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Report By The President’s Task Force On Puerto Rico’s Status december 2007
Table of Contents
I. Members of the Task Force
II. Statement of Guiding Principles
III. Executive Orders
IV. Historical Overview
V. Legal Analysis of Options
VI. Recent Developments
VII. Task Force Recommendations

I. Members of The President’s Task Force on Puerto Rico’s Status

Maggie Grant, Co-Chair
Deputy Assistant to the President for Intergovernmental Affairs
The White House

Steven A. Engel, Co-Chair
Deputy Assistant Attorney General in the Office of Legal Counsel
U.S. Department of Justice

Annabelle Romero
Deputy Assistant Secretary for Civil Rights
U.S. Department of Agriculture

Mary Tinsley Raul
Director of Intergovernmental Affairs
U.S. Department of Commerce

Frank Jimenez
General Counsel of the Navy
U.S. Department of Defense

Margarita P. Pinkos
Director of the Office of English Language Acquisition
U.S. Department of Education

Theresa Speake
Director, of the Office of Economic Impact and Diversity
U.S. Department of Energy

Laura M. Caliguiri
Director of Intergovernmental Affairs
U.S. Department of Health and Human Services

Anne Petera
Assistant Secretary for Intergovernmental Programs
U.S. Department of Homeland Security

Robert M. Couch
General Counsel
U.S. Department of Housing and Urban Development

Douglas W. Domenech
Deputy Chief of Staff
U.S. Department of the Interior

Leon R. Sequeira
Assistant Secretary for Policy
U.S. Department of Labor

Portia Palmer
Director of Intergovernmental Affairs
U.S. Department of State

Kerry O’Hare
Deputy Assistant Secretary for Governmental Affairs
U.S. Department of Transportation

Anna Escobedo Cabral
U.S. Treasurer
U.S. Department of the Treasury

William McLemore
Deputy Assistant Secretary for Intergovernmental Affairs
U.S. Department of Veterans Affairs

 

II. Statement of Guiding Principles

The mission of the President’s Task Force on Puerto Rico’s Status (“Task Force”) is to provide options for Puerto Rico’s future status and relationship with the Government of the United States. The Task Force has approached this mission without prejudice towards a status option and has developed options that are compatible with the Constitution and basic laws and policies of the United States.

The Task Force has developed these options after listening to and considering the views of individuals, elected officials, and other representatives of the people of Puerto Rico to ensure that views and positions have been objectively considered irrespective of affiliation or ideology.

The Task Force published its first report in December 2005. This report builds on the prior report and carries out the Task Force’s continuing mandate to report, no less than every two years, on progress made in the determination of Puerto Rico’s ultimate status.


III. Executive Orders Concerning Puerto Rico’s Status

President George H.W. Bush issued a Memorandum on November 30, 1992, to heads of Executive Departments and Agencies establishing the current administrative relationship between the Federal Government and the Commonwealth of Puerto Rico. This memorandum directs all Federal departments, agencies, and officials to treat Puerto Rico administratively as if it were a State insofar as doing so would not disrupt Federal programs or operations. President Bush’s memorandum remains in effect until Federal legislation is enacted to alter the status of Puerto Rico in accordance with the freely expressed wishes of the people of Puerto Rico. (See Appendix A.)

On December 23, 2000, President William J. Clinton signed Executive Order 13183, which established the President’s Task Force on Puerto Rico’s Status and the rules for its membership. This Executive Order outlines the policy and functions of the Task Force in identifying the options for Puerto Rico’s future status and the process for realizing an option. (See Appendix B.)

On April 30, 2001, President George W. Bush amended Executive Order 13183, extending the deadline for the Task Force to forward a report to the President until August 2001. (See Appendix C.)

President Bush signed an additional amendment to Executive Order 13183 on December 3, 2003, which established the Task Force co-chairs and instructed the Task Force to issue reports as needed, but no less than once every two years. (See Appendix D.)

IV. Historical Overview

The Commonwealth of Puerto Rico has a rich tradition and history. As United States citizens, the people of Puerto Rico have enhanced American society and culture. Among their many contributions, Puerto Ricans have been recognized for their service and sacrifice in the United States Armed Forces.

The 2005 Task Force Report described in detail the modern history of Puerto Rico and its relationship with the United States, and we summarize that history here. The relationship between the United States and Puerto Rico dates to 1898, when the island was ceded to the United States by Spain, pursuant to the Treaty of Paris, which formally ended the Spanish-American War. The United States governed the island through a U.S. military governor until 1900, when Congress passed the Foraker Act, which established a civilian government, including a non-voting Resident Commissioner in Congress. In 1917, Congress established the island as an “organized but unincorporated” territory and granted U.S. citizenship to the people of Puerto Rico.

