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BEFORE THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS ORGANIZATION OF AMERICAN STATES

PEDRO ROSSELLÓ

and

THE UNFINISHED BUSINESS OF AMERICAN DEMOCRACY COMMITTEE,

in their individual capacities and on behalf of approximately

THREE-AND-A-HALF MILLION U.S. CITIZENS RESIDING IN THE COMMONWEALTH OF PUERTO RICO,

Petitioners

v.

UNITED STATES OF AMERICA

State.

Case No. 13.326

PETITIONERS’ OBSERVATIONS REGARDING THE MERITS OF THEIR CASE

ORLANDO E. VIDAL Norton Rose Fulbright (Middle East) LLP 4th Floor, Gate Precinct Building 3 Dubai International Financial Centre PO Box 103747 Dubai, United Arab Emirates Tel +971 4 369 6398 Mob +971 56 682 7388 Fax +971 4 369 6350 orlando.vidal@nortonrosefulbright.com

TABLE OF CONTENTS

Page

I. OPENING STATEMENT

1

II. INTRODUCTION

4

III. PRELIMINARY MATTERS

7

IV. PROCEDURAL BACKGROUND

11

V. HISTORICAL BACKGROUND

19

A. From 1493 to 1898

20

B. The Treaty of Paris

22

C. The Territorial Clause

22

D. The Foraker Act

24

E. “The Insular Cases”

25

F. Gonzales v. Williams

31

G. Citizenship: The Jones Act

32

H. 1947: The Right to Elect the Governor

33

I. The Commonwealth

35

J. From 1952 to 2016

41

1. Congress Extends Most Federal Laws to Puerto Rico

42

2. Congress Discriminates Against Its Citizens in Puerto Rico

46

(a)

Taxation

47

(b)

No Supplemental Security Income

48

(c)

Less Medicare

51

(d)

Less Medicaid

51

(e)

Less Health-Insurance Subsidies

52

(f)

Less Aid to Families with Dependent Children

53

(g)

Fewer Food Stamps

55

i

 

(h) No Earned Income Tax Credit and a Limited Right to the Child Tax Credit

57

(i) Billions Less

58

K. The Legal Status of Puerto Rico

58

L. Not Only in Peace but Also in War

59

M. Puerto Rico’s Political Parties

62

N. Referendums and Plebiscites

63

O. The President’s Task Force on Puerto Rico’s Status

65

P. Public Law 113-76

65

Q. Continuing Lack of Sovereignty: The Two Most Recent U.S. Supreme Court Decisions on Puerto

66

 

1. Commonwealth of Puerto Rico v. Sanchez Valle

66

2. Commonwealth of Puerto Rico v. Franklin California Tax- Free Trust

69

R. A “Tennessee Plan”

70

S. Today: Puerto Rico Under PROMESA

72

VI. RELEVANT U.S. LEGAL FRAMEWORK

78

A. The Right to Vote in the 50 States

79

 

1. The Right to Vote Under U.S. Law

79

2. The Electoral College

81

3. Congressional Voting Rights

82

B. The Lack of a Right to Vote at the National Level in Territories

83

C. The Limited Parliamentary Rights of the Resident Commissioner

87

VII. HUMAN-RIGHTS STANDARDS

89

A.

General International Standards

89

1. The Universal Declaration of Human Rights

90

2. The International Covenant on Civil and Political Rights

91

3. The Charter of the OAS

93

ii

4.

The American Convention on Human Rights

94

 

5.

The Inter-American Democratic Charter

96

B. The American Declaration of the Rights and Duties of Man

99

 

1. Article II—Right to Equality Before Law

100

2. Article XVII—Right to Personal Recognition and to Basic Civil Rights

100

3. Article XX—Right to Vote and to Participate in Government

100

C. Precedent

 

101

D. Articulation of Applicable Legal Tests

111

VIII.

ARGUMENT

 

113

A. The United States Is Violating the Human Right of Its Citizens in Puerto Rico to Vote and to Participate in

114

 

1. The United States Has Limited or Restricted the Right of Its Citizens in Puerto Rico to Vote and to Participate in Their National Government

114

2. The Limitations or Restrictions Imposed by the United States “Curtail the Very Essence and Effectiveness” of the U.S. Citizens of Puerto Rico’s Right to Vote and to Participate in Their Government

117

3. The United States Cannot Meet Its Burden to Show that the Voting Limitations or Restrictions It Imposes on Its Citizens in Puerto Rico Are Otherwise Reasonable, Objective, and Proportionate

119

B. The United States Is Unlawfully Discriminating Against Its Citizens in Puerto Rico in Violation of Their Human Right to Equal Treatment Under the

123

 

1. The Differential Treatment to which the United States Subjects Its Citizens in Puerto Rico Is Not Based Upon Any Legitimate Factual Differences Between Its Citizens on the Island and Those on the

124

2. Despite the United States’ Acknowledged Prerogative to Choose Its Own Political Institutions, There Is No Reasonable Relationship of Proportionality Between Any Differences, Which in Any Event Do Not Exist, Between the U.S. Citizens of Puerto Rico and Those on the Mainland and Whatever Aims the United States Could Possibly Articulate

iii

 

to Otherwise Legitimately Justify Depriving Its Citizens in Puerto Rico of the Right to Vote for and to Participate in Their Government

 

127

C. The United States Is Failing to Recognize Petitioners and Three-And-a-

as Violating Their Basic Civil Rights

Half

Million

Other

Citizens

“Person[s]

Having Rights,”

and

Is

129

1. The U.S. Citizens of Puerto Rico Are “Person[s] Having Rights.”

130

2. The United States Is Failing to Recognize Its Citizens in Puerto Rico as Deserving of Such

131

3. The Rights to Vote and to Participate in Government, and to Equal Treatment Under the Law, Are Basic Civil

132

D. The Human Rights of the U.S. Citizens of Puerto Rico Do Not Depend on the Territorial Status of the Commonwealth nor on the Consent of a Few to Their

134

IX. NEXT STEPS

 

136

X. CONCLUSION

139

iv

EXHIBITS

Exhibit

Description

1

Puerto Rico Law No. 30-2017 (June 5, 2017)

2

Treaty of Peace, 30 Stat. 1754; Treaty Series 343 (“Treaty of Paris”)

 

3

The Organic Act Pub., L. 56-191, 31 Stat. 77 (April 12, 1900) (“Foraker Act”)

 

4

Downes v. Bidwell, 182 U.S. 244 (1896)

5

Gonzales v. Williams, 192 U.S. 1 (1904)

6

The Jones-Shafroth Act, Pub. L. 64-368, 39 Stat. 951 (March 2, 1917) (“Jones Act”)

 

7

The Elective Governor Act of 1947, P.L. 80-362, August 5, 1947

 

8

Puerto Rican Federal Relations Act 64 Stat. 319 (“P.L. 600”) (July 3, 1950)

 

9

Pub. L. 82-447, 66 Stat. 327 (July 3, 1952)

10

Constitution of the Commonwealth of Puerto Rico

11

Califano v. Torres, 435 U.S. 1 (1978)

12

Harris v. Rosario, 446 U.S. 651 (1980)

13

U.S. President’s Task Force on Puerto Rico’s Status, Report by the Presidents Task Force on Puerto Ricos Status (Washington: December 2005)

14

U.S. President’s Task Force on Puerto Rico’s Status, Report by the Presidents Task Force on Puerto Ricos Status (Washington: December 2007)

15

U.S. President’s Task Force on Puerto Rico's Status, Report by the Presidents Task Force on Puerto Ricos Status (Washington: December 2011)

16

Pub L. 113-76, 128 Stat. 5 (January 17, 2014)

17

Commonwealth of Puerto Rico v. Sanchez Valle, 579 L. Ed. 2d 179 (2016)

;

136 S. Ct. 1863; 195

18

Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, 579 136 S. Ct. 1938; 195 L. Ed. 2d 298 (2016)

;

19

H.R. 260—Puerto Rico Admission Act (January 4, 2017)

20

The Puerto Rico Oversight, Management, and Economic Stability Act, 130 Stat. 549; 48 U.S.C. §§ 2121-2241 (June 30, 2016) (“PROMESA”)

21

Davis, Christopher M., Parliamentary Rights of the Delegates and the Resident Commissioner from Puerto Rico, Congressional Research Service, R40170 (January 5,

2017)

v

BEFORE THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS ORGANIZATION OF AMERICAN STATES

:

PEDRO ROSSELLÓ and THE UNFINISHED

:

:

BUSINESS OF AMERICAN DEMOCRACY

COMMITTEE, in their individual capacities

:

:

:

and on behalf of approximately THREE-AND-

A-HALF MILLION 1 U.S. CITIZENS RESIDING

IN THE COMMONWEALTH OF PUERTO RICO, :

Case No. 13.326

:

Petitioners

:

:

v.

:

:

UNITED STATES OF AMERICA

:

:

State.

:

:

PETITIONERS’ OBSERVATIONS REGARDING THE MERITS OF THEIR CASE

In compliance with the Inter-American Commission on Human Rights’ 2 invitation to

make our substantive submissions, please accept these observations in support of petitioners’

case on the merits.

I. OPENING STATEMENT

The Commission faces in this case a question that is as straightforward as it is

important:

The American Declaration of the Rights and Duties of Man 3 recognizes and protects the right to equality before the law, 4 the right to juridical

1 For a discussion why petitioners have now changed the caption in their case from “approximately FOUR MILLION U.S. CITIZENS RESIDING IN THE COMMONWEALTH OF PUERTO RICO” to “approximately THREE-AND-A-HALF MILLION,” please read discussion in section entitled “Preliminary Matters,” infra at pp. 9- 10 (discussion of most current population estimate).

2 “Commission.”

3 “American Declaration.”

1

personality and to basic civil rights, 5 and the right to vote and to participate in government. 6 The three-and-a-half million American citizens who reside in Puerto Rico do not have the right to vote for their nation’s President and Vice President, nor do they have in the United States’ Congress the right to voting Representatives in the House nor to any Senators, while federal law applies with its full force and effect in Puerto Rico and to its residents. 7 Is the United States violating the protections of the American Declaration by denying its citizens in Puerto Rico the right to vote at the federal level?

