By Rafael Bernal Guest Writer, The Hill
A group of 47 academics from top U.S. universities lambasted a proposed bill that would determine Puerto Rico’s territorial status through a convention process.
In a letter sent Monday to a group of bipartisan congressional leaders, the academics, led by Columbia Law School’s Christina Ponsa-Kraus, said the Puerto Rico Self-Determination Act, which was introduced by Rep. Nydia Velázquez (D-N.Y.), “disserves its purported goal perpetuating the pernicious myth that [multiple sovereignty] options exist. They do not.”
“There are two, and only two, real self-determination options for Puerto Rico: statehood and independence. Yet the Puerto Rico Self-Determination Act defies constitutional reality by calling upon Puerto Ricans to define other non-territorial options. There are no other non-territorial options,” reads the letter, which also was signed by professors at Harvard Law School.
That argument has been strengthened over the past five years, as the Supreme Court decided two major cases that defined Puerto Rico’s current status as a territory under the Constitution and closed the door to any status that could offer U.S. territories shared local sovereignty with Congress.
Still, the issue of status has been at the political center of gravity in Puerto Rico since its takeover by the U.S. in the Spanish-American War.
Opponents of statehood, such as Velázquez, had long supported a hybrid sovereignty regime as laid out by the territory’s 1952 constitution, which allows some measure of self-rule on the island.
Still, the status debate has been kicked into high gear by the Supreme Court decisions and passage of the Puerto Rico Oversight, Management and Economic Stability Act in 2016.
“As the Court made clear, Puerto Rico is, and always has been, a U.S. territory, and Congress retains plenary power to govern the island under the Territory Clause of the Constitution,” the academics wrote.
Velázquez’s bill would create a status convention to modify the territory’s sovereign status from among a wide range of possibilities, including independence and statehood, but also a range of hybrid statuses whose constitutionality the letter’s signatories call into question.
Three South Pacific nations have signed compacts free of association after independence from the United States, giving their citizens certain immigration benefits, but still share certain elements of sovereignty such as defense.
Free association has gained some popularity as a post-independence sovereign option for Puerto Rico, although retention of U.S. citizenship remains a priority for many on the island.
“The U.S. Constitution provides three options for Puerto Rico: statehood, territory or independence. Neither a convention nor act of Congress can change that basic fact. Only a constitutional amendment can do that,” said Rep. Darren Soto (D-Fla.), who authored a statehood bill that’s also up for consideration in Congress.
The Puerto Rico Statehood Admission Act, introduced by Soto and Puerto Rico Resident Commissioner Jenniffer González-Colón would require Congress to vote whether to admit Puerto Rico as a state and on passage order one final plebiscite of Puerto Rican voters to accept or decline Congress’s offer of statehood.
The Soto-González-Colón bill was introduced by Sen. Martin Heinrich (D-N.M.) in the Senate.
==reade full text of the Letter:
April 12, 2021 The Honorable Nancy Pelosi Speaker of the HouseU.S. House of RepresentativesWashington, DC 20515The Honorable Charles SchumerSenate Majority LeaderU.S. SenateWashington, DC 20510The Honorable Kevin McCarthy House Republican LeaderU.S. House of RepresentativesWashington, DC 20515The Honorable Mitch McConnell Senate Republican LeaderU.S. SenateWashington, DC 20510
Dear Speaker Pelosi, Majority Leader Schumer, and Leaders McCarthy and McConnell:
We, the undersigned legal and constitutional scholars, write to express our strong opposition to the Puerto Rico Self-Determination Act, H.R. 2070, and its Senate companion bill, S. 865, and to registerour equally strong support for the Puerto Rico Statehood Admission Act, H.R. 1522, and its Senate companion bill, S. 780.Like all Americans, we support self-determination. But unlike the supporters of the Puerto Rico Self-Determination Act, we believe that genuine self-determination requires the United States to offer Puerto Ricans a real choice. By “real,” we meanconstitutional and non-territorial. Puerto Rico’s self-determination options must be constitutional, for the obvious reason that neither Congress nor Puerto Rico has the power to implement an unconstitutional option. And they must be non-territorial, because a territorial option is not self-determination.There are two, and only two, real self-determination options for Puerto Rico: statehood andindependence. Yet the Puerto Rico Self-Determination Act defies constitutional reality by calling upon Puerto Ricans to define other non-territorial options. There are no other non-territorial options. For many decades, advocates of “commonwealth” status argued that it was non-territorial. They argued that when Puerto Rico made the transition to commonwealth status in 1952, it ceased to be a U.S. territory, becamea separate sovereign, and entered into a mutually binding compact with the United States. But they were wrong. Quite simply, Congress does not have the power to create a permanent union between Puerto Rico and the United States except by admitting Puerto Rico into statehood. Lest there be any doubt, the U.S. Supreme Court has repeatedly and recently refuted the controversial “compact theory.” In Puerto Rico v. Sanchez Valle (2016), the Court ended seven decades of debilitating debate over the question of whether Puerto Rico’s commonwealth status created a permanent union between two separate sovereigns with an unequivocal “no”: as the Court made clear, Puerto Rico is, and always has been, a U.S. territory, and Congress retains plenary power to govern the island under the Territory Clause of the Constitution (Art. IV, §3, cl.2). And in Financial Oversight and Management Board of Puerto Rico v. Aurelius InvestmentLLC.