2007 report by the president task force on puerto rico status

7/28/2019 2007 Report by the President Task Force on Puerto Rico Status

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Report By The

Presidents Task ForceOn Puerto Ricos Status

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Report By The

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On Puerto Ricos Status

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R P O R T B T

P R S T S T S F O R

O P R T O R O S S T T S

Table of Contents

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Members ofThe Presidents Task Force on Puerto Ricos Status

Maggie Grant, Co-ChairDeputy Assistant to the President for Intergovernmental Affairs

The White House

Steven A. Engel, Co-ChairDeputy Assistant Attorney General in the Office of Legal Counsel

U.S. Department of Justice

Annabelle RomeroDeputy Assistant Secretary for Civil Rights

U.S. Department of Agriculture

Mary Tinsley RaulDirector of Intergovernmental Affairs

U.S. Department of Commerce

Frank Jimenez

General Counsel of the NavyU.S. Department of Defense

Margarita P. Pinkos Director of the Office of English Language Acquisition

U.S. Department of Education

Theresa Speake Director, of the Office of Economic Impact and Diversity

U.S. Department of Energy

Laura M. CaliguiriDirector of Intergovernmental Affairs

U.S. Department of Health and Human Services



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Anne PeteraAssistant Secretary for Intergovernmental Programs

U.S. Department of Homeland Security

Robert M. CouchGeneral Counsel

U.S. Department of Housing and Urban Development

Douglas W. DomenechDeputy Chief of Staff

U.S. Department of the Interior

Leon R. SequeiraAssistant Secretary for Policy

U.S. Department of Labor

Portia PalmerDirector of Intergovernmental Affairs

U.S. Department of State

Kerry OHareDeputy Assistant Secretary for Governmental Affairs

U.S. Department of Transportation

Anna Escobedo CabralU.S. Treasurer

U.S. Department of the Treasury

William McLemore

Deputy Assistant Secretary for Intergovernmental AffairsU.S. Department of Veterans Affairs



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Statement of Guiding Principles

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xecutive Orders oncerningPuerto Ricos Status

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Task Force Recommendations

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APPENDIXA


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57093

Presidential Documents

Title 3 Memorandum of November 30, 1992

The President Memo rand um for the Head s of Executive Departments and

Agencies

Puerto Rico is a self-governing territory of the United States whose residentshave been United States citizens since 1917 and have fought valorouslyin five wars in the defense of our Nation and the liberty of others.

On July 25, 1952, as a consequence of steps taken by both the UnitedStates Government and the people of Puerto Rico voting in a referendum,a new constitution was promulgated establishing the Commonwealth of Puerto Rico. The Commonwealth structure provides for self-government in respectof internal affairs and administration, subject to relevant portions of theConstitution and the laws of the United States. As long as Puerto Ricois a territory, however, the will of its people regarding their political statusshould be ascertained periodically by means of a general right of referendumor specific referenda sponsored either by the United States Government

or the Legislature of Puerto Rico.Because Puerto Rico's degree of constitutional self-government, population,and size set it apart from other areas also subject to Federal jurisdictionunder Article IV, section 3, clause 2 of the Constitution, I hereby directall Federal departments, agencies, and officials, to the extent consistentwith the Constitution and the laws of the United States, henceforward totreat Puerto Rico administratively as if it were a State, except insofar asdoing so with respect to an existing Federal program or activity wouldincrease or decrease Federal receipts or expenditures, or would seriouslydisrupt the operation of such program or activity. With respect to a Federalprogram or activity for which no fiscal baseline has been established, thismemorandum shall not be construed to require that such program or activitybe conducted in a way that increases or decreases Federal receipts or expenditures relative to the level that would obtain if Puerto Rico were treatedother than as a State.

If any matters arise involving the fundamentals of Puerto Rico's status,they shall be referred to the Office of the President.

This guidance shall remain in effect until Federal-legislation is enactedaltering the current status of Puerto Rico in accordance with the freelyexpressed wishes of the people of Puerto Rico.

The memorandum for the heads of executive departments and agencieson this subject, issued July 25,1961, is hereby rescinded.

This memorandum shall be published in the Federal Register.Signature of George Bush.

THE WHITE HOUSE,Washington, November 30, 1992.

1FR Doc. 92-29441

Filed 12-1-92: 11:27 am]

Billing cods 3195-01-M

Federal Register

Vol. 57, No. 232

Wednesday. December 2, 1992

HeinOnline -- 57 Fed. Reg. 57093 1992


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APPENDIXB


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Federal Register / Vol. 65, No. 251 / Friday, December 29, 2000 / Presidential Documents 82889


Executive Order 13183 of December 23, 2000

Establishment of the Presidents Task Force on Puerto RicosStatus

By the authority vested in me as President by the Constitution and thelaws of the United States of America, including Public Law 106-346, itis hereby ordered as follows:

Section 1. Policy. It is the policy of the executive branch of the Governmentof the United States of America to help answer the questions that thepeople of Puerto Rico have asked for years regarding the options for theislands future status and the process for realizing an option. Further, itis our policy to consider and develop positions on proposals, without pref

erence among the options, for the Commonwealths future status; to discusssuch proposals with representatives of the people of Puerto Rico and theCongress; to work with leaders of the Commonwealth and the Congressto clarify the options to enable Puerto Ricans to determine their preferenceamong options for the islands future status that are not incompatible withthe Constitution and basic laws and policies of the United States; andto implement such an option if chosen by a majority, including helpingPuerto Ricans obtain a governing arrangement under which they wouldvote for national government officials, if they choose such a status.

Sec. 2. The Presidents Task Force on Puerto Ricos Status. There is established a task force to be known as The Presidents Task Force on PuertoRicos Status (Task Force). It shall be composed of designees of eachmember of the Presidents Cabinet and the Co-Chairs of the PresidentsInteragency Group on Puerto Rico (Interagency Group). The Task Forceshall be co-chaired by the Attorney Generals designee and a Co-Chair ofthe Interagency Group.

Sec. 3. Functions. The Task Force shall seek to implement the policy setforth in section 1 of this order. It shall ensure official attention to andfacilitate action on matters related to proposals for Puerto Ricos statusand the process by which an option can be realized. It shall provide adviceand recommendations on such matters to the President and the Congress.It shall also provide advice and recommendations to assist the ExecutiveOffice of the President in fulfilling its responsibilities under Public Law106-346 to transfer funding to the Elections Commission of the Commonwealth of Puerto Rico for public education on and a public choice among

options for Puerto Ricos future status that are not incompatible with theConstitution and the basic laws and policies of the United States.

Sec. 4. Report. The Task Force shall report on its actions to the Presidentnot later than May 1, 2001, and thereafter as needed but not less than


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82890 Federal Register / Vol. 65, No . 25 1 / Friday, December 29, 2000 / Pres ident ial Documents

annually on progress made in the determination of Puerto Ricos ultimatestatus.

Signature of William

THE WHITE HOUSE,

December 23, 2000.

[FR Doc. 0033451

Filed 122800; 8:45 am]

Billing code 319501P


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APPENDIXC


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Federal Register / Vol. 66 , No. 85 / Wednesday, May 2, 2001 / Presidential Documents 22105


Executive Order 13209 of April 30, 2001

Amendment to Executive Order 13183, Establishment of thePresidents Task Force on Puerto Ricos Statis

By the authority vested in me as President by the Constitution and thelaws of the United States of America, and in order to extend by 3 monthsthe time in which the Presidents Task Force on Puerto Ricos Status isto report to the President as directed in Executive Order 13183 of December23 , 2000, it is hereby ordered that section 4 of Executive Order 13183is amende d by deleting May 1, 2001 an d inser ting in lie u thereof August1, 2001.Signature of George Bush

THE WHITE HOUSE,

April 30, 2001.

[FR Doc. 0111210

Filed 5101; 9:07 am]Billing code 319501P


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APPENDIXD


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68233

Federal Register

Vol. 68, No. 235

Monday, December 8, 2003


Title 3

The President

Executive Order 13319 of December 3, 2003

Amendment to Executive Order 13183, Establishment of thePresidents Task Force on Puerto Ricos Status

[FR Doc. 0330513

Filed 12503; 8:45 am]

Billing code 319501P

By the authority vested in me as President by the Constitution and thelaws of the United States of America, it is hereby ordered that ExecutiveOrder 13183 of December 23, 2000, as amended, is further amended asfollows:

(1) Section 2 is amended by deleting the second and third sentences,and inserting in lieu thereof the following: It shall be composed of designeesof each member of the Presidents Cabinet and the Deputy Assistant tothe President and Director for Intergovernmental Affairs. The Task Forceshall be co-chaired by the Attorney Generals designee and the Deputy

Assistant to the Preside nt an d Director for Intergovernme ntal Affairs.(2) By deleting section 4, and inserting in lieu thereof the following:

Sec. 4. Report. The Task Force shall report on its actions to the Presidentas needed, but no less frequently than once every 2 years, on progressmade in the determination of Puerto Ricos ultimate status.

