An organic act is a law passed by Congress to establish local government in a territory that is ruled by the U.S. but not in a state (like Puerto Rico). The word “organic” means the law “organizes” the territory to be governed under federal laws to the needs of the people living in the territory.
Some territories owned by the U.S. are uninhabited, do not have a native population, or do not have a population that wants or needs to be organized politically. These territories are called “unorganized” territories and do not have an organic act. An example is Wake Island, a coral atoll with less than 3 square miles of space.
The first territorial organic law was the Northwest Ordinance, which established the Northwest Territory. The Northwest Ordinance was first passed by the Continental Congress in 1787. When the U.S. Constitution was adopted in 1789, the Northwest Ordinance was adopted as the model for governing several territories until they became states. Ohio, Illinois, Indiana, Michigan, Minnesota, and Wisconsin are states carved in whole or in part from the Northwest Territory.
The Northwest Ordinance in some ways foreshadowed the Bill of Rights in the Constitution, by listing individual rights of the inhabitants of the territory. It described three to five states that might fit into the Northwest Territory, and it said how they could become States of the Union:
And whenever any of the said States shall have sixty thousand free inhabitants therein such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States, in all respects whatever.
Hawaii had an Organic Act and Alaska had two. Puerto Rico’s Organic Act of 1900, more commonly known as the Foraker Act, was superseded by the Jones Act of 1917, which made it clear that people born in Puerto Rico were citizens of the U.S. by saying that Puerto Ricans “are hereby declared, and shall be deemed and held to be, citizens of the United States.”
Territorial organic acts often contain a lot of information about how a territory will be governed, how the people who govern it will be chosen, and even what specific federal and local laws must apply in the territory. But the federal government retains all sovereign powers and can repeal or amend federal and local law. Congress also retains power over military and non-civilian affairs of government. The organic acts of many states didn’t say anything about statehood, but some required adoption of a local constitution as a step toward statehood.
Organic acts also govern other federal lands, including federal property within the 50 states. An organic act established the National Parks system in 1916, but such organic laws applicable within the states are not enacted under the power of Congress over territories not in a state. Similarly, the organic act that creates a local government in Washington D.C. is enacted under the power of Congress over the seat of the federal government, not the territorial power under which territorial organic acts are adopted.
There have been 38 territories inhabited by American nationals and/or citizens with territorial governments organized under federal law. Today there are only five such territories left: Puerto Rico, USVI, CNMI, Guam and American Samoa. Despite past and present political and economic success stories, all of these last 5 territories have gone through various forms of crisis in recent years.
These crises arise from excessive spending and debt, unpredictable federal and local tax policies, military base closings, chronic economic recession with high unemployment, natural disaster, immigration and labor issues, international tensions, and government corruption, to major political protests and civil unrest.
All territories experienced similar challenges. Still, it is a fact of life in the territories that it too often takes a crisis for the federal government to give priority or even a response consistent with federal commitments and responsibilities.
No wonder, since the U.S. Constitution allocates voting representation in Congress and the Electoral College to citizens of the states that form the Union. That means Americans who live in our nation’s territories do not have voting power in federal elections, thereby disempowering the disenfranchised.
Like a state
Every time there is a crisis or unplanned federal cost the question arises whether to treat that territory “like a state” or differently, including treatment like a federal reservation or even a foreign place. Less than “state-like” treatment is constitutional because territories are not on an equal footing with states.
The temporary and unpredictable nature of territorial status perpetuates the cycle of crisis, as well as the lack of measures to prevent, prepare for and manage crisis. The solutions to the cycle of crisis include or relate to political status resolution.
The options are statehood or integration into an existing state; nationhood with separate sovereignty, nationality and citizenship; or territorial status without full or equal rights of citizenship.
In the absence of crisis, the U.S. Congress focuses on political accountability to the states, and complacently abdicates its duty to resolve the status of U.S. territories based on democratic self-determination.
Puerto Rico is home to 3.3 million U.S. citizens
Among the five territories that currently call America home, Puerto Rico is the elephant in the house. Congress has conferred a less than equal form of U.S. nationality and/or citizenship for 3.7 million Americans in the territories, of which 3.3 million are residents of Puerto Rico.
Only Puerto Rico has voted to end territorial status in favor of fully equal citizenship rights that come only with statehood. Once majority rule for statehood is confirmed and Puerto Rico begins the transition to admission, the choices for small and far less populous territories will become clearer.
“Commonwealth” myth is a problem, not a solution
Status resolution for Puerto Rico and smaller territories based on balancing of national and local interests requires clarity not confusion, realism not ideological mythology.
