Puerto Rico Statehood Pipe Dreams?

By Howard Hills

“Politics, Debt, Apathy Make Puerto Rico Statehood A Pipe Dream,”  by Chris Talgo, is a well-written but ill-contrived article that implies that 3.3 million Americans in Puerto Rico are apathetic and ignorant about their modern era colonial dilemma. This ignores that fact that a majority of voters in local plebiscites cast ballots to end the current status and choose statehood.  Author Talgo also is provably wrong in asserting that federal court rulings defining the current status as “unincorporated” mean statehood effectively is foreclosed as a matter of current law.  Without that unsustainable premise, the prediction of failed political will to attain full application of the U.S. Constitution and admission to the union is the author’s own anti-statehood “pipe dream.”

History shows

Historically, it has been those who predicted that equality possible only through statehood somehow was impossible who turned out to be dreaming, figuratively speaking. For example, it was said that statehood was out of reach when the voters of Colorado and Nebraska rejected statehood, but instead later successfully petitioned for admission. Statehood did not receive a majority vote in three Wisconsin territory referendums. Then there was California, a west coast territory under military rule after the Mexican American War, without any civilian government. Until an unforeseeable event – the gold rush – ushered in locally initiated civilian government, and in less than a year California was able to leap-frog over 14 land-locked territories to be admitted to the union.

Post-WWII realignment and U.N. decolonization initiatives gave decisive impetus to statehood for the territories of Hawaii and Alaska, as well as independent nationhood for the unincorporated U.S. territory of the Philippines.  Puerto Rico settled for an experiment in enhanced local self-government that turned out to be a dead end, squandering seven decades in which statehood or nationhood could have been achieved, and eroding the territorial regime’s political influence in Washington.

However, Puerto Rico’s past strategic value in WWI, WWII and the Cold War once again may become an unforeseen but suddenly vital factor in U.S. homeland security, given new and perhaps never more menacing threats of political warfare and emerging unfriendly military presence in the Caribbean.  Even more immediately, given the decisive voting potential of 6 million Americans of Puerto Rico origins in federal election battleground states, it is the self-satisfied presumption Puerto Rico is doomed to remain a failed U.S. colony that is more likely to go up in smoke.

Inherently imperfect territorial status beckons a more perfect union

In the last ten years, there has emerged an increasingly anti-democratic political narrative opposing future statehood for Puerto Rico.  The anti-statehood argument against eventual admission of America’s last large and populous territory as a state is based on two historical, legal and economic falsehoods:

First anti-statehood fallacy:  

The classification of Puerto Rico as an “unincorporated” territory in a 1901 ruling by the U.S. Supreme Court means Puerto Rico is not intended, destined, qualified or even eligible for statehood.

Rebuttal:

The “unincorporated” territory doctrine of 1901 simply held that federal law did not apply in a territory acquired from a foreign nation the same as in states until Congress determines how U.S. sovereignty, nationality and domestic law applies to a formerly foreign territory and inhabitants.

Since Congress conferred birthright U.S. citizenship to Puerto Rico in 1917, the federal courts have ruled that Congress alone, rather than the courts, can determine when the Constitution will apply fully in Puerto Rico. That is a prerequisite to permanent union leading to statehood, in lieu of continued inchoate status as a territory with no constitutionally defined permanent status.  The other option is to declare a policy leading to nationhood based on separate and independent sovereignty.

Second Anti-Statehood Fallacy:

Even though Puerto Rico is more developed economically than most if not all 32 territories that became states in the past, the anti-statehood argument is that federal programs and services in states have expanded of since the last territory was admitted in the modern era. As a consequence, Puerto Rico must be developed economically comparably to an existing state to be admitted as a state.

Rebuttal:

For every territory admitted as a state, it has been full application of the Constitution and promise of future equal citizenship with democratic empowerment under statehood that promoted political and economic development making to statehood a success after admission.

Anti-democratic statehood disqualification argument

The emergence of the Puerto Rico statehood disqualification argument goes beyond the historically perverse autonomist anti-statehood argument that statehood was not politically or culturally sustainable. This allegedly was due to what anti-statehood leaders referred to as PR’s historical and sociological “idiosyncrasies,” including collective cultural fear mongering about loss of language and ethnic heritage.

That anti-U.S. narrative has converged somewhat with statehood opposition by some in Congress who began in recent years to test-market the revisionist ideological fallacy that Puerto Rico is disqualified from statehood by the non-incorporation created under so-called Insular Cases defining that interim status since 1901.  That propagandistic assertion in turn has morphed into a sequel argument that Congress has made a determination to permanently institutionalize the Insular Cases, based on a mandate by the courts that an unincorporated territory somehow is by definition not going to be a state.

Yet neither the federal courts nor Congress ever “mandated” or even created space in territorial law and policy for an argument that Puerto Rico is precluded much less disqualified from permanent union with full application of the Constitution leading to statehood. From an entirely neutral and objective perspective, arguing that non-incorporation means Congress would need to change a previously determined political status policy to consider statehood for Puerto Rico also is a political distortion.

