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 other than sovereign

independence, statehood, or ter~itorials tatus.

Althoggh Puerto Rico currently possesses significant autonomy and powers of selfgovernment

Thornburgh Testimony at 206-07 (suggesting that should Puerto Rico become independent, its residents "should be

required to elect between retaining United States citizeoship (and ultimately taking up residence within the United

446 iJ.S. 65 1 (1980) (per curiam), for example, the Court sustained a !eve1 of assistance for

Puerto Rico under the Aid to Families with Dependent Chi!dren program lower thm that which

States received, and explained that "Congress, which is empowered under the Territory Clause of

U.S. 1 , 3 n.4 (1978) (per curiam) ("Congress has the power to treat Puerto Rico differently, and

long taken the same view,' and the weight of appellate case law provides further support for it.

the Territorial Clause, Congress may legislate for Puerto Rico differently than for the states.");

Davila-Perez v. LockheedMartin Corp., 202 F.3d 464,468 (1st Cir. 2000) (affirming that Fuerto

ultimate source of power [over Puerto Rico] pursuant to the Territory Clause of the

(Tonuella, J., concurring), cert. denied, 486 U.S. 1034 (1988)), cert. denied, 510 U.S. 11 10

(1994).9

Jurisdictional Statement of the United Swies at 10-1 I, Harris v. Rosario, 446 U.S. 65 1 (1980) (No. 79-1294). It

Liida Cinciona, Director, Office of Attorney Personnel Management, from Richard L. Shzrin, Deputy Assislant

JusticeAppropriolronsAct (July 31. 1997); Memorandum for Lawrencc E. Walsh, Deputy Attorney General, from

We acknowledge, howevcr, that !he First Circuit has not always spoken with a single voice on this

question. See, e.g., United S!ates v Andino, 83 1 F.2d 1164 (1st Cir. 1987) (prevailing opinion), cert. denied, 486

U.S. 1034 (1988)); UnztedSIates v. Quinones, 758 F.2d 40,42 (1st Cir. 1985) ("[ljn 1952, Puertn Rico ceased

being a temtory of the United States subject to the p!enary powers of Congress as provided in the Federal

1981) (Breyer, J.) (stating that follorving thcpassage ofhblic Law 600, "Puerto Kico's status changed from Lha~ of

a mere lerrilory to the unique slatus of Commoniveallh."); Figueroa v. People ofPuerto Rico, 232 F.2d 615,620

(1st Cir. 1956) (Magrudrr, J.) (maintaining that to say that Public Law 600 was "just another Organic Act" for

Puerto Rico would be to say lhat Congress had perpetrated a "monumental hoax" on Ule Puerto Riwn pmple).

Nohrithslanding these inconsistencies. we believe the more recent First Circuit and other appellate decisions

correctly slate lhe law and properly recognize that the Supremc Court's decision ill Horris is controllmg.

We also acknowledge that the Federal Circuit's opinion inRoirlero v. United Slotes, 38 F.3d 1204 (Fed.

We read that opinion as addressing questions regarding the terms of that particular statute alnne.

The second premise is that, as a matter of domestic constitutional iaw, the United States

(1977)); Burnet v. Brooks, 288 U.S. 378, 396 (1933) ("As a nation with all the attributes of

sovereig~tyt,h e United States is vested with all the powers ofgovcmment necessary to maintain

an effective control of international relations."). This premise is reflected in the rule that, in

general, one Congress cannot irrevocably bind subsequent Congresses. See Marbuy v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803) (Marshall, C.J.) (noting that legislative acts are "alterable

87, 135 (1810) (Marshall, C.J.) (recognizing the general rule that "one legislature is competent to

repeal any act which a former legislature was competent to pass; and that one legislature cannot

abridge the powers of a succeeding legislature," while holding that vested rights are protected

against subsequent congressional enactments). Moreover, as the Supreme Court has recognized,

treaties and other covenants to which the United States is party stand, for constitutional purposes,

on the samefooting as federal legislation. See Breardv. Greene, 523 U.S. 371,376 (1'998) (per

when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of

conflict renders the treaty null."') (quoting Reid v. Cover!, 354 U.S. 1, 18 (1 957) (plurAi!y

opinion)). Thus, to the extent a covenant to which the United States is party stands on no

stronger footing than an Act of Congress, it is, for purposes of federal constitutional law, subject

to unilateral alteration or revocation by subsequent Acts of Congress. As the Court explained in

When the stipulations [of a treaty] are not self-executing they can only be enforced

pursuant to legislation to carry them into effect, and such legislation is as much

subject to modification and repeal by Congress as legislation upon any other

subject. Ifthe treaty contains stipulations which are self-executing, that is, require

no legislation to make thcm operative, to that extent they have the force and effect

of a legislative enactment. Congress may rnoditjr such provisions, so far as they

bind the United States, or supersede tnem altogether.

