U.S. Justice Department Road Map Defines Way Forward

The pace of political maneuvering on status resolution for Puerto Rico has quickened. As a moment of truth approaches, Congress is called on by all stakeholders to end decades-long abdication of constitutional authority over territorial status and act with a sense of historic responsibility.

Rising to the occasion, House Natural Resources Committee Chairman Raul Girjalva held a June 16 hearing on H.R. 1552, a bill enabling admission of Puerto Rico as a state if terms defined by Congress are approved by the people in a referendum. The committee also took testimony on H.R. 2070, which would convene under federal and local law a local “convention” to consider all possible future status options and submit a locally adopted status for ratification by Congress.

Meanwhile, a Department of Justice memo released before the June 16 hearing gave Congress a green light and road map for marking up and reporting H.R. 1522, the statehood enabling and admission act based on the anti-colonial, anti-imperialist tradition that is the legacy of the Northwest Ordinance model for territorial status resolution. It came as no surprise when – as in the case of New Mexico, Alaska and Hawaii – cultural, racial, linguistic, partisan, fiscal and economic uncertainties were used by anti-statehood factions to create fear of what Chairman Grijalva termed “possible unintended consequences” of moving directly forward on statehood.

Inevitably, as the steady cadence of Puerto Rico’s march over the bridge to equality brings us to the crossroads of decision on H.R. 1522, the louder the anti-statehood counter narrative becomes. As if on cue, a familiar scenario played out at the June 16 hearing, intended to break the momentum and disrupt the logic of the pro-statehood movement, by advocating a perpetual status quo stalemate that for 75 years has been the signature legacy of the anti-statehood movement in Puerto Rico.

Alexandria Ocasio Cortez

In an impressive cameo performance, Alexandria Ocasio Cortez opposed the pro-statehood admissions act and instead defended the local status convention bill she sponsors, H.R. 2070. However, her argument that H.R. 2070 is not anti-statehood may well backfire politically on those urging the gradualism of H.R. 2070 that AOC now defends, at the expense of democratic populism calling for statehood now under H.R. 1522.

Using concern about uncertainties of statehood to derail the Puerto Rico equality movement, AOC and other sponsors/supports of the competing alternative of H.R. 2070 skillfully navigated the cross-currents of politics and national purposes at play in the tortured Puerto Rico political status debate. For AOC the “let’s go back to square one” proposal in H.R. 2070 that ignores the 2012, 2017 and 2020 certified voting results contradicts the democratic populism she stands for on so many other issues. But AOC’s sponsorship of H.R. 2070 is between her, voters in her district and nearby district of powerful co-sponsor of H.R. 2070, Rep. Nydia Velazquez.

What the diverse nationwide majority of elected leaders in Congress needs to focus on is the road map provided in the Department of Justice memo on H.R. 2070. Instead of a green light finding it gave to H.R. 1522, the DOJ analysis of H.R. 2070 flashes a dead end ahead warning light, alerting Congress to the history of unconstitutional “autonomy” status definitions Puerto Rico’s local political process has produced for 75 years.

Only after the 61% vote for statehood in 2012 did Congress provide in 2014 a statutory mechanism for status resolution that required self-determination based on options compatible with the U.S Constitution. That produced majority votes for statehood in 2017 and 2020. Yet, the proposed local “convention” to define political status options already can be conducted under local law without sponsorship by Congress. The only reason the anti-statehood party in Puerto Rico is supporting H.R. 2070 is because the pro-statehood party controls the local territorial government, so it wants Congress to impose the convention it can’t impose under local law.

There is an appearance that the anti-statehood party in Puerto Rico went to Velazquez and AOC to sponsor H.R. 2070 because it lost the last election, a democratic outcome of local elections that the anti-statehood party finds so “unfair” it wants Congress to intervene. Just like it wants Congress to suppress the 2012, 2017 and 2020 majority votes for statehood.

Biden Better Sorting Puerto Rico Issues Than Trump

The legal and policy determinations of the Biden Administration on territorial affairs have worked as a check and balance restraint on Congressional territorial policy, instead of vice versa as in the past. That includes current DOJ pleadings on territorial law in federal court lawsuits asking unelected federal judges to do the job of Congress by fixing what’s broken in U.S. territorial policy imposed by statutes Congress enacted.

The Biden Administration rejected the call by the House Natural Resources Committee in a March 10 letter to the U.S. Attorney General and at a May 12 hearing on H. Res. 279 for DOJ to abandon defense of federal territorial statutes being challenged in the courts. It hasn’t gone unnoticed that recent Congressional hearings didn’t include Biden administration witnesses to testify on territorial status issues.