Signature of George Bush

THE WHITE HOUSE,

December 3, 2003.


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APPENDIXE


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U.S. D e p a r t m e n t of Jus t i ceOffiit of Legislative Affairs

Woshington,D.C.20530 J a n u a r y 18, 2001

The Honorable Frank H. MurkowskiChairman, Committee on Energy and Natural ResourcesUnited States SenateWashington, D C 20510Dear Mr. Chairman:

This is in respo nse to y our letter to President Clinton requesting that th e Administrationprovide an analysis o f the status options for Puerto Rico favored by t he thr ee principleqoliticalparties in Puerto Rico This letter provides comments on two proposals that were voted on inthe December 1998 political stat us plebiscite in Puerto Rico, as well as a third p roposa l outlinedby the Popular Demo cratic Party in its 2000 pl atf om . The first proposal, fo r Statehood, isoutlined in option number 3 in Puerto Rico's recent Petition to the Go ven vne nt of ;he UnitedStales. Th e second propo sal, for Independence, is outlined in op tion numb er 4 o f that petition.Th e third proposal, t he "New Commonwealth" option, is described in th e Pop ula r Demo craticParty pla ~fo rm ocuments. Given the complexity and number of proposals on which ou rcomments nave been sought, w e address only a limited number o f issues raised by th e proposals,most o f them constitutional in nature.1. Sta tehood

The Stateh ood optio n1 provides that Puerto Rico would become "a sovereign state, withrights, respon sibilities and benefits completely equivalent to those en joyed by th e rest of t k

The Statehood proposal contemplates a peti!ion to Congress asking it to provide for the follo\ling:The admission of Puerto Rico into the Union of the United States of America a sa Iovereign state, with rights, responsibilities an d benefits completely equal tohose enjoyed by the rest of the states. Retaining, furthermore, the sovereigntyof Puerto Rico in those matters which are not delegaled by th e Constitution ofthe United Stales lo the Federal Government. The rigllt to the presidenlial votean d equal representation in the Senate and proportional representation in th eHouse of Representatives, mlhouc impairment to Llle representation of the restof th e states. Also maintaining Lhe present Constitution of Puerto Rico and thesame Commonwealth laws, and w i t h permanent United Slates citizenshipguaranteed by Lhe Constitution of the United Slates of America. The provisionsof the Fedcrd law on th e use of the English languzge i n the agencies and courtsof th e Federal Govenrr.ect n ~e fifty sla:es of the Union shall apply equally inh e Slate of Puerio Rico, as at present.


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stetes." Th e principle that a new State stands on "equal fociing wiih the o ~ g i n a l tates in allresp ects whatsoever" has been recognized since th e first days of the republic. Coyle v. Sn~i fh ,21U.S. 559, 567 ( 1 91 I ) (quoting 1796 declaration upon the admission of Tennessee). Suprem eCo ur t caselaw makes clear that, a s a State, Pu en o Rico would be "equal in power, dignity, andauthority" to the other States. Id. This shift in statu s to statehood would also have taxcon seq uen ces not fully articul ated in the st3tehood proposa l itself. Currently, a s anuninc orpo rated ten itor y, P u en o Rico is not subject to the Tax Uniformity Clause, which requiresth at "all Duties, Impo sts, and Excises" imposed by Con gress "shall be uniform th roug hout theUnited State s" U S . Const. art. I , 5 8, cl. I ; see Down er v. Bidwell, 182 U.S. 244 (1901). As aresult, it ca n be and is exempted from some federal tax laws (including most federal income taxlaws), and it has other tax preferences not applicable to the States, although it also does notreceive certain benefits such a s the earned income tax cred it. See 4 8 U . S .C . 5 734 (1994)(providing that, with certain exceptions, "the internal revenue laws" shall not apply in PuertoRico); 26 U.S.C. 5 32 (earned income tax credit). W ere Pu erto Rico t o becom e a State, however,it wou ld be covered by the Ta x Uniformity Clause and many, if not all, o f th e se different taxtreatments could not constitutionally be preserved on a permanent basis. See Po lit ic a~ tatus ofPuerto Rico: Hearings on S. 244 Before the Senate Comm. on Energy and Natural Resources,102d Con g. 189-90 (1 99 1) (testimony o f Attorney General Richard Th ornburgh) ("ThornburghTestimony") (reaching this conclusion, but also noting that the Tax Uniformity Clause permits theus e of narrowly tailored transition provisions under which Pu ert o Rico's tax sta tus need not bealtered immediately once the decision werz made to bring it into the Union as a State).

In addition, the statement in the Statehood option that adm itting Pu er to Rico a s a Statewou ld no; result in the "impailment of the representation of the rest of th e states" may beinaccu rate. If Puerto Ric o gains representatives in Cong ress, it will affect the representation o fth e rest o ft h e States in both the Senate and the House. In the Senate, because granting PuertoRi co t w o sena tors will increase the total membership of the Senate, the representation of the otherSta tes in the Senate will decline as a proportion o f th e whole, arguably "impair[inglW heirreprese ntation . Similarly, if the total number of representatives in the H ou se of Representativesw ere :o h e increased btyo nd its iuirerlt number of 43 5 with the addition of representatives fromPuerto Rico, then the representation of current S t ~ t e ss a proportion o f the whole would decline,again arguably "impair[ingJ" their representation. If, on the o ther hand, the total nilmber ofrepresentatives w ere to remain fixed at 435, then the fact that Pu er to Rico had achievedrepresentation would necessarily mean that at least on e S tate would have fewer representatives.Th e representation o f that State (or States) would arguably be "impair[edIn in two ways: itsnumb er o frepre sentativ es in the Ho use would decline, and (like all the o ther States) itsrepresentation would decline as a proportion of the whole.'

2 In the past, Congress permanently increased the number of reprerentativcs in the l-lousewhen newStates were admitted. Most recently, however, when Hawaii and Alaska were admitted in 1959, [h e number ofMembers of Congress was tempolarily increased ( f r om 435 lo a total of437) by the addition of a representalivcfrom each oithese Stales; following th e 1960 cennls, however, the number oir:presenta:ives relurned lo 435, an dth e Nouse was reapponioned. See Comptroller General, Pue r lo R ic o T P o l i l i c o l F u t u r e : A D i v i s i v e Issue withMany Dimensions 103 (1981) .


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Moreover, the clalise "maintaining the present Constitution of Pu erto Ric o and th e sameCom monw ealth laws" conta ined in the Statehood option cou!d be read a s stating that theadmission of Pue rto R jco as a S tat e would have no effect on the constitution and laws of PuertoRico. Such a statement might no t be entirely correct. Currently, not all provisions of th e UnitedStates Constitution are h ll y applicable to Puerto Rico. See Baizac v. Porto Rico,258 U.S. 298,304-3 14 (1922) (Sixth Ame ndm ent right to jury trial not applicable in Puerto Ric o); Downes,182U.S. a t 2 91 (White, J., concu rring in the judgment) (explaining that only constitutional provisionsthat ar e "of so fundamental a nat ure that they cannot be transgressed" apply to un incorporatedterritories such as Puerto Rico). If Puerto Rico were to become a State, however, it would thenbe subject to the entirc Constitution. In that event, some aspects of Puerto Ric o's constitutionand laws might be preempted by the Constitution pursuant t o the Supremacy Clause, U.S . Const.art. VI, cl. 2. Similarly, th e admission o f Puerto Rico as a State might extend t o P uert o Ricosom e federal statutes tha t may be deemed not to apply to Pue rto Rico at present because:hey arewritten t o apply only in th e several States. If so, then under the Supremacy Clause thos e statuteswould also preempt a spe cts o f Puerto Rican law with which they conflict (although it should benoted tha t Congress currently has pow er t o preempt laws of Puerto Rico).

2. IndependenceThe Independence pro posal contains certain provisions regarding citizenship. Specifically,

it states:The residents o f Pue rto Ilico shall owe allegiance to, and shall have th e citizenshipand nationality of, the R epublic of Puerto Rico . Having been born in Pue rto Ricoor having relatives with statuto ry United State s citizenship by birth shall no longerbe grounds for United St at es citizenship; except for those persons w ho already hadthe United States citizenship, who shall have the statutory right to keep thatcitizenship for the rest o f their lives, by right or by choice, as provided by the lawsof the Congress of the United States.

