
``Commonwealth'' is to win U.S. and international recognition
that Puerto Rico enjoys a fully autonomous status within the
U.S. Constitutional system. This is based on a misleading
interpretation of the U.N. acceptance in 1953 of the U.S.
decision to stop reporting to the world body on Puerto Rico due
to the degree of internal self-government under the new
constitution in 1952--as already discussed in this report. Even
though the U.S. formally advised the U.N. and Puerto Rico all
along that the authority of the local government was limited to
internal affairs, and was subject to the U.S. Constitution and
Federal law as determined by Congress and the courts,
``Commonwealth'' leaders recently confirmed the party's
position that the U.N. findings in 1953 establish that Puerto
Rico is a free state, associated with the U.S. but no longer an
unincorporated territory subject to the authority of Congress
under the Territorial Clause of the Constitution.
In support of this implausible and paradoxical position,
the supporters of this hypothetical hybrid ``Commonwealth''
status in Puerto Rico assert that Puerto Rico already has a
right to permanent union with the U.S. and guaranteed U.S.
citizenship, and at the same time has a separate Puerto Rican
nationality and sufficient separate sovereignty to conduct its
own international relations. Indeed, until the U.S. Department
of State intervened, in the late 1980s supporters of the extra-
legal ``Commonwealth'' doctrine in the administration of a
former Governor of Puerto Rico and President of the party of
``Commonwealth'' attempted to negotiate tax sparing treaties
with foreign governments. Leaders of the party of
``Commonwealth'' still insist that in the future the
``Commonwealth'' of Puerto Rico as established in 1952 will be
able to conduct treaty relations in its own name and right once
the ``misunderstanding'' about the nature of the present status
is ``corrected.''
To this day, the advocates of a revised ``Commonwealth''
status that creates a separate ``nation'' within the U.S.
Constitutional framework also assert that P.L. 600, the Federal
statute passed by Congress in 1950 which authorized adoption of
the local constitution approved in 1952, created an
``unalterable bilateral pact'' which precludes Congress from
making any changes in the state of Federal law applicable to
the ``Commonwealth'' without the consent of Puerto Rico. (See
48 U.S.C. 731b-e). Coupled with the assertion of separate
international personality, this extra-constitutional political
and ideological doctrine is nothing less than an attempt to
convert the statutory delegation of Congressional authority
over local affairs in 1952 into a de facto form of the
international, treaty-based status of ``free association''
within the framework of the U.S. Constitution.
This ``nation-within-a-nation'' political strategy, which
ultimately would usurp Federal authority if it were fully
carried out, has been epitomized by the adoption of ``Free
Associated State'' as the official Spanish language term for
the present status, but using the unrelated term
``Commonwealth'' as the English term since it was deemed more
familiar and acceptable to the United States. In a similar
tactic, the language of Federal statutes describing the process
for approving the local constitution in 1952 as being ``in the
nature of a compact'' is cited by ``Commonwealth'' supporters
as proof that the statute created a binding, treaty-like,
government-to-government compact which--if it were true--would
give Puerto Rico a political status superior to the states of
the union.
The notion of an unalterable bilateral pact is predicated
on the theory that the implied compact supposedly created in
1952 is mutually binding on Puerto Rico and the Congress. The
principle of consent recognized in Public Law 600 with respect
to establishment of local constitutional self-government
respecting internal affairs is elevated, according to this
revisionist theory, onto the plane of government-to-government
mutuality, and on that basis it is concluded that there is a
treaty-like relationship which can be altered only with mutual
consent of both governments. This is precisely the
relationship--based on separate sovereignty, nationality and
citizenship--which exists between the U.S. and the Pacific
island nations party to the Compact of Free Association which
ended the U.S. administered U.N. trusteeship in Micronesia.
See, Title II, Public Law 99-239.
While such a relationship presumably is available to Puerto
Rico if that is the option chosen by the voters, and it is
established by mutual agreement in accordance with U.S. policy
and practice relating to free association as defined in
international law, such a mutual consent relationship was not
created in 1952. Indeed, the notion that an unalterable,
permanently binding mutual consent political relationship can
be instituted under the U.S. Constitution between an
unincorporated territory and the Congress has been discredited.
The Clinton Administration Justice Department has confirmed
that mutual consent provisions are not binding on a future
Congress, are not legally enforceable, and must not be used to
mislead territorial residents about their political status and
legal rights.
Specifically, on July 28, 1994, the Deputy Assistant
Attorney General of the United States Department of Justice
issued a legal opinion which included the following statement
about ``bilateral mutuality'' in the case of Puerto
The Department [of Justice] 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 Soc. Sec. 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 subsequent Congress.
Dept. of Justice Memo, footnote 2, p. 2; See, Report on
Joint Hearing of the Committee on Resources and Committee on
International Relations, October 17, 1995, p. 312.
The Department of Justice (DOJ) memo also concludes that:
A ballot definition of commonwealth based on the idea
of an unalterable bilateral pact with mutual consent as
the foundation ``would be misleading,'' and that
``honesty and fair dealing forbid the inclusion of such
illusory and deceptive provisions * * *.''
Unalterable mutual consent pacts ``raise serious
constitutional issues and are legally unenforceable.''
Status definitions based on the notion of unalterable
mutual consent pact should not be on a plebiscite
ballot ``unless their unenforceability (or precatory
nature) is clearly stated in the document itself.''
The DOJ memo offers, as a sympathetic exercise of
discretionary authority by Federal officials rather than as of
right, to honor as existing mutual consent provisions--such as
that in the Northern Mariana Islands Covenant--even though
``unenforceable'' as a matter of law. Congress should not
indulge such discretionary disposition of the political status
and civil rights of U.S. citizens in the territories. Instead
Congress must create a process that defines real status options
under which the people of Puerto Rico will have real rights
that are enforceable.
As explained above, Public Law 600 established a process
for approval of a new constitution for local self-government,
and was described as being ``in the nature of a compact''
because Congress determined that approval by the voters alone
would not have been sufficient to institute constitutional
government. Thus, joint action--including approval by the
voters followed by approval of Congress--was required. The 1952
statute constituted precisely such a process, which was ``in
the nature of a compact'' to organize a local constitutional
government approved by the people to replace the previous local
government established unilaterally by Congress.
The approval process for the local constitution did not
alter Puerto Rico's status as an unincorporated territory or
create a political status under international or domestic U.S.
law which constitutes full self-government. This was made very
clear at the time the Puerto Rico Federal Relations Act was
approved by House Report 2275. Instead, it was intended that
the ``Commonwealth'' would, as described in a Memorandum of the
President regarding Puerto Rico signed by President Kennedy in
1961, ``provide for self-government in respect of internal
affairs and administration.''
If Congress had intended for the U.S. to enter into a
``compact of free association'' on a plane of mutuality or at
the international level (like the current compact between the
U.S. and the Micronesian republics), Public Law 600 would not
have prescribed a process which by definition was not a
government-to-government or ``bilateral'' compact at all, but
was ``in the nature of a compact'' limited to internal affairs
and administration. Nor if ``free association'' or a binding,
unalterable ``bilateral pact'' had been intended would the U.S.
have informed the U.N. and Puerto Rico that the U.S.
Constitution and Federal law would still apply even after a
local constitution was in place, and that the nature of the
relationship would be subject to judicial interpretation as a
matter of U.S. domestic law.
Given U.S. notification to the U.N. in 1953 that the nature
of the ``Commonwealth'' would be ``as may be interpreted by
judicial decision,'' it is significant that in 1980 the U.S.
Supreme Court did not adopt the ``free association'' theory of
Puerto Rico's status, and ruled instead that Puerto Rico
remains an unincorporated territory subject to the Territorial
Clause. See Harris v. Rosario, 446 U.S. 651 (1980).
If the ``have-it-both-ways'' legal theory advanced by those
who advocate the revisionist version of ``Commonwealth'' were
to prevail, Puerto Rico would enjoy in perpetuity the most
precious American rights of membership in the national union
and guaranteed citizenship, without having to cast its lot or
fully share risks and burdens with the rest of the American
political family. But this expansive and unconstitutional
``Commonwealth'' mythology can not withstand scrutiny any
longer.
While sometimes confusing the issue by trying to
accommodate those on all sides of this matter, in relevant
formal measures the Congress, the Federal courts and the last
several Presidents have exercised their Constitutional powers
with respect to Puerto Rico in a manner consistent with
applicability of the Territorial Clause, continued
unincorporated territory status and local self-government
limited to internal affairs. See U.S. v Sanchez, 992 F.2d 1143
(1993). Supporters of the extra-constitutional theory of
``Commonwealth'' explain this away as merely demonstrating the
need to perfect the free association with permanent union and
common citizenship which they insist in the status the U.S. and
U.N. recognized in 1953.
