Where to, Puerto Rico?

There are two bills before the House of Representatives addressing Puerto Rico’s political status: a bipartisan statehood admission bill presented by Rep. Darren Soto (D-Fla.) and Puerto Rico Resident Commissioner Jenniffer González-Colón (R); and a status convention bill presented by Reps. Nydia Velázquez (D-N.Y.) and Alexandria Ocasio-Cortez (D-N.Y.). Before the Senate there is also an accompanying statehood admission bill introduced by Sen. Martin Heinrich (D-N.M.).

Notwithstanding the fundamental differences between the House bills, both reject the current territorial status. This should make Congress stand up and take notice of the significant changes that have occurred in Puerto Rico’s political landscape. There is no longer viable political support for the island’s current territorial status.

In the last eight years Puerto Rico has held three local non-binding plebiscites on the status question. In all of them statehood prevailed, with different degrees of approval given the particular political circumstances of each. In those eight years, the past Resident Commissioner — and now Governor — Pedro Pierluisi and González-Colón presented several statehood admission bills at different times, unfortunately to no avail. 

Sometimes forgotten, in 2014 Congress allocated $2.5 million for the celebration of a plebiscite under Department of Justice (DOJ) auspices. This provision, in my opinion, continues to be the less politically troubled road to address the status question. In 2017 and 2020 the pro-statehood New Progressive Party legislated for the celebration of status plebiscites and DOJ’s approval. The Trump administration openly opposed statehood for Puerto Rico and did not endorse them.

Under the Biden ]administration there should be a reasonable expectation that the DOJ would now authorize such a plebiscite. Although the results would not be legally binding on Congress — no plebiscite or referendum could constitutionally bind it a priori — it would constitute an expression of Puerto Rico’s self-determination under federal law. Politically, Congress would be hard put to disregard such results. 

The 2020 elections resulted in a significant shift in the political climate in Puerto Rico. Both the New Progressive Party and the territorial Popular Democratic Party garnered just over 60 percent of the general vote in the gubernatorial race, while the left-leaning Puerto Rico Independence Party, the socialist Movimiento Ciudadana and the socially conservative Proyecto Dignidad gained seats in the island Legislative Assembly. The governorship is controlled by the New Progressive Party and the local House and Senate are barely controlled by the Popular Democratic Party, which augurs political deadlock for the next four years. Statehood achieved an absolute majority, with close to 53 percent of the electorate vote.  

From a national perspective, Puerto Rico’s political status has become a noticeable pawn in Washington’s political chessboard. With a bare majority in the Senate, and looking forward to the 2022 midterm elections, the Democrats are rightfully concerned that their hold is tenuous. The ongoing debate on whether to amend or eliminate the filibuster rule is a clear sign of those concerns. 

Senate Majority Leader Chuck Schumer (D-N.Y.) has been going back and forth on the issue of statehood for Puerto Rico, depending on the circumstances. Prior to the election he came out in favor of statehood for Puerto Rico, surely thinking of the two additional Democrat senators from Puerto Rico. After the election he backtracked, claiming the statehood majority was not sufficient. It is clear that Schumer’s stance on statehood for Puerto Rico is not driven by principle but by political expediency. 

In the House, Velázquez is a longtime opponent of statehood for Puerto Rico, as is Ocasio-Cortez, who has achieved significant appeal for her populist stance on the issues, which now includes the Puerto Rican nationalist mantra. Their bill, presented in the previous Congress, aims to short circuit any attempt to bring the question before Congress.

It is clear that the purpose of their bill is to gain a foothold on the legal personality of the people of Puerto Rico as separate and distinct from the people of the United States. It is fundamentally a pro-independence bill dressed up to dilute statehoods majority. After 122 years of territorial status and decades-long efforts to move the status issue, Puerto Ricans have a clear idea of what the alternatives are: statehood, independence or continued territorial status. A status convention is a dead end that will not produce any other alternative.   

The Republican Party is still under the thrall of former President Trump and it is apparent that it will oppose moving on the issue of Puerto Rico’s political status. Perhaps the best indication of this stance is Sens. Rick Scott (R-Fla.) and Marco Rubio (R-Fla.) — who in the past have favored statehood — non-committal position when it comes to Heinrich’s bill. Republicans in Puerto Rico (and Florida) would do well to take notice of their lack of position. 

Meanwhile, President Biden appears to have returned to his prior senatorial non-committal positions on matters regarding Puerto Rico. While claiming to personally favor statehood and equal treatment of Puerto Rico in all federal programs, he has thus far studiously avoided spending any political capital on the matter. A good indication of this is the United States government position in the case currently before the Supreme Court United States v Vaello-Madero regarding the right of American citizens in Puerto Rico to receive Supplemental Social Security (SSI) benefits. This case again raises the issue whether Congress has the constitutional authority under the Territorial Clause to treat American citizens unequally under the infamous insular cases. Thus far, the Biden administration’s solicitor general, as all past administrations since 1898, again seems to have decided to continue defending the separate and unequal doctrine of territorial non-incorporation.    

Quo vadis, Puerto Rico? 

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.