Puerto Rico and the United States

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PUERTO RICO AND THE UNITED STATES

The legal relationship between Puerto Rico and the United States has been described in a number of ways, ranging from "colonial possession" to "dual sovereigns." Technically speaking, Puerto Rico is a territory of the United States, subject to the plenary power of Congress. At the same time, however, Puerto Rico is a commonwealth with its own constitution, bicameral legislature, chief executive, and judiciary. Home to more than 4 million people, this 3,435-square-mile Caribbean island has never achieved complete sovereignty or total independence.

Historical Background

The island was inhabited by the Taino (Arawakan-speaking) when Christopher Columbus first saw it in 1493. The first Spanish-appointed governor named the island "Puerto Rico," meaning "wealthy port." Puerto Rico remained a Spanish colony for more than 400 years, until the spanish-american war, which ended when Spain and the United States signed the treaty of paris on December 10, 1898. Ratified by the U.S. Senate a year later, the treaty obliged Spain to cede sovereignty over Puerto Rico to the United States as a condition of peace.

Congress is given broad powers to govern U.S. territories by the federal Constitution. U.S.C.A. Const. Art. IV, s. 3, cl. 2. Congress exercised these powers in Puerto Rico first by establishing an interim military government, which lasted until April of 1900, when it passed the Foraker Act, 31 Stat. 77. The Foraker Act declared that the inhabitants of Puerto Rico were "entitled to the protection of the United States," and established the first civil government on the island.

The act authorized the president of the United States to appoint, with the advice and consent of the Senate, the governor of Puerto Rico, its chief executive officers, and the justices of the Puerto Rico Supreme Court. The act also created the Puerto Rico legislature and authorized its popularly elected representatives to exercise local lawmaking powers, subject, in all instances, to congressional veto. Under the act, Puerto Rico was given the right to select a "resident commissioner" to represent the island before the U.S. House of Representatives. The resident commissioner, a position that continues to exist into the twenty-first century, has authority to speak and introduce legislation before the House but has no right to vote, except on committees.

The Foraker Act established a U.S. District Court for the District of Puerto Rico and gave the president the power to appoint the presiding judge, again with the advice and consent of the Senate. In 1915 Congress assigned the District of Puerto Rico to the U.S. Court of Appeals for the First Circuit and provided that appeals from the federal district court of Puerto Rico shall be made to the First Circuit. As of 2003, judges from the First Circuit still travel to Puerto Rico twice each year to hear argument on appeals.

In 1917 Congress passed the jones act, which gave U.S. citizenship to all Puerto Rican residents. 39 Stat. 951, 48 U.S.C.A. section 731. Also known as the "Organic Act," the Jones Act sought to distinguish Puerto Rico from the Philippines and Hawaii. The Philippines was already being groomed for independence, while Hawaii was being groomed for statehood. Through the Jones Act, Congress chose a third, less well-defined status for Puerto Rico as an "unincorporated territory" of the United States, which means that the benefits and protections offered by the U.S Constitution are not fully applicable to Puerto Rico. No current U.S. territories, including Puerto Rico, were deemed incorporated as of mid-2003.

Puerto Rico Achieves Greater Autonomy

An increasing number of Puerto Ricans sought greater autonomy for the island during the 1920s and the 1930s, and these efforts began bearing fruit in the 1940s and 1950s. In 1947 Congress permitted Puerto Ricans to elect their own governor. Luis Muñoz Marín helped transform the island's agricultural-based economy into a more industrial-based one. While his programs increased Puerto Rico's total wealth, they also deepened class divisions and increased the number of residents who lived in poverty.

In 1950 Puerto Rico won the right to enact its own constitution. Ratified in 1952, the constitution declared Puerto Rico to be a "commonwealth," an anomalous status it retains as of 2003. The people of the new commonwealth were vested with powers of self-government not characteristic of the sovereignty typically exercised by citizens of a territory. Puerto Ricans were now empowered to decide for themselves how their local government would be organized. Independent of outside influence, the residents of Puerto Rico were allowed to determine the number of branches in their local government, the allocation of powers among those branches, the method of choosing officials to serve in those branches, and the duration of each official's term of office.

However, like the governments in other U.S. territories, the government of Puerto Rico still ultimately derives its authority from the consent of Congress, even if under its new constitution it also derives some of its authority from the consent of Puerto Rican residents. The Commonwealth of Puerto Rico lacks sovereignty and independence in other ways too. For example, Puerto Rico does not have control over its external relations with other nations. Puerto Rico also lacks control over the currency, highways, postal system, social security, and mining activities and minerals, among other areas preempted by federal regulation.

Recent Developments

Over the second half of the twentieth century, federal courts spent much time attempting to iron out what the U.S. Supreme Court called the "unique relationship" between the United States and the Commonwealth of Puerto Rico. Federal courts have recognized that by allowing the island to draft its own constitution, Congress intended to afford Puerto Rico the degree of autonomy and independence normally associated with states in the union. Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976).

Like the federal government's relationship with the 50 states, federal courts have recognized that a dual sovereignty exists between the United States and Puerto Rico. One sphere of power is reserved for the federal government as provided in the U.S. Constitution, and another sphere of power is reserved to the commonwealth as provided by its own constitution. United States v. Gonzalez de Modesti, 145 F.Supp.2d 171 (D.Puerto Rico 2001). Also like the 50 states, the Commonwealth of Puerto Rico is entitled to the full benefits of the eleventh amendment to the Constitution, which grants states sovereign immunity from being sued in federal court without their consent, when the suit is brought by citizens of another state or the citizens of a foreign country. Fernandez v. Chardon, 681 F.2d 42 (1st Cir. 1982).

Unlike residents of the 50 states, Puerto Ricans lack any representation in Congress, other than through the honorary position of resident commissioner in the House of Representatives. Puerto Ricans also lack the right to vote in U.S. presidential elections. On April 5, 2000, 11 Puerto Ricans challenged their disenfranchisement in U.S. presidential elections on grounds that it violated their constitutional rights as U.S. citizens. Finding that the right to vote is inherent in citizenship, the U.S. District Court for the District of Puerto Rico declared that U.S. citizens residing in Puerto Rico would have the right to vote in the 2000 presidential election. Less than a month before the election, however, the First Circuit overturned the district court, ruling that U.S. citizens residing in Puerto Rico do not have a right to vote in presidential elections unless Puerto Rico becomes a state or the federal Constitution is amended to recognize such a right. Igartua De La Rosa v. United States, 229 F.3d 80 (1st Cir. 2000).

Puerto Rico has held several referenda in the 1980s and 1990s to clarify its status. The last referendum

was held in 1998. Almost 47 percent voted for statehood. Independence and two variants on commonwealth status received nearly 4 percent, combined. Fifty percent voted for "none of the above," which amounted to an ambivalent endorsement for the status quo.