For example, supporters of the expansive theory of
``Commonwealth'' often cite the case of U.S. v. Quinones, 758
F.2d. 40, (1st Cir. 1985), because dictum in that opinion
adopted some of the nomenclature of the ``commonwealth''
doctrine. However, the Department of Justice has pointed out
that reliance on this dictum to advance the expansive and
revisionist theory of ``Commonwealth'' is contradicted by the
actual ruling of the court in that case, which upheld a Federal
law unilaterally altering the 1952 constitution and the Puerto
Rico Federal Relations Act without the consent of Puerto Rico.
See, Appendix VIII, GAO/HRD-91-18, The U.S. Constitution and
the Insular Areas, April 12, 1991, Letter to GAO from Assistant
Attorney General of the United States.
H.R. 3024 is the most significant decolonization measure
for Puerto Rico offered in the last 100 years. By offering
Puerto Ricans full self-government through statehood or real
separate sovereignty, and defining the option of continued
``Commonwealth'' based on an accurate account of existing law,
H.R. 3024 will end the ambiguity and internal inconsistency
that has eroded the moral and Constitutional basis of Federal
policy toward the territory for more than 40 years.
COMMITTEE ACTION
H.R. 3024 was introduced on March 6, 1996, by Congressman
Don Young (R-AK), Chairman of the Committee on Resources.
Cosponsoring the bill were Speaker of the House Newt Gingrich
(R-GA), Congressman Elton Gallegly, Congressman Jose E. Serrano
(D-NY), Congressman Patrick J. Kennedy (D-RI), Congressman Nick
J. Rahall II (D-VW), Delegate Carlos A. Romero-Barcelo (D-PR),
Congressman Benjamin A. Gilman (R-NY), Congressman Dan Burton
(R-IN), Delegate Robert A. Underwood (D-GU), Congressman Ken
Calvert (R-CA), Congressman James B. Longley, Jr. (R-ME),
Congressman Gene Green (D-TX), Congressman Peter Deutsch (D-FL)
and Congressman Ron Klink (D-PA). The bill was referred to the
Committee on Resources, and within the Committee to the
Subcommittee on Native American and Insular Affairs.
On March 23, 1996, the Committee of Resources held a
hearing on H.R. 3024 in San Juan, Puerto Rico, and received
testimony from the heads of all principal political parties and
other interests organizations and individuals, as well as
written statements from all concerned parties. The hearings
were broadcast live by numerous television and radio stations
in Puerto Rico and over 70 media credentials were issued.
On June 12, 1996, the Subcommittee met to mark up H.R.
3024. Three amendments were offered. Delegate Eni F. H.
Faleomavaega (D-AS) offered an amendment adding a
``Commonwealth'' definition from a 1990 House report on Puerto
Rico status legislation as a choice leading to full self-
government. However, this ``Commonwealth'' definition in the
report was an expression of the political party advocating that
status and was meant to merely be a starting point in any
future consideration by the Congress, and by no means was it
meant to infer there was any endorsement or guarantee of
enactment of those provisions. The Subcommittee also rejected
this amendment in a 1:8 vote, as follows:
Subcommittee on Native American and Insular Affairs--104th congress
RECORDED VOTE
Date: June 12, 1996; time: 3:12.
Bill No.: H.R. 3024.
Amendment No. 1; offered by: Faleomavaega.
Rollcall: Defeated (8-1).
----------------------------------------------------------------------------------------------------------------
Yeas Nays Present Yeas Nays Present
----------------------------------------------------------------------------------------------------------------
Gallegly....................... ........ X ......... Faleomavaega..... X ........ .........
Young.......................... ........ X ......... Kildee........... ........ X .........
Gilchrest...................... ........ X ......... Williams......... ........ X .........
Jones.......................... ........ ........ ......... Johnson.......... ........ X .........
Hastings....................... ........ X ......... Romero-Barcello.. ........ X .........
Metcalf........................ ........ ........ ......... Underwood........ ........ ........ .........
Longley........................ ........ ........ ......... ................. ........ ........ .........
------------------------------- ------------------------------
Total Republicans........ ........ 4 ......... Total Democrats.. 1 4 .........
----------------------------------------------------------------------------------------------------------------
Congressman Pat William offered an amendment with the
``commonwealth'' definition from the 1993 plebiscite was
proposed to be added as a third choice leading to full self-
government in the Initial Decision Stage referendum in addition
to separate sovereignty and statehood. Delegate Faleomavaega
offered an amendment to the Williams amendment regarding the
definition of ``commonwealth''; the amendment failed on voice
vote. The Williams amendment was then defeated in a 1:10 vote,
as follows:
Subcommittee on Native American and Insular Affairs--104th CONGRESS
RECORDED VOTE
Date: June 12, 1996; time: 3:25.
Bill No.: H.R. 3024.
Amendment No. 1; offered by: Williams.
Rollcall: Defeated (10-1).
----------------------------------------------------------------------------------------------------------------
Yeas Nays Present Yeas Nays Present
----------------------------------------------------------------------------------------------------------------
Gallegly....................... ........ X ......... Faleomavaega..... X ........ .........
Young.......................... ........ X ......... Kildee........... ........ X .........
Gilchrest...................... ........ X ......... Williams......... ........ X .........
Jones.......................... ........ ........ ......... Johnson.......... ........ X .........
Hastings....................... ........ X ......... Romero-Barcello.. ........ X .........
Metcalf........................ ........ X ......... Underwood........ ........ ........ .........
Longley........................ ........ X ......... ................. ........ ........ .........
------------------------------- ------------------------------
Total Republicans........ ........ 6 ......... Total Democrats.. 1 4 .........
----------------------------------------------------------------------------------------------------------------
The final amendment in the nature of a substitute offered
by Subcommittee Chairman Gallegly was approved in a 10-0 vote,
as follows:
Subcommittee on Native American and Insular Affairs--104th CONGRESS
RECORDED VOTE
Date: June 12, 1996; time: 3:45.
Bill No.: H.R. 3024.
Amendment No. 1; offered by: Gallegly.
Rollcall: Passed (10-0).
----------------------------------------------------------------------------------------------------------------
Yeas Nays Present Yeas Nays Present
----------------------------------------------------------------------------------------------------------------
Gallegly....................... X ........ ......... Faleomavaega..... X ........ .........
Young.......................... X ........ ......... Kildee........... X ........ .........
Gilchrest...................... X ........ ......... Williams......... X ........ .........
Jones.......................... ........ ........ ......... Johnson.......... ........ ........ .........
Hastings....................... X ........ ......... Romero-Barcello.. X ........ .........
Metcalf........................ X ........ ......... Underwood........ ........ ........ .........
Longley........................ X ........ ......... ................. ........ ........ .........
------------------------------- ------------------------------
Total Republicans........ 6 ........ ......... Total Democrats.. 4 ........ .........
----------------------------------------------------------------------------------------------------------------
The Gallegly amendment incorporates a number of suggestions
of leaders of Puerto Rico and Members of Congress. One primary
change permits the people of Puerto Rico to vote to continue
the current ``Commonwealth'' status as a territory, or to
proceed towards a status of full self-government of either
separate sovereignty or statehood. The provision is based on
the suggestion of the President of the Puerto Rico Independence
Party (PIP), Reuben Berrios-Martinez. This choice is included
in Part I of a two-part ballot in the first referendum. Part II
of the ballot maintains the original choices between full self-
government of separate sovereignty leading to independence or
free association, or statehood.
Another change requires periodic referenda in Puerto Rico
every four years on the same question in the event a majority
indicate they are not ready to proceed towards full self-
government. This provision is based on the legislative concept
of Congressman Dan Burton and Robert Torricelli (D-NJ),
Chairman and Ranking Minority Member respectively, of the
Subcommittee on Western Hemisphere of the Committee on
International Relations, to require periodic referenda in a
territory until the status issue is resolved. The periodic
voting requirement on status maintains the integrity of the
purpose of the bill, which is ``to provide a process leading to
full self-government''.
The amendment also includes a provision in which a
constituent convention would be held in Puerto Rico in the
event of a majority vote in favor of separate sovereignty, to
determine which form of separate sovereignty is preferred by
the people of Puerto Rico: absolute independence or separate
sovereignty in free association with the United States. This
change is based on a suggestion by President Berrios-Martinez
of the PIP. The President of the United States is directed to
address proposals and recommendations of the constituent
convention (if any) in the Transition Plan submitted to
Congress within the 180 day period following the referendum.
