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From the pages of El Nuevo Federalista—(http://nuevofederalista.blogspot.com)

This report from the White House Task Force of Intergovernmental Affairs is the first report of its type issued this century by the Executive Branch. For a long time now supporters of the current and so-called "Commonwealth" status have said that Puerto Rico's political status was a new federal body politic conceived to place the Island outside of the Territorial Clause of the U.S. Constitution. This Report effectively ends that kind of speculation, as far as the Executive Branch is concerned. In spite of the cries of "foul" from critics inside the beltway and across the pond in the Island that the document seeks to impose a "Washington-solution" whereas one originated by Puerto Rican themselves, the Report will guide Federal policymakers for the foreseeable future.

But the Report is not an end in itself. It is but a beginning, for it opens up an opportunity to solve the issue of Puerto Rico's political status once and for all. By deflating the myths propounded by status-quo defenders about "further developing" the present political status by granting more rights and sovereignty to Puerto Rican – Americans while still remaining "Americans," coupled with even less citizenship responsibilities, President George W. Bush has set up clear and precise boundaries as to what is, and what isn't possible within the American constitutional system.

Those of us who defend the admission of Puerto Rico to the United States as its 51st state still have a lot of work to do. Powerful interests in the Mainland and in Puerto Rico are organizing even now to maintain Puerto Rico under an unchecked position of political subservience by concocting "new directions" for the current Commonwealth status that would allow them to keep their political and economical hegemony, fully expecting that Congress will be unsympathetic to tackle any petition of statehood made by Puerto Rican – Americans, as they would fear the cultural debate that will ensue.

Granting statehood and full American citizenship rights to Puerto Rican – Americans living in the Island will be used by so-called conservatives who are intent in denying any such recognition to Puerto Rican – Americans on the basis of language, culture, and national origin, as a wedge issue. The underground of our national debate has been abuzz for quite sometime now with arguments justifying the discrimination against Puerto Rican – Americans precisely on that basis. The aim of this not-quite-so-vast conspiracy is to force Congress to grant Puerto Rico independence unilaterally, without consulting the wishes of the 4 million Americans living there, a power that, this Report shows anew, Congress may exercise unfettered.

On discussion boards across the 'Net one can read statements written in all seriousness calling Puerto Rico a "Third World" country which should be "tossed out." In another exchange, on calling the Island "a dump," a reader took offense when I called to his attention the racist character of his assertion, which called Puerto Ricans, albeit implicitly, dirty, uncouth and therefore undeserving of full citizenship equality with other Americans. The reader in question showed dismal disingenuousness if he thought that his "neutral" remark was empty of ethnocentric connotations or that it somehow excused him from espousing these detestable views.

Yet, this trashy rhetoric can still arouse the pseudo-patriotism of those who think that the blessings of American citizenship and democracy are to be bestowed only upon worthier candidates, "worthiness" being defined by them as whatever their fancy, bias, and prejudice may dictate.

As a social and fiscal conservative, as a believer in a culture of Life, Freedom and Individual Rights, as a defender of the original meaning of the U.S. Constitution, I decry any such sentiments levied against Puerto Rican – Americans as contrary to the spirit nurturing our most sacred values. As an American man in uniform, I simply cannot deny to my fellow citizens of Puerto Rico the freedoms I defend for my other fellow Americans; as a resident in the mainland, as a tax-payer, and as an involved citizen, I have the voice and power I need to fight in word and in deed in favor of full equality for Puerto Rican – Americans.

Some of you may dismiss this as grandstanding, but I assure you, I will not be intimidated nor deterred by what ethnocentric conservatives may say against our democratic project to enfranchise 4 million American citizens in Puerto Rico.

That is not to say that Congress should just admit Puerto Rico to the Union without an ensuing debate. But to me, the debate should be—once the sovereign will of the people of Puerto Rico is ascertained through the ballot box—not if Puerto Rico should be admitted as a state, as much as what will be the best way to make it happen.

