Although Puerto Rico is on its way to holding a status plebiscite over the summer and the governing New Progressive Party has petitioned Congress for Puerto Rico’s admission as a state, some argue the island will have a higher chance of becoming a state if U.S. lawmakers were to declare Puerto Rico an incorporated territory en route to statehood.
Right now, the dominant argument among all sectors is that Puerto Rico is an unincorporated territory, but pro-statehood lawyer Gregorio Igartúa, who has taken several cases to the courts that seek to grant more rights to Puerto Ricans living in Puerto Rico, presented arguments in favor of incorporating Puerto Rico.
“It would be easier to have Congress declare Puerto Rico an incorporated territory in transit to statehood,” Igartúa said, arguing that in this case, Puerto Ricans would no longer have to worry about remaining a commonwealth or becoming independent, as those two options would be out of the picture.
He argued that getting such a declaration is easier because Congress and the courts have been gradually incorporating Puerto Rico to the point that it is a “de facto incorporated territory.”
His opinion is shared by U.S. District Judge Gustavo Gelpí, who in 2008 declared that Puerto Rico was an “incorporated territory” using as a basis a U.S. Supreme Court ruling in Boumedienne v. Bush, which ruled that Cuba’s Guantánamo Bay prisoners had a right to seek habeas corpus because the U.S. Constitution was applicable there.
What is the difference between an incorporated and an unincorporated territory? “An incorporated U.S. territory is a specific area under the jurisdiction of the United States, over which Congress has determined that the U.S. Constitution is to be applied to the territory’s local government and inhabitants in its entirety,” including citizenship and trial by jury, according to the U.S. Department of the Interior’s Office of Insular Affairs. The United States has not had any incorporated territories since Hawaii and Alaska were admitted as states in 1959.
Unincorporated territories can be treated differently by Congress except for “abridging fundamental rights,” such as the right to privacy or same-sex marriage. This can be likened to the differences between Puerto Ricans residing on the U.S. mainland and those living in Puerto Rico. While they are U.S. citizens, they are treated differently when living on the island, but the same is true for non-Puerto Rican U.S. citizens who are local residents.
For example, Puerto Ricans who live stateside enjoy all the perks of citizenship, including the ability to vote for members of Congress and the president, while local residents cannot vote in presidential elections and do not enjoy the same benefits or receive parity in federal programs as the states. Local residents also do not have full representation in Congress. Puerto Rico does not elect U.S. senators and has a nonvoting representative in Congress.
P.R. House Status, Federal & International Relations Chairman José Aponte said there is no reason why Puerto Rico has to be an incorporated territory. He noted that incorporated territories do not have the same rights as states, such as congressional representation.
Former Gov. Rafael Hernández Colón, who supports the commonwealth status, believes that following a petition for statehood, Congress will make Puerto Rico an incorporated territory. However, he argued that such a status would result in Puerto Ricans paying federal taxes while having no congressional representation.
Task Force says P.R. is unincorporated
At the heart of the differences is a series of cases that go back to the early 20th century that have justified, in varying degrees, the unequal treatment of Puerto Rico. Using that jurisprudence, the U.S. Task Force on Economic Growth on Puerto Rico has reiterated that Puerto Rico is an unincorporated territory of the United States.
“As a territory, Puerto Rico is subject to Congress’ plenary powers under the Territory Clause of the United States Constitution. The U.S. Supreme Court has held that, so long as Congress does not abridge the fundamental rights of individuals living in the territories, Congress can enact laws that treat the territories differently than the states if there is any rational basis for the differential treatment,” reads a report by the Task Force.
“The territories can—and, currently, each of the five territories does—participate in presidential primaries, but the territories cannot participate in the general election for president,” the report states.
The term “unincorporated” territory denotes that Puerto Rico retains the potential to become a state of the United States; become a sovereign nation, either fully independent from the U.S. or with a voluntary compact of free association with the U.S.; or maintain its current status as a territory.
“As a practical matter, in order for Puerto Rico to change its political status, the people of Puerto Rico—through an exercise of their right to self-determination—must first request a change in status in a fair and impartial plebiscite. If the people of Puerto Rico do request a change in status, the federal government would have to enact legislation to approve the requested change,” the report notes.
However, Igartúa said the Task Force erred in its assessment that Puerto Rico is an unincorporated territory, arguing that the legal relationship Puerto Rico has with the U.S. is that of a “de facto” incorporated territory in transit to statehood. Moreover, Puerto Rico has a federalist relation with the U.S. as the 50 states do since the island’s constitution was adopted in 1952, he said. According to Igartúa, the Task Force has ignored numerous federal statutes and actions as well as other judicial rulings that already treat Puerto Rico as a state despite court rulings to the contrary.
“The degree of incorporation of Puerto Rico to be like a state can be considered by implication [to be so] strong as to exclude any other view than that it is an incorporated territory of the United States,” he said in a letter to the Task Force.