That

is

the

straightforward

but

important

question

that

petitioners

present

this

Commission in this case.

The question is straightforward despite, surprisingly, the fact that,

before the filing of petitioners’ case, 8 the Commission had not previously been asked the

question nor otherwise expressed an opinion notwithstanding that the American citizens of

Puerto Rico have been discriminated in this way for over 100 years, 9 the last 57 of which have

been under the Inter-American Human Rights System set up by the Organization of American

States, 10 including this Commission, which (as the Commission knows) began operations in

1959. 11

And the question is of great importance not only to petitioners and the millions in

Puerto Rico who are the ones being immediately, directly, and very seriously affected, but

(petitioners submit) also to the rest of their fellow citizens in the United States (or it should

be) and, more broadly, to all democracy-loving peoples not only in the American hemisphere

but the whole world.

Petitioners submit—with the confidence of their heartfelt conviction and, as discussed

below, fully supported by the facts and the applicable legal standards and precedents—that

4 American Declaration, Art. II, see infra at p. 100.

5 Id. at Art. XVII, see infra at p. 100.

6 Id. at Art. XX, see infra at p. 100.

7 As will be discussed in detail below, see infra at pp. 42-46.

8 And also a related but narrower case filed a few weeks before petitioners filed theirs. See Case No. P- 776-06: Igartúa v. United States of America before the Inter-American Commission on Human Rights (narrower because, as far as petitioners are aware, the Igartúa petition only relates to the right to vote for President/Vice President but not Congressional voting rights).

9 As discussed below (see infra at pp. 32-33), Puerto Ricans were granted U.S. citizenship in 1917.

10 “OAS.”

2

this Commission should answer their question in the affirmative:

in denying its citizens in

Puerto Rico any voting rights at the federal level, the United States is indeed—regrettably and

shamefully—violating petitioners’ rights and the rights of all those millions similarly situated

to equality before the law, to juridical personality and to basic civil rights, and to vote and to

participate in government protected by the American Declaration.

Petitioners respectfully request that the Commission so declare, that it call on the United

States to fully and effectively remedy these violations consistently with the United States’

obligations under the American Declaration and all other applicable principles of human

rights, and that the Commission lend its aid and support to the parties to effectuate that

remedy as soon as possible.

What follows are petitioners’ Observations in support of the full merits of their case and

the relief they have requested, presented herein for the Commission’s consideration as

efficiently and succinctly—or so petitioners have endeavored—as it is possible. We hope that

these observations, along with all prior submissions in support of the admissibility of the

petitioners’ case, which are hereby fully incorporated herein, as well as the additional findings

of

any

on-site

investigation

that,

as

discussed

below,

petitioners

are

aware

that

the

government of Puerto Rico will be requesting that the Commission conduct, along with any

additional evidence presented in an eventual hearing on the merits, will all satisfy the

Commission that the pled violations have occurred and, unless and until remedied by the

United States, will regrettably continue.

With such a declaration the Commission will be

fulfilling its role to promote and protect human rights, including democratic rights, in the

American hemisphere.

II.

INTRODUCTION

These are petitioners’ Observations in support of the full merits of their case, filed in

response to the Commission’s request for additional observations from petitioners made on

March 3, 2017, though not received by petitioners until March 20, 2017, and which on May

30, 2017 petitioners informed the Commission they would submit on this day, October 3,

2017.

As the Commission is aware, the individual petitioners in this case are:

the former

Governor of Puerto Rico, Pedro Rosselló, and the Unfinished Business of American

Democracy Committee, which is a committee within the Harlan Group for Civil Rights, Inc.,

which in turn is a human-rights organization established as a nonprofit corporation under

Puerto Rico law.

Petitioner Committee is made up of individual American citizens all of

whom reside in Puerto Rico. The Chairman of petitioner Committee is Luis Berríos-Amadeo,

also a U.S. citizen residing in Puerto Rico.

Both petitioner Rosselló and petitioner Committee brought this case in their names and

as representatives of a class composed of all American citizens of Puerto Rico. As discussed

later below, 12 as of the filing of petitioners’ case 11 years ago, Puerto Ricans in the island

numbered close to four million. Now, however, 11 years later, and as a result of relocation to

the mainland United States mostly for economic reasons, the number has dropped in that

relatively short amount of time to approximately three-and-a-half million. 13

For most of his 73 years, petitioner Rosselló, first as a private citizen and pediatric

surgeon, then as President of the Partido Nuevo Progresista (as discussed later, 14 one of the

12 See infra at pp. 9-10.

13 The estimated number of Puerto Ricans on the mainland is 5,1 million, see Mark Hugo Lopez and Molly Rohal, Hispanics of Puerto Rican Origin in the United Stated, 2013: Statistical Profile, Pew Research Center (2015), available at http://www.pewhispanic.org/ 2015/09/15/hispanics-of-puerto-rican-origin-in-the-

united-states-2013/.

14 See infra at pp. 62-63.

4

main political parties in Puerto Rico), as the seventh and two-term Governor of Puerto Rico

(from 1993 to 2001), as Puerto Rico Senator (2005-2009), as academic, lecturer, and author,

and now as confirmed President of the Puerto Rico Equality Commission—a Commission

established this year (2017) by act of the Puerto Rico legislature 15 and made up of seven

members named by the Governor with the advice and consent of both chambers of the Puerto

Rico legislature to act as Puerto Rico’s shadow delegation before the United States Congress,

with two Senators and five Representatives—has fought for equality for the U.S. citizens of

Puerto Rico within the American system of government.

Similarly, many members of petitioner Committee have also dedicated their lives, time,

efforts, and resources, to achieving in their lifetimes or their children’s lifetimes equality for

the U.S. citizens of Puerto Rico.

That includes petitioner Committee’s Chairman, Mr.

Berríos-Amadeo, a distinguished lawyer in Puerto Rico, who as with every other U.S. citizen

in the island has no right to vote at the federal level. This, despite the fact that Mr. Berríos-

Amadeo served his country with distinction in the U.S. Army, from which he retired with the

rank of Colonel, and also in the positions of Acting Commander, Deputy Commander, and

Chief of Staff of the U.S. Army Reserve Command, in Fort Buchanan, Puerto Rico. Despite

the fact that he served in the U.S. Army for 30 years, he has never had the right, as a resident

of Puerto Rico, to cast a vote for his Commander-in-Chief, the President of the United States.

This case represents an important part of the abiding quest of petitioner Rosselló, Mr.

Berríos-Amadeo, and the other members of petitioner Committee to achieve equality for the

U.S. citizens of Puerto Rico within their own nation.

To aid the Commission in its

consideration of the weighty matters at issue in this case, in what follows:

1.

in

Commission should consider before delving into the substance of petitioners’ claims, the main two being the recent hurricane that has

§

III,

we briefly address

some

preliminary matters

that

the

15 Puerto Rico Law No. 30-2017 (June 5, 2017), see Exhibit 1.

5

devastated much of the island and the massive and continuing population decline that Puerto Rico has and is still experiencing and that has necessitated amending petitioners’ caption in this case to reference approximately three-and-a-half million citizens instead of the approximately four million who petitioners had referenced in their original filings;

2.

in

procedural background of this case, from the filing of the petition on October 17, 2006 up to the filing today, October 3, 2017—almost 11 years to the day of their first filing—of petitioners’ submission on the merits;

for

the

§

IV,

we briefly describe

the

Commission’s

benefit

3. in § V, we proceed to a brief exposition of the historical background that has brought the U.S. citizens of Puerto Rico to this juncture, from Puerto Rico’s “discovery” and Spanish rule, to U.S. occupation starting in 1898, to Puerto Rico’s territorial status for the past 119 years, which has and is still depriving them of voting rights at the national level, despite their otherwise enjoyment of American citizenship for more than 100 years, to the establishment today by Congress of a Fiscal Control Board—made up of members appointed by the President of the United States and the U.S. Congress, which the U.S. citizens of Puerto Rico have no domestic legal right to elect— with vast powers over the daily lives of each and every one of those American citizens in Puerto Rico;

4. in § VI, we review the constitutional framework surrounding voting rights at the federal level in the United States, followed by an exposition of the lack of voting rights for U.S. citizens in the territories, focusing specifically on Puerto Rico, including a review of the extremely limited parliamentary rights of the Resident Commissioner from Puerto Rico in Congress;

5. in § VII, we review the applicable international legal standards, focusing on Articles II, XVII, and XX of the American Declaration, all applicable legal precedent, and the legal tests petitioners must meet in order to make out the claims that they are asserting;

6. in § VIII, we apply those legal tests to the facts in Puerto Rico, meeting each and every element and establishing the actual violations to petitioners’ fundamental rights to vote and to participate in government, to equal treatment under the law, and to juridical personality and basic civil rights;

7. in § IX, we describe the next steps petitioners believe the Commission should take in the adjudication of this case, including granting petitioners a hearing and conducting an on-site investigation in Puerto Rico; and

6

8.

in § X, we conclude by reiterating petitioners’ position and restating the relief we have requested.

III. PRELIMINARY MATTERS

Before addressing the full merits of their claim, there are three preliminary matters that

petitioners wish to address with the Commission, one urgent, a second one quite significant,

and a third one admittedly minor but nevertheless appropriate to raise now as well.

address them briefly in turn.

We

First, the Commission would be aware that early on September 20 th of this year (2017),

a powerful Category 4 hurricane with 150 mph winds made direct landfall on Puerto Rico,

following a path of destruction that devastated the U.S. Virgin Islands and several Caribbean

nations and other territories.

What has happened in Puerto Rico is catastrophic.

Experts

believe the death toll could reach into the hundreds, 16 but that will not become clear until

some normalcy is restored. As of the filing of this brief, today, October 3, 2017, two weeks

later, 8,800 remain in shelters, 95% of the island still has no electricity, and more than half

have no running water.

