Making Puerto Rico a state by 2021

A new bill aims to establish Puerto Rico as a state by 2021.

Filed on June 27 by the island’s non-voting congressional representative Jenniffer González Colón (R), the Puerto Rico Admission Bill of 2018 (H.R. 6246) has garnered support from 14 Democrats and 20 Republicans. This support includes chairman of the House Natural Resources Committee Rob Bishop (R-Utah) who has significant influence on the island’s politics.

{mosads}Among other provisions, the bill calls for the admission of Puerto Rico as a state following a transition process. That transition would require the creation of a Congressional Task Force, public hearings, the filing of preliminary and final reports and the cooperation of the federal agencies. Perhaps as importantly, the process would involve the incorporation of the territory until its final and eventual admission as a state.

This last provision has raised the objections from certain political sectors in the island, which find incorporation to be an attempt to short-circuit the other status alternatives. The bill recognizes that although the results of the 2012 and 2017 status referendums favored statehood and are deemed to trigger the transition to statehood, any additional democratic self-determination process is not precluded under local or Federal law.

In fact, as a matter of historical record, prior to being admitted as states all territories celebrated a federally mandated referendum vote on the issue of statehood. It is fair to assume that such a nationwide vote will be celebrated at some time prior to admission, at which point the supporters of the unincorporated territory and independence will be able to express and promote their particular political persuasions. In a democracy, a minority does not have the right to hold the political process indefinitely hostage for their advantage.     

Given current political alignments, controversies and the upcoming midterm elections, it is still too early to tell how the bill will fare in the legislative process. Regardless of future developments, it behooves all members in Congress to take note of the growing impatience in Puerto Rico with Washington’s perennial procrastination to address the status question.

Much has been said about Puerto Rico’s decade long fiscal and economic crisis. It’s crushing public debt, its insolvent public pension plans, the collapsed energy grid, the massive migration, the continuing implosion of its real estate market, the precariousness of the public health system, and last year’s devastation caused by Hurricanes Irma and María.

Some have argued that given present circumstances the priority should be to address Puerto Rico’s precarious economic condition, leaving for later any consideration on the political questions regarding its territorial relationship with the United States. It is not surprising that this argument is being put forth principally by the territorial Popular Democratic Party and its political allies, and by stateside political forces hostile to the idea of a state with a Hispanic majority.

It is also not surprising — given the Supreme Court reaffirmed Puerto Rico’s territorial status in 2016 with the Commonwealth of Puerto Rico v Sanchez Valle ruling, the 2016 legislation of PROMESA imposing an Oversight Financial Board and the bankruptcy-like filing — that the beneficiaries of the unincorporated territory will shore up their diminishing economic interests by trying to block any attempt to change the current status. In this context, it is worth recalling last year’s Tax Reform and the application of the higher tax rates to American Controlled Foreign Corporations (CFC) in Puerto Rico — as a foreign jurisdiction — which underline the utter defenselessness of the unincorporated territory.

From a constitutional perspective, the unincorporated nature of the territory — belonging too, but not being a part of the United States — has allowed the federal government to treat Puerto Rico in a discriminatory manner, from issues of taxation, government services and political participation. Many in Puerto Rico and in the United States have financially benefitted from this arrangement. The root cause for the current economic collapse must be laid at the feet of the unincorporated territories doctrine.

Since 1952, when the Puerto Rico’s current Constitution was promulgated with the approval of Congress, the federal government has been able to sidestep the status controversy, disingenuously referring it back to the people of Puerto Rico. After PROMESA this is politically untenable.

Congress has the power to dispose of the territories. Congress needs exercise its lawful authority. Lest we forget, it was by judicial jiu-jitsu in the 1900 Downes v Bidwell case and others, that the doctrine of unincorporated territories was grafted on the constitutional text. Any reading of the constitutional text — be it originalist or not — needs to come to terms with the historical fact that this doctrine was based on racist and imperialist assumptions.

After 118 years Congress needs to redress this judicial misstep by recognizing the rights of 3.5 million American citizens in Puerto Rico to participate in the political arena in conditions equal to the rest of its fellow citizens.

Andrés L. Córdova is a law professor at Inter American University of Puerto Rico, where he teaches contracts and property courses. He is also an occasional columnist on legal and political issues at the Spanish daily El Vocero de Puerto Rico.