This second premise applies to the exercise of presidential powers as well as to the

exercise of congressional powers. Thus, a compact could not constitutionally limit the President's

power to terminate treaties by requiring that he not exercise that power in the context of that

the People's Republic of China entailed power to abrogate existing defense treaty with T-iwan!.

With these two premises established, we turn now to analyzing the New Con~monwealth

proposal. The threshold point to consider is what type oi status the proposal contemplates for

Puerto Rico. Parts of :he New Commor~wealthp roposal appear to contemplate Puerto Rico's

becoming an independent Nation," while others contemplate Puerto Rico's remaining subject to

United States sovereignty to scme degree." To the extent that the proposal would thereby create

for Puerto Rico a hybrid status, it runs afoul of the tirst premise discussed above. The proposal

must be assessed against the constitutionally permissible status categories that exist, and the

precise nature ofthe constitutional issues raised by the proposal turns in part on whether it is

understood to recognize Puerto Rico as a sovereign nation or to maintain United States

First, regardless of whether the New Commonwealth proposal contemplates full Puerto

Rican independence or continued United States sovereignty over Puerto Rico, the proposal's

that the New Commonwealth will be implemented pursuant to an "agreement between the people

of Puerto Rico and the government of the United States," and provides that the agreement will

renounced or altered."I2 If the proposal is read to maintain United States sovereignty over Puerto

Rico, then, since the "enhanced" Commonwealth it contemplates would not be a State, it would

necessarily remain subject to ccngressional power under the Territory Clause. It follows, then,

that Congress could later unilaterally alter t'ne terms of the covenant between the United States

(explaining that delegaticns of power from one Congress to the government of a territory are

Testimony at 194 (stating that proposed legislation conferring on Puerto Rico "sovereignty, like a

State" and making that status irrevocable absent mutual consent was "totally inconsistent with the

government" and "free will" of the people of Pucrto Rico as "ultimate sources of their political power"); Articlc

If Puerto Rico is to become an independent naticn under the New Commonwealth

proposal, then the relationship between the United States and Puerto Rico would necessarily be

subject t o subsequent action by Congress or the President, even without Puerto Rico's consent.

the United States. See supra at 7-8 In particular, because the power to make and unmake

become independent, the New Commonwealth proposal's mutua! consent requirements would be

constitutionally unenforceable against the United States l4

The New Commonwealth proposal also contains certain provisions regarding the retention

of United States citizenship. Specifically, it provides that "[pleople born in Puerto Rim will

continue to be citizens of the United States by birth and this citizenship will continue to be

protected by the Constitution of the United States and by this Covenant and will not beunilaterally

revokable."

would be warranted if the covenant called for in the New Commonwealth proposal had the effect of vesting rights

in Puerto Rim's status as a commonwealth or in an element of thal status, such as the mutual consent requirement.

It is true that in 1963, the Office of Legal Counsel concluded that a mutual consent provision would be

of President Bush, see Thornburgh Testimony at 194, and the Ofice ofLegal Counsel now adheres to that

position. See TreanorTestimony at 15-16; Memorandum for the Special Representative for Guam from Teresa

Two independent gi.ounds support olii current posiiion [ha: rigl;ls Gay not be vested in pclitiwl status.

First, after the issuance of the Department's 1963 opinion, the Supreme Court concluded that the Fifth

that a governmental body, including a :emtory such as Puerto Rico, could not assert rights under the Due Process

Clause. Second, [he modern Supreme Court case law cor~cerningv ested rights 1s limited in scope. While the

in ibis case bearslittle, if any, resemblance to rights held to constitute 'propem' within the meaning of the Fifth

precedent concerning the effect of Congress' reserved power on agreements entered into under a statute conlaining

the language of reservation.").

requirements would be binding under interna~ionall aw, and wc do not addrrss thatquestion here.

ody with persons born in Puerto Rico after the New Commonwealth proposal goes into effect.

llnderstood as limited to these individuals, the proposal would confer United States citizenship on

them unless and until Puerto Rico and the United States mutually agree to revoke it. Second, the

text could be read as addressing the United States citizenship of all persons born in Puerto Rico,

whether before or after the New Commonwealth proposal goes into effect." Under this second

reading, the proposal would preserve these individuals' citizenship subject to revocation by the

mutual consent of Puerto Rico and the United States.

With respect to either reading, the mutual consent stipulation (i.e. that the grant of

Rico before and after such time. We see no constitutional impediment with that provision,

regardless of how broadly it is read. However, whether that provision is itself alterabie by a

subsequent Act of Congress becomes a question of whether the United States citizenship of the

persons covered by the provision is constitutionally protected. The answer to that question

depends on how the provision is read (that is, whether it is read as addressing those born in

also depend on whether the New Commonwealth proposal in general is understood as creating an

independent nation or as maintaining United States sovereignty over Puerto Rico.

