The Volokh Conspiracy

Last week, the Wall Street Journal published an opinion piece by Pablo José Hernández, the resident commissioner of Puerto Rico. He is basically the non-voting member in Congress for Puerto Rico, and caucuses with Democrats. The ostensible purpose of the essay was to celebrate Puerto Rico's position as a commonwealth. Puerto Rico receives all of the benefits of being part of the United States, without the burdens of most taxes.

My colleagues in Congress ask why I back commonwealth status. I always answer with two words: taxes and culture. Puerto Rico residents are exempt from most federal income-tax laws, although they contribute to Social Security, Medicare and other programs. This allows the government of Puerto Rico to levy taxes of as much as 33% on income above $61,500 and keep most of the revenue generated. If we had to pay both federal and state income tax, we would fall deeper into bankruptcy. We would nearly need to double our total income tax burden or lower our state income tax to pay federal income taxes. Both options are fiscally untenable.

Moreover, Hernández celebrates how Puerto Rico has a culture distinct from that of the United States:

Although proud American citizens, most Puerto Ricans view themselves as a distinct nationality. The relationship with the U.S. is similar to that between Quebec and Canada or Catalonia and Spain. That national identity was on display for millions during Bad Bunny's recent concert residency in Puerto Rico, as it is every four years when the island competes with its own team at the Olympics.

Then why not pursue independence? Because Puerto Ricans value their U.S. citizenship, close ties with the mainland, serving in the armed forces and contributing to the American economy.

Hernández is certainly trying to sell his colleagues on why commonwealth status is a benefit for Puerto Rico. But there is little said about what the United States receives from this arrangement.

What if Congress determines that the costs of maintaining Puerto Rico as a commonwealth exceeds the benefits? Here, I will pose a provocative question: Could the United States unilaterally grant Puerto Rico independence? In other words, could Congress simply state that the United States no longer wishes to maintain Puerto Rico as a commonwealth. I do not think the United States could return Puerto Rico to Spain. Could Congress just dispose of the territory by granting it independence? Puerto Rico can then self-determine its status among the nations.

In the Heritage Guide, Gary Lawson flagged these questions as open in his essay on the Territories Clause.

Can the United States maintain and govern territory indefinitely without making the territory a state or granting it independence? Can the United States unilaterally grant a territory independence without the territory's consent?

And Zack Smith discussed related questions in his essay on the Claims Clause. Specifically, when the Phillipines was granted independence, it was argued that a constitutional amendment was needed to relinquish the territory. This argument did not prevail.

The Claims Clause has spawned no notable litigation, but it did receive fleeting attention in the early twentieth century. At the time, the United States considered granting independence to the Philippines, a territory it had acquired following the Spanish-American War. Some legal commentators argued that this proviso prohibited the United States from granting independence to any territory once it had been acquired because doing so would "prejudice" the beneficial interests each state enjoyed in that territory. Independence could be granted only if each state consented to that disposition.18 Others argued against this reading of the clause, and subsequent practice proved this "prejudice" argument to be a nonstarter.19 If the United States were ever to consider granting independence to any of its remaining territories, this argument could be raised.

18. F. Harold Smith, Correspondence: The Right of Congress to Grant Philippines Sovereign Independence, 19 Ill. L.R. 339, 342–43 (1924–1925). 19. Vincente G. Sinco, The Power of Congress to Relinquish Sovereignty over the Philippines (Concluded), 7 Phil. L. J. 60, 70–71 (1927).

I don't know the answers here.

There is an ancillary issue. Puerto Ricans do not have birthright citizenship by virtue of the Fourteenth Amendment. Rather, citizenship was granted by statute. And that statute could be repealed. Here, we head directly into the Insular Cases. But how would the Insular Cases apply if a territory was simply relinquished. Indeed, the arguments against the Insular Cases seem to presume that a territory will forever remain in that status, and that Congress will not dispose of the territory. Would the Constitution require granting citizenship to the people of a territory that Congress does not intend to keep, let alone admit as a state?

These questions have been bubbling in my head for some time, but the Wall Street Journal piece caused me to reconsider them.