This proposal could be read as hiving two possible meanings: i t could mean that persons alreadyholding United State s citizenship based on their birth in Pue rto Ric o o r on the birth of theirrelatives have a right to ihat citizenship and that C ongres s must legislate in a way that m ake sprovision for that right; or, it could mean that Congress has discretion to decide whether personswho ha ve United Stat es citizenship by virtue of their birth in Puert o R ico (or by virtu e o f havingUnited S tate s citizen relatives) will retain that citizenship once Pu erto Rico become sinde~endent.~t least the second reading raises the question whether statutory United Statescitizens residing in Pu er to Ric o at the time of independence would have a constitutionally

3 We do not read the proposal to affect existing scaturcy provisic;,; regerding U.S. citizenship for personsborn outside the United Slates to a U S . ciLizen parent or parents. See 8 U.S.C. 8 5 1401, i409,


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protected right to retain that citizenship shotlld Congress seek to terminatc it.'Although the proposal speaks of a "statutory right" to retain c i t i z e n ~ h i ~ , ~here is at leastan argument that individuals possessing United States citizenship would have a constilutional

righ; to reta ii~ hat citizenship, even if they continue to reside in Pu erto Rico after independence.See Afroyirn v. Rusk, 38 7 1J.S. 253, 257 (1967) (rejecting th e position that Congr ess has a"general power . . t o take away an A merican citizen's citizenship with out his assent"). On theother hand, the re is also case law dating from the early republic suppo rting the proposition thatnationality follows sovereignty. See American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 5 11 ,54 2(1828) (Ma rshdl, C.J.) (upon the cession of a territory the relations of its inhabitants "with theirformer sovereign are dissolved, and new relations are created between them, an d the governmentwhich has acquired their territory. The same Act which transfers their country, transfers theallegiance of those w ho remain in it."); Boyd v. Nebraska ex rel. Thqyer, 143 U.S . 135, 162(1892) ("Manifestly th e nationality o f the inhabitants o f territory ac quired by . . . cession becomesthat of th e governmen t under w hose dominion they pass, subject to t he right of election on theirpart to retain their former nationality by removal, o r otherwise, as may be p rov ide d.") ;'~n itedStates ex rel. Schwarzkopf v. Uhl, 137 F.2d 898 , 902 (2d Cir. 1943 ) (describing Canter asrecognizing a "generally acc epted principle o f international law" that "[ilf the inhabitants [of anewly independent nation] remain within the territory [of the new nation] their allegiance istrar,sferred to the new sovereign."). See also Restatenienl(7'hird) of The Law of ForeignRelations 9 208 (1987) (observing that "[nlormally, the transfer of territory from one state toanother res~l tsn a correspo ndin g chan ge in nationality for the inhabitan ts o f th at territory" aildthat, in some bases of territory transfer, inhabitants can choose k w e e n retaining their formernationality and acquiring that of the new state). In view o f th e tension between Afroyim and casessuch as Canter, it is unclear whether the Independence propo sal's possible provision forcongressional revocation of United States citizenship passes constitutional muster. See TreanorTestimony at 19 (reserving the constitutional issue of whether, upo n independence, it would bepermissible to term inate non-consensually the United States citizenship of residents of Pue rto

If such persons d o have z constitutionally protected right t o retain their United Statescitizenship even as they acq uire Pue rto Rican citizenship, then Pu ert o Ricar. independence couldresult in a significant num ber of people acquiring dual citizenship. While this letter does notaddress the policy implications of such dual citizenship, we do not think it would run afoul of anyconstitutional stricture.

I t is Ihe Department's position that the source of th e citizenship of those born i n Pueno Rjco is not theFourieenlh Amendment , but federal statute, specifically 8 U.S.C. 5 1402 (1994). Se e Sbtement of William M.Treanor, Deputy Assistant Anorney General, Office of Legal Connsel, Before h e House Comm. o n Resources,106th Cong. 18 (Oct. 4,2000) ("Treanor Tesrimony"); Fuerto Rico: Hearlngs on K R . 856 and S 472 Before theSenate Comm. on Energv an d Natural Resources, 105th Cong. 148 (1998) (staiement of Randolph D. Moss,Acting Assisunt Attorney General, OfIice of Legal Counsel, U.S .Deparlrnent of Justice). Tha: point is separate,hcweier, f r ~ mhe question wheL5er iAe C~nsrir:tion protects that citizenship or~cel is statutorily conferred, and,if so, to the same extent as i t protects "Fourteenth Amendment citizenship."


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Rico).

The Independence proposal also provides that "Puerto Rico and the United States shall

develop cooperation treaties, including economic and programmatic assistance for a reasonable

period, free commerce and transit, and military force status." Viewing this language as part of aballot option for the people of Puerto Rico, we understand it as a possible proposal to be made by

Puerto Rico to Congress. We do not, therefore, read the use of the word "shall" to impose on the

United States any obligation to enter into certain treaties with an independent Puerto Rico.

Moreover, if the proposal did purport to impose such an obligation, we would construe its

language as precatory, not binding, in order to preserve the sovereign prerogatives of the United

States. We discuss this point in greater detail infra at 7-9.

3. New Commonwealth7

The New Commonwealth proposal describes Puerto Rico as "an autonomous politicalbody, that is neither colonial nor territorial, in permanent union with the United States under a

covenant that cannot be invalidated or altered unilaterally." Our analysis of this proposal is based

on two general premises, which we will outline before proceeding to address specific aspects of

the proposal.

The first premise is that the Constitution recognizes only a limited number of options for

governance ofan area. Puerto Rico could constitutionally become a sovereign Nation, or it could

remain subject to United States sovereignty. It can do the latter in only two ways: it can be

admitted into the Union as a State, U.S. Const, art. TV, 3, cl. 1, or it can remain subject to the

authority of Congress under the Territory Clause, U.S. Const, art. IV, 3, cl. 2. See National

Bankv. County of Yankton, 101 U.S. 129, 133 (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"). The terms ofthe Constitution do not contemplate an option other than sovereign

independence, statehood, or territorial status.

Although Puerto Rico currently possesses significant autonomy and powers ofself-

government in local matters pursuant to the Puerto Rican Federal Relations Act, Pub. L. No. 81-

600, 64 Stat. 3 19 (1950) (codified at 48U.S.C 731b-731e (1994)) ("Public Law 600"), that

statute did not take Puerto Rico outside the ambit of the Territory Clause. In Harris v. Rosario,

It should be noted that in 1991 the Department of Justice did not treat this question as unsettled. See

Thomburgh Testimony at 206-07 (suggesting that should Puerto Rico become independent, its residents "should be

required to elect between retaining United States citizenship (and ultimately taking up residence within the United

States .. . ) , " and citizenship in the new republic of Puerto Rico.).

Our comments on the New Commonwealth proposal arc based in part on, and are intended to be

consistent with, the October 4, 2000 testimony of Deputy Assistant Attorney General William M. Treanor before

