Six Puerto Rican Congressmen go to Washington.

• Author: Tio, Jose R. Coleman

After 108 years as a colony (1) of the United States, Puerto Rico continues to search for a dignified solution to its status of political subordination. Although Puerto Ricans have been U.S. citizens since 1917, (2) they cannot vote in federal elections and have no say in the enactment, application, or administration of the federal laws and regulations that shape their lives. They are also denied the right to govern themselves without federal intrusion. A century of bitter internal debate, conspicuous federal neglect, and countless frustrated efforts at reform has failed to produce consensus on how to address this manifest lack of democracy. However, while the island's internal divisions reflect profound disagreements about politics, economics, and culture, Puerto Ricans from all political persuasions agree on the need to solve, at a minimum, the grossest democratic inequities of Puerto Rico's relationship with the United States. Unfortunately, the search for grand, permanent solutions to Puerto Rico's status may have dampened the search for pragmatic short-term alternatives.

While the debate over the political future of the island has sputtered in Puerto Rico and Washington, Congress is currently considering a bold proposal to address the undemocratic status of another disenfranchised territory. The District of Columbia House Voting Rights Act of 2007 (H.R. 1433) (3) attempts to end the congressional disenfranchisement of District of Columbia residents by treating the District as a state for purposes of representation in the House of Representatives. (4) The bill defies conventional constitutional doctrine by enfranchising District residents through an ordinary statute rather than through statehood, the traditional path to representation in the House. While the bill's constitutionality remains open to debate, its proposal, as well as the legal theories underlying it, has important--although largely overlooked-consequences for Puerto Rico. (5)

This Comment makes a three-pronged argument that employs the reasoning of H.R. 1433 to propose a novel way to address Puerto Rico's democratic deficit. First, the legal reasoning of H.R. 1433 applies fully to a bill granting similar congressional representation to Puerto Rico. (6) Second, a bill that enfranchises Puerto Ricans in elections for the House might pass constitutional muster even if H.R. 1433 does not, because it would avoid the latter's most conspicuous constitutional difficulties. Finally, recognition of Congress's power under the Territorial Clause to grant congressional representation to Puerto Rico provides an innovative and politically feasible option for addressing, at least temporarily, Puerto Rico's democratic deficit without limiting its options for self-determination. (7)

1. APPLYING THE LEGAL REASONING OF H.R. 1433

   The most daunting legal hurdle for the sponsors of H.R. 1433 is the text of the Constitution, which stipulates that "[t]he House of Representatives shall be composed of Members chosen ... by the People of the several States." (8) The bill's detractors claim that the Constitution expressly limits representation in the House to states of the Union. (9) Because the District is not a "State" within the meaning of the Constitution, (10) it arguably should be denied representation in the House absent a grant of statehood or a constitutional amendment.

   To counter the textual analysis of detractors, advocates of H.R. 1433 have advanced arguments based on constitutional text and structure as well as judicial precedent. The bill's sponsors argue that the expansive language of the Seat of Government Clause, which grants Congress the power "[t]o exercise exclusive Legislation in all Cases whatsoever, over such District ... as may ... become the Seat of the Government of the United States," (11) confers upon Congress the power to enact any legislation that it deems conducive to the District's general welfare. (12) Furthermore, the bill's supporters assert that because courts had consistently upheld Congress's power to treat the District as a state under several constitutional and statutory provisions, (13) H.R. 1433 should receive similar deference. The bill's sponsors also minimize differences between the District and the states, arguing that the District is "akin to a state in virtually all important respects." (14)

   These arguments provide similar constitutional support for granting Puerto Rico representation in the House. First, the Territorial Clause, under which Congress legislates for Puerto Rico, (15) is as expansive as the Seat of Government Clause. An exegesis of both provisions reveals clear parallels in language and in the breadth of congressional power recognized. While the Seat of Government Clause refers to the power "[t]o exercise exclusive Legislation in all Cases whatsoever," (16) the Territorial Clause grants Congress the "Power to dispose of and make all needful Rules and Regulations respecting the Territory ... belonging to the United States." (17) Commentators have highlighted this constitutional parallel, arguing that "[s]tructurally, [the Territorial Clause] endowed Congress with the same plenary power that ... Congress itself enjoyed under Article I when enacting 'exclusive Legislation in all Cases' for the national capital city." (18)

   Furthermore, courts have described Congress's power under the Territorial Clause in expansive terms, (19) have recognized the need for congressional flexibility in legislating for the territories, (20) and have intimated that Congress bears ultimate responsibility for addressing Puerto Rico's historic disenfranchisement. (21) Courts have also deferred to congressional actions pursuant to the Territorial Clause even in circumstances in which constitutional limitations might otherwise be insurmountable. (22) Without judicial challenge, Congress has extended to territorial residents rights otherwise not guaranteed to them by the Constitution. (23) Congress's power under the Territorial Clause is therefore expansive, (24) arguably limited only by the need to respect the "fundamental rights" of territorial inhabitants. (25)

2. ON FIRMER CONSTITUTIONAL GROUND

   Although considerable overlap would exist between H.R. 1433 and an analogous bill for Puerto Rico, the latter would avoid some of H.R. 1433's most conspicuous constitutional difficulties.

   1. Original Intent

      While the Constitution explicitly mandated the creation of the District, (26) it conspicuously failed to provide it with representation. This omission was intentional. The Founders denied self-government to the District in order to protect the federal government from undue external influence. (27) And proposals to extend voting rights to the District were rejected during the Constitution's ratification. (28)

      By contrast, the Constitution does not present similar roadblocks to extending congressional representation to Puerto Rico. Unlike the District, Puerto Rico was not part of the United...