Authorities believe power will be out for months in some places. 17

Hospitals have had to turn away patients, and there are reports of people dying because of

lack of diesel fuel at the hospitals that could have kept the generators running to maintain life-

support systems. Thankfully, 46 of the 48 dialysis centers in the island are, as of the filing of

this brief, now operating using diesel-fuel generators.

Chains of supply for water, food, and

fuel are still disrupted. Thirty-five percent of gas stations are still closed. Cellphone towers

were knocked out (approximately 1,360 out of 1,600 in the island), and communication

remains difficult.

Puerto Rico’s agriculture has been decimated; so, obviously, has the

16 See What Every American Needs to Know About Puerto Rico’s Hurricane Disaster, Vox (September 28, 2017), at https://www.vox.com/science-and-health/2017/9/26/16365994/hurricane-maria-2017-puerto-rico- san-juan-humanitarian-disaster-electricty-fuel-flights-facts.

17 See https://www.nytimes.com/2017/10/01/us/puerto-rico-ricardo-rossello-storm-

recovery.html?rref=collection%2Fsectioncollection%2Fus&action=click&contentCollection=us&region=rank&

module=package&version=highlights&contentPlacement=2&pgtype=sectionfront.

7

tourism industry.

Moody’s Analytics estimates that the damage could be as high as $95

billion, which represents almost an entire year’s economic output for Puerto Rico. 18

This is

all happening at the same time the island faces the largest bankruptcy in U.S. history, with

more than $70 billion in debt and, as discussed later in these submissions, under the

management and supervision of a federally appointed Fiscal Control Board. 19

The federal government has been slow to respond to this unprecedented situation.

Unfortunately, still today, after 119 years as a territory of the United States and more than 100

years as citizens, only 54% of Americans, according to a recent New York Times poll, 20 even

know that Puerto Ricans are U.S. citizens.

Some publications have now begun to refer to

Puerto Ricans as “the forgotten Americans.” 21

That is not far from the truth.

No one can

seriously doubt that if Puerto Ricans in the island had the right to vote for President, Vice

President, Representatives, and Senators, their voices would have been heard sooner (perhaps

they could have even had in place the personnel and resources necessary before the storm hit)

and the government would have been under pressure to react more quickly.

Puerto Ricans hope that Congress will take up this month of October 2017 a hurricane

relief package for the island. 22 Whether it will be sufficient or not, time will tell. But what is

important now for the purpose of these submissions is for this Commission to be fully aware

that the U.S. citizens of Puerto Rico will not have any direct say whatsoever in Congress as to

18

index.html.

See http://money.cnn.com/2017/09/28/news/economy/puerto-rico-hurricane-maria-damage-estimate/

19 See, infra, pp. 72-78.

20 See Nearly Half of Americans Don’t Know Puerto Ricans Are Fellow Citizens, The Upshot, The New York Times, September 26, 2017, at https://www.nytimes.com/2017/09/26/upshot/nearly-half-of-americans-dont- know-people-in-puerto-ricoans-are-fellow-citizens.html; see also same at https://morningconsult.com/.

21 See, e.g., The Editors: We Need to Rally Around the Forgotten Americans of Puerto Rico, American:

The Jesuit Review, September 25, 2017, at https://www.americamagazine.org/politics-society/2017/09/25/

editors-we-need-rally-around-forgotten-americans-puerto-rico; see also The Forgotten Americans:

Why Did

U.S. media Ignore U.S. Virgin Islands Devastated by Irma, Democracy Now, September 15, 2017, at

https://www.democracynow.org/2017/9/15/the_forgotten_americans_why_did_us.

22 See http://www.politico.com/story/2017/09/26/trump-us-funding-puerto-rico-aid-243166.

8

what that package will look like.

In fact, as discussed later throughout these submissions,

Puerto Rico has never had and still does not have any real say on any decision Congress

makes.

On September 12, 2017, even before this hurricane hit Puerto Rico and following this

season’s previous hurricanes, this Commission issued a press release expressing its deepest

solidarity with the people affected by the recent natural disasters and calling on the States

affected and the international community to take steps to address the situation. 23 That was the

right thing for this Commission to do, and was much appreciated by petitioners and many

others.

But this Commission should also consider now what it, itself, can do, in addition to

issuing sympathetic press releases, to—in the Commission’s own words—“address the

situation of those affected.” 24

The most significant thing this Commission can do to address the situation of those

affected in Puerto Rico is to rule on the merits of their claims as quickly as possible by

recognizing that the U.S. citizens of Puerto Rico have, under international human-rights

law, the right to vote for and to participate in their own federal government, the right to the

same treatment of all other U.S. citizens in the 50 States and the District of Columbia, and

the right to be recognized as citizens deserving of those rights, which are (after all) among

the most basic of civil rights. Ruling as quickly as possible may afford the United States an

opportunity to remedy this situation in time for these U.S. citizens of Puerto Rico to vote in

the next Congressional elections in 2018, and then in the next Presidential elections in 2020.

Second, Puerto Rico’s most recent natural disaster will only exacerbate the huge

problem it has been experiencing for the past decade, and that is the massive exodus of its

23 See IACHR Expresses Solidarity with People Affected by Earthquake and Hurricanes in Countries of the Region and Urges States and the International Community to Take Steps to Address the Situation of Those Affected, Inter-American Commission on Human Rights, Press Release dated September 12, 2017, at

http://www.oas.org/en/iachr/media_center/PReleases/2017/139.asp.

24 Id.

9

population to the mainland.

When petitioners first filed their case with the Commission in

October 2006 (almost exactly 11 years ago), the population of Puerto Rico stood at

approximately 3,912,054, according to the then most recent survey conducted by the U.S.

Census Bureau. 25 That is why petitioners captioned their case to have been brought on behalf

of almost four million U.S. citizens.

Today, however—or, more accurately, as of its last

estimate

in

2016—,

the

approximately 3,411,307. 26

U.S.

Census

Bureau

estimates

that

the

population

stands

at

More dramatically still, the U.S. Census Bureau projects the

population of Puerto Rico will fall below three million by 2025 and to just over two million

by 2050. 27

The main reason is the outmigration to the mainland United States as a result of

the deteriorating economic conditions on the island.

In a very real sense, not only have these Puerto Ricans secured for themselves the

possibility of better economic futures by relocating to the mainland, but they have also bought

with their one-way tickets out of Puerto Rico political equality for themselves within their

own nation, as they immediately acquire full political rights to vote for President, Vice

President, Representatives, and Senators upon establishing residence in one of the 50 States.

As a result of this historic depopulation, petitioners have taken the liberty to restyle their

caption by referring to the most recent figures of close to three-and-a-half million U.S.

citizens, though (as discussed) the population is still expected to decrease significantly.

Third, and finally, on May 30, 2017, petitioners’ counsel wrote to the Commission

asking, among other things, that the Commission amend its Report on Admissibility 28 to

25 Petition at 6, n. 15.

26 See https://www.census.gov/quickfacts/PR.

27

See

https://www.census.gov/population/international/data/idb/region.php?N=

%20Results%20&T=

13&A=separate&RT=0&Y=2026,2027,2028,2029,2030,2031,2032,2033,2034,2035,2036,2037,2038,2039,2040,

2041,2042,2043,2044,2045,2046,2047,2048,2049,2050&R=-1&C=RQ.

28 Petition P-1105-06, Report No. 17/17 (January 27, 2017).

10

reflect the correct spelling of the lead petitioner in this case, Pedro Rosselló. Though a minor

issue, obviously, we hope that the Commission will, in time, be able to make that correction.

IV. PROCEDURAL BACKGROUND

As the Commission is aware, petitioners filed their petition on October 17, 2006.

On

April 23, 2009, this petition was transmitted to the government of the United States, whose

response was required within two months.

Following the Commission’s refusal to grant a

second extension to file that response, the United States submitted its response on June 28,

2010. This was received by petitioners on July 14, 2010, more than a year after it was due.

Petitioners promptly replied to the United States’ response on August 16, 2010, with the

Commission requesting a response from the United States within a month. Eight months later,

the United States presented its observations on April 14, 2011 to which petitioners responded

on June 1, 2011. The Commission approved its Report on Admissibility on January 27, 2017,

and provided this report to petitioners in a communication dated March 3, 2017 and received on

March 20, 2017.

As the Commission is also aware, a report on admissibility will only be approved if the

petition meets the admissibility requirements set forth in Articles 46 of the American

Convention on Human Rights, 29 in accordance with the procedure established in Articles 30 to

36 of this Commission’s Rules of Procedure. 30

According to Article 46 of the American

Convention, the petition must meet the following requirements:

1. The remedies under domestic law must have been pursued and exhausted in accordance with generally recognized principles of international law. 31 The Commission excused petitioners from this requirement pursuant to Article 31.2(a) of the Commission’s Rules of Procedure, which states that an exemption from this requirement exists when “the domestic legislation of the State

29 “American Convention.”

30 “Commission’s Rules of Procedure.”

31 American Convention, Art 46(2)(a).

11

concerned does not afford due process of law for protection of the right or rights that have allegedly been violated.” 32 Petitioners submitted that the current domestic legislation of the United States does not afford due process of law to bring about the right to vote for President, Vice President, and voting representation in Congress; and that multiple attempts to seek judicial redress had been undertaken with futile results. The United States did not challenge this allegation regarding the exhaustion of domestic remedies. The Commission was therefore satisfied that the claims of petitioners regarding the right to vote would have no reasonable prospect of success through further domestic proceedings.

2. The petition must be lodged within a period of six months from the date on which the party alleging violation of his rights was notified of the exhaustion of domestic remedies. 33 The Commission was satisfied that the United States’ alleged violations are of an ongoing nature as they began when Puerto Rican residents became U.S. citizens and have allegedly continued during the period in which the United States has been a Member of the OAS and up to the date of the Report on Admissibility. Therefore, since the petition was presented on October 17, 2006, the Commission concluded that the claims were lodged within a reasonable period of time.