These fallacies are not on the spectrum of legitimate competing historical perspectives or legal truisms.

Rebuttal of Puerto Rico statehood disqualification narrative:

• Nowhere in court rulings, statute or executive measures is there any legal basis for assertion that unincorporated territory status under the Insular Cases defines Puerto Rico as a territory that is not intended or destined to become a state.
• For the 27 territories admitted as states between 1796 and 1896, the Constitution applied fully, and there was no classification under federal law as “incorporated” or “unincorporated,” a political status that did not exist as an explicitly differentiated territorial status under the Constitution or federal law before the original Insular Cases (1901-1922).
• The unincorporated territory categorization was invented by the courts in 1901, because the 1899 treaty with Spain making Puerto Rico and Philippines new American territories did not confer U.S. citizenship with full application of the U.S. Constitution.
• The Insular Cases instead limited rights to what came to be defined as an ambiguous and undefined standard of “fundamental” liberties, as may be determined by Congress and the courts, which do not include equal protection and due process as applicable in states as well as all territories before the judicially instigated advent of non-incorporation Insular Cases (1901).
• Prior to the Insular Cases the Constitution applied in full to all territories with U.S. citizen populations, which due to citizenship of population were classified as “incorporated” when the Insular Cases imposed non-incorporation on territories with non-citizen populations (1901).
• Congress corrected that imperialist non-incorporation doctrine in 1916 by declaring in a federal territorial organic statute that the people of the Philippines permanently were denied U.S. citizenship because the future status of that territory would be independence not incorporation and permanent union leading to statehood.
• Five months later in 1917 the Congress conferred U.S. citizenship for Puerto Rico, under a territorial organic act the terms which provided for increased self-government consent with organic laws of 32 territories with U.S. citizens populations in which the Constitution applied fully and formed permanent union leading to statehood.
• In the last of original Insular Cases in 1922, Balzac v. Puerto Rico, the court deviated from the pre-1922 Insular Cases and anti-colonial tradition of the Northwest Ordinance by continuing unincorporated territory status for Puerto Rico even after citizenship was conferred, and requiring Congress to explicitly mandate incorporation in order for the Constitution to apply fully.
• The treaty of cession for Puerto Rico devoted from the Louisiana Purchase (1803), Mexican Southwest Cession (1848), Alaska Cession (1867) and Hawaii Annexation (1900), because in each case Congress conferred U.S. citizenship, from which the courts inferred with full application U.S. Constitution and permanent union with the states.
• Given that Insular Cases jurisprudence Balzac, and that Congress not the courts confer citizenship, the real meaning of unincorporated territory status is that the U.S. Constitution provides fundamental rights in territories, but does not apply fully until Congress denies or confers citizenship.
• The 1922 Balzac ruling was not substantively consistent with the original Insular Cases, but rather actually was a deviation from stare decisis precedent of the original Insular Cases, which applied only to formerly foreign citizens in formerly foreign territories.
• Instead of incorporation, in 1922 the court held in Balzac that full application of the Constitution cannot be inferred from conferral of a grant of citizenship, a material bad faith ruling by the court never reconciled with the 1905 legal ruling by the federal courts in Rassmussen v. U.S. recognizing permanent union under the Constitution for Alaska, based precisely on the inference and the necessity thereof due to the conferral of citizenship in Alaska by Congress.
• At the same time the federal courts and Congress recognized that the Insular Cases applied only to non-citizens in the Philippines who were temporarily under a U.S. national status, and accordingly, in 2016 the Congress denied citizenship to Philippines.
• Even there 1922 ruling inconsistently applying non-incorporation to Puerto Rico after conferral of citizenship recognized Congress can incorporate Puerto Rico at any time and thereby restore the Northwest Ordinance tradition, rather than suggesting that 1922 ruling somehow designated Puerto Rico as a territory not intended or destined to be a state.

Economic illiteracy of disqualification argument

The argument that statehood should be denied in the modern age to territories facing economic development challenges, or because statehood would change shifting political equities, is really an argument for either ending conferral of U.S. citizenship in Puerto Rico, or for permanent union without equality for 3 million Americans in a colonial relationship.  That is because the argument against admitting a state that has not yet converged into the national economy would have precluded statehood for most if not all 32 territories that became states.

Indeed, most of the 32 territories that became states had unproven economic development potential.  The year before statehood, Alaska’s territorial government was still fiscally unable to assume the public service and operations functions of a state government.  The new state was headed for insolvency until economic sustainability was enabled by a 9.2 magnitude earthquake that required a massive federal investment in the state’s physical, economic and political infrastructure.

The cost of Alaska and Hawaii’s economic adjustment during transition to statehood was far greater than phasing in the cost of the federal social safety net for Puerto Rico when it is incorporated and admitted to statehood, including SNAP and SSI.

Similarly, there were always political equities that made admission of new states complex, but pre-Civil War political opportunism related to the free state versus slave state balance in Congress, or the political party balance in Congress, always yielded to the imperative of preserving the American creed of equality under rule of law.

