R E P O R T B Y T H E  P R E S I D E N T ’ S  T A S K F O R C E  O N  P U E R T O R I C O ’ S  S TAT U S

R E P O R T B Y T H E P R E S I D E N T ’ S  T A S K  F O R C E

O N P U E R T O R I C O ’ S S T A T U S

I. Members of the Task Force

II. Statement of Guiding Principles

III. Executive Orders

IV. Historical Overview

V. Legal Analysis of Options

VI. Task Force Recommendations

R E P O R T B Y T H E P R E S I D E N T ’ S T A S K F O R C E O N P U E R T O R I C O ’ S S TAT U S

Deputy Assistant to the President for Intergovernmental Affairs

The White House

Deputy Assistant Attorney General in the Office of Legal Counsel

The Department of Justice

Senior Advisor to the Secretary

The Department of Agriculture

Director of Intergovernmental Affairs

The Department of Commerce

Deputy General Counsel (Legal Counsel), Office of the Secretary

The Department of Defense

Assistant Deputy Secretary

The Department of Education

Director of the Office of Economic Impact and Diversity

The Department of Energy

R E P O R T B Y T H E P R E S I D E N T ’ S T A S K F O R C E O N P U E R T O R I C O ’ S S TAT U S

Director of Intergovernmental Affairs

The Department of Health and Human Services

Director for State and Local Coordination

The Department of Homeland Security

Deputy Assistant Secretary for Intergovernmental Affairs

The Department of Housing and Urban Development

Deputy Assistant Secretary for Fish, Wildlife and Parks

The Department of the Interior

Assistant Secretary for Policy

The Department of Labor

Director of Intergovernmental Affairs

The Department of State

Deputy Assistant Secretary for Governmental Affairs

The Department of Transportation

Assistant Secretary for Public Affairs

The Department of the Treasury

Deputy Assistant Secretary for Intergovernmental Affairs

The Department of Veterans’ Affairs

The mission of the President’s Task Force on

Puerto Rico’s Status (Task Force) is to provide

options for Puerto Rico’s future status and relationship

with the Government of the United

States of America. It has approached this

mission without prejudice towards a status

option and has developed options that are

compatible with the Constitution and basic

laws and policies of the United States.

The Task Force has developed these options

after listening to and considering the views of

individuals, elected officials, and other representatives

of the people of Puerto Rico to

ensure that views and positions have been

objectively considered irrespective of affiliation

or ideology.

R E P O R T  B Y  T H E  P R E S I D E N T ’ S  T A S K  F O R C E  O N

 P U E R T O  R I C O ’ S   S TAT U S

1

President George H.W. Bush issued a Memorandum on November 30, 1992, to

heads of Executive Departments and Agencies establishing the current

administrative relationship between the Federal Government and the

Commonwealth of Puerto Rico. This memorandum directs all Federal

departments, agencies, and officials to treat Puerto Rico administratively as if it

were a State insofar as doing so would not disrupt Federal programs or

operations.

President Bush’s memorandum remains in effect until Federal legislation is

enacted to alter the status of Puerto Rico in accordance with the freely

expressed wishes of the people of Puerto Rico (See Appendix A).

On December 23, 2000, President William J. Clinton signed Executive Order

13183, which established the President’s Task Force on Puerto Rico’s Status

and the rules for its membership. This Executive Order outlines the policy and

functions of the Task Force in identifying the options for the island’s future  

status  and the process for realizing an option (See Appendix B).

On April 30, 2001, President George W.Bush amended Executive Order 13183,

extending the deadline for the Task Force to forward a report to the President

until August 2001 (See Appendix C).

President Bush signed an additionalamendment to Executive Order 13183 on

December 3, 2003, which established the current co-chairs and instructed the

Task Force to issue reports as needed, but no less than once every two years

(See Appendix D).

R E P O R T  B Y  T H E  P R E S I D E N T ’ S   T A S K   F O R C E   O N   

 P U E R T O   R I C O ’ S   S TAT U S

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The Commonwealth of Puerto Rico has a rich tradition and history. As United

States citizens, the people of Puerto Rico have enhanced American society and

culture. Among their many contributions, Puerto Ricans have been recognized

for their service and sacrifice in the United States Armed Forces.