3. The subject of the petition or communication is not pending in another international proceeding for settlement. 34 The Commission found no duplication of procedures nor any international res judicata in the petition.

4. The petition contains the name, nationality, profession, domicile, and signature of the person or persons or of the legal representative of the entity lodging the petition. 35 The Commission found that the petition also met this requirement.

In light of the substantial work required for a complete and thorough submission,

petitioners informed the Commission that their Observations would be filed on October 3,

2017.

In support of this petition, on September 7, 2017, petitioners requested a meeting with

the Executive Secretary of the Commission.

32 Commission’s Rules of Procedure, Art. 31.2(a).

33 American Convention, Art 46(2)(b).

34 Id. at Art 46(2)(c).

12

This meeting request was accepted by the

Commission

on

September

13,

2017

and

is

confirmed

for

October

9,

2017

at

the

Commission’s headquarters in Washington D.C.

At the meeting on October 9, 2017,

petitioners and, depending on the currently ongoing hurricane-recovery efforts, several

representatives from the government of Puerto Rico, will personally invite the Commission to

invoke Article 39 of the Commission’s Rules of Procedure in order to carry out, at its earliest

convenience, an on-site investigation in Puerto Rico.

In petitioners’ counsel’s communication dated May 30, 2017, it was noted that some

of the dates recorded in section II of the Report on Admissibility on “Procedure before the

IACHR” do not match petitioners’ records and there were several other submissions and

numerous communications not reflected. In order to provide a corrected and fuller picture of

the procedural background of this case, petitioners present below a detailed chronology. This

chronology

does

not

include

the

numerous

face-to-face

meetings

held

between

the

Commission, petitioners, and petitioners’ counsel in attempts to progress this case.

Item

Date

Event

No.

1.

October 17, 2006

Petitioners file the petition.

2.

2007

Puerto Rico House of Representatives passes resolution in support of the petition.

3.

July 14, 2007

League of United Latin American Citizens passes resolution in support of the petition.

4.

July 11, 2008

League of United Latin American Citizens passes resolution to continue support of the petition.

5.

July 18, 2009

League of United Latin American Citizens passes resolution to continue support of the petition.

6.

April 23, 2009

Commission transmits the petition to the United States.

[although the Commission

 

states this was done on April 29, 2009]

 

7.

May 13, 2009

 

Petitioners’ counsel provides additional information to the Commission regarding the petition.

8.

June 2, 2009

 

The Commission acknowledges receipt of petitioners’ counsel’s communication dated May 13, 2009, providing additional information regarding the petition.

9.

June 24, 2009

 

Petitioners’ counsel provides additional information to the Commission regarding the petition.

10.

 

The Commission asks the United States to present its response to the petition.

11.

July 1, 2009

 

The Commission acknowledges receipt of petitioners’ counsel’s communication dated June 24, 2009, providing additional information regarding the petition and confirms that it has requested that the United States present its response to the petition.

12.

July 8, 2009

 

The Commission informs petitioners of the grant of an extension of time (until July 23, 2009) to the United States to respond to the petition.

13.

September 8, 2009

 

The United States informs the Commission it will submit its response to the petition when its review is complete.

[Communication dated

September 8,

2009

and

 

received

by

the

Commission on September

14, 2009]

 

14.

September 17, 2009

 

The Commission forwards to petitioners’ counsel the letter dated September 8, 2009, from the United States in which it informs the Commission it will submit its response to the petition when its review is complete.

15.

 

The Commission denies the United States’ request for an additional extension of time to file its response to the petition.

16.

June 28, 2010

 

The Commission receives the United States’ first substantive response to the petition.

17.

July 12, 2010

 

The Commission forwards the first substantive response of the United States to petitioners’ counsel.

[Communication

dated

July

12,

2010

and

 

transmitted

by

the

Commission

via

fax

on

14

 

July 14, 2010]

   

18.

August 16, 2010

 

Petitioners file Observations to the Response of the United States and Renewal of Requests for Precautionary Measures and a Hearing.

19.

August 19, 2010

 

The Commission acknowledges receipt of the Observations to the Response of the United States and Renewal of Requests for Precautionary Measures and a Hearing from petitioners dated August 16, 2010.

20.

September 7, 2010

 

The Commission denies petitioners’ request for precautionary measures contained in the communication dated August 16, 2010.

[Communication dated September 7, 2010 and transmitted by the Commission via fax on September 9, 2010].

21.

September 9, 2010

 

Petitioners’ counsel objects to the Commission’s decision to deny precautionary measures in the communication dated September 7, 2010, and in light of that decision, requests expedited consideration of the petition.

22.

November 3, 2010

 

Petitioners’ counsel informs the Commission of, among other things, the Congressional elections in which petitioners have no right to participate.

[Communication

dated

November

3,

2010

and

received

by

the

 

Commission on November 4, 2010]

23.

November 11, 2010

 

The Commission acknowledges receipt of petitioners’ counsel’s communication regarding the Congressional elections in which petitioners have no right to participate dated November 3, 2010.

24.

April 14, 2011

 

The United States files its Observations to the petition.

[Communication

dated

April

14,

2011

and

received

by

the

Commission on April 15,

2011].

25.

April 27, 2011

 

The Commission forwards the United States’ Observations to the petition to petitioners’ counsel.

[Communication

dated

April

27,

2011

and

 

received

by

Petitioners’

counsel

on

April

29,

2011].

15

26.

June 1, 2011

Petitioners file Reply to the United States’ Observations to the petition.

27.

June 9, 2011

Puerto Rico Senate passes resolution in support of the petition.

28.

June 12, 2011

Petitioners’ counsel forwards the Puerto Rico Senate resolution in support of the petition to the Commission.

29.

June 21, 2011

The Commission acknowledges receipt of the communication from petitioners’ counsel dated June 12, 2011, enclosing the Puerto Rico Senate resolution in support of the petition.

30.

July 4, 2011

Petitioners’ counsel requests a hearing during the Commission’s 143 rd period of sessions and working meetings, forwards the translation of the Puerto Rico Senate resolution in support of the petition, and requests acknowledgement of petitioners’ Reply to the United States’ Observations to the petition dated June 1, 2011.

31.

July 7, 2011

The Commission acknowledges receipt of petitioners’ Reply to the United States’ Observations to the petition dated June 1, 2011.

32.

July 8, 2011

The Commission acknowledges receipt of petitioners’ counsel’s communication dated July 4, 2011 which requested, among other things, a hearing during the Commission’s 143 rd period of sessions and working meetings.

[Communication dated July 8, 2011 and received by Petitioners’ counsel on July 22, 2011]

33.

July 22, 2011

The Commission replies to petitioners’ counsel’s telephone call of July 20, 2011, acknowledging receipt of petitioners’ Reply to the United States’ Observations to the petition dated “June 1, 2010” [SIC; meaning June 1, 2011], and stating that the Commission acknowledged receipt of such Observations on “July 7, 2011” [SIC; meaning July 8, 2011].

34.

August 19, 2011

The Puerto Rico House of Representatives presents amicus brief in support of the petition.

35.

August 23, 2011

Center for Voting and Democracy (FairVote) presents amicus brief in support of the petition.

36.

 

The Commission informs petitioners of the amicus brief filed by the Center for Voting and Democracy (FairVote)

16

   

in support of the petition.

37.

September 12, 2011

The Commission informs petitioners of the amicus brief filed by the Puerto Rico House of Representatives in support of the petition.

38.

September 27, 2011

The Commission denies petitioners’ request dated July 4,

2011

for a hearing during the Commission’s 143 rd period

of sessions and working meetings.

39.

December 9, 2012

In a letter addressed to the Commission’s Executive Secretary, petitioners’ counsel requests that the Commission admit the petition.

40.

January 7, 2013

Petitioners’ counsel requests acknowledgment from the Commission of the communication dated December 9,

2012

requesting that the petition be admitted.

41.

January 8, 2013

The Commission acknowledges receipt of petitioners’ counsel’s communication dated December 9, 2012 in which petitioners requested that the petition be admitted.

42.

January 9, 2013

Petitioners’ counsel requests for a hearing during the Commission’s 147 th period of sessions and working meetings.

43.

February 8, 2013

The Commission acknowledges receipt of petitioners’ counsel’s communication dated January 9, 2013 requesting a hearing during the Commission’s 147 th period of sessions and working meetings.

44.

February 21, 2013

The Commission denies petitioners’ request for a hearing during its 147 th period of sessions and working meetings.

45.

June 8, 2013

Petitioners’ counsel requests updates on the status of the petition from the Commission.

46.

June 25, 2013

Petitioners’ counsel requests updates on the status of the petition from the Commission.

47.

July 26, 2013

The Commission informs petitioners’ counsel that the petition remains in the stage of analysis of admissibility.

48.

February 11, 2014

Petitioners’ counsel urges the Commission to admit the petition at its 150 th period of sessions and working meetings.

49.

February 25, 2014

Petitioners’ counsel requests acknowledgement of the communication dated February 11, 2014 in which it urged

17

   

the Commission to admit the petition at its 150 th period of sessions and working meetings.

50.

April 11, 2014

[Communication dated April 11, 2014 and sent by the Commission as an attachment to an email communication dated April 24, 2014]

The Commission acknowledges receipt of petitioners’ counsel’s communication dated February 11, 2014 requesting that the Commission admit the petition at its

150

th period of sessions and working meetings.

51.

September 16, 2016

Petitioners’ counsel transmits a memorandum informing the Commission of two relevant and recent United States Supreme Court cases and the passage of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).

52.

November 23, 2016

Petitioners’ counsel urges the Commission to admit the petition at its 159 th period of sessions and working meetings.

53.

December 8, 2016

Petitioners’ counsel requests confirmation that the petition was heard at the Commission’s 159 th period of sessions and working meetings and, if not, urges the Commission to admit the petition at its 160 th period of sessions and working meetings.

54.

December 11, 2016

The Commission confirms that the petition is scheduled for a draft report by January 2017.

55.