Any argument, be it in the halls of Congress or in public opinion, seeking to deny Puerto Ricans of those political, civil, and economic rights the rest of Americans take for granted because of their race, ethnicity, language, and cultural background, may look politically expedient for some opportunist politicians in some rarefied back rooms seeking to exploit nationalist fears; the possibility of Puerto Rico's admission to the Union may even inspire the rabble to new heights of hateful rhetoric, but as we all know, not everything that is politically expedient or constitutionally protected speech is always moral or conducive to the best interest of our Nation.

In the final analysis, Puerto Ricans are American citizens and as long as they remain so, they are entitled to the full range of privileges enshrined by this citizenship. Visionary and morally courageous Puerto Rican – Americans feel that is their duty to embrace all of the responsibilities American citizenship entails, and are nor ashamed to say so, unafraid of the ghosts of Federal tax-paying and forced cultural assimilation that fear mongerers love to spawn in the Island every time the talk of statehood for Puerto Rico gets a bit more serious.

We are not foreigners; we are "you." If the American citizens of Puerto Rico can be denied their rights for reason of where they live or the language they speak, tyranny will not be far behind: tyrants and demagogues will feel empowered to come after anyone not fitting the bill of what an American ought to be. You will be next.

In the final analysis, those of us who pursue and defend the admission of Puerto Rico to the United States, are convinced we are acting in the best American tradition of liberty, democracy, and the rule of law; of civil rights, enfranchisement, and popular sovereignty; of free enterprise, private initiative, and the culture of freedom; of our Founding Ideals, of Natural Law and ultimately, with the sanction of Nature's God.

I invite you to reflect on all this, and to join us on this just cause. Our cause must triumph if America is to continue to serve as a beacon to the world. That much is at stake.

- Download the White House Intergovernmental Affairs Task Force Report from http://www.endi.com/multimedios/pdf/reporte_status.pdf

Text of the document itslef, for the record:

STATEMENT OF GUIDING PRINCIPLES
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.

EXECUTIVE ORDERS CONCERNING PUERTO RICO’S STATUS
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 additional amendment to Executive Order 13183 on December 3, 2003, which established the current cochairs and instructed the Task Force to issue reports as needed, but no less than once every two years (See Appendix D).

HISTORICAL OVERVIEW
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 Taíno 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 Marín became the first governor elected by the Puerto Rican electorate with 61.2% of the vote.

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:
Commonwealth . . . . . 60%
Statehood . . . . . . . . . . 39%
Independence . . . . . . . . 1%

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:
Commonwealth . . . . .826,326 (48.6%)
Statehood . . . . . . . . . .788,296 (46.3%)
Independence . . . . . . . .75,620 (4.4%)
Blank and Void . . . . . . .10,748 (0.7%)

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:
Petition 1, “Territorial” Commonwealth
993 votes (0.06%)
Petition 2, Free Association
4,536 votes (0.29%)
Petition 3, Statehood
728,157 votes (46.49%)
Petition 4, Independence
39,838 votes (2.54%)
None of the Above
787,900 votes (50.30%)
Blank and Void Ballots
4,846 votes (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.

LEGAL ANALYSIS OF OPTIONS FOR PUERTO RICO’S STATUS

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.

1. Continuing Territorial Status
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 1998 (See H.R. Rep. No. 105-131 (1997)).

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 self government, 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).

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 Congress” (First Nat. Bank v. Yankton County, 101 U.S. 129, 133 (1879)). It is a 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 self-government.

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 self-governmental 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 Security was not a property right (Bowen v. Agencies Opposed to Soc. Sec. Entrapment, 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 Rico (See Political Status of Puerto Rico: Hearings on S. 244 Before the Senate Comm. on Energy and Natural Resources, 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.

2. Statehood
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 references. 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, 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.

3. Independence
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 self-government, 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, 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.

TASK FORCE RECOMMENDATIONS
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.