The modern history of Puerto Rico traces back to November 19, 1493, when

Christopher Columbus discovered the island on his second voyage to the New

World and found it populated by Taino Indians. He named the island “San Juan

Bautista,” for St. John the Baptist, and the main town “Puerto Rico.” In 1521, the

city and the island exchanged names, and the City of San Juan Bautista de

Puerto Rico became the official capital.

The Treaty of Paris, which formally ended the Spanish-American War on

December 10, 1898, resulted in Spain relinquishing its holdings in the

Caribbean, including Puerto Rico. The island was governed by a U.S. military

governor from October 1898 until May 1900.In 1900, the U.S. Congress passed

the Foraker Act, which established a civilian government in Puerto Rico, with a  

governor and an executive council appointed by the President of the United

States, a legislature, a judicial system, and a non-voting Resident

Commissioner in Congress. Under the Foraker Act, all Federal laws were to be

enforced on the island.During an address to the Puerto Rican legislature in

1906, President Theodore Roosevelt recommended that Puerto Ricans

become U.S. citizens. Congress next acted by passing the Jones-Shafroth Act in

1917, which established the island as an “organized but unincorporated” territory

of the United States and granted U.S. citizenship to Puerto Ricans. Under the

Jones Act, the United States Congress had the authority to stop action taken by

the island legislature.

The United States maintained control over economic, defense, and other basic

governmental affairs.

On April 2, 1943, U.S. Senator Millard Tydings introduced a bill in Congress

calling for independence for Puerto Rico.This bill ultimately was defeated.

On July 21, 1946, President Harry Truman appointed Jesús T. Piñero as the

first native Puerto Rican to hold the position of governor of the island.

On August 4, 1947, the U.S. Congress approved a law allowing the election of

the governor by the people of Puerto Rico. On November 2, 1948, Luis

Muñoz  Marin became the first governor elected by the Puerto Rican electorate

with 61.2% of the vote.

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On July 3, 1950, the U.S. Congress

passed Public Law 600 (known as the

Puerto Rican Federal Relations Act), giving

Puerto Rico the right to establish a government

and a constitution for the internal

administration of the Puerto Rico government

and “on matters of purely local

concern.” It expressly upholds the terms of

the Jones Act of 1917. On June 4, 1951,

76.5% of the island’s electorate favored

Public Law 600 in a referendum. The

people of Puerto Rico approved a new

constitution with 80% of the vote in a

referendum held on March 3, 1952.

In response to the growing movement for

statehood in Puerto Rico, Governor

Roberto Sánchez Vilella arranged for a

plebiscite (a popular vote concerning

changes in sovereignty) to be held on July

23, 1967, in which the Puerto Rican electorate

was asked to vote on the issue of

Puerto Rico’s relationship with the United

States. In this first plebiscite on political

status, Puerto Ricans were asked to choose

among the existing commonwealth status,

statehood, and independence. The voters

chose to continue the commonwealth

status:

In 1991, a plebiscite calling for a review

of the commonwealth status was rejected

by 55% of the electorate.

On November 14, 1993, another

plebiscite was held on the island in which a

plurality of Puerto Ricans favored retaining

commonwealth status in association with

the United States as a self-governing polity.

The electorate voted as follows:

On February 26, 1997, Congressman

Don Young of Alaska introduced House

Resolution 856, which called for a vote on

Puerto Rico’s status before December 31,

1998. Although the House Resolution

failed to be enacted, a plebiscite was nevertheless

held on December 13, 1998, in

which the Puerto Rican electorate rejected

all status options presented with “none of

the above” receiving a slight majority of the

votes. The votes were as follows:

993 0.06%

4536 0.29%

728157 46.49%

39838 2.54%

787900 50.30%

4846 0.31%

In this plebiscite, the leadership for the

Popular Democratic Party (PDP) backed

continued commonwealth status, but

campaigned in favor of “none of the above”

because of disagreement with the “territorial”

definition of the commonwealth option

on the ballot.

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The U.S. Constitution allows for three

options for the future status of Puerto Rico:

continuing territorial status (including the

current Commonwealth system), statehood,

and independence. This section

briefly explains the possibilities and major

issues under each option.