Finally, the amendment modifies or adds a number of
findings to reflect important events in the chronological
development of the United States-Puerto Rico territorial
relationship. In addition, changes in the language of the
policy section reflects the responsibility of the Federal
Government to enable the people of Puerto Rico to freely
express their wishes regarding their political status and
achieve full self-government.
The bill, as amended, was then ordered to be favorably
reported to the Full Committee in the presence of a quorum, by
a roll call vote of 10-0, as follows:
subcommittee on native american and insular affairs--104th congress
recorded vote
Date: June 12, 1996; time: 3:45.
Bill No.: H.R. 3024.
Rollcall: Passed 10-0.
Ordered report to Full Committee, subject to technical
amendments approved by the minority.
----------------------------------------------------------------------------------------------------------------
Yeas Nays Present Yeas Nays Present
----------------------------------------------------------------------------------------------------------------
Gallegly....................... X ........ ......... Faleomavaega..... X ........ .........
Young.......................... X ........ ......... Kildee........... X ........ .........
Gilchrest...................... X ........ ......... Williams......... X ........ .........
Jones.......................... ........ ........ ......... Johnson.......... ........ ........ .........
Hastings....................... X ........ ......... Romero-Barcello.. X ........ .........
Metcalf........................ X ........ ......... Underwood........ ........ ........ .........
Longley........................ X ........ ......... ................. ........ ........ .........
------------------------------- ------------------------------
Total Republicans........ 6 ........ ......... Total Democrats.. 4 ........ .........
----------------------------------------------------------------------------------------------------------------
On June 26, 1996, the Full Resources Committee met to
consider H.R. 3024. Congressman Don Young offered en bloc
amendments which passed by voice vote. The en bloc amendments
made technical and clarifying changes. The language of certain
findings are clarified pertaining to the conditional approval
by Congress of the Puerto Rico constitution, the notification
to the United Nations by the United States, and the Supreme
Court ruling confirming Congressional authority over Puerto
Rico as a territory. In Section 4, the Transition Plan only
occurs in the event of a ballot choice ``of full self-
government,'' and the Legislature of Puerto Rico ``may
provide'' by local law a constituent convention in the event of
a majority vote for separate sovereignty. In Section 5, the
periodic referenda requirement applies if a referendum is
inconclusive, ``or a majority vote to continue the Commonwealth
structure as a territory.'' Section 7 is clarified regarding
the use of Federal excise taxes on foreign rum which go to the
Puerto Rico Treasury. The President identifies the amounts to
be used for the conduct of referenda without changing the flow
of funds to Puerto Rico. In addition, the President is required
to submit a report to Congress regarding the amount used to
conduct the referendum.
Congressman George Miller (D-CA) offered an amendment to
shorten the time line for operation of the bill. It failed by
voice vote. Delegate Faleomavaega offered an amendment to
change the definition of ``commonwealth'' on the ballot; it
also failed by voice vote. Delegate Faleomavaega then offered
an amendment to delete the ``free association'' language from
the ballot; it failed by voice vote. Delegate Faleomavaega
offered and withdrew an amendment to change ``statehood''
language on the ballot. Congressman Bruce F. Vento (D-MN)
offered an amendment to strike additional four-year referenda;
it failed on a voice vote. Subcommittee Chairman Gallegly
offered an amendment to the definition regarding the retention
of United States citizenship under separate sovereignty, which
was approved by voice vote.
The bill, as amended, was then ordered favorably reported
to the House of Representatives, by voice vote in the presence
of a quorum.
section-by-section analysis
Section 1. Short title; table of contents
This provision contains the Short Title by which the bill
will be known once it becomes an Act, as well as the Table of
Contents.
Section 2. Findings
This section contains the findings of Congress with respect
to political status and self-determination in the case of
Puerto Rico, which are self-explanatory in most respects,
especially when read in the context of the preceding historical
and legal materials, including the contents of the February 28,
1996, letter (see Appendix V) responding to Resolution 62 from
the four chairman of the committees and subcommittees of the
House of Representatives with jurisdiction and interest in the
status of Puerto Rico.
Section 3. Policies
This is a statement of policy also consistent with the
historical and legal materials already reviewed, and which
should be read in light thereof. The Committee notes that on
June 28, 1996, four distinguished Members of Congress in the
minority party with long experience and knowledge of these
issues transmitted to the Majority Leader of the Puerto Rico
Senate a further response to Resolution 62 and the 1993 vote.
This letter is included as Appendix V, and indicates bipartisan
support for the policy set forth in Section 3, as well as the
overall approach to self-determination and political status
resolution embodied in H.R. 3024.
Section 4. Process for Puerto Rican full Self-government, including the
initial decision stage, transition stage, and implementation
stage
This central element of the bill prescribes the three
stages of the process leading to full self-government,
requiring an expression of the wishes of the people concerned
at each stage:
Initial Decision Stage.--Section 4 provides for a status
referendum to be held in Puerto Rico before the end of 1998, in
which voters will make choices presented in a two-part ballot.
Part I of the ballot offers a choice between continuation of
the current ``Commonwealth'' unincorporated territory status
quo or to proceed toward full self-government as presented in
Part II of the ballot. Under Part II of the ballot, the two
choices are: (A) full self-government through separate Puerto
Rican sovereignty consistent with independence or free
association; or (B) full self-government through equality under
U.S. sovereignty leading to statehood.
Transition Stage.--If voters approve further self-
determination regarding the preferred path to full self-
government approved in the Initial Decisions Stage, within 180
days the President must propose a ten year Transition Plan to
implement that status preference to Congress. After Congress
approves the Transition Plan under ``expedited procedures,'' it
is presented to the people of Puerto Rico for approval. If the
Transition Plan is approved it will commence under an Executive
Order of the President.
Implementation Stage.--This stage begins at least two years
prior to end of Transition Plan, with the President submitting
to Congress a legislative proposal to implement full self-
government. Congress approves an Implementation Act and that is
submitted for approval by the people in a vote. If the
Implementation Act is approved, then full self-government is
implemented on the part of the Federal Government by a
Presidential Proclamation.
In Part I of the ballot, voters are given a choice to
preserve the current ``Commonwealth'' relationship or take the
next step in the overall process created by H.R. 3024, in which
Congress would propose to the people of Puerto Rico the terms
under which it would be willing to implement the status
preference expressed by the people in Part II of the ballot.
Under the two-part ballot, voters are free to choose to
continue the current ``Commonwealth'' based on a preference for
that status over other available options. No voter will be
``forced'' to participate in a choice between statehood and
separate sovereignty in order to express any preference for
``Commonwealth.'' For the first time in almost 100 years under
the sovereignty of Congress, the people of Puerto Rico will be
empowered to choose between local self-government within the
Territorial Clause and the two options for a permanent status
based on an exercise of sovereignty by the people through which
such a permanent and fully self-governing status is achieved.
A copy of the ballot prescribed by Section 4 in English and
Spanish is included as Appendix VI.
In the manner provided in Section 4, Congress will, for the
first time, be creating an orderly and informed process for
self-determination in Puerto Rico. Instead of allowing local
political parties to impose choices between mismatched options
which do not withstand Constitutional scrutiny, and which lead
to contradictory legal and political results, Congress will
bring clarity and validly defined choice into the process
consistent with applicable U.S. Constitutional law and
international practice recognized by the United States.
Here is how it will work: Once there is a majority vote for
a new status, Congress will proceed in a deliberate manner and
there will be no change imposed. Indeed, there will be no
change in status at any of the three stages without approval of
the voters, so that the fairness of the self-determination
element of the process is beyond reproach. By going back to the
voters not once, not twice, but three times, Congress will
empower the people to redeem the right to self-determination
within a framework established by Congress consistent with our
values as a nation.
If at any stage the voters do not approve measures proposed
by Congress to achieve full self-government in accordance with
the preference expressed by the voters, then the self-
determination process prescribed in the bill begins anew,
subject only to the authority of Congress to amend or repeal
the act and replace it with other measures consistent with the
authority and responsibility of Congress under the Territorial
Clause, the Treaty of Paris and the U.N. Charter.
With respect to Section 4(a), there are specific issues
which require detailed explanation to ensure that there will
not be any further ambiguity about the state of applicable law
and the intent of Congress.
1. Definition of ``Commonwealth'' in Part I(A) of the
ballot. The controversy surrounding the definition of
``Commonwealth'' in Puerto Rico arises from partisan disputes
about the meaning and legal effect of the Federal and local
measures establishing the constitutional government in 1952.