January 9, 2017

Petitioners’ counsel’s request confirmation that the draft report will be taken up at the January 2017 working meetings.

56.

January 20, 2017

The Commission confirms that efforts are underway to ensure the petition is heard during the January 2017 working meetings.

57.

January 27, 2017

The Commission approves the Report on Admissibility.

58.

February 28, 2017

The Commission confirms that the petition was considered at the January 2017 working meetings and that the Report on Admissibility will be provided shortly.

59.

March 3, 2017

The Commission transmits the Report on Admissibility and reminds petitioner of the availability of a friendly settlement.

60.

April 6, 2017

The Puerto Rico Senate passes a concurrent resolution authorizing the President of the Senate and the Speaker of

18

   

the House to invite the Commission to conduct an on-site investigation in Puerto Rico.

61.

May 30, 2017

Petitioners’ counsel responds to the Commission’s communication dated March 3, 2017, and attaches the concurrent resolution authorizing the President of the Senate and the Speaker of the House to invite the Commission to conduct an on-site investigation.

62.

Petitioners request an extension to file their Observations on the merits of their petition until October 3, 2017 and confirm their willingness to initiate a friendly settlement.

63.

July 6, 2017

The Commission acknowledges receipt of petitioners’ communication dated May 30, 2017, stating petitioners’ willingness to pursue a friendly settlement.

64.

The Commission invites the United States to pursue a friendly settlement.

65.

September 7, 2017

Petitioners’ counsel requests a meeting with the full Commission.

66.

September 13, 2017

The Commission acknowledges receipt of petitioners’ counsel’s communication dated September 7, 2017, and accepts the meeting request.

67.

September 14, 2017

Petitioners’ counsel acknowledges the Commission’s communication dated September 13, 2017, and confirms the meeting at the Commission’s headquarters on October 9, 2017.

68.

October 3, 2017

Petitioners file their Observations on the merits of their petition.

V.

HISTORICAL BACKGROUND

 

These Observations on the merits are not the time or place for a detailed lesson on the

expansionist history of the United States, which of course began in the 17 th century as the

original 13 colonies on the east coast of North America, 36 that eventually declared, fought for,

and won independence from Great Britain, and ended, through the relocation of many native

populations, through treaties, and by force of wars, as a continental nation expanding east to

19

west, from the Atlantic to the Pacific, and now encompassing 50 states, including the two

non-contiguous states of Alaska and Hawaii, the District of Columbia, five organized

territories, the largest of which is Puerto Rico, and eleven other minor territories. 37 This brief

is also not the time or place for a detailed exposition of the colonial history of Puerto Rico.

Those two histories, though fascinating, are readily available elsewhere and go well beyond

what the Commission needs to consider in order to answer the main question posed by

petitioners

in

this

case.

Nevertheless,

the

Commission

would

benefit

from

a

basic

understanding of how it is that we have arrived at this point in time when, today, already well

into the 21 st century, three-and-a-half million Americans are still disenfranchised at the

national level in their own country. The basic story can be summarized as follows.

A. From 1493 to 1898

In 1493, during his second voyage of discovery, Christopher Columbus landed on the

island 38 that the indigenous Taíno people called “Borikén” and that he first named “San Juan

Bautista” but later became, through a cartographical accident that switched the names of the

island and its capital, “Puerto Rico.”

Not long after, the natives were mostly decimated in direct killings during the initial

years of rebellion and resistance, from European diseases (especially smallpox), and from

hard labor, and those who survived eventually mixed with the Spanish arrivals and later

36 Georgia, the last of the 13, was actually founded in the 18 th century (1732).

37 In addition to Puerto Rico, U.S. territories include Guam, American Samoa, the Virgin Islands, and the Northern Mariana Islands. The United States also exercises supremacy and dominion over 11 small “unorganized” island territories: three in the Caribbean (Bajo Nuevo, Navassa Island, and Serranilla Bank) and eight in the Pacific (Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, Palmyra Atoll, and Wake Atoll). See Thornburgh, Dick, Puerto Rico’s Future, A Time to Decide, p. 31, Center for Strategic and International Studies, Washington, D.C. (2007); but see the information provided by the Office of Insular Affairs of the Department of the Interior, which only identifies 13 territories altogether:

http://www.doi.gov/oia/index.html.

38 Puerto Rico actually consists of 143 islands and numerous cays and islets, the main islands consisting of the mainland of Puerto Rico proper, the islands of Vieques and Culebra, and the Isla Mona. See https://islandsofpuertorico.com/islands/.

20

“criollos” (those born in the island of Spanish descent), and thereafter with imported African

slaves.

Puerto Rico effectively remained a Spanish colony for 405 years, i.e., until 1898. It is a

matter of historical fact that, during the 19th century, Puerto Rico had differing, though by no

means democratic, levels of representation before the Spanish Courts. In 1897, however, and

to ease an active insurrection in Cuba and some frictions in Puerto Rico, Spain declared both

of these territories “Overseas Provinces” 39 and, for the first time, extended universal suffrage

to their male citizens above 25 years old, including the right to send Deputies and Senators to

the Spanish Courts.

In Puerto Rico, those Deputies and Senators were elected in March 1898 but never

actually made it to Spain. Following the explosion of the battleship Maine in Havana harbor

in February of that year, the U.S. Congress declared war on Spain on April 25, 1898. In May,

the U.S. Navy began bombarding San Juan.

The new government of Puerto Rico did not

actually begin functioning until July 21, 1898.

Four days later, on July 25 th , U.S. infantry

soldiers disembarked in the south of Puerto Rico.

Several battles from forces loyal to the

Spanish Crown took place in several towns throughout the island as the U.S. forces

approached the capital.

Although many (if not most) joyfully welcomed the Americans and

the invading forces encountered minimum resistance, the campaign for Puerto Rico lasted 19

days.

An armistice was agreed on August 12, 1898.

On September 29, 1898, Spanish

authorities in Puerto Rico announced that Spain would officially cede Puerto Rico to the

United States. Then, on December 10, 1898, the United States and Spain signed the Treaty of

39 The Autonomic Charters of November 25, 1897, see http://www.nytimes.com/books/first/m/monge-

puertorico.html?mcubz=3.

21

Paris, officially ending the Spanish-American War and beginning a new chapter in the history

of Puerto Rico. 40

B. The Treaty of Paris

The Treaty of Paris 41 granted the United States temporary control over Cuba and ceded

to the United States ownership of Puerto Rico, Guam, and (for a handsome payment to Spain)

the Philippines. For present purposes, the most significant part of the Treaty of Paris is that it

explicitly provided that “[t]he civil and political status of the native inhabitants of the

territories hereby ceded to the United Sates [including Puerto Rico] shall be determined by the

Congress.” 42

Since then, as will be discussed throughout these submissions, that has not changed:

Congress still has that full authority and responsibility over Puerto Rico and its inhabitants, 43

which it first assumed in the Treaty of Paris.

Eventually, Cuba and the Philippines became

independent nation-states; 44 Guam (with today approximately 167,000 inhabitants 45 ) and

Puerto Rico (as seen, with its current approximate population of three-and-a-half million)

have remained U.S. territories.

Needless to say, Puerto Rico remains the oldest, largest, and

most populous United States territory.

C. The Territorial Clause

Importantly, petitioners need to mention here, early in this brief, that the United States

Constitution contains a provision, aptly known as the “Territory Clause” or the “Territorial

40 See Scarano, Francisco A., Puerto Rico: Cinco Siglos de Historia (McGraw-Hill, 2d ed., 2000). The U.S. Senate ratified the Treaty of Paris on February 6, 1899. Congress passed an act to carry out is obligations under the Treaty on March 2, 1899. The ratifications were exchanged and the treaty finally proclaimed on April 11, 1899.

41 See Exhibit 2.

42 Treaty of Paris, Art. IX (emphasis added).

43 And also over Guam and its inhabitants. They gained U.S. citizenship in 1952.

44 Cuba gained formal independence in 1902, see https://history.state.gov/countries/cuba.

The United

States granted the Philippines independence in 1946, see https://www.loc.gov/rr/frd/cs/profiles/Philippines.pdf.

22

Clause,” that has provided Congress the legal authority to acquire, hold, administer, and

dispose of territories and other possessions in the 229 years since its ratification 46 119 years

(i.e., more than half of the nation’s history) during which Puerto Rico has been part of the

United States. Specifically, the Territorial Clause provides: “The Congress shall have Power

to dispose of and make all needful Rules and Regulations respecting the Territory or other

Property belonging to the United

.” 47

Other than the authority that the U.S.

Constitution gives the Senate to advise and consent to treaties entered into by the President of

the United States, 48 the Territorial Clause of the U.S. Constitution is the sole legal authority

that the United States had (and still has) to have assumed, in the first place, in the Treaty of

Paris, and to have bound Congress to “determine” 49 “[t]he civil and political status of the

native inhabitants of” 50 Puerto Rico.

It is recognized that, under that Territorial Clause—specifically the language that grants

Congress the power to make “all needful Rules and Regulations” 51 —, the U.S. Congress has

“plenary authority” over its territories. 52

unrestricted,

and

absolute,

as

opposed

In this context, “plenary” means full, complete,

to

partial,

incomplete,

restricted,

or

limited. 53

45 The estimated population of Guam is 167,358. See https://www.cia.gov/library/publications/the-world- factbook/geos/gq.html.

46 The U.S. Constitution was ratified on June 21, 1788 when the ninth state, New Hampshire, approved it. See U.S. Const. VII (“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”).

47 U.S. Const. Art. IV, § 3, cl. 2.

48 See Id. at Art. II, § 2 (“He [the President of the United States] shall have Power, by and with the

Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present

49 Treaty of Paris, Art. IX.

50 Id.

51 U.S. Const. Art. IV, § 3, cl. 2 (emphasis added).

.”).