The existing form of government in

Puerto Rico is often described as a

“Commonwealth,” and this term recognizes

the powers of self-government that

Congress has allowed. The current

Commonwealth system was established

pursuant to Public Law 600, discussed in

the previous section. Congress approved

the Puerto Rican constitution in 1952,

subject to several conditions that Puerto

Rico fulfilled through amendments that

took effect in 1953. In addition, the term

“Commonwealth” has been given other

meanings with regard to Puerto Rico. Some

of the uses of the term in that context are

discussed in a report of the Committee on

Resources of the U.S. House of

Representatives regarding H.R. 856, the

“United States-Puerto Rico Political Status

Act,” which narrowly passed the House in

However that term may be used, Puerto

Rico is, for purposes under the U.S.

Constitution, “a territory,” as President

George H.W. Bush recognized in his 1992

memorandum concerning Puerto Rico (See

Appendix A). It is, therefore, subject to

congressional authority, under the

Constitution’s Territory Clause, “to dispose

of and make all needful Rules and

Regulations respecting the Territory…

belonging to the United States.” In

adopting this view of Puerto Rico’s current

status, President Bush was confirming the

view that the U.S. Department of Justice

had taken in congressional testimony in

1991 and had first reached in 1959.

Congress may continue the current system

indefinitely, but it also may revise or revoke

it at any time. For example, Congress could

legislate directly on local matters or determine

the island’s governmental structure by

statute, as it has for Guam and the U.S.

Virgin Islands. Congress likewise could

allow the island increased powers of selfgovernment,

subject to limitations imposed

by the Constitution (some of which, such as

in the area of international agreements, are

discussed in a letter that the Justice

Department sent to Congress on January

18, 2001, included in this report as

Appendix E).

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Some have proposed a “New

Commonwealth” status. Under this

proposal, the island would become an

autonomous, non-territorial, non-State

entity in permanent union with the United

States under a covenant that could not be

altered without the “mutual consent” of

Puerto Rico and the federal Government.

The U.S. Constitution, however, does not

allow for such an arrangement. For entities

under the sovereignty of the United States,

the only constitutional options are to be a

State or territory. As the U.S. Supreme

Court stated in 1879, “All territory within

the jurisdiction of the United States not

included in any State must necessarily be

governed by or under the authority of

general rule that one legislature cannot

bind a subsequent one. For example, one

Congress may repeal or amend the laws of

a previous one, and Congress may pass

laws inconsistent with treaties. Thus, one

Congress cannot irrevocably legislate with

regard to a territory (at least where the

legislation is not part of converting the

territory into a State) and, therefore, cannot

restrict a future Congress from revising a

delegation to a territory of powers of selfgovernment.

The Federal Government may relinquish

United States sovereignty by granting independence

or ceding the territory to another

nation; or it may, as the Constitution

provides, admit a territory as a State, thus

making the Territory Clause inapplicable.

But the U.S. Constitution does not allow

other options. It therefore is not possible,

absent a constitutional amendment, to bind

future Congresses to any particular

arrangement for Puerto Rico as a

Commonwealth.

The Executive Branch of the Federal

Government, through the Department of

Justice, temporarily took a different position

on this question by relying on the

partial exception to the general rule for acts

of a legislature that are contracts granting

or transferring property as a private party

would do. Under the U.S. Constitution’s

Fifth Amendment, Congress cannot deprive

“any person” of “property” without due

process of law and cannot take “private

property” for public use without providing

just compensation. Where the Federal

Government has granted a vested property

right, it ordinarily may not take away that

right without paying damages. The Justice

Department in a 1963 memorandum

concluded that a compact granting selfgovernmental

authority to a territory could

“create vested rights of a political nature”

that a subsequent Congress could not

revoke unilaterally. The Department reiterated

this position as late as 1975, and the

United States that year entered into a

covenant with another territory, the

Commonwealth of the Northern Mariana

Islands, that contains a mutual-consent

provision. The Justice Department reconsidered

this position in the administration

of President George H.W. Bush, apparently

spurred by a 1986 Supreme Court decision

that reaffirmed a more traditional understanding

of vested property rights in

holding that a State’s purported contractual

right to withdraw its employees from Social

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477 U.S. 41, 54-56 (1986)). In congressional

testimony on February 7, 1991, U.S.