We first address whether there would be any constitutional constraints on Congress's

States citizenship by virtue of their birth in Puerto Rico. If Puerto k c o is to become an

independent nation, thcn, while Congress may well have the power to provide (as the New

Commonwealth proposal appears to contemplate) that persons born in Puerto Rico in the future

shall acquire United States citizenship, we think Congress could also change that rule and provide

that, in the hture, birth in Puerto Rico shall no longer be a basis for United States citizen.chip.17

non-Fourteenth Amendment citizenship from those born in an area subject to united Statcs

We do not, however, address whether Congress could also exclude residenu of Pur.to Kco lrvm otlfier

parents.

sovcreigniy, w!ren persotis previousiy borr. in that area received stztutory citizenship by birthright,

Next, we consider whether the Ccnstitution would permit Congress to revoke the United

States citizenship of persons who already have such citizenship because they were born in Puerto

Rico. If the New Commonwealth proposal is understood to maintain United States sovereignty

over Puerto Rico, then we think Congress could not revoke the United States citizenship of

citizenship without his assent." 387 U.S. at 257 While cot squarely faced with a case of

is based on the Fourteenth Amendment, and we think it should not be so confined." Accordingly,

while we find no constitutional impediment in the New Commonwealth proposal's provision that

those born in Puerto Rico will retain their citizenship in the future, we do think that to the extent

Puerto Rico is to remain subject to IJnited States sovereignty, the provisionis redundant (or at

under the New Commonwealth proposal, then, as we noted in our discussion of the Independence

the US. citizenship of persons elready holding such citizenship at the time of independence.

citizenship at the time of Puerto Rican independence must be able to retain that citizenship after

would resolve this issue.

The New Commonwealth proposal also provides for the election of aResident

will be considered a Member of the U.S. House of Representatives for purposes of all legislative

person. ilainurlg citizenship on that basis meet certain requirements of residency in lhe United Slates prior lo their

hventy-eighth birthday. The Rogers Court upheld the statute's provision for loss of citizenship for Ulose who failed

to meet the residency requirement. While be Rogers Court criticized .4jroyim's language concerning non-

Members chosen every second Year by the People ofthe several .Stotez." (emphasis added). On

its face, that provision wo~llds eem to mean that the Resident Cammissioner from Puerto Kco

could not be "considered a Member" of the House because, under the New Commonwealth

proposal, Puerto Rico would not be a "State" While Congress has the ability to pennit

participation by representatives of the territories, see Michelv. Anderson, 14 F.3d 623, 630-32

@.C. Cir. 1994) (holding that the House of Representatives had the authority to permit a

territorial delegate (including the Resident Commissioner from Puerto Rico) to vote in the

House's committees, including the Committee of the Whole), there are constitutional limits to the

participation that would be permitted

The New Commonwealth proposal contains a number of other provisions that may raise

particular constitutional concerns if the proposal contemplates Puerto Rico remaining subject to

United States sovereignty. The proposal authorizes Puerto Rico to "enter into commercial and

tax agreements, among others, with other countries," and to "enter into international agreements

and belong to regiond and international organizations." The Constitution vests the foieign

relations power of the United States, which ir~cludesth e power to enter into treaties, in the federal

government. Curtiss-Wright Export Corp., 299 U.S. at 318. Specifically, Article I, Section 10,

Clause I (the "Treaty Clause") prohibits States from entering into "any Treaty, Alliance, or

Confederation." Under Article I, Section 10, Clause 3 (the "Compact Clause"), however, States

foreign Power." Read against the backdrop of these constitutional provisions, the New

Commonwealth proposai raises several issues.

First, it is unclear whether either the Treaty Clause or the Compact Clause applies to

Puerto Rico, since both clauses refer only to "State[s]." What little case law there is on this

Kan. 1991) (stating in dicta that "the compact clause addresses agreements between the states,

(concluding that "Puerto Rico is not a State, and the compact clause, as such, is not applicable to

it."), afl'd, 206 F.2d 377 (1st Cir. 1953). If the two clauses do apply to Puerto Kco, then

presumably the Compact Clause's probision for congressional authorization to enter into

"Agreernent[s] or Compact[s]" applies to Puerto Rico. Second, even if Congress may consent to

Puerto Rico's entry into "Agreement[s] or Compact[s]," it is not clear that theKcomniercial and

referred to in the New Commonwealth proposal would all constitute "Agreement[s] or

Compact[s]" to which Congress may give its consent As the Supreme Court has notcd, the

constitutional distinction be~ween" Agreement[s] [and] Compact[s]," on the one hand, and

used the words 'treaty,' 'compact,' and 'agreement' as terms of art, for which no explanation was

required and with which we are ~nfamiliar.").'~S cme "commercial and tax zgreements" u.c;~;ld be