52 Under Art. I, § 8, cl. 3, the U.S. Constitution also gave Congress plenary authority over Native Americans. Thus, for example, the U.S. Supreme Court has held that Congress has plenary authority to limit, modify, and even eliminate the powers of local self-government that the tribes otherwise possess. See, e.g., Talton v. Mayes, 163 U.S. 376, 376 (1896); United States v. Kagama, 118 U.S. 375, 379–381 (1886); Cherokee Nation v. Hitchcock, 187 U.S. 294, 305–307 (1902).

53 See, e.g., Garner, Bryan A., A Dictionary of Modern Legal Usage (Oxford University Press, 2 nd Ed.,

2001).

23

Territories are fully subordinate to the federal government, and any law a territory makes in

the exercise of self-government may be overridden by the federal government at any time.

Indeed, the federal government may deny a territory self-government entirely and impose all

of its laws from Washington, D.C. with no input whatsoever from the people who live there. 54

In actuality, the U.S. Supreme Court has established somewhat of a limit to the otherwise

unrestricted exercise of such authority, which is the rationality test. 55 As long as Congress is

justified by some reason, as opposed to a compelling or heightened state interest that would

otherwise and in other contexts require strict or intermediate scrutiny by the courts, anything

that Congress wants to do, Congress essentially gets to do with its territories.

And that has

been the case with Puerto Rico, as is discussed below.

D. The Foraker Act

From 1898 to 1900, Puerto Rico was under military occupation overseen by four

successive generals and was the immediate responsibility of the United States Department of

War’s Division of Insular Affairs.

In 1900, however, Congress established a civilian

government when it approved the Organic Act of 1900, now known as “the Foraker Act.” 56

The Foraker Act recognized “Puerto Rican” (as opposed to “Spanish”) citizenship for

the inhabitants of Puerto Rico and established a new local government in the island consisting

of:

(1) a Governor; (2) an 11-member Executive Council; (3) a 35-member House of

Delegates; (4) a Supreme Court; (5) a United States (i.e., federal) district court; and (6) a

Resident Commissioner in Congress.

The Governor, the Executive Council members, the

Supreme Court Justices, and the then single federal district court judge were all appointed by

the President of the United States with the advice and consent of the U.S. Senate.

The 35

54 See, e.g., United States v. Sanchez, 992 F.2d 1143, 1152-53 (11 th Cir. 1993) (“Congress may

unilaterally repeal the Puerto Rico Constitution

and replace [it] with any rules or regulations of its choice.”).

55 See, infra, pp. 25-31 (discussion of Insular Cases).

24

representatives in the House of Delegates and the Resident Commissioner were popularly

elected by the eligible and registered male citizens of Puerto Rico.

Together, the Executive

Council and the House of Delegates were known as the “legislative assembly of Porto [SIC]

Rico.” 57 Judges, other than the Justices of the Puerto Rico Supreme Court, were appointed by

the Governor with the advice and consent of the Executive Council. The Foraker Act further

provided for the federal appointment and remuneration of numerous other local government

officials.

While granting them a limited level of local control, the Foraker Act did not grant

Puerto Ricans U.S. citizenship nor did it grant them federal voting rights.

Rather, and

significantly for our purposes, Section 14 of the Foraker Act provided that “the statutory laws

of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise

provided, shall have the same force and effect in Porto [SIC] Rico as in the United

.” 58

E. “The Insular Cases”

The question as to what, if any, status the newly acquired territories and their people

would have within the United States soon reached the Supreme Court.

In a series of cases

decided in 1901, 59 which has become known as the Insular Cases, the Court settled two major

56 Pub. L. 56-191, 31 Stat. 77 (April 12, 1900) (after its sponsor, Ohio Senator Joseph B. Foraker), see

Exhibit 3.

57 Pub. L. 56-191, 31 Stat. 77, § 27, see Exhibit 3. In 1932, the U.S. Congress officially back-corrected the former Anglicization of “Porto Rico” into the Spanish name “Puerto Rico.” See Malavet, Pedro A., America’s Colony: the Political and Cultural Conflict Between the United States and Puerto Rico, N.Y.U. Press, p. 43, 181 n. 76 (2004).

58 The Foraker Act, Pub. L. 56-191, 31 Stat. 77, § 14 (April 12, 1900).

59 In addition to the original six, some legal scholars include under the name “Insular Cases” other cases similarly dealing with territories decided after 1901. However, “strictly speaking[,] the Insular Cases are the original six opinions issued concerning acquired territories as a result of the 1898 Treaty of Paris.” See Torruella, Juan, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal, Editorial de la Universidad de Puerto Rico (1988). These cases are: De Lima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United States, 182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222 (1901); Armstrong v. United States, 182 U.S. 243 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); and Huus v. New York and Porto Rico Steamship Co., 182 U.S. 392 (1901).

25

issues that have not changed since then with respect to Puerto Rico:

Congress

otherwise

provides,

Puerto

Rico

is

an

“unincorporated,”

(1) unless and until

as

opposed

to

an

“incorporated,” territory of the United States; and (2) not all federal constitutional rights need

be extended to Puerto Ricans or the peoples of the other acquired territories, but only those

deemed, ultimately by the U.S. Supreme Court, 60 to be fundamental. The distinction between

“incorporated” and “unincorporated” depended on whether a particular territory is or not

necessarily destined for statehood. This distinction is now one generally recognized 61 to have

been wholly unsupported by anything explicitly provided for in the written text of the U.S.

Constitution and instead was one cut out of whole cloth by the U.S. Supreme Court to justify

the United States’ overseas expansion and to facilitate the administration of these new lands

and their inhabitants. 62

60 Generally, the question of whether a constitutional guarantee applies to Puerto Rico is ultimately subject to determination by the Supreme Court of the United States, see Torres v. Com. of Puerto Rico, 442 U.S.

456, 478 (1979), in the exercise of its authority “to say what the law is.” See Marbury v. Madison, 5 U.S. 137,

177 (1803).

61 See Soltero, Carlos R., The Supreme Court Should Overrule the Territorial Incorporation Doctrine and End One Hundred Years of Judicially Condoned Colonialism, Chicago-Latino Law Review 22(1), 1-2 (2001) (“The year 2001 is the 100th anniversary of the notorious Insular Cases in which the Supreme Court, by judicial fiat, created the Territorial Incorporation Doctrine (‘TID’) and the status of ‘unincorporated territory.’ According to some, the TID is as invidious a doctrine as that which the same Supreme Court announced in Plessy v. Ferguson. The creation of this doctrine ran contrary to prior established law and has condemned Puerto Rico to colonial status for 100 years.”); see also Boumediene v. Bush, 553 U.S. 723, 726 (2008) (“Yet because of the difficulties and disruption inherent in transforming the former Spanish colonies’ civil-law system into an Anglo-American system, the Court adopted the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories.”).

62 The incorporation doctrine that the U.S. Supreme Court eventually adopted in the Insular Cases was first proposed by Harvard Law Professor Abbott Lawrence Lowell in an article appearing in the Harvard Law Review in 1899, one of several articles that year that explored what the United States should do with its newly acquired possessions. See Lowell, Abbott Lawrence, The Status of Our New Posessions—A Third View, 13 Harv. L. Rev. 155, 171 (1899). Recently, just this past April 2017, the Harvard Law Review attempted to essentially apologyze for those articles, including Professor Lowell’s. As the editors of the April 2017 edition

wrote, this is “a time this journal might rather forget.” Developments in the Law, U.S. Territories, Introduction,

130 Harv. L. Rev. 1617, 1617 (April 10, 2017); see also id. at 1626 (“While it seems unlikely that Lowell could

foresee the full legacy of his work—and in particular the longstanding ‘unincorporated’ status of Puerto Rico and other territories later acquired—he knew he was leaving this question in the hands of the federal political branches, in which the territories had no representation. Regardless of where one stands on the responsibility scholars—and their publishers—have to consider the consequences of their ideas, one must acknowledge that these ideas have consequences. And in the case of the U.S. territories, the consequences have largely been bad ones.”).

26

Some have justifiably recognized the Insular Cases as the extension of the racial (and

racist)

segregationist

separate-but-equal

doctrine

to

the

citizens

of

the

territories. 63

Interestingly, the same Justice who authored the majority opinion in Plessy v. Ferguson 64

the case that established that doctrine—, Henry Billings Brown, authored what most consider

the main 5-4 opinion in the Insular Cases, one dealing with Puerto Rico:

Bidwell. 65

Downes v.

Most revealing for purposes of this discussion is the following quote towards the end of

Justice Brown’s majority opinion in Downes as to the authority of the United States to acquire

overseas territories and, specifically, as to the new status of Puerto Rico and its people:

Patriotic and intelligent men may differ widely as to the desirableness of this or that acquisition, but this is solely a political question. We can only consider this aspect of the case so far as to say that no construction of the Constitution should be adopted which would prevent Congress from considering each case upon its merits, unless the language of the instrument imperatively demand it. A false step at this time might be fatal to the development of what Chief Justice Marshall called the American empire. Choice in some cases, the natural gravitation of small bodies towards large ones in others, the result of a successful war in still others, may bring about conditions which would render the annexation of distant possessions desirable. If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, accordingly to Anglo-Saxon principles, may for a time be impossible; and the question at once arises whether large concessions ought not be made for a time, that ultimately our own theories may be carried out, and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action. 66

Leaving aside the clearly racist and xenophobic statement that referred to “alien races,

differing from us [i.e., the Anglo-Saxons]

[even in] modes of thought”—as if Puerto

Ricans were not only culturally different but almost like beings from another galaxy—, the

63

See, e.g., Torruella, Juan, The Supreme Court and Puerto Rico:

Unequal, Editorial de la Universidad de Puerto Rico (1988).

The Doctrine of Separate and

64 163 U.S. 537 (1896), rev’d Brown v. Board of Education, 347 U.S. 483 (1954).

65 182 U.S. 244 (1896), see Exhibit 4.

66 Id. at 286-287 (italics and underlining added).

27

“large concessions” that Justice Brown and the Court were willing to make, they were willing

to and did make, as he twice made clear for himself and the Court in the quoted paragraph,

only “for a time.”