Attorney General Richard Thornburgh

rejected the view that a mutual-consent

provision could prevent a future Congress

from altering any covenant with Puerto

102d Cong. 206-07 (1991)). The Justice

Department reaffirmed that position

repeatedly during the Clinton

Administration, particularly in a 1994

memorandum concerning Guam, in

congressional testimony on October 4,

2000, and in its January 18, 2001, letter to

Congress (See Appendices E and F). After

undertaking a thorough review of the question

in connection with the work of the

Task Force, the Department continues to

adhere to that position.

In summary, whether the “New

Commonwealth” proposal is understood to

envision a political entity under some form

of United States sovereignty or an independent

country somehow associated with

the United States, a mutual-consent provision

would be unenforceable and could not

guarantee that any given political status or

agreement would be permanent.

The Constitution authorizes Congress to

admit new States. In practice, admission by

Congress often has been preceded by territories

developing their own constitutions

and petitioning for statehood. In addition,

Congress may set conditions for admission

of a territory as a State. Once admitted, a

new State stands on an equal footing with

the original States in all respects.

Puerto Rico is an “unincorporated”

territory, which means that it is not

intended to become a State. It therefore is

subject only to the most fundamental provisions

of the U.S. Constitution. As part of

the process of becoming a State, a territory

becomes “incorporated” into the United

States by Congress. An incorporated territory

is subject to the entire U.S.

Constitution except for those provisions

that expressly apply only to States. In addition,

an “incorporated territory” is subject

to the Constitution’s Tax Uniformity

Clause, which requires that all Federal

“Duties, Imposts, and Excises” be uniform

throughout “the United States.” Puerto

Rico’s residents are currently exempt from

most Federal income tax laws and receive

certain tax preferences. If Puerto Rico were

incorporated (or admitted), the

Constitution would generally no longer

allow such preferential treatment, but

would probably allow a transition period

to minimize economic dislocation.

If Puerto Rico were to become a State,

Puerto Rican citizens would be entitled to

vote for President, two U.S. Senators, and

full voting Members in the House of

Representatives. With regard to the House,

Article I, Section 2 of the U.S. Constitution

states:

Representatives and direct Taxes

shall be apportioned among the

several States which may be included

within this Union, according to their

respective Numbers…. The actual

Enumeration shall be made within

three Years after the first Meeting of

the Congress of the United States,

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and within every subsequent Term of

ten Years, in such Manner as they

shall by Law direct.

The number of Members in the House of

Representatives would be in proportion to

Puerto Rico’s population based on the next

congressional reapportionment, following

the 2010 census. The U.S. Census Bureau

conducts the population count of each State

and is responsible for the administrative

procedures for the apportionment for each

State based on a formula determined by

Congress.

When the States of Hawaii and Alaska

were admitted, Congress temporarily

increased the membership of the House to

allow each of the new States to elect one

Representative until the next reapportionment.

Congress also, in some cases where

the population justified it, has made interim

additions of more than one Representative.

As already discussed, Congress’ power

under the U.S. Constitution’s Territory

Clause does include the power to relinquish

all of its sovereignty over a territory.

Congress thus may determine whether and

upon what conditions a territory may

receive independence, and its authority to

regulate those conditions remains until the

point of independence.

For example, the Territory of the

Philippines, which the United States

acquired from Spain at the same time as

Puerto Rico, received its independence

under the Philippine Independence Act of

1934. Under this Act, Congress set out the

process by which the islands eventually

would gain independence by authorizing

the Philippine government to hold a

convention to draft a constitution for an

interim Commonwealth under which the

Philippines would exercise extensive selfgovernment,

with limited United States

involvement, pending full independence.

The constitution was subject to approval by

the President and ratification by the qualified

voters of the Philippines. The Act

provided that, after a transition period of

ten years from the establishment of the

Commonwealth, the President by proclamation

would “withdraw and surrender all

right of possession, supervision, jurisdiction,

control, or sovereignty” over the

islands (with the exception of certain

governmental property and military bases)

and “recognize the independence of the

Philippines as a separate and self-governing

nation.” In 1946, after World War II, the

President did proclaim independence, and

the two nations entered into a Treaty of

General Relations.

