View of Congress, the Courts and
the Federal Government

 

There are two main areas that are of great concern to us here in Puerto Rico, the status of the land where we live, and our American citizenship.

Any decision that we make in our process of self-determination has to be made within the scope of existing rules and legislation that affect our present and possible future status. It is the responsibility of our government, both at the local level as well as the federal government, of our politicians and the press, to put the truth forth, to "tell it like it is", to build the foundation of correct and accurate information in order to educate our people. Only this way can our people make an intelligent decision regarding their future.

In arriving at the present condition, it might be helpful to remember that originally Puerto Rico became a part of the United States, as a territory under the Treaty of Paris of December 10, 1898.

On April 12, 1900 the Foraker Law, the first organic law in Puerto Rico was approved by congress. This law allows a civil government and maintains the island as a territory of the United States. On March 2, 1917 the Jones Act was approved. Under this act, citizenship was granted to people born in Puerto Rico, a bill of rights was established, and many aspects of territorial nature continued including economic and fiscal controls.

On July 3, 1950 congress approved law 600 (P.L. 81-600) which authorizes the Puerto Rican people to draw our own constitution. This act left unchanged all the articles under the Jones Act that regulated the relationships between Puerto Rico and the United States. These articles became part of the Federal Relations Act. On July 25, 1952 Puerto Rico inaugurated its own constitution under our existing commonwealth status.

What has changed? What has remained the same? Is our existing territory status guaranteed forever? Is our American citizenship permanent? Do we have a "permanent pact" or are we subject to the Territorial Clause of the Constitution of the United States?


Jurisdiction under the Territorial Clause

Considerable information in the form of opinions, briefs, legislation and jurisprudence seem to unquestionably state that Puerto Rico's relationship with the United States falls under the full jurisdiction of the territorial clause (Article IV Section 3-2) of the Constitution of the United States.

"Under what is commonly known as the Territorial Clause of the Constitution... in response to local desire for greater political autonomy, the Congress in 1950 approved a process for local self government for Puerto Rico, under which its residents could establish, subject to Congressional approval, their own constitution... In the most recent case to discuss the Territorial Clause with regard to Puerto Rico, (United States v Sanchez, 992 F.2d 1143 (11th Cir. 1993), the Court of Appeals for the 11th Circuit held that the Congress' decision to permit self governance in Puerto Rico did not remove Puerto Rico from the application of the Territorial Clause. The Court concluded that there has been no fundamental alteration in Puerto Rico's relationship with the United States; Puerto Rico is still constitutionally a territory, and not a separate sovereign. [ Footnote ; Id at 1151-52. Finding that Puerto Rico still derives its powers from the U. S. Congress, the Court said: 'Congress may unilaterally repeal the Puerto Rico Constitution or the Puerto Rico Federal Relations Act and replace them with any rules or regulations of its choice. Despite passage of the Federal Relations Act and the Puerto Rico Constitution, Puerto Rican courts continue to derive their authority from the United States Congress'."

The above is an excerpt from a November 7, 1997 report from the General Accounting Office on the application of the U.S. Constitution on its territories, including Puerto Rico.

In 1980 the U. S. Supreme Court ruled that Congress acts with respect to Puerto Rico under the Territorial Clause (Harris v. Rosario, 446 U.S. 651) In U.S. v. Sanchez mentioned above, the Court stated that Congress retains authority to determine the status of the territory in accordance with the Territorial Clause and the Treaty of Paris as it deems consistent with the national interest. It confirms that adoption of a local constitution in 1952 did not alter the status of Puerto Rico under the Territorial Clause.

The United States Supreme Court has also described the jurisdiction under the territorial clause as a "temporary" condition regulated by Congress until the establishment of a local self-government. This was included in the decision on Reid v. Covert, 354 U.S. 1 (1957)

"There is an irreconcilable constitutional conflict that prevents the establishment of a permanent, fixed commonwealth status for Puerto Rico. Only States have a permanent, constitutionally guaranteed status under the federal system, and without constitutional amendment, nothing done by this Congress can bind future Congresses in the treatment of Puerto Rico". The preceding statement is part of a letter to Hon. Don Young from Richard Thornburgh, former Attorney General of the United States, dated February 9, 1998.

In 1998 both the House of Representatives and the Senate of the United States have spoken in favor of the self-determination of a future status by the people of Puerto Rico. In the House of Representatives H.R, 856 was approved on March 4, 1998 authorizing the celebration of a referendum for the people to express the ultimate desire for the islands final status. In the Senate S 472 was reviewed, but due to time constraints was not approved. However, the Senate approved a resolution on September 17, 1998, which recognized the people's right to self-determination and to consider the results of a referendum. The resolution recognizes Puerto Rico's present status under the Territorial Clause.

The White House has on a number of occasions expressed the Federal Government's position of believing in the right of the people from Puerto Rico to self-determination and has pledged to respect the results of the referendum.


American Citizenship

American citizenship was granted to the residents of Puerto Rico under the Jones Act on March 2, 1917. For a background on this subject please refer to our sections entitled "American Citizenship" and "History of American Citizenship in Puerto Rico". You may access these sections by "clicking" the directory at the bottom of this or any other page of this web site.

