• Andrés L. Córdova

A Modest Proposal: Territorial Incorporation for Puerto Rico

During the earlier part of the presidential campaign, then contender for the Democratic nomination Joe Biden held the traditional view on Puerto Rico that he would favor any status option that the people of Puerto Rico choose. This noncommittal position has allowed stateside politicians to sidestep the question of statehood. It has not hurt that this studied ambiguity curries favor with powerful economic sectors – and prospective donors – that benefit from the continued territorial arrangement which allows for significant federal tax advantages to American controlled foreign corporations. Historically, Puerto Rico has been classified as a foreign jurisdiction under the Internal Revenue Code, exempting it from the application of the Uniformity Clause prescribed in Article I, section 8, of the Constitution.

Under the infamous Insular Cases of the early twentieth century, Puerto Rico continues to this day to be an unincorporated territory, belonging to but not being a part of the United States. The racist overtones of this doctrine are evident, and have long been noted by constitutional scholars. This unoriginal judicial doctrine allows for the selective and discriminatory application of fundamental constitutional rights to the American citizens residing in the island, depriving them for example of the right to vote for President or have voting representation in Congress.

During the last stretch of the presidential campaign, looking for support of the large Puerto Rican vote in Florida, Joe Biden modified his position claiming he personally favored statehood, and that if elected he would favor extending all federal programs to Puerto Rico in an equal footing. Although he eventually lost Florida’s Electoral College vote, Puerto Ricans voted significantly in favor of Joe Biden.

As has been widely reported, in the recent general election in Puerto Rico, voters were asked if they wanted to immediately become a State of the Union. Over 52% voted in favor of statehood. This is the third time in recent years that statehood has prevailed over all other status alternatives in territorial sponsored plebiscites or referendums.

President-elect Joe Biden and the Democratic Party have a political decision to make: Will they accept the results of the plebiscite favoring statehood as the electoral will of the people of Puerto Rico and, consequently, pursue those policies to such an end, or will they try to shuffle the results in order to ignore them under the pretense of Republican leadership opposition.

A telling instance of this latter strategy would appear to be President Obama’s recent declaration that statehood for Puerto Rico and Washington DC should be understood within the larger context of reforming the Electoral College in our imperfect democracy. This statement should be challenged insofar it seems to tie statehood to the larger constitutional issue of the Electoral College. Statehood for Puerto Rico – contrary to Washington DC – does not raise any constitutional question, and any attempt to link them unnecessarily muddies the waters at its expense.

It is true that many in current Republican leadership are publicly opposed to statehood for Puerto Rico because they believe that it would be a Democrat state. This belief is not shared by many in Puerto Rico. In this context, the upcoming run-off election in Georgia for control of the Senate plays a central role on its immediate statehood possibilities. A Democrat victory in both seats would appear to open the possibility of moving the statehood question forward in Congress. A Republican victory under the leadership of Mitch McConnell, on the other hand, would probably stop statehood on its tracks, regardless of the results of any insular plebiscite.

Regardless of the result of Georgia’s run-off election, there are steps that both Democrats and Republicans can take in the immediate future to address Puerto Rico’s claim on statehood. First, as President, Joe Biden could fulfill his campaign promise by Executive Order mandating equal treatment to Puerto Rico of all federal programs, similar to the memoranda President George H. Bush signed in the 1990’s. Of course, there is no legal guarantee that this Executive Order would be permanent, as it could be rescinded by a later Executive Order.

Secondly, the incoming Biden Administration and its Department of Justice could act – contrary to the Trump Administration – on Public Law 113-76, authorizing a federally sponsored plebiscite upon request by the incoming pro-statehood administration of Governor elect Pedro Pierluisi. In fact, as of this writing the outgoing Puerto Rico Legislature will be considering a bill in its up-coming lame-duck session to authorize the Governor to petition the Department of Justice to move forward on a federally sponsored plebiscite.

Thirdly, and perhaps of greater import, Congress could act on its constitutional authority under the Territorial Clause and declare by joint resolution the incorporation of the territory of Puerto Rico. Such a joint resolution would put Puerto Rico on the unequivocal path to future statehood and extend to its residents all rights and obligations under the Constitution. It should be noted that incorporation is a necessary step prior to statehood, be it for a minute or be it for sixty years, as was the case for New Mexico. As a historical footnote, Alaska Congressman Don Young attempted this approach in 1993 to no avail.

A declaration of territorial incorporation would put an end to the discriminatory application of the Insular Cases and place its American citizens on a level playing field. It would also send a clear signal of certainty and stability to all of Puerto Rico’s stakeholders, setting the ground conditions for addressing long term economic development, as implied in both the Bush (2007) and Obama (2011) White House Reports. PROMESA and the Financial and Oversight and Management Board could well be the federal instrument needed to move the territory in this direction.

Finally, territorial incorporation has the additional benefit of assuaging Republican fears of a Democrat state, as it allows the political process to play out on the national stage within a larger political framework, instead of the insular time schedule of special interest groups.

As has been the case since 1898, it is up to Congress to act on its constitutional responsibility.

By: Andrés L. Córdova

December 10, 2020


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