When the U.S. took over Puerto Rico in 1898, through the Treaty of Paris, the island had been an overseas province of Spain for more than 400 years and had sent 100 senators to Spain as its representatives. Igartúa said within that legal source of authority, Congress began a gradual process of incorporation.
“Puerto Rico has been legally incorporated to be gradually ‘like a state’ to the same or more extent as any other territory before becoming a state, or as the territories that were incorporated in transit to statehood under the Northwest Ordinance,” he said.
The federal courts have established U.S. territorial policy after 1898, making certain distinctions between incorporated and unincorporated territories. In 1901 the U.S. Supreme Court decided the Insular Cases, establishing its own judicial interpretation of when the U.S. Constitution would apply to the newly acquired territories.
“The court decided that newly acquired territories could be incorporated by the United States to be like states, or could be kept temporarily as unincorporated until Congress determined that the residents of those territories could be considered to be part of the ‘American Family,’ at which time the U.S. Constitution would fully apply,” Igartúa said.
The court, however, did not offer the criteria that the federal courts and Congress would use to determine when a newly acquired territory was incorporated or not.
In the Downes case of 1901, the Balzac case of 1922 and the 1980 case of Harris v. Rosario, the top court did establish reasons for discriminating or treating Puerto Rico differently.
According to Igartúa, from a reading of the cases, the courts adopted expressly, or by implication, to classify a territory as unincorporated, in this case Puerto Rico, using discriminatory arguments as follows:
—Puerto Rico is a unincorporated territory of the United States.
—The fourth, fifth and sixth generation U.S. citizens of Puerto Rico are still not part of the “American Family” and this would only be apt when Congress determines.
—Puerto Rico is a territory belonging to the United States but is not a part of the United States.
—Only fundamental constitutional rights extend to American citizens residing in Puerto Rico, notwithstanding congressional and judicial provisions to the contrary.
—The U.S. citizens of Puerto Rico do not pay federal taxes, which Igartúa said is incorrect, noting that in 2015, Puerto Rico residents paid $3.5 billion in federal taxes.
—The cost of treating Puerto Rico like a state, like an incorporated territory, would be huge for purposes of federal assistance, meaning receiving parity in federal funds like the states.
—Granting greater benefits to Puerto Rico like the states would disrupt the Puerto Rico economy, as if it were not disrupted already, Igartúa indicated.
—The blessings of a free government under the U.S. Constitution cannot still be extended to the U.S. citizens of Puerto Rico.
—Puerto Rico is still inhabited by an “alien race.”
History of incorporation
However, Igartúa said Congress has ignored judicial provisions and has gradually incorporated Puerto Rico. For instance, he noted the 1899 presidential executive order recommending that the U.S. Constitution be extended to Puerto Rico; the 1900 Foraker Act that established a civil government for Puerto Rico; the Jones Act of 1917, which granted U.S. citizenship to Puerto Ricans; the applicability of the same privileges and immunities clause in 1947; the right for Puerto Rico to elect a governor in 1948; and the island’s right to adopt a constitution in 1952, which declared in its preamble a union with the United States.
Congress has also disposed that the laws of the United States, which are not locally inapplicable, apply in Puerto Rico with the same effect and to the same extent and validity as in the U.S. “Every year, hundreds of laws enacted by Congress are made applicable to Puerto Rico as if it is a state. This includes tax laws,” Igartúa indicated.
All federal agencies and/or subdivisions of the Executive Branch treat Puerto Rico similarly as a state, and many have offices in Puerto Rico. “Every year, hundreds of regulations adopted for applicability to the 50 states are also enacted by federal agencies to Puerto Rico as if it is a state. There are more than 9,000 federal government civil-service employees in Puerto Rico,” he said.
“Most federal internal revenue laws are applicable within the jurisdiction of Puerto Rico as if Puerto Rico were a state, to the extent that in certain categories, more taxes are paid to the federal Treasury than from some states. The Internal Revenue Service (IRS) operates several offices, and U.S. Customs also operates in Puerto Rico,” he said.
“In 2014, the residents of Puerto Rico contributed more than $3 billion to the U.S. Treasury; contributed more to the U.S. Treasury in Social Security (FICA) taxes than employees and employers in some states; contributed more to the U.S. Treasury in Unemployment Insurance taxes than the residents of 15 states, according to IRS numbers,” Igartúa said.
Federal court rulings
The federal judicial branch has also issued rulings incorporating Puerto Rico. Every year, hundreds of cases originating in Puerto Rico are judicially disposed of by federal courts, basing their decisions on the applicability of the U.S. Constitution and federal laws to Puerto Rico, he said. However, many of those rulings are not binding.
Further, Igartúa noted the Consejo de Salud Playa de Ponce v. Rullán case in which federal Judge Gelpi held that Puerto Rico is an incorporated territory of the United States.