Constitution. If so, then Congress may be able to authorize Puerto Rico to enter intc such

orgar~zations" referred to in the New Commonwealth proposal, however, is less clear. At least

some of the agreements embraced in this phrase might constitute "Treat[ies], Alliance[s], or

Confederation[sIn under Article I, Section 10, Clause 1. If so, then Puerto R~com ay not

constitutionally enter into them, with or without congressional consent. Third, even assuming

Congress may authorize Puerto Rico to enter into at least some of the types of international

agreements referenced in the New Commonwealth proposal, it is unclear whether Congress could,

as apparently contemplated by the proposal, give Puerto Rico prospective blanket authorization to

conclude such agreements. Nthough it is our view that, under the Compact Clause, Congress

may consent in advance t 3 a State's entering into certain international agreements," there would

still be a question whether advance consent over such a broad and unspecified range of

Clauses, the Treaty Clause's categorical prohibition refers to agreements of a political character such as one Nation

countries refers to arrangemen& regarding the private rights of sovereigns, such as adjusting boundaries, making

(same). Agreements between Puerto Rico and foreign countries regarding taxation and commerc? seem onlikely to

organizations would seem to be political in character. On this theory, therefore, the Treaty Clause, if applicable to

Puerto Rico, could well bar oll folms of international agreements mentioned in the bill.

E. Erickson, Deputy Auorney General (Sept. 19, 1972); Memorandum for Nicholas den. Katzenbach, Deputy

(even if advance congressional consent were "unusual," it would not be unconstihltional), cerf. denied, 479 U.S.

the consent will usually precede the compact or agreement.").

Compact Clause, and we note that potential "delegation" problems might arise whether or not the Compact Clause

Cir. 1998) (analyzing issue arising under Compact Clause of delegation of authority to Executive Department).

with Philippine Islonds-PostolService, 29 Op. Att'y Gen. 380 (1912) (analyzing without reference to Compact

Clause whether Congress could delegate to government of Plulippine Islands authority 10 negatiate ar.d en:;r into

constitutional concerns.

Pinslly, if Puerto &GO remains subject to United Statcs sovereigntjr, tne provision that

Puerto Rico would "retain[] all the powers that have not been dc1ega:ed to the United States"

rests on a constitutionally flawed premise. This provision appears to attempt to create for Puerto

Rico an analogue to the Tenth Amendment. But the legislative powers of a non-State region

under the sovereignty of the United States are entirely vssted in Congress. Because territories arz

created by the Nation, as a matter of constitutional law they can not delegate power to the

Nation. As Chief Justice Marshall explained in Canter, "[iln legislating for [the territories],

Congress exercises the combined powers of the general, and of a staie government." 26 U.S. at

546 And while Congress may deiegate some of its powers over a territory to the temtory itself,

such delegation is, as discussed supra at 7-8, always subject to Congress's own plenary power to

We hope this information is helphl to you. Please do not hesitate to contact me if I can

be of hrther assistance.

Sincerely,

Assistant Attorney General

R a n k i n g Minority Member

makes jurisdiction of federal courts subjcl 10 Lhe provisions of the Conslilr~lioo of Puerto Rico, and article Xlll

concerns ;he creation ofa mechanism bj. which application of Uniled Slates laws to Puerlo Rico will he subject lo

the laws of Puerlo Ria.

APPENDIX

F

July 28, 1994

The Guam Commonwealth Bill, H.R. 1521, 103d Cong., 1st Sess. (1993) contains two

sections requiring the mutual consent of the Government of the United States and the

Government of Guam. Section 103 provides that the Commonwealth Act could be amended

only with mutual consent of the two governments. Section 202 provides that no Federal laws,

rules, and regulations passed after the enactment of the Commonwealth Act would apply to

Guam without the mutual consent of the two governments. The Representatives of Guam insist

that these two sections are crucial for the autonomy and economy of Guam. The former views of

this Office on the validity or efficacy of mutual consent requirements included in legislation

governing the relationship between the federal government and non-state areas, i.e. areas under

have carefully reexamined this issue. Our conclusion is that these clauses raise serious

constitution of their own adoption and an elective governor, resent being called Territories and claim that that legal

term and its implications are not applicable to them. We therefore shall refer to all Territories and Commonwealths

as non-state areas under the sovereignty of the United States or briefly as non-state areas.

connection with proposals to amend the Puerto Rico Federal Relations Act. At that time the Department took the

position that the answer to this question was doubtful but that such clauses should not be opposed on the ground that

they go beyond the constitutional power of Congress. In 1963 the Department of Justice opined that such clauses

were legally effective because Congress could create vested rights in the status of a territory that could not be

revoked unilaterally. The Department adhered to this position in 1973 in connection with then pending

