White House Intergovernmental Affairs Report on Puerto Rico Status

Press Briefing by Ruben Barrales, Deputy Assistant to the President and Director of Intergovernmental Affairs and Kevin Marshall, Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice on Puerto Rico's Status Via Telephone

MR. BARRALES: Thank you all for being on the call. This is Ruben Barrales. And, again, Kevin Marshall is with us on another phone, as well. I'm just going to briefly go over the report, which happens to be very short, very simple and very straightforward, and then I and Kevin are available to answer any questions that you might have.

We were pleased to be able to take the report to members of Congress this afternoon, to the President for his review, to other elected officials around Puerto Rico and other interested individuals in Puerto Rico and throughout the mainland who have expressed interest in the issue.

I assume you all have a copy of the report. It is, again, as I said, fairly simple, going over the guiding principles, the executive orders pertaining to Puerto Rico, an historical overview that gives those of you who don't have any experience with Puerto Rico and this issue gives you a quick overview, and a legal analysis of the options for Puerto Rico's status. In there we identify what we consider to be the three options allowed for -- (inaudible).

Number one is the current status, which is called the commonwealth status, which is a territorial status. It is the one that Puerto Rico has now, allows for limited self-government. Then there is statehood, which, obviously, is a permanent status. And there is independence, which is another permanent status. I need to reiterate that commonwealth or territorial status is one that we see as can be indefinite, but really at the will of Congress.

The task force makes its recommendations, and in the recommendations we do ask that Congress take up the issue within a year and allow for the people of Puerto Rico to be able to vote and decide whether they wish to retain the current territorial status or move towards a permanent status. And it provides for another recommendation that if the people choose to elect and vote for permanent status, that they be given the option of one of the two, statehood or independence. And then if they initially vote to retain the current status, which they can do, and keep it as a territory indefinitely -- (inaudible) -- periodically, Congress may wish to provide for a vote to gauge the people's will as time moves one.

So it's pretty straightforward. It really is -- as you all know, I'm sure many of you know that the issue has been going on for over a hundred years. There have been attempts to resolve it. We have worked with all parties on the island. The task force has met with anyone who has requested a meeting. We've read volumes and volumes of material. We have been, and are willing to work with any of the parties on the island or here on the mainland to help move the process forward successfully. And we hope to work in cooperation with all of those involved. And at this point, we hope that Congress will take a look at the recommendations and hopefully move the question forward.

So with that, I'm going to see if -- or ask if Kevin has anything he might want to add.

MR. MARSHALL: I just want to comment on the legal question a little bit. The primary issue is whether the Constitution allows for some commonwealth status that couldn't be altered without the consent of Puerto Rico. And we conclude that it -- the Constitution does not. In reaching that conclusion, we're reaffirming the position that the Justice Department has taken for the last 14 years in both the first Bush administration and the Clinton administration and in the current administration.

But appreciate the importance of the question for Puerto Rico and for the United States. We have in the Office of Legal Counsel done a thorough reconsideration of issue, and concluded that that position is correct. And as part of that, I have met with several superb lawyers representing various interested parties and I've also received excellent written material from them, including from the former head of the office where I work and the former attorney general. And we've appreciated that input very much and I think it's made the report better.

Q My question, or at least one of them, is this is a report of, sir, a road map of the status issue? Or is it a plan of action?

MR. BARRALES: Well, it is, again, for those who are not very familiar with the issue, it does provide an historical overview very briefly -- so in that sense, maybe, a road map of what's happened to date. And then it provides what I hope is a level playing field for those who are interested in moving the process forward in terms of what we think the options are that are available and our recommendations for a way to move forward, in terms of our recommendations within the report.

There may be other ways to move forward, and we're interested in working with anyone who wants to help in that regard.

Q Now, should the content of this report be represented as an endorsement as to any of the alternatives?

MR. BARRALES: No, this is an inter-agency report. The executive order was very specific that it is an inter-agency report, review the information, met with individuals, read material and is now presenting its recommendations and report -- more of a progress report, you might describe it as -- to the President and to members of Congress. So it is not construed as a position of the administration.