the House Committee on Resources. See Treanor Testimony, supra at n.5

5


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4 4 6 iJ.S. 6 5 1 (1980) (pe r cu ri am) , fo r example , t he Co ur t su s t a ined a !eve1 of ass i s t ance fo rP u e r t o Rico u n d e r th e Aid to F ami li e s w i th Depend en t Chi!dren p ro g ra m l ow er t h m tha t wh ichS ta t e s rece ived , and exp la ined tha t "Congress , wh ich is e m p o w e r e d u n d e r t h e T e r r it o r y Clause o ft h e C o n s t it u t io n to ' m a k e a ll n e e d f i ~ l u l e s a n d R e g u l a t i o n s r e s p e c t i n g t h e Territory. . .belongingto t h e U n i t e d S t a te s ,' m a y t r e a t P u e r t o R i c o di ff er e nt ly f r o m S t a t e s so long a s h e re i s a rat ionalbasis fo r i t s ac t ions." Id at 651 -52 ( i nt e rna l c it a t i on omi t t ed ) . See also Califano v. Torres, 4 3 5U . S . 1 , 3 n. 4 ( 1 97 8 ) ( p e r c u r i a m ) ("C on gre ss h a s t h e p o w e r to t r e at P u e r t o Rico differently, and. . e v e r y f e d e r al p r o g r a m does n o t ha v e t o b e e x t e n d e d t o it."). T h e D e p a r t m e n t of Jus t i ce hasl o n g t a k e n th e s a m e v i ew , ' a n d the weight o f a p p e l la t e case l a w p r o v i d e s f u r t h e r s u p p o r t f o r it.See, e.g., Mercado v. Commomvealth ojP uer foR ico, 2 1 4 F .3 d 3 4 , 44 (1 s t Cir. 2000) (''Mnderthe Ter r i to r i a l C lause , C on gr es s may leg is l at e fo r P u e r to R ico d i f fe ren t ly t ha n f o r t he s t at es ." );Davila-Perez v. LockheedMartin C orp.,202 F . 3d 4 6 4 , 4 6 8 (1st Cir. 2000) (a f f irm ing tha t FuertoR i c o "is s ti ll s u b je c t t o t h e p l e na r y p o w e rs o f c o n g r e s s u n d e r t h e t e r r it o r i a l clause."); UiiitedStates v. Sanchez, 992 F .2d 1143 , 1152-53 ( I l t h Ci.1 9 9 3 ) ("'Congress c o n t i n u e s t o b e t h eu l t im a t e s o u r c e of p o w e r [over P u e r t o Rico] pursuan t to t h e T e r r it o r y C l a u s e o f t h eConst i tu t ion ." ' ) (quot ing United States v. Andino, 831 F .2d 1164 , 1 176 (1 s t Cir. 1987)( T o n u e l l a , J. , concur r ing ) , cert. denied, 4 8 6 U . S . 10 34 (1988)) , cert. denied, 510 U . S . 1 1 10(1994).9

8 This positinn has been expressed in briefs filed in federal court by past Solic itors Geiiera l. See, e g. ,Jurisdictional Statement of the United Swies at 10-1 , Harris v . Rosario, 446 U.S. 65 1 (198 0) (No. 79-1294). Ithas also b e n taken in mem oranda and opinions issued by the Of ic e of Legal Counsel. See, e .g. , Memoranda forLiida Cinciona, Director, Office of A ttorney Personnel Manage ment, from Richard L. Shzrin, Deputy AssislantAnom ey Gen eral, Office of Legal Counsel, Re. Interpretation of the Term "T er ril ov " in the Deparlment of .JusticeAppropriolronsAct (July 31. 1997); Memorandum for Lawrencc E. Walsh, D eputy A ttorney General, fromPaul A. Sweeney, Acting Ass istant Atiorne! General, Office of 'le ga l Counsel, Re: H R . 5926, 86IhCong.. I" Sess.,a bill "Toprovide fo ra me nd n~ cnt s o the conipnct beme en the people oft'uerlo Ri co and the L'nited States" (June5, 1959). In a 1963 opinion, the O fi ce of Legal Counsel treated the legal conspqu ences of Public Law 600 a s anopen que sti~ n rid dld cot resolve :I. See .Me>norcndu:r Re: P gwe r 3 f the Ui;iled Stc les to Conc lu3e ~ !, ir hheComn~onw eolfhJPuerto Rico a Compact Which Couid Be Mo dz$ edO nl~ by Mutual Consent (July 23,196 3).

We acknowledge, howevcr, that !he First Circuit has not always spoken with a single voice on thisquestion. See, e.g ., United S!ates v Andino, 83 1 F.2d 1164 (1st Cir. 1987) (prevailing o pinion), cert. denied, 486U.S. 1034 (1988)); Unzted SIates v. Quinones,758 F.2d 40, 42 (1st Cir. 1985) ("[ljn 1952, Puertn Rico ceasedbeing a temto ry of the United States subject to the p!enary powers of Co ngress as provided in the Federa lConstitution."); Cordova & Sir~ronpietri ns Agency I ~i c. . Chase ManhatIan Bank N. A . , 64 9 F.2d 36, 41 (1st Cir.1981) (Breyer, J.) (stating that follorving thcpassage o f h b l i c Law 6 00, "Puerto Kico's status changed from Lha~ofa mere lerrilory to the unique slatus of Commoniveallh."); Figueroa v. People ofPu erto Rico, 232 F.2d 615,6 20(1st Cir. 1956) (Magrudrr, J. ) (maintaining that to say that Public Law 600 was "just ano ther O rganic Act" forPuerto Rico would be to say lhat Congress had perpetrated a "monumental hoax" on Ule Puerto R iw n pmple).Nohrithsland ing these inconsisten cies. we believe the more recent F irst Circuit an d o ther ap pellate decisionscorrectly slate lhe law and properly recognize that the Supremc Court's decision i l l Horris is controllmg.We also acknowled ge that the Federal Circuit's opinion inRoirlero v. United Slotes, 38 F.3d 1204 (Fed.Cir. 1994), found that, for purposes of 5 U.S.C. 4 55 17, Puerto Rico is n6; a "St3te." "!erritory," or "possession."We read that opinion as addressing questions regarding the terms of that particular statute alnn e.


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The second p remis e is that, as a matter of domestic constitutional iaw, the U nited Statescannot irrevocably surrender an esseiltial attribute of its sovereignty See Clr~itedStates. Winr~orCsrp.,518 U.S . 839, 885 (1996) (The United States "may not contract a way 'a n essentialattribute o f its sovereignty."') (quoting UnitedStates Trust Co. v.New Jersey, 43 1 U.S. 1, 23(1977)); Burnet v. Brooks, 288 U.S . 378, 396 (1933) ("As a nation w ith all the att ributes ofso ve rei g~ ty,he United States is vested with all the powers o fgov cm me nt necessary t o maintainan effective con trol o f international relations."). This premise is reflected in the ru le that, ingeneral, one Co ngress cann ot irrevocably bind sub sequent Congresses. See Marbuy v. Madison,5 U.S. (1 Cranch) 137 , 177 (1803) (Marshall, C.J.) (noting that legislative a cts are "alterablewhen the legislature shall please to alter [them]."); see also Fletcher v. Peck, 10 U.S .(6 Cranch)87, 135 (1810) (M arshall, C.J.) (recognizing the general rule that "one leg islature is com peten t torepeal any act which a forme r legislature w as competent to pass; and that o ne legislature cannotabridge the powers o f a succeeding legislature," w hile holding that veste d rights a re protectedagainst subsequent congressional enactments). Moreover, a s the Suprem e Court has recognized,treaties and o ther co venan ts to which the United State s is party stand, fo r constitutional purposes,on the sam efooting as federal legislation. See Breardv. Greene, 5 23 U.S. 371,376 (1'998) (percuriam) ("We have held 'tha t a n Act of Cong ress . . . is on a fu l l parity with a tre aty, and thatwhen a statu te which is subsequent in time is inconsistent with a treaty, the s tatu te to th e extent ofconflict renders the treaty null."') (quoting Reid v. Cover!,35 4 U.S . 1, 1 8 (1 957 ) (plurAi!yopinion)). Thus, to th e extent a covenant t o which the United Sta tes is party stands on nostronger footing than an Act o f Congress, it is, for purposes of federal constitutional law, subjectto unilateral alteration or revocation by subsequent Acts o f Congress. As the C our t explained inWhimeyv. Roberrson, 124 U.S. 190, 194 (1 888):

When th e stipulations [of a treaty] ar e not self-executing they can only be enforcedpursuant to legislation t o carry them into effect, and such legislation is as muchsubject to m odification and repeal by Congress a s legislation upon any othe rsubject. I ft h e treaty contains stipulations which are self-executing, tha t is, requireno legislation to m ake thcm opera tive, to that extent they have the force and effectof a legislative enac tment . Congress may rnoditjr such provisions, so far as theybind the United States, or supersede tnem altogether.This second premise a pplies to the exercise o f presidential pow ers as well as to theexercise o f congressional powers. Thus, a compact c ould not constitutionally limit the President's

power t o terminate treaties by requiring that he not exercise that power in the context o f thatcompact w ithout first obtaining the consent o f the other signatories t o t he com pact. Cj: UnitedStates v. Curtiss-Wright Export Corp.,299 U.S . 304, 320 (1936) (President has "plenary andexclusive powe r . . . as the sole organ of the federal government in the field o f internationalrelations"); Goldwuter v Carter, 617 F.2d 697, 703-09 (D.C. C ir.) (en banc), rev'don olhergrounds, 444 U.S . 996 (1979) (finding that the President has constitutional authority t o terminatea treaty); Goldwafer,44 1 U.S . at 1007 (Brennan, J., dissenting) (President's powe r to recognizethe Peop le's Republic o f China entailed p ow er t o ab rogate existing defense treaty with T-iwan!.