Each local political party has its own interpretation of the
approval process for the constitution, as well as the manner in
which it has been implemented.
For the people of Puerto Rico to be empowered to engage in
a free and informed act of self-determination, the definition
of Commonwealth must be one which is not formulated for the
purpose of either confirming or repudiating the positions of
the local political parties regarding the legal and political
nature of the current status of Puerto Rico. Language should be
adopted which is accurate, authoritative and balanced as a
matter of law. The desirability of the formula to be adopted in
the view of the political parties should not control the
contents. Congress is responsible for formulating a definition
that it accepts as fair, and which has a clear meaning that
Congress can respond to if it is approved by the voters.
While there should be nothing in the definition which is
unnecessarily negative or unfavorable to the position of any of
the local political parties, the desire to avoid offending
local parties should not influence the definition at the
expense of truthfulness and accuracy. Ambiguity of language and
policy employed in the past by some Puerto Rican and Federal
officials who thought they knew what was best for the people of
Puerto Rico is what contributed to the difficulty of the
current status dilemma. To resolve the problem Congress simply
must be accurate and consistent with applicable current law so
the people of Puerto Rico can determine for themselves what is
in their own best interest under the circumstances which now
exist.
The definition of ``Commonwealth'' contained in Section 4
is necessary because it:
Is based on existing Constitutional arrangements and
organic laws defining the status of the Commonwealth
and its relationship to the Federal Government,
recognizing that any amendments, enhancements or
modifications of the existing relationship must be
brought about through the existing Constitutional
process before becoming part of what ``Commonwealth''
means;
Is consistent with the measures adopted by the
political branches of the Federal Government to
establish and implement the current relationship, as
well as those of the local constitutional government,
as interpreted by the U.S. Supreme Court;
Recognizes supremacy of Federal law, as well as the
authority of the local constitutional government under
the 1952 constitution.
Under the U.S. Constitution, when there is a legal dispute
about the meaning and legal effect of actions taken by the
Congress or the President, the Supreme Court has the
Constitutional authority and responsibility to interpret the
Constitution and determine the meaning and effect of the laws
as enacted and implemented by the political branches. It is of
fundamental importance, therefore, that in 1980 the U.S.
Supreme Court ruled that because of the Territorial Clause
status of Puerto Rico it does not violate the Fifth Amendment's
equal protection guarantee for Congress by statute to impose a
discriminatory classification on the people of Puerto Rico by
providing lower levels of Federal programs and benefits than is
provided in the States. In reaching this decision the Court
stated that:
Congress, which is empowered under the Territory
Clause of the Constitution, U.S. Const., Art. IV,
Section 3, Clause 2, to ``make and needful Rules and
Regulations respecting the Territory * * * belonging to
the United States,'' may treat Puerto Rico differently
from the States so long as there is a rational basis
for its actions. Harris v. Rosario, 446 U.S. 651.
The definition of ``Commonwealth'' in Section 4 has to
commend its compatibility with this Supreme Court ruling
regarding the status of Puerto Rico. That can not be said for
any of the other definitions of ``Commonwealth'' advanced to
date.
2. Nationality and citizenship issues. One of the most
difficult issues to address in this self-determination process
is that of the nationality and citizenship of the people of
Puerto Rico in relation to the recognized alternatives for full
self-government. Discussion of these issues tends to be quite
emotional, for obvious and valid reasons. U.S. nationality and
citizenship is a blessing that is synonymous with liberty
itself. At the same time, failure of Congress previously to
afford the people of Puerto Rico a choice between full, equal
U.S. citizenship and the option of separate nationality and
sovereign nationhood has prevented the true sentiments of the
people from being translated into a recognized form of
permanent self-government.
As a result, in addition to the ideas and emotions evoked
when the subject of citizenship arises, there is a great deal
of confusion about applicable law and policy in this area. The
``nation-within-a-nation'' myth that there can be two
nationalities with what amounts to one citizenship has been
allowed to be perpetuated for so long that untying the knot
with regard to citizenship is going to be difficult. Yet, doing
so in a careful and fair manner is perhaps the single most
important task if we are to provide the people of Puerto Rico
with a meaningful opportunity to engage in a free and informed
act of self-determination.
Too often the discussion of nationality and citizenship in
the context of full self-government proceeds from the flawed
premise that the rulings of the U.S. Supreme Court regarding
dual citizenship and loss of U.S. nationality govern this
issue. To the contrary, legal and political principles relating
to self-determination and emergence of new nations, as well as
the special status that people born in Puerto Rico have under
the Territorial Clause and the statutes implementing Article IX
of the Treaty of Paris, are more relevant. To ensure that the
intent of Congress is well-established and clearly defined in
this regard, there are several fundamental points which must be
understood.
Section 4 defines the nationality and citizenship
principles that will be legally binding in the event that the
people vote for separate sovereignty. With respect to
nationality and citizenship under a separate sovereignty
scenario, it is the intent of the Committee that the governing
legal analysis is and will be as follows:
Formulation of a legally effective provision to govern the
change of citizenship for the Puerto Rican population in the
event of a vote for separate sovereignty is imperative.
Although quite properly the future of Puerto Rico will be
determined by the eligible voters who qualify to cast a ballot
in the status referendum based on compliance with Puerto Rican
law requiring residence in the territory, the results of the
self-determination process must be implemented fairly with
respect to all those who have U.S. citizenship based upon birth
in Puerto Rico during the territorial period. That includes
those who reside in Puerto Rico and those affected persons who
reside in the several States or elsewhere.
Not only must the self-determination process be respected,
but in order to implement a vote in favor of separate
sovereignty, the international law of nation-state succession
as recognized by the United States also must be observed. This
requires a transfer of sovereignty, nationality and citizenship
to establish a new nation if that is what the people of Puerto
Rico vote to approve.
The U.S. long has recognized that the allegiance of the
population of a territory transfers with sovereignty, and
failure to adhere to that practice in the context of Puerto
Rico's emergence into nation-state status would represent an
unjustified and profoundly problematic departure from
established U.S. practice. American Insurance Company v.
Canter, 26 U.S. (1 Pet.) 511, 542 (1828).
It is entirely consistent with the rights of the people of
Puerto Rico under those parts of the U.S. Constitution and laws
of the U.S. which apply to Puerto Rico at this time for the
nationality and citizenship which had been extended to Puerto
Rico under the Treaty of Paris to be withdrawn upon the
transfer of sovereignty over the territory and population to
the government of the Puerto Rican nation-state if that is in
accordance with the results of the self-determination process.
As long as there is a procedure available for those who wish to
retain the citizenship of the U.S. as predecessor sovereign on
the same terms it previously had been enjoyed, the succession
of nationality and citizenship as part of the succession of
sovereignty is consistent with U.S. Constitutional law, this
nation's historical practice and customary international law
recognized by the United States. American Insurance Company v.
Canter, 26 U.S. (1 Pet. 511, 542 (1828); O'Connell, The Law of
State Succession 246 (1956).
Some confusion has arisen in Puerto Rico on this point
because the U.S. recognizes that those with citizenship
protected by the Fourteenth Amendment will lose that status
only by relinquishing it voluntarily and intentionally, Afroyim
v. Rusk, 387 U.S. 253, 260 (1967). But the case of an
individual with full U.S. citizenship acquiring another
nationality, or enjoying a benefit or right of citizenship in
another country as in the Afroyim case, Constitutionally is
distantly related to the case in which a population with
statutory citizenship in a less than fully self-governing
territory exercises its right of self-determination in favor of
separate sovereignty. For that act of self-determination to be
honored and implemented in accordance with U.S. Constitutional
and international practice, the new nationality of that
population must be accorded formal recognition by the U.S. and
the international community.
This would not violate the rights of the population of
Puerto Rico for reasons which include that it would only happen
due to the results of a democratic voting process. As noted
below, determination of the status of those who wish to retain
the predecessor nation's citizenship would, in this case, be
within the discretion of Congress, and ending statutory U.S.
nationality and citizenship created by Congress during the
territorial period to implement an act of self-determination in
favor of separate sovereignty would not be barred
constitutionally. Rogers v. Bellei, 401 U.S. 815 (1971).
The recognized and well-established procedure of requiring
an election between citizenship of the predecessor or successor
sovereigns, or otherwise preventing the population concerned
from having citizenship and allegiance with respect to both the
predecessor and successor nations on an across-the-boards
basis, is an essential and imperative feature of a valid,
legitimate and credible separation of sovereignty and
succession of state. This feature of the law of state
succession has been recognized and practiced by the U.S.
throughout our history, as it was under the nationality and
citizenship provisions of Article IX of the Treaty of Paris
when Puerto Rico was ceded to this nation by Spain, the Foraker
Act in 1901 and the Jones Act in 1917.