Another possible model of independence

is that of the “freely associated states” of

Micronesia, the Marshall Islands, and

Palau. The freely associated states were

part of the Trust Territory of the Pacific

Islands, which the United States administered

following World War II. Micronesia

and the Marshall Islands became independent

in 1986, and Palau became

independent in 1994, after Congress

approved negotiated “compacts of free

association” with the territories. Among

other rights, they therefore gained the full

right to conduct their own foreign relations.

The freely associated states retained

close ties to the United States, however,

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and the United States continued to provide

security, defense, and various other types

of financial assistance and services.

Citizens of the freely associated states may

generally enter the United States as nonimmigrants

and may establish residence

and work here. Although these three

compacts did contain clauses requiring the

mutual consent of the parties to changes,

the renegotiated compacts approved by

Congress in 2003 with Micronesia and the

Marshall Islands provided for unilateral

termination, consistent with the constitutional

views discussed above.

Among the constitutionally available

options, freely associated status may come

closest to providing for the relationship

between Puerto Rico and the United States

that advocates for “New Commonwealth”

status appear to desire. But it would need to

be made clear to the people of Puerto Rico

that freely associated status is a form of

independence from the United States and

cannot (absent an amendment of the U.S.

Constitution) be made immune from the

possibility of unilateral termination by the

United States. If this option were considered,

there also would be a policy question

for the President and Congress as to

whether Puerto Rico’s significantly greater

population (approximately 4 million,

compared to 136,000 in Micronesia, the

largest of the freely associated states) makes

a relationship with Puerto Rico similar to

that with the existing freely associated

states desirable or practical.

Any planning for Puerto Rican independence

would need to consider

citizenship. Individuals born in Puerto

Rico are citizens of the United States by

statute (rather than by being born or naturalized

in the United States). The general

rule is that citizenship follows sovereignty.

So if Puerto Rico were to become an independent

sovereign nation, those who chose

to become citizens of it or had U.S. citizenship

only by statute would cease to be

citizens of the United States, unless a

different rule were prescribed by legislation

or treaty, much as citizens of the

Philippines lost their status as U.S.

nationals once the Philippines became

independent.

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The Task Force recognizes that the

authority under the U.S. Constitution to

establish a permanent non-territorial status

for the Commonwealth of Puerto Rico rests

with Congress.

Although the current territorial status

may continue so long as Congress desires,

there are only two non-territorial options

recognized by the U.S. Constitution that

establish a permanent status between the

people of Puerto Rico and the Government

of the United States.

• One is statehood. Under this option,

Puerto Rico would become the 51st

State with standing equal to the other

50 States.

• The other is independence. Under this

option, Puerto Rico would become a

separate, independent sovereign

nation.

The democratic will of the Puerto Rican

people is paramount for the future status of

the territory. Ideally, the process should

begin with an expression from the people of

Puerto Rico on whether to maintain current

territorial status or establish a permanent

non-territorial status with regard to the

United States. The popular will of the

people should be ascertained in a way that

provides clear guidance for future action by

Congress.

Therefore, the following are the recommendations

of the Task Force:

1. The Task Force recommends that

Congress within a year provide for a

Federally sanctioned plebiscite in which the

people of Puerto Rico will be asked to state

whether they wish to remain a U.S. territory

subject to the will of Congress or to

pursue a Constitutionally viable path

toward a permanent non-territorial status

with the United States. Congress should

provide for this plebiscite to occur on a date

certain.

2. The Task Force recommends that if

the people of Puerto Rico elect to pursue a

permanent non-territorial status, Congress

should provide for an additional plebiscite

allowing the people of Puerto Rico to

choose between one of the two permanent

non-territorial options. Once the people

have selected one of the two options,

Congress is encouraged to begin a process

of transition toward that option.

3. If the people elect to remain as a territory,

the Task Force recommends,

consistent with the 1992 memorandum of

President Bush, that a plebiscite occur periodically,

as long as that status continues, to

keep Congress informed of the people’s

wishes.