That time, in the case of Puerto Rico, has thus far lasted 119 years, “the

question at once [then] aris[ing]”—to borrow Justice Brown’s own language—how much

longer ought these “large concessions” be allowed to remain?

This is a question that to this

day only Congress can answer.

The four-Justice dissent, on the other hand, was almost prophetic.

In rejecting the

majority view, these four dissenting Justices were concerned—nay, very and we would also

say justifiably alarmed—by the implication that, “if an organized and settled province of

another sovereign [as was indeed the case for Puerto Rico] is acquired by the United States,

Congress has the power to keep it, like a disembodied shade, in an intermediate state of

ambiguous existence for an indefinite

.” 67

That description of Puerto Rico as a

“disembodied shade, in an intermediate state of ambiguous existence for an indefinite period,”

could not have been, as events have unfolded over 119 years, more spot-on.

The dissenters also rejected the “theory

that the Constitution created a government

empowered to acquire countries throughout the world, to be governed by different rules than

those obtaining in the original states and territories, and substitutes for the present system of

republican government a system of domination over distant provinces in the exercise of

unrestricted power.” 68 But that again, unfortunately, remains today the law of the land.

To his historical credit, and just like he did in Plessy, 69 Justice John Marshall Harlan

filed a separate dissenting opinion.

While he concurred with the other four dissenting

67 Id.

68 Id. at 373.

69 See Plessy v. Ferguson , 163 U.S. 537, 163 (1896), (“In the eye of the law, there is in this country no

Our constitution is colorblind, and neither

knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The

The arbitrary separation of citizens on the basis of race, while

superior, dominant, ruling class of citizens.

There is no caste here.

humblest is the peer of the most

28

Justices, he felt it important to “add some observations,” as he wrote, “[i]n view

of the

importance of the question in this case, and of the consequences that will follow any

conclusion reached by the

.” 70

In Justice Harlan’s opinion, “Congress has no

existence and can exercise no authority outside of the Constitution.” 71

Rejecting the “colonial system[s]

that exist[] under monarchical governments,”

Justice Harlan wrote:

“The idea that this country may acquire territories anywhere upon the

earth, by conquest or treaty, and hold them as mere colonies or provinces,—the people

inhabiting them to enjoy only such rights as Congress chooses to accord to them,—is wholly

inconsistent with the spirit and genius, as well as with the words, of the Constitution.” 72

Moreover, the “principles of natural justice inherent in [the] Anglo-Saxon character,” 73

that the majority opinion had chauvinistically referred to, gave Justice Harlan little comfort.

Those who held that view should have “well remembered that Anglo-Saxons across the ocean

had attempted, in defiance of law and justice, to trample upon the rights of Anglo-Saxons on

this continent, and had sought, by military force, to establish a government that could at will

destroy the privileges that inhere in liberty.” 74 In Justice Harlan’s judgment, “the Constitution

does not sustain any such theory of our governmental system.” 75

He forcefully stated in his

dissent that, “[i]f the Constitution is in force in any territory, it is in force there for every

purpose embraced by the objects for which the government was ordained.” 76

And he

they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.”).

70 Downes v. Bidwell, 182 U.S. at 376.

71 Id. at 380.

72 Id. at 381.

73 Id.

74 Id.

75 Id. at 384.

76 Id. at 385.

29

admonished the nation not to “violate the Constitution in order to serve particular interests in

our own or in foreign lands.” 77

Justice Harlan “reject[ed] altogether the theory that Congress, in its discretion, can

exclude the Constitution from a domestic territory of the United States, acquired, and which

could only have been acquired, by virtue of the Constitution.” 78

How Puerto Rico can

simultaneously be both “domestic” for some things and not “domestic for others,” “is more

than

[Justice Harlan and many more since] can understand.” 79

He concluded, sorely

lamenting

the

Court’s

newly

drawn

distinction

between

an

“incorporated”

and

an

“unincorporated” territory, hinting politely,

to have motivated the majority’s decision:

almost sotto voce, to the prejudices that seemed

“I am constrained to say that this idea of

‘incorporation’ has some occult meaning which my mind does not apprehend. It is enveloped

in some mystery which I am unable to unravel.” 80

It may be interesting for this Commission to learn that the second petitioner in this case,

the

Unfinished

Business

of

American

Democracy

Committee,

belongs

(as

previously

mentioned) to the Harlan Group for Civil Rights, Inc., which group is named in memory of

Justice Harlan and his two dissents in Plessy and Downes.

Shamefully, the Insular Cases remain the law in the United States. To this day, Puerto

Rico is treated, in some things, like part of the United States, and yet

in others it

is

discriminated against as something different and separate.

And to this day, not all federal

constitutional rights have been extended to Puerto Rico and the legacy of the Insular Cases

continues. If this is not second-class citizenship, that expression has no meaning. It has been

Congress’s unwillingness for the past 119 years to change that status that has frustrated Puerto

77 Id.

78 Id. at 386.

79 Id.

80 Id. at 391.

30

Rico from becoming a state equal to the other 50, which in turn is the reason under the highest

domestic law of the United States, i.e., its Constitution, as discussed later below, 81 that the

U.S. citizens of Puerto Rico still today have no voting rights whatsoever at the federal level.

F. Gonzales v. Williams

In 1902, Isabel González Dávila, already a 20-year old widow, mother of one and again

pregnant, in search of the father of her unborn child, travelled on the S.S. Philadelphia from

San Juan to New York and, upon arriving there, and subsequently being transferred to Ellis

Island, was denied entry into the United States on account of her being an “alien immigrant” 82

and under the then in effect Act of Congress that “excluded from admission into the United

States,

all idiots, insane persons, paupers, or persons likely to become a public charge,” 83

this last status the ground upon which she was denied entry and detained by the Immigration

Commissioner.

She challenged the detention and the matter eventually reached the U.S.

Supreme Court.

Before the U.S. Supreme Court, Mrs. González Dávila argued that she, like all other

residents of Puerto Rico, had necessarily become United States citizens upon the United

States’ acquisition of the island and the passage of the Foraker Act, and as such should be

permitted free access to and movement within the United States.

The U.S. Supreme Court

disagreed that Puerto Ricans had automatically become American citizens but nevertheless

created a new category of “noncitizen nationals,” those who like Mrs. González were not

“passenger[s] from a foreign port,

[but instead were] passenger[s] ‘from territory or other

place’ subject to the jurisdiction of the United States.” 84

That status for Puerto Ricans of

81 See, infra, pp. 78-87.

82 Gonzales v. Williams, 192 U.S. 1, 192 (1904), see Exhibit 5.

83 Id.

84 Id.

31

“noncitizen nationals” within the United States changed in 1917 with the passage of the Jones

Act.

G. Citizenship: The Jones Act

The Jones-Shafroth Act, now more commonly known simply as “the Jones Act,” 85 was

passed by the U.S. Congress and signed by President Woodrow Wilson on March 2, 1917. It

superseded the Foraker Act and, most significantly, granted U.S. citizenship to anyone born in

Puerto Rico on or after April 25, 1898 (the day, as previously mentioned, that the United

States Congress had declared war on Spain). The Act also established a federal Bill of Rights

for the new U.S. citizens of Puerto Rico.

The Jones Act kept the office of the Governor, who the President of the United States

would continue to appoint with the advice and consent of the U.S. Senate.

The Act also

created a local Senate of Puerto Rico, consisting of 19 members, and a 39-member House of

Representatives (both locally elected). Together, Senate and House, would be known as “the

[l]egislature of Porto [SIC] Rico.” 86

If the Governor vetoed a law passed by the legislature,

and the legislature in turn reapproved the law by a two-thirds majority of both of its houses,

but the Governor again refused to approve it, the Governor was to send the law to the

President of the United States for his consideration, and the President of the United States

would then approve or disapprove the measure.

Furthermore, “[a]ll laws enacted by the

Legislature of Porto [SIC] Rico

[were to be] reported to the Congress of the United States,

which

reserve[d] the power and authority to annul the same.” 87

As under the Foraker Act, under the Jones Act the Justices of the Puerto Rico Supreme

Court, as well as the then still single judge at the federal district court in Puerto Rico, were

85 Pub. L. 64-368, 39 Stat. 951 (March 2, 1917), 8 U.S.C. § 1402, see Exhibit 6 (named after its sponsors Representative William Atkinson Jones and Senator John Shafroth).

86 Id. at § 25.

87 Id. at § 34.

32

appointed by the President of the United States with the advice and consent of the U.S.

Senate. Appeals from the federal district court of Puerto Rico were and since then have been

taken to the First Circuit Court of Appeals located in Boston, Massachusetts, and/or (as

appropriate) to the U.S. Supreme Court.

The Jones Act also provided that appeals from the

Puerto Rico Supreme Court were to be taken to the First Circuit Court of Appeals and/or the

U.S. Supreme Court.

The Jones Act, like the Foraker Act before it, provided for a Resident Commissioner

elected by the eligible and properly registered male U.S. citizens of Puerto Rico, but increased

the term of the Commissioner from the two years previously provided for to four years.

While granting Puerto Ricans U.S. citizenship and somewhat extending local self-

government, the Jones Act (like, as previously discussed, its predecessor the Foraker Act) did

not grant these now new U.S. citizens of Puerto Rico any federal voting rights. Nevertheless,

and as with the Foraker Act before it, the Jones Act still explicitly provided:

“[t]hat the

statutory laws of the United States not locally inapplicable, except as hereinbefore or

hereinafter otherwise provided, shall have the same force and effect in Porto [SIC] Rico as in

the United

.” 88

H. 1947: The Right to Elect the Governor

On August 5th, 1947, the U.S. Congress amended the Foraker Act by permitting the

duly qualified and registered U.S. citizens of Puerto Rico, who by then included women, 89 to

democratically elect

their

own

Governor. 90

The

qualifications

for

the

position

were

88 Id. at § 9.

89 Puerto Rican women who could read and write were locally enfranchised in 1929. In 1935, all adult women were locally enfranchised regardless of their literacy level. See http://p-www.iwate- pu.ac.jp/~shigaki/profile/papers/PRW.html.