In 1952, Congress passed Public Law 600, the Puerto Rican Federal Relations Act, which provided the people of Puerto Rico with self-government with respect to internal affairs and administration. Public Law 600 gave Puerto Rico the right to establish a government and a constitution for the internal administration of Puerto Rico “on matters of purely local concern.” The people of Puerto Rico approved the Act and then approved a new constitution by referendum, which would establish the “Commonwealth of Puerto Rico.” Congress then approved that constitution in 1952, subject to several conditions that Puerto Rico fulfilled through amendments in 1953.

Since the adoption of the commonwealth system, Puerto Rico has held four plebiscites to ascertain the views of its people as to the status question. In 1967, a majority chose to continue the existing commonwealth status, and, in 1991, a majority similarly rejected a call to review that status. In 1993, a plurality of 48.6% voted for the commonwealth status, while 46.3% favored statehood and 4.4% independence.

The people of Puerto Rico most recently voted on their status in 1998, through a plebiscite resenting them with four status options: territorial commonwealth, free association, statehood, or independence. The leadership for the Popular Democratic Party, while backing continued commonwealth status, campaigned in favor of “none of the above” because of disagreement with the “territorial” definition of the commonwealth option. In the subsequent vote, a majority (50.3%) voted for “none of the above.” In addition, 46.5% voted for statehood, 2.54% voted for independence, 0.29% voted for free association, and 0.06% voted for a territorial commonwealth.

V. Legal Analysis of Options for Puerto Rico’s Status

The 2005 Task Force Report explained that the U.S. Constitution allows for three options for the future status of Puerto Rico: continuing territorial status, statehood, and independence. In so doing, the Task Force did not break new ground. The Department of Justice affirmed the Commonwealth’s territorial status in 1959, shortly after the enactment of Public Law 600, and the Supreme Court has held the same. See, e.g., Harris v. Rosario, 446 U.S. 651 (1980). Since 1991, the Executive Branch, through the Department of Justice, has further emphasized that the Constitution contemplates only three options for Puerto Rico’s future status. (See Appendices E and F.)

This section reiterates and summarizes the conclusions of the 2005 Task Force Report.

1. Continuing Territorial Status

The existing form of government in Puerto Rico is often described as a “Commonwealth,” and this term recognizes the significant powers of self-government Puerto Rico enjoys under current law. As discussed above, Congress established this arrangement through the passage of Public Law 600 and through the subsequent approval of the constitution drafted and amended by the people of Puerto Rico. The constitution of Puerto Rico establishes a republican, popularly elected government with significant authority over local affairs, and since 1953, the people of Puerto Rico have exercised significant powers of self-government. As the Supreme Court has recognized, under the commonwealth system, Puerto Rico currently exercises “a measure of autonomy comparable to that possessed by the States.” Examining Bd. v. Flores de Otero, 426 U.S. 572, 597 (1976).

When “Commonwealth” is used to describe the substantial political autonomy enjoyed by Puerto Rico, the term appropriately captures Puerto Rico’s special relationship with the United States. The commonwealth system does not, however, describe a legal status different from Puerto Rico’s constitutional status as a “territory” subject to Congress’s plenary authority under the Territory Clause “to dispose of and make all needful Rules and Regulations respecting the Territory … belonging to the United States.” 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. Thus, while the commonwealth of Puerto Rico enjoys significant political autonomy, it is important to recognize that, as long as Puerto Rico remains a territory, its system is subject to revision by Congress.

Both before and since the issuance of the 2005 Task Force Report, some have questioned whether Puerto Rico’s status as a United States territory is consistent with statements that the United States made to the United Nations in 1953 following the adoption of Puerto Rico’s constitution, in requesting that Puerto Rico be removed from the list of non-self-governing territories. In its official request to the United Nations, the United States stated that Congress had given Puerto Rico the freedom to conduct its own internal government subject only to compliance with federal law and the U.S. Constitution. The official request did not state that Congress could make no changes in Puerto Rico’s status without its consent. It is true that, prior to the submission of this official request, the U.S. representative to the U.N. General Assembly indicated orally that common consent would be needed to make changes in the relationship between Puerto Rico and the United States. Notwithstanding this statement, however, the Department of Justice concluded in 1959 that Puerto Rico remained a territory, and as noted above, the Supreme Court, while recognizing that Puerto Rico exercises substantial political autonomy under the current commonwealth system, has held that Puerto Rico remains fully subject to congressional authority under the Territory Clause. See Harris, 446 U.S. at 651-52.

