Puerto Rico and the Constitution: conundrums and prospects.

• Author: Aleinikoff, T. Alexander

Last November, the people of Puerto Rico went to the polls to indicate their preference on the political status of the island and its relationship to the United States. With almost three-quarters of registered voters participating, the plebescite produced inconclusive results. Just over 48% of the voters selected retention of commonwealth status, 46% preferred statehood, and 5% chose the independence option. The status question has dominated Puerto Rican politics for decades (the major political parties on the island are identified by their preferred solution), yet has received surprisingly little attention on the mainland. It has received virtually no attention in constitutional law treatises, casebooks, or courses.(1) This omission is not a good measure of the significance of the issues. If Puerto Rico were to achieve statehood, it would be the 25th most populous state in the Union, sending two senators and half a dozen representatives to Congress. The island, once proclaimed the "showcase for democracy" and the alternative to Cuban-style socialism, is now the American "gateway" to the developing Caribbean basin.

The constitutional status of Puerto Rico raises complex and interesting puzzles. The United States acquired sovereignty over the island at the close of the Spanish-American War, and half a century later Puerto Rico attained the status of Commonwealth (Estado Libre Asociado in Spanish). At the time, it was argued that the establishment of Commonwealth represented an act of self-determination by the people of Puerto Rico and constituted an end to the island's status as a colony of the United States. But it is recognized today that Commonwealth--at least in its 1950s form--is not a permanent solution to the status question. Decolonization of Puerto Rico remains a work in progress.

Commonwealth was a new and novel form of territorial government. It did not, like earlier home rule arrangements for territories, presuppose eventual Puerto Rican statehood; and it was seen as responding to Puerto Rico's desires to remain part of the United States while retaining a distinct culture and language.(2) Commonwealth raises a host of constitutional questions regarding the continuing scope of federal power over the island and the rights of Commonwealth residents (who have been U.S. citizens since 1917). Constitutional law ought to find these issues interesting in their own right. But beyond satisfying intellectual curiosity, the questions open up broader themes of citizenship, the divisibility of sovereignty, and cultural nationalism which are of increasing salience in the United States and the world. This essay--in this anniversary issue--is an attempt to spark interest in these fascinating and important issues of constitutional membership and political sovereignty.(3)

1. "PLENARY" FEDERAL POWER OVER THE TERRITORIES

   The Constitution grants Congress power to make "all needful Rules and Regulations respecting the Territory . . . belonging to the United States."(4) Perhaps the best known construction of the Territory Clause is Justice Taney's tortured reasoning in Dred Scott, holding that the Clause authorized congressional rule only of those territories held by the federal government at the time of the founding.(5) But that reading was inconsistent both with earlier statements of John Marshall and with congressional practice,(6) and was expressly rejected by the Court in the Insular Cases(7)--a set of turn of the century cases which considered the constitutional status of territories acquired after the Spanish-american war. It is now well established that Congress possesses plenary power to legislate for territories acquired by purchase, conquest, treaty, or war.(8)

   Theoretically, the existence of Congress' plenary power is a sword of Damocles hanging over Puerto Rican self-government. What Congress has granted, the argument runs, it may always take away. The Eleventh Circuit recently stated this position in the baldest terms: "Congress may unilaterally repeal the Puerto Rican Constitution . . . and replace [it] with any rules or regulations of its choice."(9) Yet despite the existence of this broad power, Congress has granted Puerto Rico increasing degrees of home rule. Under the Organic Act of 1900 (the Foraker Act), Puerto Rico was ruled by a Governor appointed by the President of the United States; the Governor served as commander in chief of the militia and had the power to veto legislation adopted by the locally elected Legislative Assembly and to appoint lower court judges.(10) The 1917 Jones Act extended U.S. citizenship and a Bill of Rights to residents of Puerto Rico, and provided for popular election of both houses of the legislature. In 1947, Puerto Ricans were granted the right to elect their Governor. Three years later, Congress started the process to fuller self-rule by adopting "an Act to provide for the organization of a constitutional government by the people of Puerto Rico." The 1950 statute (Public Law 600) declared:

   Whereas the Congress of the United States by a series of enactments

   has progressively recognized the right of self-government

   of the people of Puerto Rico; and

   Whereas under the terms of these congressional enactments

   an increasingly large measure of self-government has

   been achieved: Therefore,

   Be it enacted . . . That, fully recognizing the principle of government

   by consent, this Act is now adopted in the nature of a

   compact so that the people of Puerto Rico may organize a

   government pursuant to a constitution of their own adoption.(11)

   Under the procedures provided by Public Law 600, an island-wide referendum was held, approving a call for a constitutional convention. The draft produced by the convention was adopted by the people of Puerto Rico(12) and formally approved by Congress in 1952, with one exception(13) and two provisos.(14) The constitutional convention of Puerto Rico acted immediately to amend the Constitution as mandated by the Congress, and the Constitution of Puerto Rico took effect, after a formal proclamation of the Governor, on July 25, 1952.

   It has been suggested that the establishment of Commonwealth status ended the Congress' "plenary power" under the Territory Clause. Under this reasoning, Congress lost general power to regulate the internal affairs of Puerto Rico or to amend the "compact" without Puerto Rican consent--much as Congress has no power to legislate for the now-independent Philippines or territories that have become states.(15) (Congress could, of course, still adopt laws under other powers that applied in Puerto Rico, just as federal laws adopted under the commerce power, for example, have effect throughout the states.)

   Despite some early lower court opinions (and dicta in more recent cases) suggesting that Commonwealth has fundamentally altered congressional power under the Territory Clause,(16) the Supreme Court and the Executive Branch have rejected the argument.(17) Interestingly, both statehood supporters and independentistas have argued that Congress lost nothing by authorizing Puerto Rican self-rule: from either perspective, the conclusion that congressional power has not been limited by Commonwealth supports a move to a legal status that would clearly terminate "plenary power"--either statehood or independence.(18) But to conclude that Congress has not alienated its power under the Territory Clause is not to conclude that that power is plenary in the sense of unlimited. Two sorts of limits are conceivable. First, it might be argued that Congress may not discriminate against Puerto Ricans simply on the basis of residence in the Commonwealth. Second, the Bill of Rights and other explicit limits on congressional power might apply to federal regulation of Puerto Rico.

   1. DIFFERENTIAL TREATMENT OF RESIDENTS OF PUERTO RICO

      For most federal regulatory and criminal statutes, Puerto Rico is treated as if it were a state.(19) There are, however, some important exceptions. First, individuals and corporations in Puerto Rico pay no federal income taxes (although this permits Puerto Rico to set local taxes at significantly higher levels).(20) Second, residents of Puerto Rico receive less favorable treatment than mainland residents under a number of major federal benefits programs. For citizens of Puerto Rico, federal payments under Aid to Families with Dependent Children, Medicaid, and the food-stamps program are made at lower levels and are subject to an overall cap.(21) The Supplemental Security Income Program (aid to the aged, blind, and disabled) does not apply to Puerto Rico; rather, through continuation of an earlier, similar program, benefit levels for Puerto Ricans are capped and made at lower levels than SSI payments made to eligible persons residing in the states.(22) According to a 1990 study by the Congressional Budget Office, treating Puerto Rico as a state under these programs would have increased federal transfers to the Commonwealth by some $1.7 billion in fiscal year 1992, rising to almost $3 billion in fiscal year 1995.(23) It is also generally agreed that, because of high levels of poverty on the island and a low average income,(24) the dollars lost due to unfavorable treatment under the federal benefit programs substantially exceed the dollars lost to the U.S. Treasury because of the tax exemption on Puerto Rican taxpayers.(25)

      The Supreme Court has given short shrift to claims that the disadvantageous treatment of Puerto Rico violates the Fifth Amendment's equal protection guarantee. In Harris v. Rosario,(26) the Court upheld the disparate treatment of Puerto Ricans under ADFC in a page and a half per curiam opinion issued without full briefing or oral argument. The summary disposition, joined by six members of the Court, stated that under the Territory Clause Congress "may treat Puerto Rico differently from States so long as there is a rational basis for its actions."(27) Referring to an earlier per curiam opinion...