Micronesians status negotiations in a memorandum approved by then Assistant Attorney General Rehnquist. On the

basis of this advice, a mutual consent clause was inserted in Section 105 of the Covenant with the Northern Mariana

Islands. The Department continued to support the validity of mutual consent clauses in connection with the First

1989 Task Force Report on the Guam Commonwealth Bill. The Department revisited this issue in the early 1990’s

status; hence that mutual consent clauses were ineffective because they would not bind a subsequent Congress. We

took the same position in the Second Guam Task Force Report issued during the last days of the Bush

Administration in January 1993.

the Northwest Ordinance contained six “articles of compact, between the original States and the people and States in

the said territory, and [shall] forever remain unalterable, unless by common consent.” These articles were

incorporated either expressly or by reference into many early territorial organic acts. Clinton v. Englebrecht, 80 U.S.

(13 Wall.) 434, 442 (1872). The copious litigation under these “unalterable articles” focussed largely on the

question whether the territories’ obligations under them were superseded by the Constitution, or when the territory

In our view, it is important that the text of the Guam Commonwealth Act not create any

illusory expectations that might mislead the electorate of Guam about the consequences of the

legislation. We must therefore oppose the inclusion in the Commonwealth Act of any

provisions, such as mutual consent clauses, that are legally unenforceable, unless their

unenforceability (or precatory nature) is clearly stated in the document itself.

I.

All territory under the sovereignty of the United States falls into two groups: the States

and the areas that are not States. The latter, whether called territories, possessions, or

commonwealths, are governed by and under the authority of Congress. As to those areas,

Congress exercises the combined powers of the federal and of a state government. These basic

considerations were set out in the leading case of National Bank v. County of Yankton, 101 U.S.

129, 132-33 (1880). There the Court held:

It is certainly now too late to doubt the power of Congress to govern the

Territories. There have been some differences of opinion as to the particular

clause of the Constitution from which the power is derived, but that it exists has

* * *

All territory within the jurisdiction of the United States not included in

any State must necessarily be governed by or under the authority of Congress.

The Territories are but political subdivisions of the outlying dominion of the

United States. Their relation to the general government is much the same as that

which counties bear to the respective States, and Congress may legislate for them

as a State does for its municipal organizations. The organic law of a Territory

takes the place of a constitution as the fundamental law of the local government.

It is obligatory on and binds the territorial authorities; but Congress is supreme,

and for the purposes of this department of its governmental authority has all the

became a State, as the result of the equal footing doctrine. We have, however, not found any cases dealing with the

question whether the Congress had the power to modify any duty imposed on the United States by those articles.

fact of sovereignty, others from the Territory Clause of the Constitution of the United States (Art. IV, Sec. 3, Cl. 2)

pursuant to which Congress has “Power to dispose of and make all needful Rules and Regulations respecting the

Territory or other Property belonging to the United States”. See e.g. American Insurance Co. v. Canter, 26 U.S.

(1 Pet.) 511, 542 (1828); Mormon Church v. United States, 136 U.S. 1, 42-44 (1890); Downes v. Bidwell, 182 U.S.

244, 290 (1901).

At present, the Territory Clause of the Constitution is generally considered to be the source of the power of

government”).

The plenary Congressional authority over a non-state area thus lasts as long as the area

retains that status. It terminates when the area loses that status either by virtue of its admission

as a State, or by the termination of the sovereignty of the United States over the area by the grant

of independence, or by its surrender to the sovereignty of another country.

II.

While Congress has the power to govern the non-state areas it need not exercise that

power itself. Congress can delegate to the inhabitants of non-state areas full powers of selfgovernment

and an autonomy similar to that of States and has done so since the beginning of the

Republic. Such delegation, however, must be “consistent with the supremacy and supervision of

National authority”. Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 441 (1872); Puerto Rico v.

Shell Co., 302 U.S. 253, 260, 261-62 (1937). The requirement that the delegation of

governmental authority to the non-state areas be subject to federal supremacy and federal

supervision means that such delegation is necessarily subject to the right of Congress to revise,

alter, or revoke the authority granted. District of Columbia v. Thompson Co., 346 U.S. 100, 106,

233 F.2d 110, 113 (3rd Cir. 1956), Firemen’s Insurance Co. v. Washington, 483 F.2d 1323, 1327

(D.C. Cir. 1973). The power of Congress to delegate governmental powers to non-state areas

thus is contingent on the retention by Congress of its power to revise, alter, and revoke that

the consent of the non-state area.

This consideration also disposes of the argument that the power of Congress under the

Territory Clause to give up its sovereignty over a non-state area includes the power to make a

partial disposition of that authority, hence that Congress could give up its power to amend or

repeal statutes relating to the governance of non-state areas. But, as shown above, the retention

of the power to amend or repeal legislation delegating governmental powers to a non-state area

is an integral element of the delegation power. Congress therefore has no authority to enact

legislation under the Territory Clause that would limit the unfettered exercise of its power to

amend or repeal.

