Causa Illustro Nostra Via

MEMORANDUM FOR THE NEW PROGRESSIVE PARTY BOARD OF DIRECTORS

FROM: Josué E. Rivera and other concerned citizens
SUBJECT: Proposal for Plebiscite Process to Resolve the Status Problem
DATE: 26 March 2011

For A Fair and Legitimate Process

In light of the recent Report by the President‟s Task Force on Puerto Rico‟s Status, published 16
March 2011, we concur that “[t]o move forward, it is critical that the process is accepted by the
people of Puerto Rico as fair and that it ensures that even those whose status option is not
selected feel fairly treated,” (Task Force Report, March 2011, p. 26).
The Task Force has made clear that “removing the Commonwealth option would raise real
questions about the vote‟s legitimacy.” The concern for procedural fairness and legitimacy is not
new to the recent Task Force report. In fact, many Congressmen and political leadership of
diverse ideologies within the island and the rest of the nation have also raised fairness and
legitimacy concerns on numerous occasions. We believe that if we do not address these
concerns effectively, they will continue to persist. If we do not address them, we may very well
end up risking a Statehood victory, should it be chosen by majority vote, if members of Congress
or the Federal Courts object post facto, to the process used. To address these concerns we
propose the following two-round plebiscite process to resolve the status problem:
1st Round will ask two (2) questions:
#1. Do you wish to resolve the political status problem of Puerto Rico?
A) Yes
B) No

#2. Do you wish to include the „Territory‟ as an option on the 2nd round?1
A) Yes
B) No

1
Note that choosing “Yes” on question #2 will determine the next round to be question #2 (below) and choosing
“No” will determine the next round to be question #1 (below). Should “No” on #1 above be chosen by majority
vote, the status quo remains and problem persists.
2nd Round (if the result on the first round is #1 Yes, and #2 No.)
#1. Choose the status option of your preference:
A) Statehood
B) Free Association
C) Independence

2nd Round (if the result on the first round is #1 Yes, and #2 Yes.)2
#2. Choose a status option of your preference:
A) Statehood
B) Territory (Commonwealth with Incorporation status)
C) Free Association
D) Independence

One Status Under the Territorial Clause: Two Variants Under the Constitution
While we agree with the Task Force that fairness and legitimate concerns must be addressed and
that the best way for doing so is by including the „Territory‟ (“Commonwealth”) option on at
least one ballot, depending on the mechanism chosen. What the report fails to discuss is that
there are two legal variants of territory status subject to the Territory Clause of the U.S.
Constitution – “incorporated” and “non-incorporated.”
While both territory status variants are still subject to the Territory Clause of the U.S.
Constitution, the differences between them are too enormous to ignore. For example, under
incorporation, the U.S. Constitution will fully apply to residents of the island. This new legal
reality will have enormous repercussions on our daily lives. If the Constitution fully applies to
the territory of Puerto Rico, most, if not all discriminatory doctrine that stem from the Insular
Cases will no longer apply to Puerto Rico. The questionable legal status of our citizenship will
no longer be subject to speculation concerning the law it was borne out of due to the full
applicability of the Constitution. No longer will we be “Foreign in a domestic sense” or
“Belonging to, but not a part of.” Under Incorporation we will be “Domestic in every sense” and
“Belonging to, and a part of.” Other benefits to consider are:
- Most, if not all laws and institutions will have to be readjusted in order to achieve as
much compatibility with the States as possible. This will be done in phases.

2
The “Commonwealth” or „Territory‟ status choice provided will be one of “Inherent” Incorporation, still subject to
the plenary powers of the Constitution.
 - The Federal tax code will be phased into our system. This will in-turn, entitle us to
fully participate in most, if not all Federal programs.
- It will tighten the economic, social, and political ties of the island to the rest of the
country in ways the non-incorporated territory (“Commonwealth”) currently does not.
We acknowledge that “incorporation” as well as “non-incorporation” do not change the essence
of the territorial condition which bind them because, “under the Commonwealth option, Puerto
Rico would remain, as it is today, subject to the Territory Clause of the U.S. Constitution,” (Task
Force Report, March 2011, p. 26). But, there are sound and valid arguments that have
convinced us that a legal change of status under the territorial clause is not only fair, but also
legitimate because it reflects the desires of the majority of the electorate that wish to be in a
permanent relationship with the United States.
Consider that many polls have consistently shown that the vast majority of island residents wish
to protect and retain their American citizenship. The Task Force report itself notes that “the
Task Force‟s engagement with Puerto Ricans demonstrated that most of them value their U.S.
citizenship enormously” and that “[a]ny status option that could conceivably result in the loss of
U.S. citizenship...would [sic] be viewed with hostility by the vast majority of Puerto Ricans,”
(Task Force Report, March 2011, p. 30). Other polls have also shown that most Puerto Ricans,
even those within the confines of the pro-Commonwealth Party, aspire to vote in U.S.
Presidential elections. While incorporation will not guarantee any of those two things,
incorporation will certainly position the island to achieve the things most Puerto Ricans consider
important enough to aspire to.
We must make clear that the “Inherent” Incorporation of the „Territory‟ option is designed to
substitute the non-incorporated status quo. The Incorporation option does not seek to substitute
Statehood as the best and most sound alternative to resolve our status problem. But if the
„Territory‟ (“Commonwealth”) option is included as a „legitimate option‟ to the people in any
process chosen for a plebiscite on status, including the one “marginally” preferred by the Task
Force3, then the „Territory‟ (“Commonwealth”) option presented ought to be Incorporated.4
Detractors of this proposal must keep in mind that even if Statehood wins, and Congress
approves the enabling bill – there will be a transitional period. That transitional period will be
one of incorporation. Why not save time and prepare for Statehood now, even if it fails to obtain
a majority vote against the Commonwealth? We must also take advantage of the crippling
division between pro-Unionist and separatist forces within the Popular Democratic Party. many
pro-Unionist leaders and voters wish to form closer ties with the U.S. but currently have
reservations and doubt concerning Statehood. The “Incorporated Commonwealth” would be
highly attractive to these types of voters.

3
The Task Force “marginally” prefer a two (2) round process where the electorate is asked if they wish to continue
a relationship with the United States, and the second, assuming “Yes” wins, will have Statehood and
Commonwealth as the only options to choose from. If this is the process chosen by the Board, we suggest either
redefining the Commonwealth from a non-incorporated one to a, incorporated one, or pass on to another round
asking the voters to choose between the two territory status variants.
4
For further analysis on the subject of incorporation and the Insular Cases, please see Consejo de Salud Playa de
Ponce v. Rullan, 586 F. Supp. 2d 22 (2008).
Incorporation is not an alternative to Statehood; it is an alternative to the status quo. We hope
you seriously consider and adopt these ideas into enabling legislation giving way to a local
plebiscite on status.
Any questions, suggestion, or remarks, please e-mail us at: josue.e.rivera@gmail.com and
julio.figueroa.nunez@gmail.com