Admission of territories always required political adjustments that were overcome by the necessity of equality for U.S. citizens in permanent union under the Constitution.  The argument that creation by Congress of a social safety net for American in the states is a reason to deny equality that comes only with statehood to Americans in a territory otherwise qualified for admission based on size and population is nothing less than anti-American.

Do U.S. Supreme Court Rulings Still Matter?

The current political status of 3.5 million Americans in Puerto Rico, which is of interest to most of the 6 million Americans of Puerto Rican origin in the 50 states, is defined in the 1922 ruling of the U.S. Supreme Court in the case of Balzac v. Puerto Rico. Prior to Balzac, the 1901 ruling in Downes v. Bidwell case that invented “unincorporated” territory status doctrine, applied only to non-citizens in the three territories ceded by Spain in 1899.

It was in the Balzac ruling of 1922 that the current status of U.S. citizens in Puerto Rico under federal territorial statute law is defined by the U.S. Supreme Court to this day. That still governing and controlling ruling is directly contrary and materially opposed to the false statehood disqualification narrative that non-incorporation means a territory is not intended to become a state.

Instead, the unanimous ruling of the court confirmed that Puerto Rico is not only eligible for statehood, but that the conferral of U.S. citizenship could well have triggered permanent union under full application of the Constitution as it did in the case of Alaska. However, the court stepped back from declaring Puerto Rico an incorporated territory, as it had in determining the status of Alaska in the 1905 case of Rassmussen v. United States, citing the ambiguity of political status terms in Article IX of the treaty with Spain annexing Puerto Rico under U.S. rule.

Specifically, rather than interpreting the 1901 “unincorporated” territory status as a barrier to statehood, after Congress conferred U.S. citizenship in 1917 the court ruled in the 1922 Balzac case that citizenship would mean incorporation, unless there was a record before the court that put that intention in doubt. In Balzac, the court decided there was not a record indicating an intent to deny incorporation, just enough ambiguity in the hyper-vigilant perspective of the court in that case to require Congress to more explicitly to declare a change of status:

“Had Congress intended to take the important step of changing the treaty status of Porto Rico by incorporating it into the Union, it is reasonable to suppose that it would have done so by the plain declaration, and would not have left it to mere inference…the purpose of Congress might well be a matter of mere inference from various legislative acts…but in these latter days, incorporation is not to be assumed without express declaration, or an implication so strong as to exclude any other view.’

The weak logic and flawed legal reasoning of the Balzac ruling failed to justify the court’s deviation from the Alaska precedent, and arguably confirmed the thinly veiled biases of its author, Chief Justice Taft, based on his experience as Governor of the Philippines during its insurrection, and as President when scandal in Alaska territory contributed to his failure to be elected to a second term.

Congress alone can resolve court-created status dilemma

Congressional acquiescence in Balzac led to misapplication of unincorporated territory status to U.S. citizens in Puerto Rico without a future status policy determination. This abdication of responsibility by Congress demands that we recover and restore a national understanding of the Northwest Ordinance tradition for territorial status resolution.

That is the context in which a record can be created before Congress on the need to restore American values corrupted by the transformation of the non-incorporation doctrine the courts intended to be temporary until Congress determined the citizenship of Philippines and Puerto Rico into a 124-year failed experiment in permanent imperial rule over communities of U.S. citizens.

That discourse must take us beyond an accurate understanding of imperialism, colonialism and racism in the original Insular Cases.  An emotional moral argument is insufficient to address the legal and political misconceptions about non-incorporation contrived to create the falsehood that Puerto Rico does not qualify for statehood.

It is the American way for U.S. territories with sufficient size and American citizen population, as determined by Congress, to enter into permanent union under the Constitution as a step toward statehood.

As a founding document of the Republic, written under the same hand as the Declaration of Independence, the tradition of the Northwest Ordinance requires only that each new state adopt a constitution “not repugnant to the principles” of that 1776 declaration, the most transcendent of which is government by consent of the governed.

In the end, Congress alone must exercise its political power under the Territorial Clause in Article IV, Section 2, Clause 3 to decide the political question of status and define the status of territory not in a state. As Justice Kagan wrote in Puerto Rico v. Sanchez (2016):

“…one power Congress does not have, just in the nature of things: it has no capacity, no magic wand or airbrush to erase or otherwise rewrite its own foundational role in conferring political authority. Or otherwise said, the delegator cannot make itself any less so — no matter how much authority it opts to hand over…Because when we trace that authority all the way back, we arrive at the doorstep of the U.S. Capitol…”

Howard Hills served as Counsel on Territorial Status Negotiations, Executive Office of the President (1982-1986); Counsel for Interagency Affairs, Office of Free Associated State Affairs, U.S. Department of State (1986-1989); Senior Advisor, Office of the Secretary of Interior and Special Presidential Envoy for Compact of Free Association Negotiations (2000-2023); author, “Citizens Without A State,” Amazon (2021).