The same result flows from the consideration that all non-state areas are subject to the

authority of Congress, which, as shown above, is plenary. This basic rule does not permit the

of the Constitution, rather than with the non-state areas as to whom the Congressional power is derived from the

Territory Clause. The Court, however, held that in this area the rules relating to the Congressional power to govern

the District of Columbia and the non-state areas are identical. Indeed, the Court relied on cases dealing with nonstate

areas, e.g., Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648, 655 (1874), and Christianson v. King County, 239

U.S. 365 (1915), where it held that Congress can delegate its legislative authority under Art. I, Sec. 8, Cl. 17 of the

Constitution to the District, subject to the power of Congress at any time to revise, alter, or revoke that authority.

1871, 16 Stat. 419, gave the District of Columbia virtual territorial status, with a governor appointed by the

President, a legislative assembly that included an elected house of delegates, and a delegate in Congress. The 1871

Act was repealed by the Act of June 20, 1874, 18 Stat. 116, which abrogated among others the provisions for the

legislative assembly and a delegate in Congress, and established a government by a Commission appointed by the

President.

creation of non-state areas that are only partially subject to Congressional authority. The plenary

power of Congress over a non-state area persists as long as the area remains in that condition and

terminates only when the area becomes a State or ceases to be under United States sovereignty.

There is no intermediary status as far as the Congressional power is concerned.

The two mutual consent clauses contained in the proposed Commonwealth Act therefore

are subject to Congressional modification and repeal.

III.

The rule that Congress cannot surrender its power to amend or repeal legislation relating

to the government of non-state areas is but a specific application of the maxim that one Congress

cannot bind a subsequent Congress and the case law developed under it.

The rationale underlying that principle is the consideration that if one Congress could

prevent the subsequent amendment or repeal of legislation enacted by it, such legislation would

be frozen permanently and would acquire virtually constitutional status. Justice Brennan

expressed this thought in his dissenting opinion in United States Trust Co. v. New Jersey, 431

U.S. 1, 45 (1977), a case involving the Impairment of the Obligation of Contracts Clause of the

Constitution (Art. I, Sec 10, Cl. 1):

One of the fundamental premises of our popular democracy is that each

generation of representatives can and will remain responsive to the needs and

desires of those whom they represent. Crucial to this end is the assurance that

new legislators will not automatically be bound by the policies and undertakings

of earlier days . . . . The Framers fully recognized that nothing would so

jeopardize the legitimacy of a system of government that relies upon the ebbs and

flows of politics to “clean out the rascals” than the possibility that those same

rascals might perpetuate their policies simply by locking them into binding

contracts.

Nonetheless, the maxim that one Congress cannot bind a future Congress, like every legal

rule, has its limits. As early as 1810, Chief Justice Marshall explained in Fletcher v. Peck, 10

U.S. (6 Cranch) 87, 135 (1810):

The principle asserted is that one legislature is competent to repeal any act

which a former legislature was competent to pass; and that one legislature cannot

abridge the powers of a succeeding legislature.

The correctness of this principle, so far as respects general legislation, can

never be controverted. But, if an act be done under a law, a succeeding

legislature cannot undo it. The past cannot be recalled by the most absolute

power. Conveyances have been made, those conveyances have vested legal

estates, and if those estates may be seized by the sovereign authority, still, that

they originally vested is a fact, and cannot cease to be a fact.

When, then, a law is in its nature a contract, when absolute rights have

vested under that contract, a repeal of the law cannot devest [sic] those rights.

The powers of one legislature to repeal or amend the acts of the preceding one are limited

in the case of States by the Obligation of Contracts Clause (Art. I, Sec. 10, Cl. 1) of the

Constitution and the Due Process Clause of the Fourteenth Amendment, and in the case of

Congressional legislation by the Due Process Clause of the Fifth Amendment. This principle

was recognized in the Sinking-Fund Cases, 98 U.S. 700, 718-19 (1879):

The United States cannot any more than a State interfere with private

rights, except for legitimate governmental purposes. They are not included within

the constitutional prohibition which prevents States from passing laws impairing

the obligation of contracts, but equally with the States they are prohibited from

depriving persons or corporations of property without due process of law. They

cannot legislate back to themselves, without making compensation, the lands they

have given this corporation to aid in the construction of its railroad. Neither can

they by legislation compel the corporation to discharge its obligations in respect

to the subsidy bonds otherwise than according to the terms of the contract already

made in that connection. The United States are as much bound by their contracts

as are individuals. (emphasis supplied.)

See also Bowen v. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 54-56 (1986).

IV.

The question therefore is whether the Due Process Clause of the Fifth Amendment

precludes a subsequent Congress from repealing legislation for the governance of non-state areas

enacted by an earlier Congress under the Territory Clause. This question must be answered in

the negative.