Thus, it is consistent with U.S. Constitutional and
international practice, as well as the international law of
state succession, to give people with the nationality of the
previous or predecessor sovereign the right individually to
choose not to be part of the overall process of succession to
the nationality of the successor sovereign. While there are
variations of how this is accomplished, it is clear that the
domestic law of the predecessor nation governs the retention of
the previous nationality and citizenship, and the domestic law
of the successor nation governs the acquisition of the
nationality and citizenship of the new nation. O'Connell, The
Law of State Succession 245-248 (1956).
Consequently, Congress will have to prescribe the criteria
and procedures to protect the right of all those Puerto Ricans
who want to retain their current statutory U.S. citizenship. At
the same time, we need to recognize that the Federal Department
of Justice has long taken the position, and is on record before
Congress, that the statutory citizenship which Congress has
conferred on people born in Puerto Rico during the territory
period is not full, equal citizenship protected by the
Fourteenth Amendment to the Constitution. See Section-By-
Section Comments on S. 244, U.S. Department of Justice,
February 5, 1991.
That the current U.S. citizenship of persons born in Puerto
Rico during the territorial period is restricted and less-than-
equal is self-evident from the fact that this class of
citizens, as residents of an unincorporated territory subject
to the Territorial Clause, do not have voting representation in
Congress, do not vote in national elections, and the U.S.
Supreme Court has ruled that Congress can exercise its
Territorial Clause powers to treat the U.S. citizens in Puerto
Rico in a manner which is not equal to the treatment of U.S.
citizens in the several states. Harris v. Rosario, 446 U.S.
651, 1980. The Congressional Research Service has concurred in
these views, and the record of the Committee's hearings
includes documentation of these authoritative legal opinions.
See, Legal Memorandum of John H. Killian, Senior Specialist,
American Constitutional Law, CRS, American Law Division,
November 15, 1990.
The current citizenship status of people born in Puerto
Rico was established by Congress in an exercise of its
Territorial Clause authority to implement the Treaty of Paris.
Article IX of the Treaty of Paris states that the ``civil
rights'' and ``political status'' of the inhabitants of the
Puerto Rico will be determined by Congress. In 1904 the U.S.
Supreme Court ruled in Gonzales v. Williams that Puerto Ricans
have U.S. nationality, but that the specific citizenship status
of the population of the territory is subject to the discretion
of Congress under the Territorial Clause. In 1917 Congress
ended the limited territorial citizenship of Puerto Ricans, but
the U.S. citizenship granted by statute since 1917 is limited,
restricted and less-than-equal citizenship. Full equal
citizenship, irrevocable in the same legal and political sense
as citizenship due to birth in a state of the union, comes only
with full integration of Puerto Rico into the union.
Thus, the current citizenship status of Puerto Ricans
exists at the discretion of Congress. Because the Constitution
has been partially extended to Puerto Rico, including
fundamental rights of due process and equal protection,
Congress obviously cannot exercise its discretion in an
arbitrary and irrational way. But the suggestion that the
current citizenship can be guaranteed or that it is irrevocable
by a future Congress is dangerously misleading. No such
statutory status can bind a future Congress from exercising its
Constitutional authority and responsibility under the
Territorial Clause to carry out Article IX of the Treaty of
Paris.
Indeed, the Congressional Research Service memo cited above
concluded that the current statutory citizenship of people born
in Puerto Rico can be regulated or even rescinded without
violating the equal protection and due process rights which
have been extended to Puerto Rico by Congress and the Federal
courts. (See, Killian, ``Questions in re Citizenship Status of
Puerto Ricans,'' CRS, November 15, 1990). As long as Congress
acts for a legitimate Federal purpose and the measures taken
are reasonably related to such a purpose, the form of
citizenship status provided by Congress for persons born in
Puerto Rico can be altered or modified by Congress.
The CRS memo also states that the ``possibility of
revocation in the event of independence'' would not involve the
same difficulty of identifying a ``legitimate reason'' for
ending U.S. citizenship for those who acquired it during the
territorial period based on being born in Puerto Rico. (See,
Killian. p. 4). A vote for separate sovereignty would lead to
separate sovereignty, nationality and citizenship. As former
attorney General Richard Thornburgh told the Senate during the
1991 hearings on the Puerto Rico status legislation under
consideration at that time, the doctrine of state succession
would apply and there would be no Constitutional bar to ending
U.S. citizenship since U.S. nationality would end as well.
Congress cannot agree to separate ``nationality'' but grant
mass common ``citizenship'' if the voters approve separate
sovereignty. That would make no sense, and both legally and
politically it would undermine U.S. as well as Puerto Rican
sovereignty. The attempt to have it both ways has failed, and
will never succeed.
So Congress must preserve the right of statutory
citizenship for those who individually do not want to
participate in the change of nationality along with the general
population. But in doing so, we need to avoid confusing the
citizenship rights which we must protect for the U.S. citizens
of Puerto Rico who wish to retain that status, on one hand,
from the citizenship of persons born or naturalized in a State
of the Union and thereby protected by the Fourteenth Amendment
to the Constitution, on the other.
This distinction is important because Congress will need to
prescribe the nature of the continuing statutory right to U.S.
citizenship which Puerto Ricans will have if they choose to
maintain allegiance to the United States. As just two examples,
such persons must retain the right to renounce U.S.
citizenship, and the eligibility of such persons for Federal
benefits when residing in Puerto Rico will have to be defined
in a manner consistent with the succession of state doctrine
and the fact that the status of Federal programs in Puerto Rico
will be determined be subject to agreement of the U.S. and
Puerto Rico under a separate sovereignty scenario.
This entire discussion underscores the fact that the
statutory right of U.S. citizenship based on birth in Puerto
Rico as it is today, and as it will be if the voters approve
separate sovereignty, is not full Constitutionally-protected
citizenship. If there is going to be an informed act of self-
determination in Puerto Rico, the people must know that the
only path to full, equal, permanent, irrevocable United States
nationality and citizenship for the people of Puerto Rico is
through statehood and the Fourteenth Amendment protection that
comes exclusively with that Constitutionally-based status.
In the context of the international law of state
succession, it also is necessary in order to establish the
identity of the new Puerto Rican nation as a state in
international law that there be no equivocation, ambivalence or
ambiguity about the succession of sovereignty, nationality and
citizenship of the population of Puerto Rico as the body
politic of the territory under the sovereignty of a new state.
If the establishment of separate sovereignty is what the people
vote to approve, that is what the U.S. and the new nation of
Puerto Rico must seek to bring into existence.
The experience of the U.S. and the free associated states
which emerged from the U.S. administered U.N. Trust Territory
of the Pacific Islands under a compact of free association
demonstrates that the new separate sovereignty, nationality and
citizenship of the new nations must be well-defined and clearly
established if the separate identity of the new nation is to be
believed, accepted and formally recognized by the international
community. Any attempt at creation of a new state in name or
form only, without the underlying elements and substance of a
separate nation-state in the international sense, will not
succeed.
At the same time all these issues need to be understood and
addressed, the Committee also had to reduce the expression of
this freedom of choice regarding citizenship and succession of
state requirements to language which could be included on a
plebiscite ballot. The final language is found at Section 4(a)
of H.R. 3024. However, if we had no constraints in the length
of the citizenship definition we more fully would have given
expression to the meaning of the provision as follows:
In accordance with the act of self-determination approving
separate sovereignty for Puerto Rico, as well as the succession
of nationality and government, the people of Puerto Rico owe
allegiance to a Puerto Rican nation and have the nationality
and citizenship thereof; United States sovereignty, nationality
and citizenship is terminated with respect to Puerto Rico and
is transferred to the Puerto Rican nation, which has an
existence and identity in international law separate and apart
from that of the United States; thereafter, birth in Puerto
Rico or relationship to a person who became a U.S. national and
citizen by statute based on birth in Puerto Rico during the
period of U.S. territorial administration is not the basis for
U.S. nationality or citizenship; provided that, persons who
acquired such statutory U.S. citizenship during the territorial
period have a right to be secure in and to enjoy U.S.
citizenship for the remainder of their natural lives in
accordance with their individual choice not to participate
personally and individually in the succession from U.S. to
separate Puerto Rican sovereignty, nationality and citizenship
with respect to the territory and population of Puerto Rico;
Congress shall prescribe the procedures and criteria to ensure
that no such person determining to retain U.S. citizenship
shall be denied the right to do so, and that all such persons
shall have the ability to exercise their free will in favor of
their statutory right of U.S. citizenship. Consistent with this
statutory citizenship right, U.S. laws applicable to U.S.