APPENDIX

A

HeinOnline -- 57 Fed. Reg. 57093 1992

APPENDIX

B

By the authority vested in me as President by the Constitution and the

laws of the United States of America, including Public Law 106-346, it

is hereby ordered as follows:

of the United States of America to help answer the questions that the

people of Puerto Rico have asked for years regarding the options for the

islands’ future status and the process for realizing an option. Further, it

is our policy to consider and develop positions on proposals, without preference

among the options, for the Commonwealth’s future status; to discuss

such proposals with representatives of the people of Puerto Rico and the

Congress; to work with leaders of the Commonwealth and the Congress

to clarify the options to enable Puerto Ricans to determine their preference

among options for the islands’ future status that are not incompatible with

the Constitution and basic laws and policies of the United States; and

to implement such an option if chosen by a majority, including helping

Puerto Ricans obtain a governing arrangement under which they would

vote for national government officials, if they choose such a status.

a task force to be known as ‘‘The President’s Task Force on Puerto

Rico’s Status’’ (Task Force). It shall be composed of designees of each

member of the President’s Cabinet and the Co-Chairs of the President’s

Interagency Group on Puerto Rico (Interagency Group). The Task Force

shall be co-chaired by the Attorney General’s designee and a Co-Chair of

the Interagency Group.

forth in section 1 of this order. It shall ensure official attention to and

facilitate action on matters related to proposals for Puerto Rico’s status

and the process by which an option can be realized. It shall provide advice

and recommendations on such matters to the President and the Congress.

It shall also provide advice and recommendations to assist the Executive

Office of the President in fulfilling its responsibilities under Public Law

106-346 to transfer funding to the Elections Commission of the Commonwealth

of Puerto Rico for public education on and a public choice among

options for Puerto Rico’s future status that are not incompatible with the

Constitution and the basic laws and policies of the United States.

not later than May 1, 2001, and thereafter as needed but not less than

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annually on progress made in the determination of Puerto Rico’s ultimate

status.

ÏÐ

THE WHITE HOUSE,

[FR Doc. 00–33451

Filed 12–28–00; 8:45 am]

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APPENDIX

C

By the authority vested in me as President by the Constitution and the

laws of the United States of America, and in order to extend by 3 months

the time in which the President’s Task Force on Puerto Rico’s Status is

to report to the President as directed in Executive Order 13183 of December

23, 2000, it is hereby ordered that section 4 of Executive Order 13183

is amended by deleting ‘‘May 1, 2001’’ and inserting in lieu thereof ‘‘August

1, 2001’’.

W

THE WHITE HOUSE,

[FR Doc. 01–11210

Filed 5–1–01; 9:07 am]

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APPENDIX

D

Vol. 68, No. 235

Monday, December 8, 2003

By the authority vested in me as President by the Constitution and the

laws of the United States of America, it is hereby ordered that Executive

Order 13183 of December 23, 2000, as amended, is further amended as

follows:

(1) Section 2 is amended by deleting the second and third sentences,

and inserting in lieu thereof the following: ‘‘It shall be composed of designees

of each member of the President’s Cabinet and the Deputy Assistant to

the President and Director for Intergovernmental Affairs. The Task Force

shall be co-chaired by the Attorney General’s designee and the Deputy

Assistant to the President and Director for Intergovernmental Affairs.’’

(2) By deleting section 4, and inserting in lieu thereof the following:

as needed, but no less frequently than once every 2 years, on progress

made in the determination of Puerto Rico’s ultimate status.’’

W

THE WHITE HOUSE,

[FR Doc. 03–30513

Filed 12–5–03; 8:45 am]

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APPENDIX

E

The Honorable Frank H. Murkowski

Chairman, Committee on Energy and Natural Resources

United States Senate

Dear Mr. Chairman:

This is in response to your letter to President Clinton requesting that the Administration

provide an analysis of the status options for Puerto Rico favored by the three principleqolitical

parties in Puerto Rico This letter provides comments on two proposals that were voted on in

the December 1998 political status plebiscite in Puerto Rico, as well as a third proposal outlined

by the Popular Democratic Party in its 2000 platfom. The first proposal, for Statehood, is

The third proposal, the "New Commonwealth" option, is described in the Popular Democratic

Party pla~formd ocuments. Given the complexity and number of proposals on which our

comments nave been sought, we address only a limited number of issues raised by the proposals,

most of them constitutional in nature.