While it is not known for certain what the White House and DOJ thinking may be about all aspects of these issues, what is clear is the that narrative of H. Res. 279 and H.R. 2070 are deemed legally and politically questionable. Indeed, for every point made (scored) by opponents of H.R. 1522 and supporters of H.R. 2070 there was an equal and opposite counterpoint, many but not all of which were exploited by pro-statehood supporters of H.R. 1533:

• Unintended consequences of continued territory and/or uncertain H.R. 2070 delay scenario greater than H.R. 1522 “give statehood a chance” risks.
• History of indefinite territorial rule compared to history of territories that became states makes case for H.R. 1522.
• Alaska was bankrupt, tax uniformity held in abeyance, transfer of federal property and earthquake relief saved new state economy from collapse.
• Hawaii independence movement was larger than Puerto Rico but majority today still favor statehood.
• UN did not count boycott blank ballots in self-determination process for free associated states of Pacific.
• U.N.convention on civil and political rights does not require perfection in self-determination, but less imperfect and/or more perfect as determined by U.N. and parties concerned.
• None of the 32 territories that became states would have been admitted under the perfection standard or fear of “unintended consequences” standard.
• Statutory convention more easily controlled by political parties and less democratic than status policy of local government controlled by elected constitutional officers.
• Lawful election of statehood majority is rule of law mandate to lawfully promote and seek purposes for which elected.
• Suggesting action on statehood should be deferred until the federal finical control board is phased out has it backwards.
• The sooner federal actions are based on future status chosen by voters the sooner full democratization and sustained prosperity can be achieved.

Gradualism Has Risks, Too

The H.R. 2070 offer of gradualism only seems to be the path of least resistance, and perversely may only seem less drastic than full democracy and equality. In reality it is the uncertainty of gradualism that creates a more drastic risk of “unintended consequences.”

Thus, to be properly understood, the pronouncement by Grijalva of an “unintended consequences” doctrine applied to statehood also should be applied to the unintended consequences of continued territory status, real free association and independence.

The ideas propounded by anti-statehood witnesses suggested that Congress decides if voters are “informed” adequately, that Hawaii and Alaska process was informed self-detetmination but Puerto Rico’s is not, that there are many free association models available to Puerto Rico. All these arguments are either incomplete or simply wrong.

Free association emerged as the preferred alternative to statehood among H.R. 2070 supporters. This discussion glossed over U.N. resolutions and U.S. legal precedent preserving right of both parties to terminate any compact of free association unilaterally. That is not optional, without that right of termination the association is not free, because it does not preserve the right of both parties to independence at any time.

The discussion of U.S. citizenship under free association correctly noted Congress could give U.S. citizenship to a free associated state but then take it away in future. That is what Puerto Rico has now! And when simplified in that manner this implies that the current U.S. statutory citizenship laws will continue under free association, but it won’t go down that way in reality.

As U.S. Attorney General Thornburgh testified in 1991 U.S. Senate hearings, free association would not be truly sovereign unless conferral of mass U.S. citizenship stopped, and children are disqualified from future citizenship based on citizenship of parents acquired during territorial status period.

That is because derivative U.S. citizenship would have to be ended with U.S. sovereignty in order to preserve the right to independence and free will to exercise it. This is not about “dual citizenship” in which an American acquires the citizenship of another nation under its laws. That is very different than the suggestion the U.S. would create a right for the people of another nation to be U.S. citizens based on foreign birth, or birth of parents under U.S. territorial rule.

The value of testimony at the hearing by an objective economist was that he stated clearly that continued territory status has the worst predicted and unintended consequences. Statehood has the best, especially for the poor who are not yet within reach of the U.S. standard of living common in the states.

Trivial Pursuit: Puerto Rico Edition

The assertion by AOC that 2070 “is not for or against statehood” has to be translated to mean “If Puerto Rico can’t get something we like better over the next 25 years, we’ll consider statehood.”

That invites the reply, “If you are not for statehood as approved by voters, then you are against statehood as a approved in a democratic process because it is not the result you want.”

Columbia University law professor Christina Ponsa Kraus correctly noted “The people of Puerto Rico earned an offer of statehood by their vote last November.” It should be added that Puerto Rico should not be singled out for requirement of a vote on continued territory status, unconstitutional free association proposals or other non-viable options that really would bring “unintended consequences” compared to the known consequences of statehood.

Same for “second guessing” like BREXIT, whose member nations retained national sovereignty that Puerto Rico as never recognized to possess. No other territory was required by Congress to advise on statehood “disclosures,” and Hawaii or Alaska statehood education would be easy to do in Puerto Rico. Same for free association or territory status, but DOJ did not require informed voters and education programs for votes there either.

There are no examples of whatever it is anti-statehood party urges us to accept under the abstractions of undefined “free association.” The success of statehood supported by majority in all 32 former territories speaks for itself, despite opposition at time of admission and today.

Those are among the many ways statehood is the less risky norm, and it is failure to end the current colonial regime based on self determination that creates political risk of unintended consequences.

That is the primary takeaway from the June 16 hearing.