citizens shall apply, including the statutory right to renounce
U.S. citizenship. There will be an election procedure or other
mechanism and criteria through which individuals who do not
want to change to Puerto Rican citizenship will not be forced
to do so, but neither those who acquire Puerto Rican
citizenship nor those who retain U.S. citizenship as part of
the process of state succession will have dual U.S. and Puerto
Rican citizenship as a result. Any incidence of dual
citizenship in individual cases must be on the basis of
separate statutory or Constitutional grounds due to birth or
naturalization in one of the States of the Union. The special
statutory right available to those who elect to retain U.S.
citizenship under this traditional arrangement for person born
in Puerto Rico during the territorial period requires continued
allegiance to the U.S. and will terminate for any otherwise
eligible person who becomes a national and citizen, or has and
exercises the rights of citizenship, of any nation other than
the United States--including the new sovereign nation of Puerto
Rico. These restrictions on dual Puerto Rican-U.S. citizenship
arising from this transitional citizenship arrangement are
determined by the Committee to be necessary in order to ensure
that both the U.S. and Puerto Rico will be able to exercise
effective control over the territory and population that
defined each as a separate nation, respectively--in accordance
with their respective constitutional processes and laws. This
is required to preserve the sovereignty of each nation and
bring about an effective succession of sovereignty, nationality
and citizenship in the event separate sovereign status is
implemented. This arrangement also ensures continuity and a
coextensive relationship as between the statutory citizenship
conferred during the territorial period and the statutory
citizenship which is available by election or entitlement as
Congress may determine. This intended result could be
frustrated if the procedures and requirements of U.S. law
relating to dual citizenship for persons whose U.S. nationality
and citizenship is protected by the 14th Amendment to the
Constitution were misapplied in the cases of persons with
statutory U.S. citizenship arising from birth in Puerto Rico as
recognized under this transitional citizenship arrangement.
Rather, Congress must limit the availability of this special
transitional statutory citizenship right so that it is
circumscribed and not extended beyond what is necessary to
ensure that the state of citizenship now enjoyed by persons
born in Puerto Rico under the territorial regime can be
extended as an equivalent statutory right for life on an
individual basis employed in the event Puerto Rico becomes a
separate nation.
The actual language of Section 4(a) of H.R. 3024 should be
understood as an abridged version of the preceding paragraph.
Section 5. Requirements relating to referenda, including inconclusive
referendum and applicable laws
This section provides the legal framework for conducting
referenda under this bill. Current election laws of Puerto Rico
requiring U.S. citizenship and satisfaction of residency
requirements will apply. Under those election laws, non-
residents who are serving on active duty in the military are
allowed to cast absentee ballots, and this exception is
acknowledged without creating or authorizing any deviation from
current residency and citizenship requirements.
The provisions of Section 5 relating to the authority and
procedures for conducting referenda are self-explanatory and
unambiguous.
Section 6. Congressional procedures for consideration of legislation
This section prescribes the ``expedited procedures'' for
Congressional action pursuant to this bill in response to the
results of referenda conducted under its provisions.
Section 7. Availability of funds for the referenda
This section provides that funding to conduct the referenda
required under the bill will be from existing Federal excise
taxes on foreign rum, which is covered over to the Puerto Rico
Treasury. The President may identify all or part of the excise
tax as grants to the State Elections Commission of Puerto Rico
for conducting the referenda and for voter education.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
With respect to the requirements of clause 2(l)(3) of rule
XI of the Rules of the House of Representatives, and clause
2(b)(l) of rule X of the Rules of the House of Representatives,
the Committee on Resources' oversight findings and
recommendations are reflected in the body of this report.
INFLATIONARY IMPACT STATEMENT
Pursuant to clause 2(l)(4) of rule XI of the Rules of the
House of Representatives, the Committee estimates that the
enactment of H.R. 3024 will have no significant inflationary
impact on prices and costs in the operation of the national
economy.
COST OF THE LEGISLATION
Clause 7(a) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs which would be incurred in carrying out
H.R. 3024. However, clause 7(d) of that Rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 403 of the Congressional Budget Act of 1974.
COMPLIANCE WITH HOUSE RULE XI
1. With respect to the requirement of clause 2(l)(3)(B) of
rule XI of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, H.R.
3024 does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
2. With respect to the requirement of clause 2(l)(3)(D) of
rule XI of the Rules of the House of Representatives, the
Committee has received no report of oversight findings and
recommendations from the Committee on Government Reform and
Oversight on the subject of H.R. 3024.
3. With respect to the requirement of clause 2(l)(3)(C) of
rule XI of the Rules of the House of Representatives and
section 403 of the Congressional Budget Act of 1974, the
Committee has received the following cost estimate for H.R.
3024 from the Director of the Congressional Budget Office.
congressional budget office cost estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 18, 1996.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed H.R. 3024, the United States-Puerto Rico Political
Status Act, as ordered reported by the House Committee on
Resources on June 26, 1996. CBO estimates that H.R. 3024 would
result in no significant cost to the federal government.
Enacting H.R. 3024 would not affect direct spending or
receipts; therefore, pay-as-you-go procedures would not apply.
Bill purpose.--H.R. 3024 would establish a process for
determining and implementing a permanent political status for
Puerto Rico. The process would include three stages:
(1) Puerto Rico would hold a referendum by December
31, 1998, whereby voters would choose between Puerto
Rico's continued status as a territory of the United
States and full self-government. If the voters select
the status quo, then another referendum would be held
in four years, and if necessary, every four years
thereafter. If the voters opt for self-government, they
would select on the second part of the ballot between a
separate sovereignty from the United States, resulting
in either independence or free association, and
statehood.
(2) If a majority of voters select self-government,
the President would submit legislation to the Congress
that provides for a transition of at least 10 years. In
a second referendum, voters would then approve or
disapprove the enacted transition plan.
(3) At least two years prior to the end of the
transition period, the President would submit
legislation to the Congress to implement the selected
form of self-government. A third referendum would then
be held to approve or disapprove the enacted plan.
The bill would help fund the referenda by earmarking
existing federal excise taxes on foreign rum. Under current
law, the federal government collects and then transfers these
taxes to the government of Puerto Rico. Under H.R. 3024, the
President could elect to specify that some or all of the funds
be made available to the Puerto Rico Sate Election Commission.
Federal budgetary impact.--We estimate that H.R. 3024 would
result in no significant cost to the federal government. Some
minor costs could be incurred to formulate and approve the
subsequent legislation required by the bill if the voters of
Puerto Rico select self-government. Other than such minor
costs, H.R. 3024 would only reallocate, upon request, a portion
of funds derived from federal exise taxes already paid to the
government of Puerto Rico. The total amount of those funds
would not change.
A change in the political status of Puerto Rico could have
a significant budgetary impact on the federal government. The
potential impact could include changes in spending on federal
assistance programs, such as Supplemental Security Income (SSI)
and Medicaid, plus changes in receipts from a federal income
taxes, which residents of Puerto Rico currently do not pay. Any
such changes, however, would be contingent on the outcome of
the referenda and future actions of the Congress and the
President. It is unlikely that any change could occur before
fiscal year 2010. Because the potential budgetary impact of a
change in Puerto Rico's status would depend on future
legislation, enacting H.R. 2024 would have no direct budgetary
impact (other than the minor discretionary costs cited above).
Impact on State, local, and tribal governments.--H.R. 3024
contains intergovernmental mandates as defined in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4), but the direct
cost of these mandates would not exceed the $50 million
threshold established by that act. This bill would require the
Puerto Rican government to hold a referendum no later than
December 31, 1998. If a majority of voters choose some form of
self-government, the bill would require a second referendum in
fiscal year 2000 and, possibly, another in about fiscal year
2010. If a majority choose to continue the current commonwealth
status of Puerto Rico, the bill would require a second
referendum in fiscal year 2003.
CBO estimates that the government of Puerto Rico would
incur costs of $5 million to $10 million for each referendum
required by H.R. 3024. Given the timetable established by the
bill, we expect that one referendum would be held in fiscal
year 1999 and second in either fiscal year 2000 or 2003,
depending on the outcome of the first. This estimate is based
on the cost of recent elections in Puerto Rico. It includes the
cost of voter education as well as the cost of holding
elections.
Should the process established by this bill result in a
change in the political status of Puerto Rico, this would have
a significant fiscal impact on the government of that island.
Any such change would be the result of future legislation.