The 2005 Task Force Report also explained why existing constitutional principles foreclose the so-called “New Commonwealth” status, which would purport to adopt a covenant between Puerto Rico and the United States that could not be altered without the “mutual consent” of both entities. Although the Executive Branch had once taken a different view, the Task Force endorsed the constitutional understanding that the Executive Branch has maintained across Administrations since 1991.

The U.S. Constitution would not permit the “New Commonwealth” proposal because land under United States sovereignty must either be a State or a territory. As the Supreme Court stated over a hundred years ago, if land is “not included in any State,” it “must necessarily be governed by or under the authority of Congress.” First Nat. Bank v. Yankton County, 101 U.S. 129, 133 (1879). Thus, although Congress is free to allow a territory to exercise powers of self-government (as Congress has done with respect to Puerto Rico), it may not restrict the authority of a future Congress over that territory. This limitation on the power of Congress reflects the general rule that one legislature cannot bind a subsequent one. Each Congress may repeal or amend laws that a previous Congress enacted, and Congress may pass laws inconsistent with treaties. By the same token, a future Congress must have the power to disavow commitments contained in a covenant between the Federal Government and one of its territories, regardless of the terms of that covenant.

Accordingly, the “New Commonwealth” proposal that some have proposed contemplates a political status for Puerto Rico that is not permitted by the United States Constitution. As long as Puerto Rico remains a territory of the United States, Congress may not impair the constitutional authority of later Congresses to alter the political powers of the government of Puerto Rico by entering into a covenant or compact with Puerto Rico or its residents.

2. Statehood

A second option for the future status of Puerto Rico is statehood. If admitted as a State, Puerto Rico would stand on equal footing with the existing States in all respects.

At present, Puerto Rico is an “unincorporated” territory, subject only to the most fundamental provisions of the Constitution. One notable consequence of this status is that the Constitution’s Tax Uniformity Clause is not applicable to Puerto Rico, allowing Congress to exempt the Puerto Rican people from most federal income tax laws and to provide them with other tax preferences not provided to residents of the States. These tax preferences would become impermissible under the Constitution if Puerto Rico were “incorporated” into the country as part of the process of being admitted as a State.

Statehood would, of course, confer upon Puerto Rico and its citizens certain political rights they do not currently possess. Puerto Rican citizens would be entitled to vote for President, and, as a State, Puerto Rico would elect two U.S. Senators and full voting Members in the U.S. House of Representatives. The number of Members in the House would be determined based on Puerto Rico’s population at the next congressional reapportionment, following the 2010 census. In the interim, Congress could temporarily increase membership of the House to allow Puerto Rico to elect one or more Members.

3. Independence

Another option for the future status of Puerto Rico is independence from the United States. Congress’s power under the Constitution’s Territory Clause includes the power to relinquish its sovereignty over a territory. See U.S. Const., Art. IV, Cl. 2. Congress thus may determine whether and under what conditions a territory may receive independence and may regulate those conditions until the point of independence.

Independence would have significant legal consequences for Puerto Rico. As an independent nation, Puerto Rico would not be subject to the authority of the United States and would be free to direct its own relations with foreign nations. By the same token, Puerto Rico would not automatically be entitled to receive monetary support or military protection from the United States. Additionally, independence from the United States could affect the citizenship of Puerto Rico’s residents. Individuals born in Puerto Rico are citizens of the United States by statute, 8 U.S.C. § 1402. The general rule is that citizenship follows sovereignty. So if Puerto Rico were to become an independent nation, Puerto Rico’s residents could become citizens of the newly independent nation and cease to be citizens of the United States, unless a different rule were prescribed by legislation or treaty.

There are a variety of different paths that Puerto Rico could take to independence. For example, the Territory of the Philippines received its independence by the Philippine Independence Act of 1934. The Act authorized the Philippine government to draft a constitution for an interim Commonwealth, which upon approval by the people of the Philippines and the U.S. President initiated an interim Commonwealth. The Act provided that, after a transition period of ten years, the President, by proclamation, would withdraw and surrender United States jurisdiction and sovereignty and “recognize the independence of the Philippines as a separate and self-governing nation.” In 1946, President Harry S Truman did proclaim independence, and the two nations entered into a Treaty of General Relations.

Another possible model of independence is that of the “freely associated states” of Micronesia, the Marshall Islands, and Palau. These states, which the United States had administered since World War II, became independent after Congress approved negotiated “compacts of free association” with the territories. The freely associated states retained close ties to the United States, however, and the United States continues to provide security, defense, and various other types of financial assistance and services. Citizens of the freely associated states may generally enter the United States as non-immigrants and may establish residence and work here.

Among the constitutionally available options, freely associated status may come closest to providing for the relationship that advocates for “New Commonwealth” appear to desire. But it would need to be made clear to the people of Puerto Rico that freely associated status is a form of independence from the United States and cannot be made immune from the possibility of unilateral termination by the United States.