1. Statehood

The Statehood option1 provides that Puerto Rico would become "a sovereign state, with

rights, responsibilities and benefits completely equivalent to those enjoyed by the rest of t k

The Statehood proposal contemplates a peti!ion to Congress asking it to provide for the follo\ling:

The admission of Puerto Rico into the Union of the United States of America as

a Iovereign state, with rights, responsibilities and benefits completely equal to

hose enjoyed by the rest of the states. Retaining, furthermore, the sovereignty

of Puerto Rico in those matters which are not delegaled by the Constitution of

the United Stales lo the Federal Government. The rigllt to the presidenlial vote

and equal representation in the Senate and proportional representation in the

House of Representatives, mlhouc impairment to Llle representation of the rest

of the states. Also maintaining Lhe present Constitution of Puerto Rico and the

same Commonwealth laws, and with permanent United Slates citizenship

guaranteed by Lhe Constitution of the United Slates of America. The provisions

of the Fedcrd law on the use of the English languzge in the agencies and courts

of the Federal Govenrr.ect in ~e fifty sla:es of the Union shall apply equally in

h e Slate of Puerio Rico, as at present.

stetes." The principle that a new State stands on "equal fociing wiih the o~ginaSl tates in all

Court caselaw makes clear that, as a State, Pueno Rico would be "equal in power, dignity, and

consequences not fully articulated in the st3tehood proposal itself. Currently, as an

unincorporated tenitory, Pueno Rico is not subject to the Tax Uniformity Clause, which requires

that "all Duties, Imposts, and Excises" imposed by Congress "shall be uniform throughout the

laws), and it has other tax preferences not applicable to the States, although it also does not

(providing that, with certain exceptions, "the internal revenue laws" shall not apply in Puerto

it would be covered by the Tax Uniformity Clause and many, if not all, ofthese different tax

treatments could not constitutionally be preserved on a permanent basis. See Politica~S tatus of

102d Cong. 189-90 (199 1) (testimony of Attorney General Richard Thornburgh) ("Thornburgh

Testimony") (reaching this conclusion, but also noting that the Tax Uniformity Clause permits the

use of narrowly tailored transition provisions under which Puerto Rico's tax status need not be

altered immediately once the decision werz made to bring it into the Union as a State).

In addition, the statement in the Statehood option that admitting Puerto Rico as a State

would no; result in the "impailment of the representation of the rest of the states" may be

inaccurate. If Puerto Rico gains representatives in Congress, it will affect the representation of

the rest ofthe States in both the Senate and the House. In the Senate, because granting Puerto

Rico two senators will increase the total membership of the Senate, the representation of the other

States in the Senate will decline as a proportion ofthe whole, arguably "impair[inglW their

representation. Similarly, if the total number of representatives in the House of Representatives

were :o he increased btyond its iuirerlt number of435 with the addition of representatives from

Puerto Rico, then the representation of current St~teass a proportion of the whole would decline,

again arguably "impair[ingJ" their representation. If, on the other hand, the total nilmber of

representatives were to remain fixed at 435, then the fact that Puerto Rico had achieved

representation would necessarily mean that at least one State would have fewer representatives.

The representation of that State (or States) would arguably be "impair[edIn in two ways: its

number ofrepresentatives in the House would decline, and (like all the other States) its

representation would decline as a proportion of the whole.'

Moreover, the clalise "maintaining the present Constitution of Puerto Rico and the same

Rico. Such a statement might not be entirely correct. Currently, not all provisions of the United

U.S. at 291 (White, J., concurring in the judgment) (explaining that only constitutional provisions

that are "of so fundamental a nature that they cannot be transgressed" apply to unincorporated

territories such as Puerto Rico). If Puerto Rico were to become a State, however, it would then

be subject to the entirc Constitution. In that event, some aspects of Puerto Rico's constitution

and laws might be preempted by the Constitution pursuant to the Supremacy Clause, U.S. Const.

art. VI, cl. 2. Similarly, the admission of Puerto Rico as a State might extend to Puerto Rico

some federal statutes that may be deemed not to apply to Puerto Rico at present because:hey are

written to apply only in the several States. If so, then under the Supremacy Clause those statutes

noted that Congress currently has power to preempt laws of Puerto Rico).

2. Independence

The Independence proposal contains certain provisions regarding citizenship. Specifically,

it states:

The residents of Puerto Ilico shall owe allegiance to, and shall have the citizenship

and nationality of, the Republic of Puerto Rico. Having been born in Puerto Rico

or having relatives with statutory United States citizenship by birth shall no longer

be grounds for United States citizenship; except for those persons who already had

the United States citizenship, who shall have the statutory right to keep that

citizenship for the rest of their lives, by right or by choice, as provided by the laws

of the Congress of the United States.