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With these tw o premises established, we turn now to analyzing the Ne w Con~m onwealthprop osal. Th e threshold point to consider is what type o i status the proposal contemplates forPuer to Rico. Parts of :he New Comm or~wealth roposal appear to contemplate Puerto Rico'sbecoming an independen t Nation," while others contemplate Pu erto Rico 's remaining subject toUnited States sovereignty to scm e degree." T o the extent that the proposal would thereby createfor Pue rto Ri co a hybrid status, it runs afoul of the tirst premise discussed abov e. The proposalmust be assessed again st the constitutionally permissible status categ orie s tha t exist, and theprecise nature o f t h e constitutional issues raised by th e proposal t ur ns in part on whether it isunderstood to recognize P uerto Rico as a sovereign nation or to maintain United Statessovereignty over P uer to Rico.

First, regardless o f whether the New Comm onwealth proposal contem plates full PuertoRican independence o r continued United States sovereignty over Pue rt o Rico, th e proposal'smutual consen t provision s are constitutionally unenforceable. Article X of th e proposal specifiesthat the New Comm onwealth will be implemented pursuant to an "agreement between th e peopleof Puer to Rico and th e government of the United States," and provides that the agreement willhave the force o f a "bilateral covenant . . based on mutual consent, that cannot be unilaterallyrenounced o r altered."I2 If the proposal is read t o maintain United Sta tes sovereignty over PuertoRico, then, since the "enhanced" Commonw ealth it contemplates would not be a State, it wouldnecessarily remain subje ct to ccngressional powe r under the Ter rito ry Clause. It follows, then,that C ong ress could later unilaterally alter t'ne term s of the coven ant betw een the United Statesand Puerto Rico. See Disfricl of Columbia v. John R. niorn~son o., 346 U .S. 100, 106 (1953)(explaining that d elegatic ns of power from on e Congress to the gove rnm ent o f a territory aregenerally subject t o revision, alteration, or revocation by a later Cong ress); see also ThornburghTestimony at 1 94 (stating that proposed legislation conferring on Pu er to Rico "sovereignty, like aState" and making th at st atu s irrevocable absent mutual consent w as "totally inconsistent with th e

10 See, eg.. reamble (referring to P ~ ~ e r r uicoa a "n-.tion," an d describing the "natural right to selfgovernment" and "free will" of the people of Pucrto Rico as "ultimate sources of their political power"); ArticlcV@) (referring to Puerlo Rico's authority over international rnaners),

11 See, .g., reamble (describing Puerto Rico as being "in permanent union with the United States");Article I1 (prwiding for continued United States citizenship for persons born in Puerto Rico); Arlicle VIIl(providing for federal court jurisdiction over matters arising from "provisions of the Constitution of the UnitedStaces and of the Federal !aws that apply to Pueno Rico consistent with this Covenant and not in violation [of] thelaws of the Constitution of Puerlo Rico"); Anicle XI11 (providing ha t the Resident Cornmissioner of Pueno Ricoshall be "considered a Member of the U S House of Representatives" for certain purposes).

12 This mutual consent requirement appears in a number of places throughout the proposal. ThePreamble states that Puerto Rico shall remain "in permanent union with th e United States under a covenant thatcannot be invalidated or altered unilateraily." Article 11(A) provides that "lpleople born in Puerto Rico willcontinue to be citizens of the United States by bier and specifies that this mle "will not be u~laterallyrevokable"). See olso ACicle XlIl(e) fprchibiting unilater~lIferati3r. of the covenant try the U n i ~ e dStates bypruviding hat "[alny change lo the terms of thiscovenant will have to be approved by the people of Pueno Rico i na specialvote conducted consistent with its democratic processes and institutions.").


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Constitution ) .

If Puerto Rico is to become an independent nation under the New Commonwealth

proposal, then the relationship between the United States and Puerto Rico would necessarily be

subject to subsequent action by Congress or the President, even without Puerto Rico's consent.

As a general matter, a treaty cannot, for purposes of domestic constitutional law, irrevocably bind

the United States. See supra at 7-8 In particular, because the power to make and unmake

treaties is "inherently inseparable from the conception" ofnational sovereignty, Curtiss-Wright

Export Corp., 299 U.S. at 318, it can not be contracted away. Thus, if Puerto Rico were to

become independent, the New Commonwealth proposal's mutual consent requirements would be

constitutionally unenforceable against the United States.14

The New Commonwealth proposal also contains certain provisions regarding the retention

of United States citizenship. Specifically, it provides that "[p]eople bom in Puerto Rico will

continue to be citizens of the United States by birth and this citizenship will continue to be

protected by the Constitution ofthe United States and by this Covenant and will not beunilaterally revokable."

Under the approach set forth in Fletcherv. Peck, 10 U.S. (6 Cranch) 87 (1810), a different result

would be warranted if the covenant called for in the New Commonwealth proposal had the effect of vesting rights

in Puerto Rico's status as a commonwealth or in an element of that status, such as the mutual consent requirement.

It is true that in 1963, the Office of Legal Counsel concluded that a mutual consent provision would be

constitutional because Congress could vest rights in political status. See Memorandum Re: Power of the United

States to Conclude with the Commonwealth of Puerto Rico a Compactwhich Could be Modified Only by Mutual

Consent(July 23 1963). But the Justice Department altered its position on that question during the administration

of President Bush, see Thomburgh Testimony at 194, and the Office of Legal Counsel now adheres to that

position. See TreanorTestimony at 15-16; Memorandum for the Special Representative for Guam from Teresa

Roseborough Deputy Assistant Attorney General Office of Legal Counsel Re: Mutual Consent Provisions in the

Guam Commonwealth Legislation (July 28 1994)

Two independent grounds support our current position that rights may not be vested in political status.

First, after the issuance of the Department's 1963 opinion, the Supreme Court concluded that the Fifth

Amendment's guarantee of due process applies only to persons and not to States. See South Carolina v.

Katzenbach, 383 U.S. 301, 323-24 (1966). While Katzenbach was concerned with a State, its rationale suggests

that a governmental body, including a territory such as Puerto Rico, could not assert rights under the Due Process

Clause. Second, the modem Supreme Court case law concerning vested rights is limited in scope. While the

Court has recognized that economic rights are protected under the Due Process Clause, Lynch v. United

States,292 U.S. 571 (1934), the case law does not support the view (hat there would be Fifth Amendment vested

rights in a political status for a governmental body that is not itself provided for in the Constitution. Cf Bowen v.Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 55 (1986) ("[T]he contractual right at issue

in this case bears little, if any, resemblance to rights held to constitute 'property' within the meaning of the Fifth

Amendment.. The provision simply cannot be viewed as conferring any sort of 'vested right' in the fact of

precedent concerning the effect of Congress' reserved power on agreements entered into under a statute containing

the language of reservation").

It is a separate question whether, or to what extent, the New Commonwealth proposal's mutual concent

requirements would be binding under international law, and we do not address that question here.

9


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sovc reign iy, w!ren perso tis prev iousiy borr. i n that are a received stztutor y citizenship by birthright,and w e think i t is unclear how a court would resolve that issue.Ne xt, w e consider whether t he Ccnstitution would permit Congre ss to revo ke the United

States citizenship of persons wh o already have such citizenship because they were born in Pue rtoRico. If the New Co mm onwealth proposal is understood t o maintain United State s sovereigntyover P uer to Rico, then w e think Congress could not revo ke the United S tates citizenship ofperso ns w ho already possess th at citizenship by virtue o f their birth in Pu erto Rico . As the Courtexplained in Afroyim, Con gress lacks a "general po wer . . . to take away an American citizen'scitizenship without his assent." 38 7 U.S. at 2 5 7 While co t squarely faced with a case o fstatutor y citizenship, the C ourt in Afroyim did nct limit its decision to persons w hose citizenshipis based on the Fourteenth Amendment, and we think it should not be so confined." Accordingly,while we find no constitutional impe diment in the N ew C omm onwealth proposal's provision thattho se born in Puerto R ico will retain their citizenship in the future, w e do think that t o the extentPu er to Rico is to remain subject t o IJnited Sta tes sovereignty, the provisio nis redundant (or atbest declaratory) of an underlying constitutional requirement that such citizenship not be revokedonc e it is granted. If, on the other hand, Puerto Rico were to become an independent nationunde r the New Com monw ealth proposal, then, as we noted in o ur discussion of the Independenceprop osal's treatment of citizenship, see supra at 4-5, it is unclear whether Congress could revokethe U S . citizenship of persons elready holding such citizenship at the time of independence.There is an argument that the Constitution would ensure that those w ho possessed United Statescitizenship at the time o f Puerto Rican independence must be ab le to retain that citizenship afterindependence, see Ajoy im, 3 87 U .S. at 257, but there is also case law supporting the propositionthat nationaiity follows the flag. See Canter, 26 U.S. at 54 2. A s noted, it is unclear how a courtwould resolve this issue.