While the political composition in each of the territories is unique, inevitably there are some who favor statehood, some who favor the status quo (or a version of it), and some who favor independence.
The anti-statehood and anti-independence faction in each territory that favors the status quo responds to each crisis or disaster by proposing more “state-like” local powers and benefits. Ironically, the demands for state-like treatment for territories populated by U.S. citizens by these anti-union political factions do not include calls for full-equality that comes only with statehood.
Instead, the anti-statehood factions insist that they want more “autonomy” from U.S. under the ambiguous banner of “Commonwealth.” In other words, they want to be treated like citizens of the states with equal entitlement to benefits, but without equal state-like rights and responsibilities of citizenship in a state.
This has been exemplified prominently in the case of Puerto Rico, where demanding more federal powers and benefits without equal rights and responsibilities has become the true definition of “commonwealth.” Unfortunately, the myth that “commonwealth” can offer a significant and lasting solution to the cycle of neglect and crisis in the territories persists even though all of the evidence demonstrates that it is not a new path, but a dead end.
What is the “Commonwealth” myth?
To better understand this dynamic, lets unpack the term “commonwealth.” The anti-statehood faction in Puerto Rico and some factions in other territories seeking “autonomy” under the status quo claim “commonwealth” is a political status different than territorial status.
But the same “commonwealth” term was applied to the Philippine Islands under U.S. rule when its political status was that of a U.S. territory. Similarly, Kentucky and Pennsylvania are both referred to as “commonwealths,” but no one thinks that means the political status of Kentucky and Pennsylvania is anything other than statehood.
So in reality, the term “commonwealth” is devoid of a definitive constitutional significance because it can and has been used as the formal name for jurisdictions that, for purposes of the U.S. Constitution, are considered states, territories and, in the case of the nations that are part of the British Commonwealth system, independent countries.
No wonder Members of Congress, federal agencies, the public in the territories and across the nation remain dazed and confused about the term “commonwealth,” and how territorial status does and does not serve the local or national interest in each territory.
“Commonwealth” in Philippines, a route to independence
The purpose of the 1934 “commonwealth” constitution in Philippines was to promote “autonomy” and local capacity for self-government. But the purpose was to end U.S. sovereignty as it existed for a non-citizen territorial population that did not have the rights of U.S citizenship in the territory or when residing in a state.
U.S. citizenship was denied to the people of the Philippines by act of Congress in 1916. Independent nationhood was imposed unilaterally by the U.S. without self-determination, other than approval of the constitution as authorized federally and ratified locally for that purpose.
“Commonwealth” a name not a status
The term “commonwealth” as it applies to U.S. citizen populated territories simply gives a name to an unincorporated territory for which Congress authorizes and then ratifies a locally proposed and ratified territorial constitution. The political status of a territory with a constitution named “commonwealth” remains that of a territory under Article IV of the U.S. Constitution.
In the case of the “Commonwealth of the Northern Mariana Islands” (CNMI) the federal organic act establishing local constitutional government it is called a “Covenant.” In Puerto Rico it’s called a “Compact.” However, in both cases these laws do not constitute “sovereign-to-sovereign” arrangements.
Incorporated and unincorporated status not changed by “commonwealth”
“Commonwealth” is a term under federal territorial law for organizing a regime of local territorial government based on a local constitution. Congress can and often has adopted organic acts authorizing a territorial constitution for both unincorporated territories (e.g. Philippines, CNMI) and incorporated territories that became states (e.g. Wyoming, North Dakota, South Dakota, Montana and Washington.)
“Commonwealth” is not a “relationship” that governs “relations” between the local and federal governments. That is, there is no status-based “relationship” between separate sovereigns. Rather, “federal-territorial relations” simply refers to division of functions between federal government departments and agencies and local government departments and agencies.
All federal and local functions of government are provided only as authorized by Congress and subject to supremacy of federal law. Indeed, all forms of territorial government are also a form of agency that substitutes local civic institutions of civil government for direct federal governance, but local government exist only as allowed by and under federal law.
So instead of a federal agency providing all government programs and services, the local government acts as a surrogate for the federal government. But there is no “bilateral” relationship between separate sovereigns, as we know from the U.S. Supreme Court’s ruling in the Sanchez Valle case (2016).
Territorial status does not constitute a not “relationship” but rather is a partial delegation of federal powers to a local entity created by Congress to allow local self-government on matters not otherwise determined by federal law. There may be “state-like” functions of local government, but there is no state-like political sovereignty based on equal consent of the governed, and these territories remain subject to the supremacy of federal law.
If “commonwealth” is not a real solution, then what?
All forms of territorial government created under federal law for both incorporated and unincorporated territories constitute revocable statutory delegations. Local governments have powers of civil administration and local laws are valid only to the extent not inconsistent with applicable federal statutory or judicially decided federal law.
Thus, all “autonomy” and all forms of territorial government are constitutionally temporary. That was expressly stated in the Northwest Ordinance, as it applied to U.S. citizen populated territories, and it continues to be true of all territories since.
For America’s territories to escape the escalating cycle of neglect and crisis the U.S. citizens in the territories and the U.S. Congress must recognize that the myth of more “autonomy” through “commonwealth” is a dead end.
Instead, the U.S. Congress must fulfill its duty to resolve the status of U.S. territories empowering the U.S. citizens living there to exercise democratic self-determination by deciding among the real and valid options of statehood and independence.
Puerto Rico Is Not for Sale
When Elaine Duke told the New York Times that President Trump had talked about selling Puerto Rico back in 2017, many people responded by saying, “Puerto Rico is not for sale.”
One of these people was Rep. Nydia Velazquez, a congresswoman from New York. In a tweet retweeted by Salon, she said, “I assure you Puerto Rico is not for sale.”
Another was Ritchie Torres, expected to replace Rep. Jose Serrano as a congressman from the Bronx. Torres wrote an opinion piece for the New York Times with that title.
The essay doesn’t focus on whether Puerto Rico can legally be sold or not (more about that later). Instead, Torres points out that holding a colony with severely limited participation in American democracy is not the American Way.
“How can the United States claim to be fully democratic when it openly denies equal representation to 3 million people who are citizens according to its own laws, and when it subverts the popularly elected government of Puerto Rico in favor of a Financial Control Board that is neither accountable to nor representative of the people themselves?” Torres asks.
“There are two alternatives to the status quo of colonialism: independence and statehood. I am squarely on the side of statehood,” Torres wrote. “Puerto Ricans are and have long been American citizens. Instead of depriving them of citizenship entirely, make Puerto Ricans equal under the law. I am hardly alone in holding that view. Rep. Jose Serrano, a progressive icon among Puerto Ricans, has been a staunch supporter of statehood. The 2012 referendum, which saw 78% turnout, resulted in 61% of Puerto Rican voters choosing statehood.”
Anti-statehood paper El Nuevo Dia describes Torres as “leaning towards” statehood, but his own words make it clear that he favors this most popular option. “If commonwealth status is colonialism in disguise and if independence commands support only at the margins, then the only viable option that remains is statehood, which, according to the results of more than one referendum, is the position that best approximates the will of the people.”
Torres agrees that the will of the people should be the deciding factor, but also recognizes that the people of Puerto Rico have already made their will clear.
“Inequalities continue to abound to the ever-deepening detriment of Puerto Rico,” he wrote. “Unlike the 50 states, the island has substandard Medicare and Medicaid reimbursement rates. Unlike the 50 states, it has no access to the normal protections of a bankruptcy court. Instead of addressing each of these inequalities in isolation, as policymakers are prone to do, we should see them all as symptomatic of a deeper disease: the denial of statehood to Puerto Rico.”
And “denial” is the right word. It is not a question of waiting around until 100% of Puerto Ricans choose statehood, or of respecting “all sides” of the question equally. In a democracy, the majority makes the decisions. The majority of voters, in particular. In 2012 and again 2017, there was a clear majority in favor of statehood.
Torres explains it clearly in his op-ed.
“Indeed, the ultimate solution to inequality is equality itself, which can only be conferred by statehood. Everything else, like tinkering with reimbursement formulas, is piecemeal policymaking, which surely has its place. But in an age like ours, which demands bold thinking and action, a systemic problem like colonialism calls for a systemic solution like statehood. A comprehensive decolonization of Puerto Rico is long overdue.”
Who gets to decide whether Puerto Rico is for sale? You would think it would be the people. However, as an unincorporated territory of the United States, Puerto Rico does not have sovereignty. A state can never be sold, but a territory does not have the rights of a state.
The President of the United States also does not have the authority to sell Puerto Rico. This is true no matter who the president is.
Congress, according to the U.S. Constitution, has the power to “dispose of” and generally make all decisions about territories. Therefore, Rep. Velazquez has the right to say that Puerto Rico is not for sale. Councilman Torres, if he wins the seat he is working for, will have the right to say this.
Indeed, whether Puerto Rico has the authority or not, we all surely can insist that “Puerto Rico no se vende,” a popular slogan for many years. As citizens of the United States, we have the right to free speech, and we should use that right to speak up for ourselves.
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