This proposal could be read as hiving two possible meanings: it could mean that persons already

holding United States citizenship based on their birth in Puerto Rico or on the birth of their

relatives have a right to ihat citizenship and that Congress must legislate in a way that makes

provision for that right; or, it could mean that Congress has discretion to decide whether persons

who have United States citizenship by virtue of their birth in Puerto Rico (or by virtue of having

United States citizen relatives) will retain that citizenship once Puerto Rico becomes

inde~endent.A~t least the second reading raises the question whether statutory United States

citizens residing in Puerto Rico at the time of independence would have a constitutionally

protected right to retain that citizenship shotlld Congress seek to terminatc it.'

Although the proposal speaks of a "statutory right" to retain citizen~hit~he,~re is at least

an argument that individuals possessing United States citizenship would have a constilutional

righ; to retaii~t hat citizenship, even if they continue to reside in Puerto Rico after independence.

other hand, there is also case law dating from the early republic supporting the proposition that

(1828) (Marshdl, C.J.) (upon the cession of a territory the relations of its inhabitants "with their

former sovereign are dissolved, and new relations are created between them, and the government

which has acquired their territory. The same Act which transfers their country, transfers the

allegiance of those who remain in it."); Boyd v. Nebraska ex rel. Thqyer, 143 U.S. 135, 162

that of the government under whose dominion they pass, subject to the right of election on their

part to retain their former nationality by removal, or otherwise, as may be provided.");'~nited

recognizing a "generally accepted principle of international law" that "[ilf the inhabitants [of a

newly independent nation] remain within the territory [of the new nation] their allegiance is

another res~ltsin a corresponding change in nationality for the inhabitants of that territory" aild

that, in some bases of territory transfer, inhabitants can choose k w e e n retaining their former

nationality and acquiring that of the new state). In view ofthe tension between Afroyim and cases

such as Canter, it is unclear whether the Independence proposal's possible provision for

congressional revocation of United States citizenship passes constitutional muster. See Treanor

Testimony at 19 (reserving the constitutional issue of whether, upon independence, it would be

permissible to terminate non-consensually the United States citizenship of residents of Puerto

citizenship even as they acquire Puerto Rican citizenship, then Puerto Ricar. independence could

result in a significant number of people acquiring dual citizenship. While this letter does not

address the policy implications of such dual citizenship, we do not think it would run afoul of any

constitutional stricture.

It is Ihe Department's position that the source of the citizenship of those born in Pueno Rjco is not the

Treanor, Deputy Assistant Anorney General, Office of Legal Connsel, Before he House Comm. on Resources,

Acting Assisunt Attorney General, OfIice of Legal Counsel, U.S. Deparlrnent of Justice). Tha: point is separate,

hcweier, f r ~ mthe question wheL5er iAe C~nsrir:tion protects that citizenship or~ceil is statutorily conferred, and,

if so, to the same extent as it protects "Fourteenth Amendment citizenship."

The Indepecdence proposal also provides that "Puerto Rico and the United States shall

develop cooperation treaties, including economic and programmatic assistance for a reasonable

period, free commerce and transit, and mili?ary force status." Viewing this language as part of a

ballot option for the people of Puerto Rico, we understand it as a possible proposal to be made by

Puerto Rico to Congress. We do not, therefore, read the use of the word "shall" to impose on the

Moreover, if the proposal did purport to impose such an obligation, we would construeits

language as precatory, not binding, in order to prescrve the sovereign prerogatives of the United

The New Commonwealth proposal describes Puerto Rico as "an autonornous~~litical

body, that is neither colonial nor territorial, in permanent union with the United States under a

covenant that cannot be invalidated or altered unilaterally." Our analysis of this proposal is based

on two general premises, which we will outline before proceeding to address specific aspects of

the proposal.

The first premise is that the Constitution recognizes only a limited number of options for

governance of an area. Puerto Rico could constitutionally become a sovereign Nation, or it could

remain subject to United States sovereignty. It can do thelatter in only two ways: it can be

United States not included in any State must necessarily be governed by or under the authority of

Congress."). The terms of the Constitution do not contemplate an option