Puerto Rico shouldn’t be treated as real estate

After making the offer of purchasing Greenland from Denmark and being publicly rebuffed, it was reported that President Donald Trump made a side comment — one assumes as a joke, although one can never be sure — suggesting that perhaps he could trade Puerto Rico for Greenland. This comment — if true — is ludicrous. Sadly, there is some residual truth to this suggestion that needs to be acknowledged.

As a territory of the United States, Puerto Rico is under the authority of Congress “to dispose of and make all needful Rules and Regulations respecting the Territory, or other Property belonging to the United States”.

The concept of Territory has been, since the Northwest Ordinance of 1787, consistently understood as a proprietary interest of the United States. From a close reading of the constitutional language it is clear that “territory” is a kind of property which Congress can dispose of. What it is meant by “disposing of” is at the heart of the political status question.  

Report by the President’s Task Force on Puerto Rico’s Status, from President Bush (2007) and President Obama (2011), specifically reiterate the territorial nature of Puerto Rico, and Congress authority to legislate as to its political future.  

And there are more recent exercises of its disposing of the territory, including congressional legislation of PROMESA (2016) creating a Financial Oversight and Management Board to supervise the territorial bankrupt government’s finances, and the Tax and Jobs Act (2017) classifying Puerto Rico as a foreign jurisdiction for purposes of taxing American Controlled Foreign Corporations.

The extent of this congressional authority is currently being challenged in Financial Oversight and Management Board v. Aurelius Investments, now before the Supreme Court and scheduled for oral arguments in October. The question whether Congress can designate members of the Financial Board under the Territorial Clause without running afoul of the Appointment Clause requires addressing the structural limitations, if any, that the Constitution imposes on its authority.    

As a matter of historical and legal perspective, and given the 60th anniversary of its admission as a State, it its worth comparing Hawaii’s to Puerto Rico’s experience. Both came under the sovereignty of the United States in 1898; Hawaii by annexation, Puerto Rico as a prize of the Spanish-American War.

Both came under the jurisdiction of Congress. Three years later the Supreme Court ruled in Downes v. Bidwell (1901) that Puerto Rico (together with the Phillipines and Guam) was an unincorporated territory, belonging to, but not being a part of the United States. The Supreme Court continued developing throughout the early 20th century this line of racial reasoning in the so called insular cases, which continue to this day to justify the institutional disenfranchisement of the people of Puerto Rico from its full civil rights.

Hawaii, in contrast and fortunately, was not saddled with this spurious constitutional distinction. The fact that Hawaii (with Alaska) became a state in 1959, while Puerto Rico continues to this day drifting in the constitutional wasteland of the insular cases, should give pause.  

As if Trump’s sophomoric humor were not enough, his other suggestion of amending birthright citizenship also raises thorny questions on Puerto Rico’s territorial status.  

Even though Puerto Ricans were granted citizenship by the Jones Act (1917), the Supreme Court in Porto Rico v Balzac (1922), held that this did not mean that Puerto Rico was incorporated. The Nationality Act of 1940 did not change the fact that the American citizenship granted to Puerto Ricans is statutory. Because Puerto Rico continues to be an unincorporated territory, belonging to but being a part of the United States, the Fourteenth Amendment does not protect the American citizenship of those Puerto Ricans born in the island.

Of course, any amendment to the Fourteenth Amendment, as implied by Trump, would require a constitutional amendment process, which in itself is a high political hurdle to jump. In the case of Puerto Rico, however, Congress could hypothetically legislate on its American citizenship without reference to the Fourteenth Amendment, although it would have to take into account the individual property interest of those currently holding American citizenship and assure that their substantive due process rights be protected. It behooves those that favor independence for Puerto Rico, in any of its variations, to recall that citizenship follows sovereignty, as the 2007 Bush White House Report correctly indicated.

There is general agreement across the political spectrum that there are only three constitutionally valid alternatives open to Puerto Rico: Statehood, continued Territorial Status (incorporated or unincorporated) or independence (either under Free Association or full Independence). To suggest trading Puerto Rico in a real estate transaction with another sovereign country is — besides the inanity of it all – indicative of a hostility to the interest and well-being of its citizens.

Contrary to the claim made by those who insist in protecting their tax and financial advantages under the current territorial model, the majority of Puerto Ricans have expressly favored statehood in the last two plebiscites. Congress has studiously avoided the issue since 1952.

Those that question the validity of these plebiscites should put aside their obstructionist tactics and agree to a congressionally mandated plebiscite. The fact that they don’t suggests a backhanded recognition that they fear the results of such a plebiscite. The right to self-determination, if it is to mean anything, is best be exercised by the direct vote of the electorate and not by backroom dealings.

Andrés L. Córdova is a law professor at Inter American University of Puerto Rico, where he teaches contracts and property courses. He is also an occasional columnist on legal and political issues at the Spanish daily El Vocero de Puerto Rico.