The New Commonw ealth proposal also provides for the election o f aResidentCommissioner to "represent Puerto Iiico before the Governm ent of the United States and w howill be considered a Mem ber of the U .S. Hou se o f Representatives for pu rposes of all legislativematters :hat have to do with Pue rto Rico " The appl~c able rovision cf the Constitution -Article

18 A counter-argument might be made based on the Supreme Court's decision inRogers v. Belle;, 40 1U.S. 815 (1971), which upheld the loss of citizenship of a n individual who was born in Ilaly and wh o acquiredcitizenship under a federal statute because one of his parents was an American citizen. Th e sutule required thatperson. i lainurlg citizenship on that basis meet certain requirements of residency in lh e United Slates prior lo theirhventy-eighth birthday. The Rogers Court upheld the statute's provision for loss of citizenship for Ulose who failedto meet the residency requirement. While b e Rogers Court criticized .4jroyim's language concerning non-Fourteenth Amendment citizenship an d based its own holding in part on the fact that Bellel's citizenship was notconferred pursuant lo the Fourteenth Amendment, see 401 U.S. at 835, Rogers is best understood as addressing thelegitimacy of preemblished requirements for statutorily conferred citizenship (including conditions sobsequentsucli as the residency by age 28 requirement) when Congress grants citizenship lo those who would not otherwisereceive it directly by operation of the Fourteenth Amendment. That issue -o f the legitimacy of pre-esublishedrequirements- is nor relevant lo Congress's pxvers to divest citizenship cnc: i t h s een unconditionallyconfe:errsd.Afioyim 1hus appears to be the most relevant precedent, and it supports the view that, sa long as PuertoRico remains under United Stares sovereignty, cilizcnship h a 1 has been granted is constitutionally protecled.


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1,Section 2, Clause 1 -provides that the Housc cf Represel~tatives shall be composed ofMembers chosen every second Year by the People oft he several .Stotez." (emphasis added). Onits face, that provision wo~lld eem to mean that the Resident Cammissioner from Puerto K cocould not be "considered a Member" of the House because, under the New Commonwealthproposal, Puerto Rico would not be a "State" While Congress has the ability to pennitparticipation by representatives of the territories, see Miche lv. Anderson, 14 F.3d 623, [email protected]. Cir. 1994) (holding that the House of Representatives had the authority to permit aterritorial delegate (including the Resident Commissioner from Puerto Rico) to vote in theHouse's committees, including the Committee of the Whole), there are constitutional limits to theparticipation that would be permitted

The New Commonwealth proposal contains a number of other provisions that may raiseparticular constitutional concerns if the proposal contemplates Puerto Rico remaining subject toUnited States sovereignty. The proposal authorizes Puerto Rico to "enter into commercial andtax agreements, among others, with other countries," and to "enter into international agreementsand belong to regiond and international organizations." The Constitution vests the foieignrelations power of the United States, which ir~cludeshe power to enter into treaties, in the federalgovernment. Curtiss-Wright Export Cor p., 299 U.S. at 318. Specifically, Article I, Section 10,Clause I (the "Treaty Clause") prohibits States from entering into "any Treaty, Alliance, orConfederation." Under Article I, Section 10, Clause 3 (the "Compact Clause"), however, Statesare permitted, if authorized by Congress, to "enter into any Agreement or Compact . . .with aforeign Power." Read against the backdrop of these constitutional provisions, the NewCommonwealth proposai raises several issues.

First, it is unclear whether either the Treaty Clause or the Compact Clause applies toPuerto Rico, since both clauses refer only to "State[s]." What little case law there is on thisquestion is not in agreement. Conzpnre Vennble v. Thornburgh, 766 F. Supp. 1012, 1013 (D.Kan. 1991) (stating in dicta that "the compact clause addresses agreements between the states,territories and the District of Columbia."),with Mora v. Torres, 113 F . Supp. 309, 315 @.P.R)(concluding that "Puerto Rico is not a State, and the compact clause, as such, is not applicable toit."), afl'd,206 F.2d 377 (1st Cir. 1953). If the two clauses do apply to Puerto Kco, thenpresumably the Compact Clause's probision for congressional authorization to enter into"Agreernent[s] or Compact[s]" applies to Puerto Rico. Second, even if Congress may consent toPuerto Rico's entry into "Agreement[s] or Compact[s]," it is not clear that theKcomniercialandtax agreements" and "international agreementsand . . . regional and international orgailizations"referred to in the New Commonwealth proposal would all constitute "Agreement[s] orCompact[s]" to which Congress may give its consent As the Supreme Court has notcd, th econstitutional distinction be~ween Agreement[s] [and] Compact[s]," on the one hand, and"Treat[ies], Alliance[s], [and] Confederation[s]," on the other, is not easily discerned. See US.SfeelCorp v. Mulf isfafeTau Comm'n, 434 U.S. 452, 461-62 (1978) (noting that "the Framersused the words 'treaty,' 'compact,' and 'agreement' as terms of art, for which no explanation was


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r e q u i r e d a n d w i t h w h i c h we a r e ~ n f a m i l i a r . " ) . ' ~ cm e " commerc i a l and t a x zg r eem en t s" u .c ;~ ;ld belikely t o qualify as "Agreernent [s] or Compac t [s ]" under Ar t i c le I, S e c t i o n 10, C l a u s e 3 of t h eCons t i t u t i on . If s o , t h e n C o n g r e s s m a y b e a b le t o a u th o r i ze P u e r t o R i c o t o e n t e r i n t c s u c ha e r e e m e n ts . T h e s t a t u s o f t h e "in te rn at io na l a g r e e m e n ts a n d . . . i eg iona l and in ternat ionzlo r g a r ~ z a t i o n s "referred t o i n t h e N e w C o m m o n w e a l t h p ro p os al , h o w e v e r , is l e s s c l ea r . A t l eas tsome o f t h e a g r e e m e n t s e m b r a c e d i n this phras e migh t const i tu te "Treat [ies] , Al l iance[s] , o rC o n f e d e r a ti o n [ sI n u n d e r A r t i c l e I, S ec t ion 10,C l a u s e 1. If s o , t h e n P u e r t o R ~ c om a y n o tc o n s ti t u ti o n a ll y e n t e r i n t o t h e m , with or wi thou t congressiona l consen t . Th i rd , even assumingC o n g r e s s m a y a u t h o r i z e P u e r t o Rico t o e n t e r in t o a t least some o f the types of i n t e rna t iona la g r e e m e n t s referenced i n t h e New C o m m o n w e a l t h p r o p o s a l, it is u n c le a r w h e t h e r C o n g r e s s c o u l d ,as a p p a r e nt l y c o n t e m p l a t e d by t h e proposal, g i v e P u e r t o Rico p r o s p e c t i v e blanket au tho r i za t i on toc o n c l u d e s u c h a g r e e m e n ts . N t h o u g h it is o u r view t h a t, u n d e r t h e C o m p a c t C l a u s e , C o n g r e s sm a y c o n s e nt i n a d v an c e t 3 a S ta t e ' s en t e r ing into ce r t a in i n t erna t iona l ag reemen t s, " t he r e wou ldstill be a ques t i on whether a d v a n c e c o n se n t o v e r s u c h a broad and unspec i f i ed range ofa g r e e m e n t s as is c o n t e m p l a t e d h e r e w o u l d be an impermissib l e u s e of C o n g r e s s ' s power.21.

l 9 O n one accou nt (which traces back to Justice Story) of the distinction between the T reaty and C ompactClauses, the Treaty Clause 's categorical prohibition refers to agreements of a political chara cter such as one Nationwouia make with another, while the conditional prohibition of the Compact Clause on agreem ents wih foreigncountries refers to arran gem en& regarding the private rights of sovereigns, such as adjusting boundaries, makingterritorial acquisitions in mo th er State, or harm onizing the internal regulations of bordering States. See Louisionov . Texas, 176 U.S. 1, 16-18 (1900) (outlining Story's theory); Virginia v. Tennessee, 148 U.S. 503,5 19-2 0 (1 893)(same). Agreem ents between Pu erto Rico and foreign countries regarding taxation a nd com merc? seem onlikely toconcern private sovereign rights; ofortiori, international agreements and mem benh ip in international or regionalorganizations would seem to b e political in character. On this theory, therefore, the Treaty Claus e, if applicable toPuerto Rico, could well bar ol l folm s of international agreements mentioned in th e bill.