(2020), the Court went on to explain that Congress’s creation of a federal board with substantial powers over Puerto Rico’s local government was a permissible exercise of Congress’s plenary power over a U.S. territory. In short, as long as Puerto Rico is neither a state of the Union nor an independent nation, it will remain a territory. By inviting Puerto Ricans to define non-territorial options other than statehood or independence, the inaptly named Puerto Rico Self-Determination Act disserves its purported goal by perpetuating the pernicious myth that such options exist. They do not.Letter from Legal and Constitutional Scholars in Support of the Puerto Rico Admission Act, H.R.1522 & S.780, and in Opposition to the Puerto Rico Self-Determination Act, H.R.2070 & S.865 – p.2Despite longstanding political division within Puerto Rico, Puerto Ricans have long shared an overwhelming consensus on two key points: They reject territorial status and they wish to remain U.S. citizens. But while both statehood and independence would fulfill the goal of self-determination, only one of those options would guarantee U.S. citizenship: statehood. Last November, in an unmistakable effort to determine their political future, a clear majority of Puerto Ricans voted “yes” in their own referendum on statehood. Now that Puerto Ricans have publicly and officially asked for statehood, it is time for the United States officially to offer it. The Puerto Rico Statehood Admission Act does just that.Proceeding respectfully, cautiously, and pragmatically, the Puerto Rico Statehood Admission Actresponds to the November referendum with an offer of statehood and sets the terms for admission, but it makes admission contingent on a second referendum in which Puerto Ricans would ratify their choice. Were they to do so, the President would issue a proclamation admitting Puerto Rico as a state within one year of the vote. If they were to reject statehood, then the island would remain a territory with the option to pursue sovereignty at any time in the future—so the Act does not force statehood on Puerto Rico in any way. In other words, the Puerto Rico Statehood Admission Act respects the result of Puerto Rico’s referendum by responding with concrete action, while ensuring that Puerto Ricans have the first and last word on their future.In the 123 years since the United States annexed Puerto Rico, Congress has never offered Puerto Ricans the choice to become a state. Instead, the United States has allowed Puerto Rico to languish indefinitely as a U.S. territory, subjecting its residents to U.S. laws while denying them voting representation in the government that makes those laws. We strongly support a congressional offer of statehood to Puerto Rico, and we urge Congress to pass the Puerto Rico Statehood Admission Act immediately. Signed,* *University affiliations listed for identification purposes only.Jack M. BalkinKnight Professor of Constitutional Law and the First AmendmentYale Law SchoolChristopher P. BanksProfessor, Political ScienceKent State UniversityEvelyn Benvenutti Toro Professor of LawInter American University of Puerto Rico School of LawJessica Bulman-PozenBetts Professor of LawFaculty Co-Director, Center for Constitutional GovernanceColumbia Law SchoolLetter from Legal and Constitutional Scholars in Support of the Puerto Rico Admission Act, H.R.1522 & S.780, and in Opposition to the Puerto Rico Self-Determination Act, H.R.2070 & S.865 –
p.3Kathleen BurchProfessor of LawAtlanta’s John Marshall Law SchoolGuy-Uriel E. CharlesEdward and Ellen Schwarzman Professor of LawDuke Law SchoolErwin Chemerinsky Dean and Jesse H. Choper Distinguished Professor of LawU.C. Berkeley School of LawCornell W. Clayton C.O. Johnson Distinguished Professor of Political ScienceDirector, Thomas S. Foley Institute for Public Service and Public PolicyWashington State UniversityDavid S. CohenProfessor of LawThomas R. Kline School of LawDrexel UniversityAndrés L. CórdovaProfessor of LawInter American University of Puerto Rico School of LawErin F. DelaneyProfessor of LawNorthwestern Pritzker School of LawWalter DellingerDouglas Maggs Emeritus Professor of LawDuke UniversityCarlos Días OlivoProfessor of LawUniversity of Puerto Rico School of LawMichael C. DorfRobert S. Stevens Professor of LawCornell Law SchoolLetter from Legal and Constitutional Scholars in Support of the Puerto Rico Admission Act, H.R.1522 & S.780, and in Opposition to the Puerto Rico Self-Determination Act, H.R.2070 & S.865 – p.4Stephen M. FeldmanJerry W. Housel/Carl F. Arnold Distinguished Professor of Lawand Adjunct Professor of Political ScienceUniversity of Wyoming Martin S. FlahertyLeitner Family Professor of International LawFordham Law Schooland Visiting ProfessorSchool of International and Public AffairsPrinceton UniversityBarry FriedmanJacob D. Fuchsberg Professor of LawNew York University School of LawLuis Fuentes-RohwerProfessor of Law, Class of 1950 Herman B. Wells Endowed ProfessorMaurer School of LawIndiana UniversityLauren GilbertProfessor of LawSt. Thomas University College of LawLeslie F. GoldsteinJudge Hugh M. Morris Professor Emerita of Political Science and International RelationsUniversity of DelawareDavid GoloveHiller Family Foundation Professor of LawNew York University School of LawMark A. GraberUniversity System of Maryland Regents ProfessorUniversity of Maryland Francis King Carey School of LawJonathan HafetzProfessor of LawSeton Hall University School of Law