Private-sector mandates.--This bill would impose no new
private-sector mandates as defined in Public Law 104-4.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are John R.
Righter (for federal costs), and Marjorie Miller (for the state
and local impact).
Sincerely,
James L. Blum
(For June E. O'Neill, Director).
compliance with public law 104-4
H.R. 3024 contains intergovernmental mandates as defined in
Public Law 104-4, but the direct cost of these mandates would
not exceed the $50 million threshold established by that act.
As described in the Congressional Budget Office letter included
above, the mandate imposed on the Government of Puerto Rico is
to hold referenda on the question of self government, at a cost
of between $5-10 million each for holding elections and voter
education. The benefit to the United States would be to clarify
the intentions of the citizens of Puerto Rico regarding their
status. The benefits for Puerto Rican citizens (who also hold
reduced U.S. citizenship) is to provide them an opportunity to
achieve self government status or to become a State of the
United States, in addition to their status quo as citizens of
the U.S. Territory. Paying for this intergovernmental mandate
will not affect competitive balance between Puerto Rico and the
private sector. H.R. 3024 provides funding for the referenda by
earmarking existing Federal excise taxes on foreign rum, which
are currently collected by the Federal Government and
transferred to the Government of Puerto Rico. These funds are
intended to provide at least partial funding, which could be
supplemented by appropriations from the Government of Puerto
Rico. Funding would be made available to the Government of
Puerto Rico for distribution. Central ruling bodies of various
political parties or other qualifying entities advocating a
particular choice for Puerto Rico's political status would be
eligible to receive grants. H.R. 3024 is not intended to
preempt any Puerto Rican law.
H.R. 3024 imposes no private sector mandates.
changes in existing law
If enacted, H.R. 3024 would make no changes in existing
laws.
DISSENTING VIEWS
H.R. 3024 gives the people of Puerto Rico the same kinds of
promises they have heard before about plebiscites and future
Congressional actions to resolve status. This bill will not
resolve the status question because it would allow 15 years or
more the additional reconsideration and modification both by
future Congress and by the voters of Puerto Rico.
The time frame set out under H.R. 3024 is ridiculously long
and gives the United States several possibilities to back out
of granting a new status. Under this bill, statehood or
independence would not be granted until the year 2011 at the
earliest. Foot dragging by either Congress or Puerto Rico could
extend that date indefinitely. An entirely new generation of
Congress, and potentially four new presidential
administrations, would determine whether or not Puerto Rico
changes status. The bill calls for 3 rounds of votes by both
Congress and the people of Puerto Rico with years of waiting in
between for the people of Puerto Rico. Congress need simply not
to act on either the transition legislation or the
implementation legislation in order to postpone a final
resolution of the status question.
During mark up of this legislation by the Resources
Committee, Representative George Miller (D-CA) sought to give
credibility to the decisionmaking process contained in the bill
and to provide certainty as decisions are made. The first vote
by the people of Puerto Rico would determine future status. If
statehood or independence won, the second vote would decide
implementation of the new status. The Miller amendment would
have ensured that the results of the status vote would be
respected by Congress. If statehood won, it would no longer be
a question of ``if'' but simply ``when'' Puerto Rico became a
State. The same would be true for independence. The Miller
amendment was a truth-in-packaging amendment intended to force
Congress to be honest with the voters of Puerto Rico about its
commitment to respecting the outcome of the plebiscite. Under
the Miller amendment, the status question would have been
decided and implementation would have been underway by the
100th anniversary of Puerto Rico's becoming a territory of the
United States. Under the approach of the legislation, nothing
will be resolved by 1998, or for years--or even decades--
thereafter.
The Administration was provided no role in either the
formulating or consideration of the legislation. Although a
hearing was held on the bill, the Administration was not
invited to testify. The Committee was never given the
opportunity to receive the expertise of the Departments of
State, Justice, Defense, or the Interagency Working Group on
Puerto Rico. Surely, if Congress intends to admit a new State
or support a new independent nation, it would not do so without
first learning how such a change would affect the several
States.
There have been 3 votes on status in Puerto Rico and the
gap between those supporting statehood and those supporting
commonwealth has been narrowing substantially. The results of
the vote taken in 1952 was 76.5% for commonwealth and 23.5% for
statehood, Many independence supporters boycotted this
election. The 1967 plebiscite found that 60.41% supported
commonwealth, 38.99% supported statehood, and 0.6% supported
independence from the United States. In the 1993 plebiscite
48.4% of voters supported commonwealth, 46.2% supported
statehood, and 4.4% supported independence.
In order for there to be a status change in Puerto Rico,
that change must be the desire of most people living on the
islands. It is essential that a territory fully support and be
prepared for the responsibilities it will encounter prior to
admission into the Union. Our nation would suffer serious
consequences if a State were brought into the Union without the
consent of it citizens. Therefore, any legislation leading to
such a possibility must be conducted in an open manner with
full participation of the Puerto Rico voters.
H.R. 3024 as introduced did not include the possibility of
retaining commonwealth, the status that has won all three
elections and is advocated by one of the two major political
parties in Puerto Rico. This effort to constrain the options
offered the people of Puerto Rico was unacceptable and drew
criticism from Congressman Miller and the Clinton
Administration. Shortly, after introduction of the bill, polls
were taken showing that overwhelmingly even statehood
supporters believed that commonwealth should be included in the
legislation. Eventually, the definition of commonwealth added
to the bill was written by statehood supporters and would
appear on the ballot without the support of the Commonwealth
party.
H.R. 3024 remains transparently skewed to illicit a
specific response. In the first round of voting, the bill puts
statehood and independence, two diametrically opposing options,
together as a new status for the obvious purpose of assuring
defeat of Commonwealth. Once that occurs, there would be a
second round run-off between commonwealth and independence
which must almost certainly result in a victory for statehood,
the option favored by the sponsors of this legislation. If this
bill proceeds, most of the voters of Puerto Rico will believe
Congress tilted the process in order to eliminate their choice,
and they will be right.
This bill also calls for the introduction of part of a new
status into the available options. The status of free
association is lumped together with independence. These are two
very separate and distinct status options.
A law enacted on July 3, 1950 authorized a constitutional
convention in Puerto Rico to draft a constitution. The
constitution has been in effect since July 3, 1952. The
constitution established a government which was given the
Spanish name of ``Estado Libre Asociado'' and the English name
of ``Commonwealth''. ``Estado Libre Asociado'' was purposely
translated by the constitutional convention into English as
``Commonwealth'' so it would not be mistaken for its literal
translation of ``Free Associated State''. At the time, the
purpose was to avoid the suggestion that Puerto Rico intended
to be a State of the Union. However, it now can be confused
with the status of free association.
Congress spent several years working out the Compacts of
Free Association with the Trust Territories of the Pacific and
Palau. These compacts require a closer relationship than would
be given an independent nation. To combine and confuse these
two options is another problem with this bill. Free Association
as Congress and the international community uses the term, has
never been called for by Puerto Rico voters. During Resource
Committee consideration, Representative Eni F.H. Faleomavaega
(D-AS) attempted to delete the term from the bill but, with
little discussion, was not successful.
Additionally, the status ballot is unmanageably long,
confusing and cumbersome. It should be shorter and more
intelligible. For example, it is not clear if those supporting
Commonwealth in the first round are allowed to move on to the
second round.
The issue of what happens to the almost 4 million U.S.
citizens if independence is selected is yet another problem
with this legislation. As introduced, the bill automatically
took U.S. citizenship away from all Puerto Ricans if
independence was selected. At the Resources Committee
consideration an amendment was accepted which appears to temper
the original language some but still leaves the question of
whether Puerto Ricans with U.S. citizenship would be treated
differently than other U.S. citizens living in foreign
countries. This amendment was added without the Committee
receiving input from either experts in the area of citizenship
or constitutional law. Dealing with citizenship issues would be
more appropriate in the transition or implementation
legislation than being made part of the ballot on the question
of status. Including such language on the ballot may be
perceived by some as a threat if independence is supported.
Puerto Rico holds elections every four years at which time
the Resident Commissioner, Governor, Legislature, and local
officials are chosen. The three political parties in Puerto
Rico are all tied to the question of status with the United
States. The Popular Democratic Party supports Commonwealth, the
New Progressive Party supports Statehood, and the Popular
Independence Party supports Independence. H.R. 3024 is being
considered during the height of the political season in Puerto
Rico, perhaps adding to the level of hyperbole.
There continues to be strong division among the voters of
Puerto Rico as to its status with the United States. The almost
4 million U.S. citizens living in Puerto Rico are not afforded
the same opportunities as those living in the several States
under the current status arrangement. That is unacceptable, and
should be addressed. Unfortunately, H.R. 3024 is not the
solution.
