Can You Enhance a Commonwealth?

What is a commonwealth? In the United States, “commonwealth” is just part of the name of several states (Kentucky, Pennsylvania, Virginia and Massachusetts) and the territory of Puerto Rico, and has no legal meaning.

Similarly, the Northern Mariana Islands are a U.S. territory that like Puerto Rico has a local constitution and the name “Commonwealth.” Congress has offered the same form of local territorial government to Guam and the U.S. Virgin Islands. But that term just refers to the system of local civil government, and legally does not define or constitute a political status.

But the commonwealth party in Puerto Rico has an idea for what they call an “enhanced” or a “developed” commonwealth. What’s that?

Enhanced commonwealth

Essentially, this would be a new, special relationship between the United States and Puerto Rico in which Congress, which has plenary (i.e., complete or absolute) power over Puerto Rico, uses that power to give powers to Puerto Rico. Those who favor this idea believe that Congress could make Puerto Rico exempt from some federal laws, allow Puerto Rico to make treaties or deals with other countries as though it were a country itself, and promise to provide financial support for Puerto Rico.

There are a couple of problems with this.

First, since Congress has plenary power over Puerto Rico, any decision the current Congress makes could be undone by a future Congress. Today’s Congress could say that Puerto Rico can ignore federal laws and the next Congress could change that.

Enhanced commonwealth supporters point to a memo written in 1975 by A. Mitchell McConnel, saying,

“Congress under the Constitution has plenary power over the territories of the United States and Puerto Rico remains a territory as that word is used in the Constitution…it is possible for Congress to bind future Congresses with respect to Puerto Rico by means of a ‘compact.'”

However, this long-ago theoretical acceptance of the idea of enhanced commonwealth, under which even this memo makes it clear that Puerto Rico would continue to be a territory, has been buried under an avalanche of more recent statements from Congress, the Senate, and the office of the President, saying that the United States as a matter of law and policy will not accept any of the definitions so far offered for the term “enhanced commonwealth.”

Here is just one of these statements, from Rep. George Miller in 1998:

“The definition of Commonwealth supplied by [the PDP political] party, which is similar in many respects to the definition on the ballot during the 1993 referendum in Puerto Rico, is not accurate and is not acceptable to the Congress.  It is not acceptable that Puerto Rico would be eligible for full participation in all federal programs without paying taxes; it is not acceptable that Puerto Rico would pick and choose which federal laws apply on the island; it is not acceptable that Puerto Rico would be free to make its own foreign treaties. I appreciate that this is what the supporters of ‘Enhanced Commonwealth’ want.  But the Congress is not prepared to give such unprecedented rights to Puerto Rico while denying them to every state in the Union.”

Miller’s statement says what all the others say, and what Congress has said every time Puerto Rico has voted for enhanced commonwealth: no.

Continued desire for the impossible

The U.S. government has said again and again that enhanced commonwealth is “not a viable option.” And yet the “commonwealth” party continues to agitate to have this discredited notion on the next status vote ballot.

Some members of this party are reframing their idea of enhanced commonwealth as “free association.” Others are demanding that “commonwealth” again be put on the ballot, even though all three branches of the federal government have clearly stated that such a proposal is not possible under the constitution.

Could enhanced commonwealth win an election in Puerto Rico? Perhaps. It has won before. Congress said no then, and would say it again. The commonwealth cannot be enhanced.