“The court, rather today holds that in the particular case of Puerto Rico, a monumental constitutional evolution based on continued and repeated congressional annexation has taken place. Given the same, the territory has evolved from an unincorporated to an incorporated one. Congress today, thus, must afford Puerto Rico and the 4 million United States citizens residing therein all constitutional guarantees,” the ruling said.
In U.S. v. Puerto Rico Police Department, a case about police reform, Igartúa said the U.S. Department of Justice filed a complaint about ensuring that the U.S. Constitution applies in Puerto Rico to all U.S. citizens, and even to illegal immigrants.
In U.S. v. Mercado Flores, the judge said: “Puerto Rico is no longer a mere unincorporated territory of the United States…. Puerto Rico is a U.S. territory which is between being incorporated and being a state, it is a commonwealth.”
More recently, the First Circuit Court of Appeals declared the government tax on Wal-Mart illegal because it violated the Dormant Clause of the U.S. Constitution, Equal protection Clause and Federal Relations Act.
Asked about the Sánchez Valle ruling in which the U.S. Department of Justice opposed the applicability of the Double Jeopardy clause in Puerto Rico, Igartúa said it was poorly decided and engaged in the practice of switching on and off the applicability of the U.S. Constitution to Puerto Rico. The Supreme Court ruled that Puerto Rico is under the full powers of Congress and does not have a separate sovereignty, thus a person convicted of a crime in federal court cannot be prosecuted for the same crime by a local court.
House Speaker Paul Ryan of Wis. administers the House oath of office to Puerto Rico Resident Commissioner Jenniffer González during a mock swearing in ceremony on Capitol Hill in Washington on Jan. 3, 2017. (Zach Gibson/AP)
Resident Commissioner Jenniffer González, however, has already petitioned Congress to admit Puerto Rico as a state by 2025. Similar efforts in the past have failed. The Legislature recently passed a bill that was quickly signed by Gov. Ricardo Rosselló, which would allow for a status vote in June, whose results, according to the Task Force, should be considered seriously.
Unincorporated for now
BY ISMAEL TORRES
Before the 1898 Spanish-American War through which the United States acquired the Philippines, Cuba and Puerto Rico, the States had no overseas-territories policy because it did not have overseas territories or colonies.
Until then, the United States obtained territories and incorporated them to later admit them as states of their federation.
Upon acquiring these overseas territories, the concept of unincorporated territories was created in 1898 because the United States had no interest in incorporating them as part of its federation.
In the case of Puerto Rico, it was evident that it was not an incorporated territory because they did not do it in 1898 when they acquired the island as a bounty of war.
When it later was said that Puerto Rico and the Philippines could eventually become states of the Union, the U.S. Supreme Court decreed that those territories belong to, but are not part of, the United States and thus established a new category between incorporated and unincorporated territories and those, like Cuba, Puerto Rico, the U.S. Virgin Islands and American Samoa, that later became unincorporated territories; that is, they belong to, but are not part of, the United States.
If Puerto Rico were an incorporated territory like Arizona or Alaska, for example, a person born there would be a U.S. citizen in constitutional terms, according to the 14th Amendment of the U.S. Constitution, which states that U.S. citizens are those people born in the United States. In light of this clause, Puerto Rico is not in the United States. That is why there were no U.S. citizens on the island until 1917, when U.S. citizenship was granted by a law decree—even though the island had been occupied since 1898.
In light of this legal situation, a case has yet to reach the U.S. Supreme Court where a U.S. citizen born in Puerto Rico can ask whether he or she can be president of the United States, since the citizenship they hold is legislative rather than constitutional.
In the opinion of former pro-independence Sen. Fernando Martín, it is not possible for the United States to turn Puerto Rico into an incorporated territory if it did not eventually intend to grant it statehood.
“[An] incorporated territory is like riding in an elevator that sooner or later leads to statehood,” said the retired University of Puerto Rico Law School professor.
“It also shows that the United States knew very well when it captured Puerto Rico and the Philippines that there was no plan to turn them into states, nor has there ever been one,” Martín said.
The United States could have incorporated Puerto Rico when it granted the island’s residents U.S. citizenship, but it failed to do so.
After granting citizenship to Puerto Ricans by way of legislation in 1917, a person claimed in federal court that in light of that decision, Puerto Rico then automatically became an incorporated territory. Then, in 1923, the U.S. Supreme Court said that for Puerto Rico to become an incorporated territory, Congress must expressly make it so.
In addition, the recently enacted Puerto Rico Oversight, Management & Economic Stability Act, or Promesa, backs all its decisions on Puerto Rico based on the island’s territorial condition, creating a territorial control board with full power over all government activities.
Former PDP Sen. Marco A. Rigau does not support the unincorporated territory or unincorporated territory statuses. He believes both options go against Puerto Rico’s interests.
“My position is for Puerto Rico to have full self-government powers and forge a one-on-one association with the United States,” he said.