*' See Letter for the Horn C aspar W. W einberger, Director, Of ic e of Man agemen t & Budge4 from RalphE. Erickson, Deputy Auorney General (Sept. 19, 1972); Memorandum for Nicholas den. K atzenbach, DeputyAttorney General, from No rben A. S chiei, Assistant Attorney General, Oftice cf Legal Coun sel, Re: Drojr biil "Toaxlhorize :hr conslructisn c f cer!oin irternotionol bridges, " /h eproposedlnternoliond Bridge A d of 1963 (July18, 1963). T he case law accords with that conclusion. See Cuyler v . A d a m , 449 U.S. 433.441 (1981) (advancecongressional consent to c e m n interstaie compacts relating to crime prevention and law enforcement); SeallleMosler Builders Ass 5r v. Poc ijic Norlhwesl Power ond Conservolion Council, 786 F.2d 1359, 1363 (9th Cir. 1986)(even if advance con gressional co nsent w ere "unusual," i t would not be unconstihltional), cer f . denied, 479 U.S.1059 (1987); see generally Virginia v. Tennessee, 148 U.S. at 52 1 ("The Con stitution does no! stzte when theconsent of congress shall be given, whether it shall precede or may follow the compact m ad e. . . . In many casesthe consent will usually precede the com pact or agreement.").

21 We have found little authority addressing the scope of permissible congressional delegation under theCompact Clause, and we no te that potential "delegation" problems might arise whether or not the Compact C lausewere thought to apply to Puerto Rico. Compare Milk Indusfry Found. v. Glickman, 132 F.3d 1467, 1473-78 @ .C.Cir. 1998) (analyzing issue arising un der Compact Clause of delegation of authority to Executive Department).with Philippine Islond s-PostolServ ice, 29 Op. Att'y Gen. 380 (1912) (analyzing without ref erence to CompactClause whethe r Congress could d elegate to government of Plulippine Island s authority 10 neg atia te ar.d en:;r intointernatinnal pslal conventions). In e i th ~ rase, the breadth cf the delegation mntemp!ated here m ight raiseconstitutional concerns.


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Finally, if Puerto Rico remains subject to United States sovereignty, the provision that

Puerto Rico would "retain[] all the powers that have not been delegated to the United States"

rests on a constitutionally flawed premise. This provision appears to attempt to create for Puerto

Rico an analogue to the Tenth Amendment. But the legislative powers of a non-State region

under the sovereignty of the United States are entirely vested in Congress. Because territories are

created by the Nation, as a matter of constitutional law they can not delegate power to the

Nation. As Chief Justice Marshall explained in Canter, "[i]n legislating for [the territories],

Congress exercises the combined powers of the general, and ofa state government." 26 U.S. at

546. And while Congress may delegate some of its powers over a territory to the territory itself,

such delegation is, as discussed supra at 7-8, always subject to Congress's own plenary power to

revise, alter, or revoke that authority. See Thompson, 346 U.S. at 106, 109; United States v.

Sharpnack, 355 U.S. 286,296 (1958).22

We hope this information is helpful to you. Please do not hesitate to contact me if I can

be of further assistance.

Sincerely,

SignatureofRobertRabenRobertRabenAssistant A

cc: The Honorable Jeff BingamanRanking Minority Member

22 Other provisions of the Commonwealth proposal may present constitutional concerns. Article VIII

makes jurisdiction of federal courts subject to the provisions of the Constitution of Puerto Rico, and article XIII

concerns the creation ofa mechanism by which application of United States laws to Puerto Rico will be subject to

the laws of Puerto Rico.

14


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APPENDIXF


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MUTUAL CONSENT PROVISIONS IN THE GUAM COMMONWEALTHLEGISLATION

Sections of the Guam Commonwealth Bill requiring the mutual consent of the Government of theUnited States and the Government of Guam raise serious constitutional questions and are legally

unenforceable.

July 28, 1994

MEMORANDUM OPINION FOR THE SPECIAL REPRESENTATIVEFOR GUAM COMMONWEALTH

The Guam Commonwealth Bill, H.R. 1521, 103d Cong., 1st Sess. (1993) contains twosections requiring the mutual consent of the Government of the United States and theGovernment of Guam. Section 103 provides that the Commonwealth Act could be amended

only with mutual consent of the two governments. Section 202 provides that no Federal laws,rules, and regulations passed after the enactment of the Commonwealth Act would apply toGuam without the mutual consent of the two governments. The Representatives of Guam insistthat these two sections are crucial for the autonomy and economy of Guam. The former views ofthis Office on the validity or efficacy of mutual consent requirements included in legislationgoverning the relationship between the federal government and non-state areas, i.e. areas underthe sovereignty of the United States that are not States,1 have not been consistent.2 We thereforehave carefully reexamined this issue. Our conclusion is that these clauses raise seriousconstitutional issues and are legally unenforceable.3

1 Territories that have developed from the stage of a classical territory to that of a Commonwealth with a

constitution of their own adoption and an elective governor, resent being called Territories and claim that that legalterm and its implications are not applicable to them. We therefore shall refer to all Territories and Commonwealthsas non-state areas under the sovereignty of the United States or briefly as non-state areas.

2 To our knowledge the first consideration of the validity of mutual consent clauses occurred in 1959 inconnection with proposals to amend the Puerto Rico Federal Relations Act. At that time the Department took theposition that the answer to this question was doubtful but that such clauses should not be opposed on the ground thatthey go beyond the constitutional power of Congress. In 1963 the Department of Justice opined that such clauseswere legally effective because Congress could create vested rights in the status of a territory that could not berevoked unilaterally. The Department adhered to this position in 1973 in connection with then pendingMicronesians status negotiations in a memorandum approved by then Assistant Attorney General Rehnquist. On thebasis of this advice, a mutual consent clause was inserted in Section 105 of the Covenant with the Northern MarianaIslands. The Department continued to support the validity of mutual consent clauses in connection with the First1989 Task Force Report on the Guam Commonwealth Bill. The Department revisited this issue in the early 1990sin connection with the Puerto Rico Status Referendum Bill in light ofBowen v. Agencies Opposed to Soc. Sec.

Entrapment, 477 U.S. 41, 55 (1986), and concluded that there could not be an enforceable vested right in a politicalstatus; hence that mutual consent clauses were ineffective because they would not bind a subsequent Congress. Wetook the same position in the Second Guam Task Force Report issued during the last days of the BushAdministration in January 1993.

3 Mutual consent clauses are not a novel phenomenon; indeed they antedate the Constitution. Section 14 ofthe Northwest Ordinance contained six articles of compact, between the original States and the people and States inthe said territory, and [shall] forever remain unalterable, unless by common consent. These articles wereincorporated either expressly or by reference into many early territorial organic acts. Clinton v. Englebrecht, 80 U.S.(13 Wall.) 434, 442 (1872). The copious litigation under these unalterable articles focussed largely on thequestion whether the territories obligations under them were superseded by the Constitution, or when the territory


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Opinions of the Office of Legal Counsel

In our view, it is important that the text of the Guam Commonwealth Act not create anyillusory expectations that might mislead the electorate of Guam about the consequences of thelegislation. We must therefore oppose the inclusion in the Commonwealth Act of any

provisions, such as mutual consent clauses, that are legally unenforceable, unless theirunenforceability (or precatory nature) is clearly stated in the document itself.

I.

The Power of Congress to Govern the Non-StateAreas under the Sovereignty of the United States

is Plenary within Constitutional Limitations

All territory under the sovereignty of the United States falls into two groups: the Statesand the areas that are not States. The latter, whether called territories, possessions, orcommonwealths, are governed by and under the authority of Congress. As to those areas,Congress exercises the combined powers of the federal and of a state government. These basic

considerations were set out in the leading case ofNational Bank v. County of Yankton, 101 U.S.129, 132-33 (1880). There the Court held:

It is certainly now too late to doubt the power of Congress to govern theTerritories. There have been some differences of opinion as to the particularclause of the Constitution from which the power is derived, but that it exists hasalways been conceded.4

* * *

All territory within the jurisdiction of the United States not included inany State must necessarily be governed by or under the authority of Congress.The Territories are but political subdivisions of the outlying dominion of the

United States. Their relation to the general government is much the same as thatwhich counties bear to the respective States, and Congress may legislate for themas a State does for its municipal organizations. The organic law of a Territorytakes the place of a constitution as the fundamental law of the local government.It is obligatory on and binds the territorial authorities; but Congress is supreme,and for the purposes of this department of its governmental authority has all the

became a State, as the result of the equal footing doctrine. We have, however, not found any cases dealing with thequestion whether the Congress had the power to modify any duty imposed on the United States by those articles.