MR. MARSHALL: Can I add something? This is Kevin. It was not part of our mission to state a preference or pick among the options. Our job was simply to identify what the options were under the Constitution and what a good way of getting them might be. So the report shouldn't be interpreted as endorsing any of the options that it lays out for the status of Puerto Rico.

Q I wanted to ask you -- I didn't hear the very beginning of the call that you said what is the next step? That you guys are going to be presenting this to Congress this afternoon?

MR. BARRALES: We did electronically and in hard copy deliver copies of the report to members of Congress, and also to the governor's office -- and mainly electronically to other folks who are interested in the issue.

Q Okay. So what happens next? I mean, are they required to -- you're saying that they hope that they take some action. Are they required to? Is there a time line for them to respond or to do something?

MR. BARRALES: It's an excellent question. There's absolutely no requirement, and so I think that's important for people to understand. We are trying to help move the process forward, and so we've provided what we hope are helpful recommendations and analysis of the issue.

Q Okay. And this vote, I mean -- so I guess there was no date or time frame for the vote to actually take place because -- unless Congress -- until Congress actually acts on these recommendations --

MR. BARRALES: As a matter of fact, in the recommendations, we do recommend that Congress set a date certain for an election, hopefully within a year, or at least start hearings within the year to begin moving the process forward.

Q Okay. And let's just say that they don't take any action, I mean, in the status. As you said, this is an attempt to try to get -- to move things forward. So if there was no action taken, it would still be the status quo, then, here?

MR. BARRALES: Well, yes, but I want to make it clear that, for example, the process could move forward as we recommend, and the people of Puerto Rice could decide to keep it (inaudible). They could decide to keep -- (inaudible) -- and, you know, if that's what they choose, I think my sense would be, you know, (inaudible) folks would support.

Q I would like to know if in any way this report is contrary to the representation that the United States made in 1953 before the United Nations?

Q Why? Why not? The commonwealth at that time was defined as a self-governing body and not a (inaudible) anymore.

MR. BARRALES: I understand. I'm very familiar with that. No, it doesn't -- the report, itself, doesn't change the status quo at all, and basically we think the people of Puerto Rico should be given an option to choose the particular status that (inaudible) that they think would work best for (inaudible). And, no, I don't think it conflicts at all with what happened in the --

Q The popular Democratic Party, or the executive branch, is saying already that it's a vague report, that, in some sense, you are forcing the issue because that will be -- you are trying Puerto Rico to go to statehood or independence, and probably the alternative to have the votes is the commonwealth or a new commonwealth.

MR. BARRALES: Yes, we really -- it would have been a much simpler process if it we already knew where we were going to conclude. No, we worked very diligently and fair in terms of reviewing all the options. And, again, it is not up to the task force; it's up to people of Puerto Rico and the Congress to decide what the future of Puerto Rico should be.

We just tried to very honestly look at the situation, speak with all the individuals involved, the representatives of the people of Puerto Rico -- from the governor's office, to the legislature, to others -- and we think that, again, the people and the Congress should decide. And we very much hope that this helps with that discussion and we look forward to working with anyone who, in a constructive manner, wants to help move this forward.

Q I have a question regarding the time between the second -- or between the first and the second recommendation. You said that Puerto Rico should hold a plebiscite next year. And depending on the result, so the next plebiscite would be on the current status or the independence or the conversion of Puerto Rico in another state of the U.S. So do you have a time for this second plebiscite in Puerto Rico?

MR. BARRALES: That's an excellent question, because as you acknowledged, we have a time line for the first where we're asking Congress to take a look at within a year.

But, no, we don't. We thought that was the right approach in terms of the process. And really, it's going to be up to the people of Puerto Rico and Congress to work out what might be the best time line in between. It might relate to when regularly scheduled elections are held, or it may be -- there may be other factors at that time that determine the timing of that election.

MR. MARSHALL: I don't think so. I think that we would be happy to see Congress move and get past the first step; and then the second one, I think, as soon as would be feasible after the first step is resolved.