The Due Process Clause of the Fifth Amendment provides:

No person shall . . . be deprived of life, liberty, or property without due process of

law. (emphasis supplied.)

This Clause is inapplicable to the repeal or amendment of the two mutual consent clauses

here involved for two reasons. First, a non-state area is not a “person” within the meaning of the

Fifth Amendment, and, second, such repeal or amendment would not deprive the non-state area

of a property right within the meaning of the Fifth Amendment.

A.

In South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966), the Court held that a

State is not a person within the meaning of the Due Process Clause of the Fifth Amendment. See

also Alabama v. EPA, 871 F.2d 1548, 1554 (11th Cir.), cert. denied, 493 U.S. 991 (1989) (“The

State of Alabama is not included among the entities protected by the due process clause of the

fifth amendment”); State of Oklahoma v. Federal Energy Regulatory Comm., 494 F.Supp. 636,

Federal Energy Regulatory Comm., 457 U.S. 1105 (1982).

Similarly it has been held that creatures or instrumentalities of a State, such as cities or

water improvement districts, are not persons within the meaning of the Due Process Clause of

the Fifth Amendment. City of Sault Ste. Marie, Mich. v. Andrus, 532 F. Supp. 157, 167 (D.D.C.

1980); El Paso, County Water Improvement District v. IBWC/US, 701 F. Supp. 121, 123-24

(W.D. Tex 1988).

The non-state areas, concededly, are not States or instrumentalities of States, and we have

not found any case holding directly that they are not persons within the meaning of the Due

Process Clause of the Fifth Amendment. They are, however, governmental bodies, and the

rationale of South Carolina v. Katzenbach, 383 U.S. at 301, appears to be that such bodies are

not protected by the Due Process Clause of the Fifth Amendment. Moreover, it is well

established that the political subdivisions of a State are not considered persons protected as

South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500, 505, 507 (6th Cir.

1986), and the authorities there cited. The relationship of the non-state areas to the Federal

Government has been analogized to that of a city or county to a State. As stated, supra, the

Court held in National Bank v. County of Yankton, 101 U.S. 129, 133 (1880):

The territories are but political subdivisions of the outlying dominion of the

United States. Their relation to the general government is much the same as that

which counties bear to the respective States . . . .

More recently, the Court explained that a non-state area is entirely the creation of

Congress and compared the relationship between the Nation and a non-state area to that between

a State and a city. United States v. Wheeler, 435 U.S. 313, 321 (1978). It follows that, since

States are not persons within the meaning of the Fifth Amendment and since the political

subdivisions of States are not persons within the meaning of the Fourteenth Amendment, the

non-state areas are not persons within the meaning of the Due Process Clause of the Fifth

Amendment.

B.

As explained earlier, a subsequent Congress cannot amend or repeal earlier legislation if

such repeal or amendment would violate the Due Process Clause of the Fifth Amendment, i.e., if

such amending or repealing legislation would deprive a person of property without due process

of law. It has been shown in the preceding part of this memorandum, that a non-state area is not

a person within the meaning of the Due Process Clause. Here it will be shown that mutual

consent provisions in legislation, such as the ones envisaged in the Guam Commonwealth Act,

would not create property rights within the meaning of that Clause.

Legislation concerning the governance of a non-state area, whether called organic act,

federal relations act, or commonwealth act, that does not contain a mutual consent clause is

clearly subject to amendment or repeal by subsequent legislation. A non-state area does not

acquire a vested interest in a particular stage of self government that subsequent legislation could

not diminish or abrogate. While such legislation has not been frequent, it has occurred in

connection with the District of Columbia. See District of Columbia v. Thompson Co., 346 U.S.

100, 104-05 (1953); supra n.6. Hence, in the absence of a mutual consent clause, legislation

concerning the government of a non-state area is subject to amendment or repeal by subsequent

legislation.

This leads to the question whether the addition of a mutual consent clause, i.e. of a

provision that the legislation shall not be modified or repealed without the consent of the

Government of the United States and the Government of the non-state area, has the effect of

creating in the non-state areas a specific status amounting to a property right within the meaning

of the Due Process Clause. It is our conclusion that this question must be answered in the

negative because (1) sovereign governmental powers cannot be contracted away, and (2) because

a specific political relationship does not constitute “property” within the meaning of the Fifth

Amendment.

1. As a body politic the Government of the United States has the general capacity to

enter into contracts. United States v. Tingey, 30 U.S. (5 Pet.) 115, 128 (1831). This power,

however, is generally limited to those types of contracts in which private persons or corporations

can engage. By contrast sovereign “governmental powers cannot be contracted away,” North

American Coml. Co. v. United States, 171 U.S. 110, 137 (1898). More recently the Supreme

Court held in connection with legislation arising under the Contract Clause (Art. I, Sec. 10, Cl.

