U.S. rights for Puerto Ricans

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In the midst of such grim circumstances, it might seem that Governor Luis Fortuno’s proposal to hold a referendum on status next year is untimely, inappropriate, or at a minimum, out of sync with the island’s priorities. Many have voiced their opposition and concern. Notwithstanding, after much thought, I have decided to lend my support to the effort. I strongly believe that the ambiguous nature of Puerto Rico’s political relationship with the United States is at the root core of the island’s economic and social problems. My hope, however, is that the U.S. Congress and the Administration recognize a duty to be clear, first about status choices that are open for consideration by the people of Puerto Rico and that are acceptable to the Congress, and second about Congress’s commitment to honor whatever political path the people of Puerto Rico eventually decide to follow.

The impression one gets from Congress and, to some extent, from the White House since President Bill Clinton created the White House Task Force on Puerto Rico in December 2000, is that Washington would rather throw money at the problems of Puerto Rico than solve them. Congress in particular hides behind the red herring of an island electorate that can’t make up its mind on status (yet 95 percent want permanent association with the U.S.). This seems more palatable than facing the hard question of what to do with Puerto Rico, a territory of the United States ceded by Spain in 1898 under conditions that made clear that the civil rights and political status of the territory would be determined by Congress. A series of turn of the century Supreme Court decisions known collectively as the Insular Cases, (one of which was decided by the same court that issued the discredited Plessy v. Ferguson decision), established that Puerto Rico is an “unincorporated territory” of the United States. That is an arbitrary legal designation that has no basis in the Constitution, according to former U.S. Attorney General Dick Thornburgh, retired federal judge Juan Torruella and many legal scholars. The practical effects of Article IX of the 1898 Treaty of Paris and of the Insular Cases today are clear: the December 2007 Report of the White House Task Force bluntly reminds that “Congress may continue the current commonwealth system indefinitely, but it necessarily retains the constitutional authority to revise or revoke the powers of self-government currently exercised by the government of Puerto Rico.” President Obama’s Task Force Report of March 2011 is a much more earnest and comprehensive effort to study the issues than was the case under President George W. Bush, but disappointingly it does not take issue with the conclusions of the earlier report; rather, it limits itself to hortatory language asking Congress to honor the status choice that Puerto Ricans may eventually make.

Moreover, while President Obama’s Task Force pledges to lobby Congress to guarantee U.S. citizenship for Puerto Ricans no matter what status option is chosen, it does not challenge several disturbing conclusions of the Bush Task Force Report regarding the rights of U.S. citizens born in Puerto Rico.  Every Puerto Rican acquires U.S. citizenship at birth under the provisions of the Jones Act of 1917, which means, as several legal scholars have pointed out, that the U.S. citizenship of Puerto Ricans is a matter of congressional statute rather than a guarantee of citizenship under the 14th Amendment. If Puerto Rico were to choose independence (or even freely associated status) in the upcoming plebiscite, the conclusion of the Bush Task Force, unchallenged by the Obama Task Force, is that because citizenship follows sovereignty, Puerto Rico’s residents could cease to be citizens of the United States. As a Puerto Rico born U.S. citizen living in the mainland, could my rights be affected as well?  (Interestingly, under current proposals, I and other mainland residents will be excluded from voting in the plebiscite.)  A remote, unthinkable possibility, right? Yet unthinkable decisions in the political cauldron of Washington are more frequent than we like to admit: Japanese American internment camps; water boarding and other forms of torture come to mind.

I shudder to think that the nation I love and have served for more than 20 years would turn its back on me, and on millions of Puerto Ricans who have served the U.S. bravely in every war of the 20th and 21st century. We need and deserve clarity from Congress and, to a lesser extent, the President, who in a letter to governor Fortuno dated January 2, 2009, pledged to have the question of Puerto Rico’s status resolved in his first term. Puerto Rico’s problems are going to get more intractable the more Washington dithers. The time for clarity and action is now.

Richard A. Figueroa is a former Executive Director of the Puerto Rico Federal Affairs Administration under incumbent Governor Luis Fortuno.  Prior to that, he served more than 20 years as a foreign service officer at the State Department.