George Miller.
Eni Faleomavaega.
ADDITIONAL VIEWS
I would like to take this opportunity to expand upon my
previous remarks made before the Resources Committee during the
markup of H.R. 3024: The United States-Puerto Rico Political
Status Act. As anyone will acknowledge, the 3.8 million
American citizens in Puerto Rico should have the same degree of
rights, advantages, liberties, and responsibilities as any
other U.S. citizen.
Since 1917 the people of Puerto Rico have contributed to
the social, economic, and cultural history of the United
States. They have fought alongside other Americans in war and
shared in our times of domestic struggle.
Currently, Puerto Rico is living under territorial status.
For decades, this status and the special Section 936 tax
provision of the U.S. Internal Revenue Code helped Puerto
Rico's economy to mature and develop. to be sure, Section 936
was instrumental in transforming Puerto Rico from an
impoverished economic state to one of growth and opportunity.
Unfortunately, times have changed. The dramatic expansion
of the global marketplace has begun to show its impact on
Puerto Rico's economy. Puerto Rico now faces an unpredictable
investment environment in which foreign competition, especially
in labor intensive jobs, is on the rise. Moreover, as corporate
profits steadily grew, new investment and job creation began to
dwindle on the Island. In fact, employment commitments by non-
local investors in Puerto Rico, the true beneficiaries of the
936 tax status, have fallen from over 11,000 jobs in 1987 to
4,900 jobs in 1995.
Under the Territorial Clause of the Constitution, Congress
clearly has within its powers to legislate on the future
political and economic status of Puerto Rico. For several years
now the 936 tax status has been under attack in Congress. Once
seen as an engine of economic development, 936 is today more
commonly thought of as a facilitator of corporate welfare and
economic instability.
In many ways the 936 tax status is at an end. Both the
104th Congress and the Clinton Administration have taken steps
to fundamentally reform Puerto Rico's economic relationship
with the United States. Should 936 status be officially
terminated without providing an alternative status neutral job
creating program, it is reasonable to assume that the Puerto
Rican economy will experience increased job loss (unemployment
is already at 12 percent) and economic uncertainty.
Clearly, the economy of Puerto Rico is inexorably tied to
the future of the Island's political status. During the 1993
plebiscite, advocates of retaining Commonwealth status declared
that Puerto Ricans would be able to retain the 936 tax status
and permanently secure the ``bilateral pact'' with the United
States that could not be altered without mutual consent. As
this Congress has clearly indicated, these assertions are
simply not the case. The United States has the express
authority to dictate the future of Puerto Rico's economic and
political status without the approval of the American citizens
in Puerto Rico.
Fortunately, the United States has chosen to recognize the
right of the people of Puerto Rico to self-determination,
including the right to approve any permanent political status
which will be established upon termination of the current
unincorporated territory status. For years, Puerto Rico has
tried to address the issue of political status through
unsuccessful referenda. This situation has led to a significant
degree of confusion about the future of the Island.
The introduction of The United States-Puerto Rico Political
Status Act (H.R. 3024), of which I am an original co-sponsor,
is consistent with the established right of all Puerto Ricans
to choose their own political destiny. It is the goal of the
bill to help Puerto Rico move towards a process of full self
government and end almost 100 years of political limbo.
For my part, I have indicated many times before that if I
were given the choice of retaining territorial status or
ratifying Puerto Rico as the 51st state I would definitively
choose the latter. Territorial status has certainly served the
people of Puerto Rico well. It is time however, to move on for
both political and economic reasons.
Politically, the fact that almost 4 million citizens cannot
vote for the President is egregious. If Puerto Rican's can
fight in war and potentially die for our nation then they
should have the opportunity to vote for the person who decides
to send them into battle.
Additionally, the fact that Congress can make substantial
funding and legislative decisions upon the people of Puerto
Rico without their consent or participation is contradictory to
the spirit of Democracy. If Puerto Rico becomes a state, the
Island will boast the full voting strength of at least 7
members in the House of Representatives and two in the Senate.
These elected officials will be able to fight for the rights
and privileges of the Americans living in Puerto Rico.
Economically, the citizens in Puerto Rico currently live in
a state of colonialism. The rights and opportunities that are
conferred upon the individual states are not equally attributed
to the territory of Puerto Rico.
Due to Puerto Rico's current federal tax status many U.S.
programs and entitlements are summarily capped. The reason for
the cap has traditionally been because of lack of payment of
federal income taxes.
Unfortunately, the advantage that Puerto Rico has received
in return. Section 936 tax status, is not transferred to the
working people and families of Puerto Rico. In fact over 24% of
the Puerto Rican economy in 1995 was held by non-resident
businesses and corporations. Moreover, many of these
businesses, in particular large pharmaceutical companies, have
saved as much as $187,000 per employee annually through Section
936 tax credits. This far exceeds the wages earned by these
employees, and signifies huge profit margins for the corporate
subsidiaries. Clearly, Section 936, which was designed to
facilitate investment in Puerto Rico has worked, but it has
done so at the expense of the Puerto Rican people. Large
companies have greatly increased their wealth while working
families have struggled. Per capita income in Puerto Rico is
more than 50% lower than that of the poorest states in the
continental United States.
Concurrently, Puerto Rican residents have not been able to
enjoy the same benefits as the states when it comes to federal
entitlement and discretionary spending.
In my own state of Rhode Island one of the most important
entitlement programs is Medicaid. In 1994 Rhode Island received
almost $500 million Medicaid entitlements to help ensure health
and long-term care coverage to poor families and disadvantaged
children. Rhode Island has a total population of less than 1
million in which approximately 19 percent was enrolled in the
Medicaid program.
By contrast, Puerto Rico's Medicaid disbursement was capped
at just over $122 million for FY95 for a population that is
almost 4 times larger. If we compare this statistic to states
like Kentucky and South Carolina, which have similar
populations to Puerto Rico, we can see first hand the
tremendous disparity that the Island faces in Medicaid
entitlements. In 1995, Kentucky and South Carolina received
about $1.5 and $1.4 billion in Medicaid disbursements,
respectively, a significant difference from that of Puerto
Rico.
The majority of Puerto Ricans are clearly experiencing a
second class standard of living. In 1992 over 2.5 million or
66% of Puerto Ricans were classified as living below the
poverty level. In the same year almost 50% of the people did
not have health insurance. With regard to the current Medicaid
formula, Puerto Rico, with its particularly high percentage of
below poverty citizens, would stand to significantly increase
health care coverage for all who qualify for the program.
Adequate funding for education is equally lacking. In 1993,
the average per pupil expenditure in public and secondary
education was $1,779 as compared to almost $6,700 in Rhode
Island. If Puerto Rico was considered with the individual
states the Island would rank last in this important category.
Additionally, in the same year, 50% of Puerto Ricans did not
graduate from high school and less than 15% of the population
attained a bachelor's or more advanced degree.
To be sure, the foundation of Puerto Rico's future
workforce is not being trained to compete for the high skill/
high wage jobs of the 21st century. Under territorial status,
the children and Puerto Rican students are disproportionately
handicapped to excel in the global marketplace.
Combined, the factors of an ineffectual 936 tax status,
capped federal funds, and reduced overall discretionary
spending, have led to a substantially lower standard of living
for all the American citizens living on the Island. Indeed, the
aforementioned statistics seem to indicate that Puerto Rico is
not prospering under territorial status.
As I have indicated, with the very real prospect of Section
936 phase-out, Puerto Rico has come to an economic crossroads
that can only be addressed by significant political reform. The
need for full self government is at hand. If the people of
Puerto Rico choose the Statehood option, it is my contention
that the Island will begin to develop the seeds of true
economic growth and prosperity. This development will not be
based on the failed notion of trickle down economics where the
large companies have grown rich while working families remain
poor. Rather, with equal participation in U.S. affairs, Puerto
Rico will be able to take advantage of every opportunity that
the Federal Government and separate states have to offer.
Ultimately, the choice between territorial status and
statehood is a choice between stagnation and growth, and
between the past and the future. The privileges of statehood
are many where the opportunities of territorial status are
steadily being erased. I have allied myself with the advocates
of statehood because I believe that full integration with the
United States is the only way to end centuries of colonialism
and disenfranchisement for the people of Puerto Rico.
The United States-Puerto Rico Political Status Act seeks to
address this issue in good faith. Only by first addressing the
political question can we hope to create an environment of
prosperity for all the Americans living in Puerto Rico.
Patrick J. Kennedy.