Q I have a couple of questions, if I could. The first one is, why did you -- why do you, in your proposal, why do you suggest that there be a plebiscite between -- for people to decide whether they want to remain as a commonwealth or go into either independence or say -- why don't you just have a plebiscite where all three choices were given at the same time?

MR. BARRALES: I think that's a good question. Kevin might have something to add to that. Let me just say that I think it's important for the people of Puerto Rico and the Congress to decide consciously whether or not they want to remain as a territory, or to move towards a configuration that is a permanent one -- either statehood or independence. And I think it's important to make a conscience decision along those lines.

Now, again, we, as a task force, are not -- we are not taking sides on which way. And if Puerto Rico chooses to remain as a territory or a commonwealth, then more power to them; or if they choose the -- one of the two permanent options. But we wanted it to be a conscience choice.

MR. MARSHALL: I would just say that in the recommendations, we do make the point that in ascertaining the will of the people of Puerto Rico, which is, of course, paramount, we want to try to do it in a way that gives clear guidance to Congress or future actions. Some of the prior votes, I think we'd all agree, have not provided clear guidance. And it seemed to us that there was a clear distinction between on the one hand, the current status -- which can be indefinite, but wouldn't be described as permanent -- and on the other hand, statehood and independence. And even though those two are different from each other, they're both a change and what could be called a permanent status, so that choice seemed like a natural first step.

Q All right. And what about the free association? Is that, in any way -- has that come into the picture in your discussions? A possibility of Puerto Rico taking this other step that's not quite independence, but --

MR. BARRALES: Let me address -- Kevin, I'm sure, will have something to add. Actually, no, we think it is quite independence. We really think free association would be a configuration of the people and Congress choosing independence. In other words, we could see a scenario where if the people and Congress chose to move in the direction of independence, they might (inaudible), but we want to remain closely associated with the United States, that that would be moving towards independence. And then the details of which we don't get into in the report, but there are issues that relate to dual citizenship, that relate to other ties that would bind the two together.

Q Okay. Well, if they chose independence, but they really mean free association, how would that play out?

MR. MARSHALL: I think in terms of the recommendations we laid out, I think that would fit in recommendation two. If they were to decide between statehood and independence and to choose for independence, that would be a kind of independence. I think you'll see a fuller explanation of that in the legal analysis. We could talk about Micronesia and the Marshall Islands in Palau. We make clear that free association is a form of independence, but still a variation.

So I think ultimately that would be for Congress, the kind of step two stage, to spell that out and determine how to go about determining the exact nature of the independence, because we do explain that.

Q Free association would be a choice for people to make, for voters in Puerto Rico to make?

MR. BARRALES: Potentially. We do not prohibit that, in terms of our recommendation.

Q I just have one last issue I wanted to discuss with you guys. You very clearly say in the recommendation that it is the people of Puerto Rico -- and you reiterated that in this conference -- that it is the people of Puerto Rico that would have to make a choice as to status, right?

Q Now, it makes me think -- and I want you to react to that conclusion -- that this report could be interpreted as more the White House passing the ball along to the Congress and the people, than actually intervening with a voice as to what should be done.

MR. BARRALES: Well, I think most people would agree that to resolve the issue, it's going to involve the will of the people of Puerto Rico and the authority of Congress. So those are really the two entities, if you will -- the people of Puerto Rico and the United States Congress -- that will really be able to help us reach a conclusion here.

Q But some people might have expected the White House to propose or put forward a position as to what will be the best option, or what will be the option the White House would endorse or agree upon. And the report doesn't do that -- in fact, the White House is actually passing the hot potato to other hands. You understand?

MR. BARRALES: I know what you're saying, but the task force -- our job was to recommend to the President, and to the Congress, some suggestions for moving the process forward. And the hot potato you refer to, no one is going to cook that potato, we need to put it in the kitchen. And the people who are going to actually make this happen are the people of Puerto Rico and the Congress of the United States.

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.

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