1) of the Constitution that “the Contract Clause does not require a State to adhere to a contract

that surrenders an essential attribute of its sovereignty.” United States Trust Co. v. New Jersey,

One whose rights, such as they are, are subject to state restriction, cannot

remove them from the power of the State by making a contract about them.

Agreements or compacts to the effect that the Congress may not amend legislation

relating to the government of a non-state area without the consent of the latter, or that federal

legislation shall not apply to Guam unless consented to by the Government of Guam would

unquestionably purport to surrender essential powers of the federal government. They are

also applicable to the contracts made by the federal government because the Contract Clause imposes more rigorous

451, 472-73 n.25 (1985). Hence, when state legislation does not violate the Contract Clause, analogous federal

legislation is all the more permissible under the Due Process Clause of the Fifth Amendment.

therefore not binding on the United States and cannot confer a property interest protected by the

More generally, the Supreme Court held in Bowen v. Agencies Opposed to Soc. Sec.

Entrapment, 477 U.S. 41 (1986), that the contractual property rights protected by the Due

Process Clause of the Fifth Amendment are the traditional private contractual rights, such as

those arising from bonds or insurance contracts, but not arrangements that are part of a

regulatory program such as a State’s privilege to withdraw its participation in the Social Security

system with respect to its employees. Specifically, the Court stated:

But the “contractual right” at issue in this case bears little, if any,

resemblance to rights held to constitute “property” within the meaning of the Fifth

Amendment. The termination provision in the Agreement exactly tracked the

language of the statute, conferring no right on the State beyond that contained in §

418 itself. The provision constituted neither a debt of the United States, see Perry

v. United States, supra, nor an obligation of the United States to provide benefits

under a contract for which the obligee paid a monetary premium, see Lynch v.

United States, supra. The termination clause was not unique to this Agreement;

nor was it a term over which the State had any bargaining power or for which the

State provided independent consideration. Rather, the provision simply was part

of a regulatory program over which Congress retained authority to amend in the

exercise of its power to provide for the general welfare.

Id. At 55. Agreements that the Guam Commonwealth Act may not be amended without the

consent of the Government of Guam, or that future federal statutes and regulations shall not

apply to Guam without the consent of the Government of Guam clearly do not constitute

conventional private contracts; they are elements of a regulatory system.

In the past the Department of Justice at times has concluded that a non-State area may

have a vested interest in a specific status which would be immune from unilaterial Congressional

the Supreme Court that legislation concerning the governance of a non-state area is necessarily

subject to Congressional amendment and repeal; that governmental bodies are not persons within

the meaning of the Due Process Clause; that governmental powers cannot be contracted away,

(1935), are not contrary to this conclusion. Both cases involved commercial agreements (Lynch: insurance; Perry:

Government bonds) In Lynch the Court held that Congress could not amend the contract merely to save money

“unless, indeed the action falls within the federal police police power or some other paramount power.” 292 U.S. at

579. Perry involved bonds issued by the United States under the authority of Art. I, Sec. 8, Cl. 2 of the Constitution,

to borrow money on the credit of the United States. The Court held that Congress did not have the power to destroy

the credit of the United States or to render it illusory by unilaterally abrogating one of the pivotal terms of the bonds

to save money. While the Court held that the United States had broken the agreement, it nevertheless held that

plaintiff could not recover because, as the result of regulations validly issued by the United States, he had not

suffered any monetary damages.

Due Process Clause are those arising from private law or commercial contracts and not those

Sections 103 and 202 therefore do not create vested property rights protected by the Due

Commonwealth Act unilaterally or to provide that its legislation shall apply to Guam without the

consent of the government of the Commonwealth. The inclusion of such provisions, therefore,

in the Commonwealth Act would be misleading. Honesty and fair dealing forbid the inclusion of

Finally, the Department of Justice has indicated that it would honor past commitments

with respect to the mutual consent issue, such as Section 105 of the Covenant with the Northern

Mariana Islands, in spite of its reevaluation of this problem. The question whether the 1989

Task Force proposal to amend Section 103 of the Guam Commonwealth Act so as to limit the

mutual consent requirement to Sections 101, 103, 201, and 301 constitutes such prior

commitment appears to have been rendered moot by the rejection of that proposal by the Guam

Commission.

TERESA WYNN ROSEBOROUGH

Deputy Assistant Attorney General

Office of Legal Counsel

legislation were discussed in the context of commercial contracts. Bowen, 477 U.S. at 52.

proposed Guam Commonwealth Act would expressly preclude the right of Congress to amend without the consent of

the Government of Guam. The underlying agreements, however, are not of a private contractual nature, and, hence,

are not property within the meaning of the Due Process Clause. We cannot perceive how they can be converted into