VI. Recent Developments

Section 4 of Executive Order 13183 (as amended by Executive Order 13319) directs the Task Force to “report on its actions to the President … on progress made in the determination of Puerto Rico’s ultimate status.” Following the issuance of the 2005 Task Force Report, the former co-chair of the Task Force, Deputy Assistant Attorney General C. Kevin Marshall, testified before the House Committee on Natural Resources, its Subcommittee on Insular Affairs, and the Senate Committee on Energy and Natural Resources on the Task Force Report and proposed legislation. (See Appendix G.)

Since the issuance of the 2005 Report, Members of Congress have proposed several measures to address the future status of Puerto Rico. Each of these proposals seeks to allow the Puerto Rican people to express their will regarding the future status of the island, although they would do so in different ways.

These proposals fall into three general categories:

• The first category of legislation would seek to ascertain the views of the Puerto Rican people through a plebiscite. Some of the proposed bills would sanction a plebiscite similar to the one recommended in the 2005 Task Force Report. Those bills include S. 2661 (sponsored by Senator Martinez) and H.R. 4687 (co-sponsored by Representatives Fortuño and Serrano), both of which were introduced in the 109th Congress. Other bills, such as S. 1936 (sponsored by Senator Salazar), would authorize a single plebiscite in which the Puerto Rican people would choose among four status options (continuing the current status, statehood, independence, and independence as a freely associated state).

• The second category, represented in H.R. 1230 (sponsored by Representative Velázquez), would support the convening of a constitutional convention in Puerto Rico, the purpose of which would be to develop a proposal for the future status of the island to be voted upon by the Puerto Rican people.

• A third category would combine elements of the first two categories. An example of such legislation is H.R. 900 (sponsored by Representative Serrano), which was passed by the House Natural Resources Committee on October 27, 2007. As amended, H.R. 900 would direct Puerto Rico to hold a plebiscite by December 31, 2009, in which voters would be asked to decide whether Puerto Rico should “consider a constitutionally viable permanent non-territorial status” or “continue to have its present form of territorial status and relationship with the United States.” If voters favor the first option, the bill would recognize the right of the people of Puerto Rico either to conduct an additional plebiscite “to consider a self-determination option with the results presented to Congress” or to call a constitutional convention for the purpose of proposing a “self-determination option” to the Puerto Rican people.

VII. Task Force Recommendations

As detailed earlier and in the 2005 Report, the Task Force concludes that there are only three options available under the U.S. Constitution for the future status of Puerto Rico:

• Continue as a territory. The current status of Puerto Rico as a commonwealth may continue indefinitely but remains subject to future modification by Congress.

• Statehood. Under this option, Puerto Rico would become the 51st State with standing equal to the other 50 States.

• Independence. Under this option, Puerto Rico would become a sovereign nation, independent from the United States.

The democratic will of the Puerto Rican people is paramount for determining the future status of the territory. To this end, the 2005 Task Force Report recommended a two-stage plebiscite to determine whether the Puerto Rican people wish to retain the status quo, and if not, which of the two available options they prefer. The Task Force concluded that such a process would be the best way to ascertain the popular will in a way that provides clear guidance for future action by Congress.

The Task Force acknowledges the pending legislative measures that would provide similar or alternative procedures through which the people of Puerto Rico might express their will regarding the future status of the island. The Task Force continues to believe that the two-stage plebiscite would provide clearer guidance for Congress than other procedures in which it is possible that none of the available options would win a majority of votes. At the same time, there are other ways to proceed, and the Task Force’s recommendations do not preclude alternative action by Puerto Rico itself to express its views to Congress.

The following are the recommendations of the Task Force:

1. The Task Force reiterates its prior recommendation that Congress provide for a Federally sanctioned plebiscite as soon as practicable in which the people of Puerto Rico will be asked to state whether they wish to maintain the current territorial status or to pursue a constitutionally viable path toward a permanent non-territorial status. Congress should provide for this plebiscite to occur on a date certain.

2. The Task Force reiterates its prior recommendation that if the people of Puerto Rico elect to pursue a permanent non-territorial status, Congress should provide for an additional plebiscite to allow the people of Puerto Rico to choose between one of the permanent non-territorial options permitted by the Constitution: statehood or independence. Once the Task Force Recommendations people of Puerto Rico have selected one of the two options, we would encourage Congress to begin a process of transition consistent with that option.

3. If the people elect to maintain Puerto Rico’s current status, the Task Force recommends, consistent with the 1992 memorandum of President George H.W. Bush, that a plebiscite occur periodically as long as that status continues, to keep Congress informed of the people’s wishes.

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