DC and Puerto Rico share the long-ignored dream of statehood

Washington D.C. and Puerto Rico share the fundamental aspiration of statehood, although framed within different historical and constitutional contexts. Both jurisdictions are subject to the powers of Congress and have one non-voting member in the House of Representatives. There is also a broad recognition by the majority of the American citizens in each jurisdiction that the only way they can each achieve effective and politically meaningful representation in Congress is through statehood.

On Jan. 3, congressional delegate Eleanor Holmes Norton (D-D.C.)  introduced bill H.R. 51 to make Washington D.C. the 51st state. According to her statement, House Oversight and Government Reform Committee Chairman Elijah Cummings (D-Md.) is committed to holding a hearing and mark up for the bill this year. The committee has not held hearing on statehood for D.C. since 1993.  Press reports indicate that the bill has the support of Speaker Nancy Pelosi (D-Calif.) and is cosponsored by 155 congressmen, all Democrats.

{mosads}In the previous Congress, Puerto Rico’s Resident Commissioner Jenniffer González-Colón (R-P.R.) had also presented a statehood admission bill for Puerto Rico. This bill was stalled by the then Republican leadership in the House, notwithstanding their alleged support for statehood. González-Colón has stated that she will present the bill again in this new Congress, as well as promote the introduction of a similar bill in the Senate. In the House, Puerto Rico is under the House Natural Resources Committee, now chaired by Rep. Raúl Grijalva (D-Ariz.), who has already expressed his aversion to attending the status issue for Puerto Rico.

Different to Puerto Rico, which is subject to the plenary powers of Congress under the Constitution, D.C. is subject to the exercise of the exclusive legislation of Congress. This structural difference in constitutional authority gives rise to certain anomalies that should be noted. For example, being a part of the United States, D.C. residents pay federal income tax as they are under Article 1, Section 8 (1), known as the Uniformity Clause. As a general rule of congressional design, Puerto Rico residents don’t pay federal income tax because not all constitutional provisions are applicable to the territory. For similar reasons, Puerto Rico continues to be treated as a foreign jurisdiction for purposes of the tax code, which promotes certain tax advantages to stateside corporate investors at the political expense of the residents of Puerto Rico. Ironically, the protection of Puerto Rico as a tax haven is one of the main arguments used as an impediment to statehood.

On voting, contrary to Puerto Rico and other territories, the XXIII Amendment recognizes D.C.’s right to a number of electors to the Electoral College to vote for the president and vice-president equal to the whole number of senators and representatives to which the District would be entitled if it were a state, but in no event more than the least populous state. This amendment was ratified in 1961. In the 2016 election, D.C. had three electors, who cast their vote for Hilary Clinton.

As a federal enclave D.C. is treated under the strictures imposed by the Constitution. This protection is still not sufficient for purposes of enfranchising the rights of its 700,000 residents. As the on-going government furlough demonstrates, the fact that D.C. residents — many happen to be federal employees or government contractors — don’t have voting representation in Congress puts them at a clear and unjustified disadvantage in the political decision making process. It should be recognized that from a constitutional perspective statehood for D.C. raises serious questions of our contemporary understanding of federalism and state rights in the constitutional architecture.      

Puerto Rico, as an unincorporated territory as defined by the Supreme Court since 1901, is similarly placed at a disadvantage compared to stateside citizens. The lack of voting representation in Congress has historically placed Puerto Rico in the role of supplicant, asking for congressional dispensations without sufficient political leverage to defend its interests. This is not democracy.

{mossecondads}The legislation of PROMESA (2016) creating an unelected Financial Oversight and Management Board to oversee the government of Puerto Rico and the snail pace disbursement of federal funds to rebuild the island’s infrastructure after the passing of Hurricane María, are some of the more recent examples of its political defenselessness.     

Within this overarching context, the remarks made by Pelosi’s endorsing D.C.’s admission bill are a hopeful sign. She rightly observes that for too long the D.C. residents have served in the armed forces and contributed with their work to the nation, while being denied equal participation in the political process, and that the bill is a critical step correcting this historical error. This is the same argument in favor of a statehood admission bill for Puerto Rico, and one would also expect her to endorse it as soon as it is reintroduced by González-Colón.

Andrés L. Córdova is a law professor at Inter American University of Puerto Rico, where he teaches contracts and property courses. He is also an occasional columnist on legal and political issues at the Spanish daily El Vocero de Puerto Rico.