Since the enactment of the Jones Act in 1917 it has been the policy of Congress to rule or define by law a category of U.S. citizenship specifically for people born in Puerto Rico under U.S. sovereignty. The rules and statues that define the U.S. citizenship of people in Puerto Rico have been reviewed and amended by Congress in the past. These remain subject to review, amendment, and even possible repeal by Congress in the future as it determines to either continue or alter the political status of Puerto Rico or citizenship of its residents.

In a report to the Chairman on Resources of the House of Representatives, the Hon. Don Young, Richard Thornburgh states;

"The present statutory U.S. citizenship of persons born in Puerto Rico does nor arise from or exist by virtue of the Constitution of Puerto Rico, or the Puerto Rico Federal Relations Act pursuant to which that local constitution was instituted (P.L. 81-600). Eligibility of persons born in Puerto Rico for U. S. citizenship results entirely from an exercise of congressional discretion. Statutory citizenship initially was prescribed by the Organic Act of Puerto Rico ("Jones Act", 39 Stat. 461 March 2, 1917). In 1940 Congress amended the territorial organic act by removing the provisions governing the citizenship status of Puerto Ricans and included that statutory citizenship in Section 202 of the Nationality Act of 1940. When the Constitution of Puerto Rico was being approved in 1952, Congress again revised the statutory U.S. citizenship provision for Puerto Ricans in Section 302 of the Immigration and Nationality Act. The revision of U.S. citizenship for Puerto Ricans was codified at 8 U.S.C S 1402, and Congress has chosen not to amend that provision further since 1952."

The granting of American citizenship for people born in Puerto Rico was in no way part of the process of the establishment of the Commonwealth status or part of the Constitution of Puerto Rico. American citizenship was granted by completely different statutes and was not part or was not a subject considered for approval or consent in the process described in Section 1 of P.L. S1-600 (48 U.S.C. S73 1b) as being in the "in the nature of a compact." The reference made of U.S citizenship in the preamble of the Puerto Rico Constitution does not change the nature of the citizenship of Puerto Rican. The approval of the Constitution of Puerto Rico in 1952 did not change in any way the nature of U.S. citizenship of Puerto Ricans granted through law via the Territorial Clause into the type of citizenship enjoyed by the rest of U.S. citizens who by being born in a state of the union enjoy full constitutional citizenship.

Congress may continue the current policy under 8 U.S.C. 1402 and treat persons born in Puerto Rico as a separate category of citizens subject to such separate rules and regulations as Congress may determine from time to time to be reasonable. It is understood that under any policy adopted by Congress, the American citizenship that has previously been granted to individuals already born in Puerto Rico cannot be regulated or terminated in violation of due process of law, and equal protection of other fundamental rights. See among other cases; Schneider v. Rusk, 377 U.S. 163 (1964), Afroyim v. Rusk 18 L. ed 2dd. 757 (1967), Kenndy v. Mendoza,372 U.S. 144(1963) Rusk v. Cort 372 U.S. 144 (1963).

However, there is no restriction on power of Congress regarding citizenship of those born in the future- specially if there is a change in the status of Puerto Rico. This is because people born in Puerto Rico have statutory rather than constitutionally derived citizenship. This is so because our citizenship was granted by the Jones Act of 1917, and not by the Constitution of the United States. The Constitution states under Article XIV " All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Their right to aquire U.S. citizenship by virtue of birth in Puerto Rico is permissive at the discretion of Congress. Congress could, without a question, terminate the granting of American citizenship to persons born in Puerto Rico. J Killian, Senior Specialist in American Constitutional Law stated on March 9, 1998:

"In Rogers v. Balleri, 401 U.S. 815 (1971),... the Court..ruled that (its earlier decision in case of) Afroyim was applicable because the claimant was not a 'Fourteenth Amendment citizen'...because Balleri had been born outside the United States... the case law establishes that Puerto Rico, whatever its exact status and relationship to the United States, is not itself in the United States...In that perspective, then, the limitation of the first sentence of Section 1 of theFourteenth Amendment would not restrain Congress' discretion in legislating about the citizenship status of Puerto Rico."

In the letter to Hon. Don Young, Richard Thornburgh states; "The history of citizenship for Puerto Ricans confirms beyond debate that the nationality and U.S. citizenship of persons born in Puerto Rico is a matter governed by U.S. laws enacted by Congress unilaterally-albeit with broad popular support and acceptance among Puerto Ricans. This unilateral exercise of Territory Clause authority to define the citizenship status of persons born in Puerto Rico is consistent with Article IX of the Treaty of Paris. Clearly, the U.S. nationality and citizenship is not within the internal sovereignty exercised by the people of Puerto Rico under the Commonwealth structure of local self-government."


John A. Regis Jr.
October 15, 1998



Additional ARTICLES on View of Congress, the Courts and the Federal Government:


[ English Home | Spanish Version ]
[ American Citizenship | History of American Citizenship in P.R. ]
[ View of Congress, the Courts and the Federal Government ]
[ View of the Political Parties: PNP | PPD | PIP ]
[ American Citizenship in the process of Self Determination ]
[ Much has happened since July 25, 1898 | Notable Quotes ]
[ Suggested Links and Bibliography | Conclusions ]

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