Elective Governor Act of 1947 (also known as the Crawford-Butler Act), P.L. 80-362, (August 5, 1947) § 1, see Exhibit 7.

90

33

established by federal law, and they included the ability to read and write the English

language. 91

Also by function of federal law, the Governor could be subject to impeachment only by

the Puerto Rico House of Representatives, with the Puerto Rico Senate having the right to

conduct the trial. The law also provided that the heads of the territorial executive departments

would henceforth be appointed by the Governor with the advice and consent of the Puerto

Rico Senate (up to that time, as previously discussed, they had been appointed by the U.S.

President with the advice and consent of the U.S. Senate). 92

The Elective Governor Act

provided for the orderly succession of the Governor if the position became vacant.

The law also created the position of a Coordinator of Federal Agencies in Puerto Rico,

whose main official would be appointed by the President of the United States with the advice

and consent of the U.S. Senate.

The law also granted the President of the United States the

authority

to

“promulgate

Executive

orders

expressly

excepting

Puerto

Rico

from

the

application of any Federal law.” 93 Finally, the law provided that “[t]he rights, privileges, and

immunities of citizens of the United States shall be respected in Puerto Rico to the same

extent as though Puerto Rico were a State of the Union and subject to the provisions of

paragraph 1 of section 2 of article IV of the Constitution of the United States.” 94 In all other

respects, most significantly that federal law would have “the same force and effect in Porto

[SIC] Rico as in the United States,” 95 the law remained unchanged.

91 Id.

92 Id. at § 3.

93 Id. at § 6.

94 Id. at § 7, see also U.S. Const., Art. IV, § 2, ¶ 1 (“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”).

95 The Foraker Act, Pub. L. 56-191, 31 Stat. 77 §14 (April 12, 1900).

34

The first election for Governor took place in 1948, and Luis Muñoz Marín was elected.

He assumed the position on January 2, 1949, and held it for sixteen years. 96

I. The Commonwealth

In 1950, again exercising its authority over Puerto Rico, the U.S. Congress passed and

President Harry Truman signed Public Law 600, which is now popularly known as the

“Puerto Rican Federal Relations Act.” 97 The Puerto Rican Federal Relations Act granted the

U.S. citizens of Puerto Rico the right to establish, “on matters of purely local concern,” 98 a

constitution for the internal administration of the territorial government.

Following a local referendum on June 4, 1951, the Constitutional Convention of Puerto

Rico was assembled and began deliberations in September of that year.

Puerto Ricans

approved their constitution in a referendum held in the island in March 1952. As required by

federal law, the constitution was then presented to and for review by the U.S. President and

the U.S. Congress, which the latter amended in two respects, 99 and then both approved it on

July 3, 1952.

On July 10, 1952, the Constitutional Convention of Puerto Rico reconvened and

approved a resolution accepting the conditions established by Congress, and later on

November 4 th of that year, another referendum ratified the new constitution. By then, the then

Governor of Puerto Rico, Luis Muñoz Marín, had already declared on July 25, 1952 the new

constitution in effect and the new Commonwealth of Puerto Rico was born.

96 Thereafter, 11 other governors have followed him including petitioner Pedro Rosselló and, most recently and currently in office, Ricardo Rosselló, petitioner Pedro Rosselló’s son.

97 See 64 Stat. 319 (July 3, 1950) (popularly known as “P.L. 600” (P.L. 81-600)); and 66 Stat. 327, respectively, see Exhibit 8.

98 48 U.S.C. § 731b and House Report No. 2275.

99 Congress struck Section 20 of Article II, which had contained a provision recognizing various social

welfare rights (including entitlements to food, housing, medical care, and employment) and added text to Section 3 of Article VII of the final draft. See Pub. L. 82-447, 66 Stat. 327 (July 3, 1952) see Exhibit 9. This additional text prohibits the restauration of the struck welfare-rights section and requires that “[a]ny amendment or revision

the Puerto Rican federal

Relations Act and with Public Law

of this constitution

be consistent with

the Constitution of the United States,

.”

35

“The Commonwealth of Puerto Rico” is Puerto Rico’s official name in English.

Four

states in the United States also call themselves “commonwealths”: Kentucky, Massachusetts,

Pennsylvania, and Virginia.

In the United States, and in English, there is no distinction

whatsoever between a “commonwealth” and a “state.”

On the other hand, the name Puerto

Rico adopted for itself in Spanish is and has remained quite problematic:

“Estado Libre

Asociado,” the literal translation of which is “Free Associated State.”

One can say without

any hesitation whatsoever that such a name is highly misleading, for Puerto Rico is neither a

“State” of the United States, nor a “Free” or independent country, nor strictly speaking

“Associated” on any equal terms with, but instead (as seen) belongs as property and territory

under the U.S. Constitution to, the United States.

The approved Commonwealth constitution 100 established the structure for constitutional

government in respect of local, internal affairs without altering Puerto Rico’s fundamental

political, social, and economic relationship with the United States and without restricting the

authority of Congress under the Territorial Clause to determine the application of federal law

to Puerto Rico, resulting in the present “Commonwealth” structure for local self-government.

Under the Commonwealth, Puerto Rico remains an unincorporated territory of the United

States and does not have the status of “free association” with the United States as that status is

defined under United States law or international practice. 101

After Puerto Rico ratified its constitution in 1953, and in that same year, the United

States transmitted to the Secretary-General of the United Nations for circulation to its

Member States a formal notification that the United States would no longer transmit

information regarding Puerto Rico to the United Nations pursuant to Article 73(e) of its

100 See Exhibit 10.

101 See Res. 1541 (XV) of the UN General Assembly, Principle VII (December 15, 1960) (“Free association should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes….”) available at https://documents-dds-

ny.un.org/doc/RESOLUTION/GEN/NR0/153/15/IMG/NR015315.pdf?OpenElement.

36

Charter concerning non-self-governing territories. 102

The formal United States notification

document informed the United Nations that the cessation of information on Puerto Rico was

based on the “new constitutional arrangements” in the territory, and the United States

expressly defined the scope of the “full measure” of local self-government in Puerto Rico as

extending to matters of “internal government and administration, subject only to compliance

with applicable provisions of the Federal Constitution, the Puerto Rico Federal Relations Act

and the acts of Congress authorizing and approving the Constitution, as may be interpreted by

judicial decision.” 103 Thereafter, based upon the United States’ explanation of the new status

as approved by Congress, the General Assembly of the United Nations adopted Resolution

748 (VIII) by a vote of 22 to 18 with 19 abstentions, thereby accepting—we submit

mistakenly—the United States’ determination to cease reporting to the United Nations on the

status of Puerto Rico. 104 Since then, however, and most recently in 2016, the United Nations

Special Committee on Decolonization has called on the United States government to expedite

a process for self-determination in Puerto Rico. 105

102 Article 73(e) of the U.N. Charter provides that:

Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-

government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-

(e) to transmit regularly to

the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively

being of the inhabitants of these territories, and, to this end:

See http://www.un.org/en/sections/un-charter/chapter-xi/index.html.

103 See Government of the United States, Memorandum to the United Nations Concerning the Cessation of Transmission of Information under Article 73(e) of the Charter with Regard to the Commonwealth of Puerto Rico (1953, Annex II, UN Doc A/AC 35/2 121), 8.

104 See United Nations, General Assembly, “Cessation of the Transmission of Information under Article 73e of the Charter in Respect of Puerto Rico,” in Resolutions Adopted by the General Assembly at Its Eighth Session During the Period from 15 September to 9 December 1953 (New York: General Assembly Official Record, 1953), Supplement No. 17 (A/2630), pp. 25-26.

105 See United Nations, Special Committee on Decolonization, “Special Committee on Decolonization Approves Text Calling Upon United States Government to Expedite Self-Determination Process for Puerto Rico,” press release, June 20, 2016, http://www.un.org/press/en/2016/gacol3296.doc.htm.

37

In any event, the 1953 constitution of what became the Commonwealth of Puerto Rico

established a government that, for the first time, as authorized by and always subject to the

authority of the U.S. Congress, would have authority over purely local, domestic matters.

National matters, of course, remained then and now, matters for the federal government.

As the Commission is fully aware, the United States’ national system of governance is

federal in nature, with split sovereignty between the federal government on the one hand, and

State governments on the other.

The U.S. Constitution identifies the powers of Congress to

legislate

on

matters

the

original

drafters

believed

properly

belong

to

the

national

government. 106

As explicitly provided for in the Constitution, such powers include, for

example, the powers to regulate interstate commerce, to regulate immigration and emigration,

to provide for bankruptcies, to coin money and regulate the currency, to administer customs,

to establish post offices and roads, to protect patents and copyrights, to establish lower federal

courts, to legislate on matters related to “the high Seas[] and

the Law of Nations,” 107 to

raise armies and declare war, and several others, including the power “[t]o make all Laws

which shall be necessary and proper for carrying into Execution the foregoing Powers, and all

other powers vested by this Constitution in the Government of the United States, or in any

Department or Officer thereof.” 108

In the United States, the courts, especially the federal courts, draw the line between

what belongs to the federal government and what belongs to the states.

What is federal and

what is state/local in the United States is an ongoing debate that usually ends up in litigation

throughout the country, with the U.S. Supreme Court sitting as the ultimate arbiter of the

boundaries between these two concurrent and often competing sovereignties. But it is fair and

accurate to say that, since the drafting of the original Constitution, particularly since the New

106 See, e.g., U.S. Const., Art. I, § 8.

107 See, e.g., id. at Art. I, § 10.

38

Deal of 1933 to 1942, the U.S. Supreme Court has viewed federal powers as vast and

expansive, and now include a great many number of other powers that the framers had not

originally envisioned—the whole apparatus of the administrative, regulatory, and welfare

state being but one although an important example.

One thing is clear, and was actually quite clear from the beginning:

federal law in the

United States is above State law, as the U.S. Constitution itself explicitly provides in what is

called its “Supremacy Clause”: