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As immigration reform moves forward, Congress must act to reverse the legacy of infamous Supreme Court rulings that still trespass on Puerto Rico’s right of self-determination and equal citizenship

By Howard L. Hills*

I.   Redeeming the promise of equality in America

As our fellow Americans in Puerto Rico enter the twelfth decade of a struggle for self-determination, a new potential setback has emerged, the irony of which would be almost as cruel as nine decades fighting overseas for democratic rights of foreign peoples that Puerto Rico is denied back at home.

It could be regarded as profoundly unfair and demoralizing for Puerto Rico if 11 million people who entered the U.S. unlawfully are given a path to full enfranchisement and equal citizenship rights, while the 4 million U.S. citizens of Puerto Rico remain disenfranchised in a less than equal citizenship status.   How would Puerto Ricans explain that to their children?

How will anyone explain an outcome in which millions of non-citizens who enjoy many of the blessings of our way of life without first complying with our laws are given preferential treatment over our law-abiding fellow Americans in Puerto Rico in seeking equality?   Who will explain how non-citizens unlawfully present in America will be fully embraced and integrated into American society before the tried, tested and true patriotic American families of Puerto Rico who have lived under the American flag lawfully for 114 years?

II.     Allegiance and equality

Along with U.S. citizenship conferred in Puerto Rico by Congress in 1917 came the duty of allegiance that accompanies it.  In America equality is the quid pro quo for allegiance.  The denial of equality based on Puerto Rico’s allegiance to America is the corrosive legacy of the 1922 decision of the U.S. Supreme Court in the case of Balzac v. Puerto Rico.

Former U.S. Attorney General Thornburgh has called for the Congress and/or the federal courts to repudiate the obsolete imperialistic doctrine of the 1922 Balzac case, and mandate timely self-determination as a basis for action by Congress leading either to incorporation and statehood or independence for Puerto Rico.

Thornburg also has noted that failure to do so will be inconsistent with the very human rights principles regarding universal suffrage and equal rights the U.S. holds up in criticizing undemocratic regimes around the world.

III.     The missing link in legal policy on Puerto Rico status

A milestone in the discourse on self-determination leading to equal citizenship for Puerto Rico was publication by the Center for Strategic and International Studies in 2007 of a brief history of American territorial law and policy in the Twentieth Century by former U.S. Attorney General Dick Thornburgh.

In “Puerto Rico’s Status:  A Time to Decide,” Thornburgh’s thesis is that application of the imperialist legal and political model for territorial governance under the Insular Cases should have ended once Congress conferred U.S. citizenship in Puerto Rico back in 1917.  At least that would have been the result if not for the 1922 ruling by the Supreme Court that deviated from nearly 150 years of anti-colonial American territorial law dating back to the Northwest Ordinance.

Thornburgh demonstrates that the paramount legal and historical significance of the U.S. Supreme Court’s ruling in Balzac v. Puerto Rico is that the Court deviated materially from the line of earlier territorial law decisions known as the “Insular Cases.”  Thornburgh argues that it perversely validates Balzac to simplistically denominate that ruling as one of the Insular Cases, thereby giving the false impression the 1922 ruling cogently and cohesively sustained the jurisprudence of those earlier territorial law cases.

To the contrary, the lead Insular Cases (DeLima v. Bidwell, Downes v. Bidwell, Dorr v. United States), each confirmed the authority of Congress under the Territorial Clause to govern non-citizens under the national protection of America and residing in overseas territories newly acquired from Spain but not incorporated into the union.

IV.     A forgotten phrase is smoking gun proving Balzac case flaws

The most pronounced effect of non-incorporation is that residents of the territory are for the most part beyond the reach of the Constitution, except as provided by Congress under statutory territorial policy concocted on an ad hoc basis.

Thus, in Downes v. Bidwell the U.S. Supreme Court stated that unincorporated territory status was a temporary arrangement enabling the U.S. to govern the territory under the Territorial Clause until Congress conferred citizenship.   Specifically, the court stated that, “… in the case of Porto Rico and the Philippines…the civil rights and political status of the native inhabitants . . . shall be determined by Congress.  In all these cases there is an implied denial of the right of the inhabitants to American citizenship until Congress by further action shall signify its assent thereto.”

In contrast, the court’s rulings in the Rasmussen case (Alaska) and the Mankichi case (Hawaii) held that upon coming under U.S. sovereignty a territory populated by U.S. citizens is incorporated, which ushers in application of those parts of the Constitution not applicable only to states, and integrates the body politic of the territory into the nation until full equal rights and duties of citizenship are achieved through admission to statehood.

Thornburgh was the first to argue that the Supreme Court’s ruling in the 1922 case of Balzac v. Puerto Rico was a radical departure from both the unincorporated territory doctrine of the Insular Cases as applied to non-citizens and the citizenship based incorporation doctrine of the Alaska and Hawaii cases.

Thus, Thornburgh was able to sustain his thesis that Balzac misappropriated the unincorporated territory doctrine of the Insular Cases, as it applied to non-citizens “until Congress…shall signify its assent” to citizenship.   The Balzac court then wrongly applied that pre-naturalization doctrine of non-incorporation to Puerto Rico after Congress had naturalized the population and conferred citizenship on all persons born there in 1917.

The term “metaphysical purgatory” was recently used  to describe Puerto Rico’s current status, but it is an understatement.   Thornburgh has at times been more stark, calling territorial status under Balzac a “constitutional nowhere land.”   But Ronald Reagan beat them both to the punch when he noted that as a territory Puerto Rico “…is neither a state nor independent, and therefore has an historically unnatural status.”

*   Formerly lead Counsel for White House National Security Council on territorial political status affairs and U.N. decolonization proceedings; Former lead Counsel for political status treaty negotiations and economic development programs, U.S. Department of State.   Views expressed are those of the author and no other party.

An Open Letter to President Obama from NAUS

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The National Association for Uniformed Services (NAUS) has written an open letter to President Obama asking him to end the second class U.S. citizenship for Puerto Ricans.

The letter begins with a plea:

Please, join American Patriots [and] help get the Federal Government to end a second class US Citizenship. This complex equal rights quandary that affects millions is not only about a “Group” Vote on the status question, but, more important, it’s about protecting individual civil rights in our representative democracy-where the US citizen should be the epicenter of our Republic, not the undemocratic territorial control of the land… We must end political oppression with truth and fairness!

A reminder of the historical context follows, concluding with, “In 1917, Congress erred in imposing on Puerto Rico a statutory “second class US citizenship” (without all rights responsibilities, & benefits) that doesn’t permit loyal US citizens (including fighting US veterans) to vote in Federal elections nor have just representation in the Congress that determines their destiny.”

The letter summarizes the results of the plebescite and suggests that the United States has two honorable courses available:

  • [E]nd an undemocratic Federal Territorial Status that goes against the grain of our American democracy; start the transition process (which should not take more than 3-5 years) to admit Puerto Rico as the 51st State of our Union.”
  • [P]romptly conduct a federally sanctioned Plebiscite that is non-territorial & self-determined… truthfully define US Constitutional options… which are: 1. Statehood…(or) 2. Independence.

The letter notes that a territory of the United States cannot enter into an equal pact of any kind with the United States government. This has been confirmed repeatedly by many authorities in discussions of a possible “Enhanced Commonwealth.” NAUS points out that Puerto Rico would have to become an independent nation in order to enter into a treaty with the United States on its own behalf.

The letter continues with a discussion of the value of Puerto Rico to the United States, listing the military value, the resources, and the people of Puerto Rico:

Our Nation is formed by the union of States [each with its] own State sovereignty, identity, uniqueness, diversity. US citizens in PR, like other states, are a very complex group of people that are legally born US citizens- part of our US multi-ethnic and beautiful “Tapestry” of vibrant colors that is united and bonded together by common values and purpose for the good of all.

The letter touches on the idea that Puerto Rico is somehow too foreign or too different from other states to be incorporated successfully into the Union and rejects that claim.

“We must stop confusing the people by calling PR a ‘Commonwealth’,” the letter concludes. “Abraham Lincoln and Martin Luther King (who stood for a government of the People and equality) would be appalled that the US Territory of PR is still an undemocratic dinosaur of our trite colonial past!”

Finally, there is a petition for action on the question of Puerto Rico’s status, and supporting notes. See the PDF file of the letter.

Puerto Ricans Are Not Immigrants

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During the presidential election, the subject of immigration reform came up frequently. So did the subject of Puerto Rico’s status. In fact, the two topics often came up together — much to the irritation of Puerto Ricans.

“We are citizens, not immigrants,” José Aponte Hernandez was quoted as saying in El Vocero de Puerto Rico, a free newspaper published in San Juan. Aponte Hernandez, former Speaker of the House of Representatives of Puerto Rico, is one of a group of statesmen who will travel to Washington on March 2, 2013, the anniversary of the day in 1917 when Puerto Ricans were granted U.S. citizenship.

It is startling that, nearly a century later, Puerto Ricans are still thought of as immigrants. Mainstream media continue to describe Justice Sotomayor as “the daughter of Peurto Rican immigrants,” and Puerto Rican leaders are asked their views on immigration reform as though they would be personally affected by such reforms.

Aponte Hernandez pointed out that “the issue of equality of American Citizenship in Puerto Rico is not discussed as much as undocumented immigrants in the United States.”

Controversy regarding the November plebiscite has centered on issues of logistics and speculation on the intentions of voters, disregarding the continued unequal treatment of the millions of U.S. citizens living on the island.

“Given this situation,” Aponte Hernandez continued, “it is necessary to pressure the President and Congress to honor the results of the plebiscite held on November 6… Let’s celebrate our American citizenship, and demand equality.”

The delegation will visit Capitol Hill and the White House, where they will present their case for equality for Puerto Rico.  Meanwhile, in Puerto Rico, protesters will go to the Federal Court in San Juan, as well as the municipalities of Arecibo and Mayagüez, to express their support of the delegation.

The events have the support of Resident Commissioner Pedro Pierluisi, Aponte Hernandez said.

Pierluisi Invokes Obama Inaugural Speech to Announce Legislation

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Puerto Rico’s Resident Commissioner Pedro Pierluisi (D-PR)announced this morning that he will reintroduce two bills tomorrow to advance equality for the territory of Puerto Rico.  His legislation seeks to create parity between U.S. citizens who live in Puerto Ricans and those who live in a state in two federal programs: Social Security Supplemental Security Income (SSI) and  Temporary Assistance for Needy Families (TANF). Continue reading →

Puerto Rican Republican Party Reaches Out to House Leadership

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The Republican Party of Puerto Rico is stepping up its outreach to the leadership of the House of Representative to urge action on the November Puerto Rican plebiscite.  Members of the Party will join a coalition of forces meeting in Washington today to advocate congressional action on the recent Puerto Rican vote for statehood.

Local Republican outreach to national leaders began immediately after the plebiscite, when party leaders contacted Speaker Boehner (R-OH), Majority Whip Eric Cantor (R-VA), and Majority Whip Kevin McCarthy (R-CA) through aletter noting the plebiscite results in favor of statehood as well as Republican support for Puerto Rican statehood over the years.  The letter explains: Continue reading →

A Seat at the Table for a Puerto Rican PAC

“In the days following the general election,” wrote Arelis Hernandez of the Orlanda Sentinel last week,  “it quickly became clear that Puerto Rican voters helped tip the scales of political power in Central Florida.”

In the same story, though, Puerto Rican businessman Raul Ramos, director of the Puerto Rican Leadership Council, was quoted as saying, “Candidates come eat arroz con pollo and talk about their Puerto Rican college roommates to us, but they’re gone once the election is over. We want more than that — we want a seat at the table.” Continue reading →

Young Democrats Support Puerto Rican Statehood

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The Young Democrats of America (YDA) passed a resolutionat their winter meeting in Salt Lake City this week, “urging President Barack Obama and the United States Congress to take action on the irrefutable and clear mandate sent by the people of Puerto Rico on November 6th, 2012 during which the current territorial political relationship of the island with the United States was rejected and an overwhelming majority voted in favor of Puerto Rico becoming the 51st state of the Union.” Continue reading →

Young Democrats Support Puerto Rican Statehood

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The Young Democrats of America (YDA) passed a resolutionat their winter meeting in Salt Lake City this week, “urging President Barack Obama and the United States Congress to take action on the irrefutable and clear mandate sent by the people of Puerto Rico on November 6th, 2012 during which the current territorial political relationship of the island with the United States was rejected and an overwhelming majority voted in favor of Puerto Rico becoming the 51st state of the Union.”
The resolution, which was presented by Phillip Arroyo (Puerto Rico/Chairman of the YDA Hispanic Caucus) and Jonathan Padilla (California/National Treasurer), affirmed that “the will of the people of Puerto Rico in rejecting the current territorial political relationship of the island with the United States was irrefutably mandated by a wide 54%-46% margin as well as a super majority mandate of 61% in favor of statehood among non-territorial status options.”
The YDA resolution also recognized that voter turnout for the plebiscite was over 75%, a level of participation “substantially higher than the national turnout for the U.S. general elections on the same day.”   It endorsed “swift” action and “due diligence” on the November 6 referendum and called for legislation validating the will of the American citizens of the island who “claim[ed] equal rights as American citizens and permanently reject[ed] modern day colonialism.”
Both Democrats and Republicans have called upon the federal government to acknowledge the plebiscite vote and take action toward Puerto Rican statehood.  After an off-the-cuff remark by White House Press Secretary Jay Carney became a Politico headline that the vote wasn’t “clear,” the White House quickly distanced itself from this characterization of the results and clarrified through Luis Miranda, Director of Hispanic Media, that “the results were clear, the people of Puerto Rico want the issue of status resolved, and a majority chose statehood in the second question.”
As the YDA points out, there is no real uncertainty about the referendum’s outcome. Questions have centered on ballots in which voters answered the first question (whether to continue the current relationship) but not on the second (what relationship would be preferred). In the United States, voters often have multiple questions on a ballot.  They are free to leave questions blank, and blank votes are not counted.  A blank vote on an issue is considered the same as not having voted at all. Voter turnout for the referendum in Puerto Rico was about 78%. Voter turnout for the presidential election in the United States was calculated at 57.5%. It is not possible to conclude that the plebiscite was unclear without postulating that the presidential election, with so many eligible voters failing to cast votes, was also unclear.
The YDA resolution was sent to President Obama and to each member of Congress. Read the full text.

The Enduring Legacy of Plessy v. Ferguson in Puerto Rico

Posted on February 7, 2013

“[I]n view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens.”

-Justice John Marshall Harlan, dissenting opinion, Plessy v. Ferguson Last week former San Juan Mayor Dr. Hernan Padilla called on President Obama to address the issue of Puerto Rican statehood in his State of the Union address. Dr. Padilla spoke January 29 at an event hosted by the Latino Partnership for Conservative Principles to launch their new initiative to encourage conservatives to support Puerto Rican statehood. The group plans to advocate for Congress to pass legislation to allow the people of Puerto Rico to decide the future status of the island. Dr. Padilla said admission of Puerto Rico as a State of the Union will grant Puerto Ricans full equality in citizenship under the Constitution. He argued that Puerto Ricans should have the same rights, responsibilities, and opportunities as the Americans living within the 50 States.

Dr. Padilla said Puerto Rico’s status as an unincorporated territory deprives Puerto Ricans of fundamental rights, including equal protection of the laws, participation in the election of the President, and proportional representation in Congress. He also noted that the same “segregationist” Supreme Court that created the concept of an unincorporated territory through the Insular Cases also issued the decision in Plessy v. Ferguson. The Plessy decision upheld state laws requiring racial segregation in public facilities under the doctrine of “separate but equal,” which the Supreme Court later rejected in Brown v. Board of Education. Dr. Padilla argued that it is time for the concept of an unincorporated territory, like the doctrine of separate but equal, to be discarded. He said Puerto Rico’s current status resembles segregation and reflects “geographic discrimination” and a “deficit of democratic rights.”

Joining Dr. Padilla at the event were Luis Fortuño, former governor of Puerto Rico; Grover Norquist, president of Americans for Tax Reform; Dr. Richard Land, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention; Niger Innis, national spokesman for the Congress of Racial Equality; and Alfonso Aguilar, executive director of the Latino Partnership for Conservative Principles. In his remarks, Governor Fortuño emphasized that granting Puerto Ricans equal rights is a moral imperative for the United States, which is a country based on the rights of its citizens. He and Dr. Land argued that it was never the intent of the country’s founding fathers to have colonies or two classes of territories, but nevertheless there are currently two classes of U.S. citizens—those living in the mainland and those living in Puerto Rico. Dr. Padilla ended his remarks on a similar note and stressed that “the United States is one nation with one constitution and only one citizenship for all Americans.” Dr. Padilla’s written remarks are available here.

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