4 Some derived that power from the authority of the United States to acquire territory, others from the merefact of sovereignty, others from the Territory Clause of the Constitution of the United States (Art. IV, Sec. 3, Cl. 2)

pursuant to which Congress has Power to dispose of and make all needful Rules and Regulations respecting theTerritory or other Property belonging to the United States. See e.g. American Insurance Co. v. Canter, 26 U.S.(1 Pet.) 511, 542 (1828);Mormon Church v. United States, 136 U.S. 1, 42-44 (1890);Downes v. Bidwell, 182 U.S.244, 290 (1901).

At present, the Territory Clause of the Constitution is generally considered to be the source of the power ofCongress to govern the non-state areas. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673-674 (1945);ExaminingBoard v. Flores de Otero, 426 U.S. 572, 586 (1976);Harris v. Rosario, 446 U.S. 651 (1980); see also Wabol v.Villacrusis, 958 F.2d 1450, 1459 (9th Cir. 1992), cert. denied506 U.S. 1027 (1992). (Footnote supplied.)

2-


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Mutual Consent Provisions in the Guam Commonwealth Legislation

powers of the people of the United States, except such as have been expressly orby implication reserved in the prohibitions of the Constitution.

Yankton was anticipated in Chief Justice Marshalls seminal opinion inAmerican

Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511, 542-43, 546 (1828). The Chief Justice explained:

In the mean time [i.e. the interval between acquisition and statehood],Florida continues to be a territory of the United States; governed by virtue of thatclause in the Constitution, which empowers Congress to make all needful rulesand regulations, respecting the territory, or other property belonging to the UnitedStates.

Perhaps the power of governing a territory belonging to the United States,which has not, by becoming a state, acquired the means of self-government, mayresult necessarily from the facts, that it is not within the jurisdiction of anyparticular state, and is within the power and jurisdiction of the United States.

* * *

In legislating for them [the Territories], Congress exercises the combined powersof the general, and of a state government.

Id. at 542-43, 546.

The power of Congress to govern the non-state areas is plenary like every otherlegislative power of Congress but it is nevertheless subject to the applicable provisions of theConstitution. As Chief Justice Marshall stated in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196(1824), with respect to the Commerce Power:

This power [the Commerce Power], like all others vested in Congress is complete

in itself, may be exercised to its utmost extent, andacknowledges no limitations,other than are prescribed in the constitution. (Emphasis added.)

This limitation on the plenary legislative power of Congress is self-evident. Itnecessarily follows from the supremacy of the Constitution. See e.g.,Hodel v. Virginia SurfaceMining and Reclamation Assoc., 452 U.S. 264, 276 (1981). That the power of Congress underthe Territory Clause is subject to constitutional limitations has been recognized in County ofYankton, 101 U.S. at 133;Downes v. Bidwell, 182 U.S. 244, 290-91 (1901);District of Columbiav. Thompson Co., 346 U.S. 100, 109 (1953).

Finally, the power of Congress over the non-state areas persists so long as they remainin a territorial condition. Shively v. Bowlby, 152 U.S. 1, 48 (1894). See also Hooven & AllisonCo. v. Evatt, 324 U.S. 652, 675 (1945) (recognizing that during the intermediary period betweenthe establishment of the Commonwealth of the Philippine Islands and the final withdrawal ofUnited States sovereignty from those islands Congress retains plenary power over the territorialgovernment).

The plenary Congressional authority over a non-state area thus lasts as long as the arearetains that status. It terminates when the area loses that status either by virtue of its admission

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Opinions of the Office of Legal Counsel

as a State, or by the termination of the sovereignty of the United States over the area by the grantof independence, or by its surrender to the sovereignty of another country.

II.

The Revocable Nature of Congressional LegislationRelating to the Government of Non-State Areas

While Congress has the power to govern the non-state areas it need not exercise thatpower itself. Congress can delegate to the inhabitants of non-state areas full powers of self-government and an autonomy similar to that of States and has done so since the beginning of theRepublic. Such delegation, however, must be consistent with the supremacy and supervision ofNational authority. Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 441 (1872); Puerto Rico v.Shell Co., 302 U.S. 253, 260, 261-62 (1937). The requirement that the delegation ofgovernmental authority to the non-state areas be subject to federal supremacy and federalsupervision means that such delegation is necessarily subject to the right of Congress to revise,alter, or revoke the authority granted. District of Columbia v. Thompson Co., 346 U.S. 100, 106,

109 (1953).5

See also United States v. Sharpnack, 355 U.S. 286, 296 (1958),Harris v. Boreham,233 F.2d 110, 113 (3rd Cir. 1956), Firemens Insurance Co. v. Washington, 483 F.2d 1323, 1327(D.C. Cir. 1973). The power of Congress to delegate governmental powers to non-state areasthus is contingent on the retention by Congress of its power to revise, alter, and revoke thatlegislation.6 Congress therefore cannot subject the amendment or repeal of such legislation tothe consent of the non-state area.

This consideration also disposes of the argument that the power of Congress under theTerritory Clause to give up its sovereignty over a non-state area includes the power to make apartial disposition of that authority, hence that Congress could give up its power to amend orrepeal statutes relating to the governance of non-state areas. But, as shown above, the retentionof the power to amend or repeal legislation delegating governmental powers to a non-state areais an integral element of the delegation power. Congress therefore has no authority to enact

legislation under the Territory Clause that would limit the unfettered exercise of its power toamend or repeal.

The same result flows from the consideration that all non-state areas are subject to theauthority of Congress, which, as shown above, is plenary. This basic rule does not permit the

5 Thompson dealt with the District of Columbias government which is provided for by Art. I, Sec. 8, Cl. 17of the Constitution, rather than with the non-state areas as to whom the Congressional power is derived from theTerritory Clause. The Court, however, held that in this area the rules relating to the Congressional power to governthe District of Columbia and the non-state areas are identical. Indeed, the Court relied on cases dealing with non-state areas, e.g.,Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648, 655 (1874), andChristianson v. King County, 239

U.S. 365 (1915), where it held that Congress can delegate its legislative authority under Art. I, Sec. 8, Cl. 17 of theConstitution to the District, subject to the power of Congress at any time to revise, alter, or revoke that authority.

6 Congress has exercised this power with respect to the District of Columbia. The Act of February 21,1871, 16 Stat. 419, gave the District of Columbia virtual territorial status, with a governor appointed by thePresident, a legislative assembly that included an elected house of delegates, and a delegate in Congress. The 1871Act was repealed by the Act of June 20, 1874, 18 Stat. 116, which abrogated among others the provisions for thelegislative assembly and a delegate in Congress, and established a government by a Commission appointed by thePresident.

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Mutual Consent Provisions in the Guam Commonwealth Legislation

creation of non-state areas that are only partially subject to Congressional authority. The plenarypower of Congress over a non-state area persists as long as the area remains in that condition andterminates only when the area becomes a State or ceases to be under United States sovereignty.There is no intermediary status as far as the Congressional power is concerned.

The two mutual consent clauses contained in the proposed Commonwealth Act thereforeare subject to Congressional modification and repeal.

III.

The Rule that Legislation Delegating Governmental Powers to aNon-State Area Must be Subject to Amendment and Repeal is but aManifestation of the General Rule that one Congress Cannot Bind

a Subsequent Congress, Except where it Creates Vested RightsEnforceable under the Due Process Clause of the Fifth Amendment

The rule that Congress cannot surrender its power to amend or repeal legislation relating

to the government of non-state areas is but a specific application of the maxim that one Congresscannot bind a subsequent Congress and the case law developed under it.

The rationale underlying that principle is the consideration that if one Congress couldprevent the subsequent amendment or repeal of legislation enacted by it, such legislation wouldbe frozen permanently and would acquire virtually constitutional status. Justice Brennanexpressed this thought in his dissenting opinion in United States Trust Co. v. New Jersey, 431U.S. 1, 45 (1977), a case involving the Impairment of the Obligation of Contracts Clause of theConstitution (Art. I, Sec 10, Cl. 1):

One of the fundamental premises of our popular democracy is that eachgeneration of representatives can and will remain responsive to the needs anddesires of those whom they represent. Crucial to this end is the assurance that

new legislators will not automatically be bound by the policies and undertakingsof earlier days . . . . The Framers fully recognized that nothing would sojeopardize the legitimacy of a system of government that relies upon th