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Implications of Puerto Rico's political status

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The current political status of Puerto Rico has ramifications into many spheres of Puerto Rican life, and there are limits to the level of autonomy the Puerto Rican government has. For example, the Island's government is not fully autonomous, and the level of federal presence in the Island is common place, including a branch of the United States Federal District Court. There are also implications relative to the American citizenship carried by people born in Puerto Rico. Specifically, although people born in the Commonwealth of Puerto Rico are natural born US citizens, they are not Article 14 citizens. Puerto Ricans are also covered by a group of "fundamental civil rights" but, since Puerto Rico is not a state, Puerto Ricans are not covered by the full American Bill of Rights. As for taxation and representation, Puerto Ricans pay all U.S. federal taxes, although most bona fide residents of the island are not required to file federal income tax returns. Representation-wise, Puerto Ricans have no voting representative in the U.S. Congress, but do have a Resident Commissioner who has a voice in Congress (but no vote except for committee-level voting). Puerto Ricans must also serve in the United States military with the same duties as a US citizen residing in the other 50 states.

Level of autonomy

Under the Constitution of Puerto Rico, Puerto Rico designates itself with the term Commonwealth and Puerto Ricans have a degree of administrative autonomy similar to citizens of a U.S. state and like the States, it has a republican form of government, organized pursuant to a constitution adopted by its people, and a bill of rights. The constitution, approved by the U.S. congress, went into effect in 1952. In addition, like the States, Puerto Rico lacks "the full sovereignty of an independent nation," for example, the power to manage its "external relations with other nations," which was retained by the Federal Government.

Constitutionally, Puerto Rico is subject to the Congress' plenary powers under the territorial clause of Article IV, sec. 3, of the U.S. Constitution.[1] U.S. federal law applies to Puerto Rico, even though Puerto Rico is not a state of the American Union and their residents have no voting representation in the U.S. Congress. Because of the establishment of the Federal Relations Act of 1950, all federal laws that are "not locally inapplicable" are automatically the law of the land in Puerto Rico.[2][3] Following the 1950 and 1952 legislation, only two district court decisions have held that a particular federal law, which does not specifically exclude or treat Puerto Rico differently, is inapplicable to Puerto Rico.[4] The more recent decision was vacated on appeal.[5] Efrén Rivera Ramos, Dean and Professor of Law at the University of Puerto Rico School of Law,[6] clarified the meaning of plenary powers, explaining, "The government of a state derives its powers from the people of the state, whereas the government of a territory owes its existence wholly to the United States. The Court thus seems to equate plenary power to exclusive power. The U.S. government could exert over the territory power that it could not exercise over the states." Ramos quotes Justice Harlan, writing in Grafton v. United States, 206 U.S. 333 (1907), "The jurisdiction and authority of the United States over that territory [referring to the Philippines] and its inhabitants, for all legitimate purposes of government is paramount,". Ramos then goes on to argue "This power, however, is not absolute, for it is restrained by some then-undefined fundamental rights possessed by anyone subject to the authority of the U.S. government."[7]

Citizenship

Since 1917, people born in Puerto Rico have been given U.S. citizenship. United States citizens residing in Puerto Rico, whether born there or not, are not residents of a state or the District of Columbia and, therefore, do not qualify to vote, personally or through an absentee ballot, in federal elections. See also: "Voting rights in Puerto Rico".

Puerto Ricans "were collectively made U.S. citizens" in 1917 as a result of the Jones–Shafroth Act.[8] The act was signed into law by President Woodrow Wilson on March 2, 1917.

Clarification of federal law codified on U.S. Code Title 8 as 8 U.S.C. § 1402, approved by President Harry S. Truman on June 27, 1952, declared all persons born in Puerto Rico on or after January 13 1941 to be U.S. citizens at birth and all persons born in Puerto Rico between April 11 1899 and January 12 1941, and meeting certain other technical requirements, and not citizens of the United States under any other Act, are declared to be citizens of the U.S. as of January 13 1941.[9]

In addition, an April 2000 report by the Congressional Research Service, asserts that citizens born in Puerto Rico are legally defined as natural-born citizens and are therefore eligible to be elected President, provided they meet qualifications of age and 14 years residence within the United States. According to this report, residence in Puerto Rico and U.S. territories and possessions does not qualify as residence within the United States for these purposes.[10]

Rights of residents

Since Puerto Rico is an unincorporated territory (see above) and not a U.S. state, the United States Constitution does not fully enfranchise US citizens residing in Puerto Rico.[9][11]

Only the "fundamental rights" under the federal constitution apply to Puerto Rico, including the Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) that prevents a state from treating citizens of other states in a discriminatory manner, with regard to basic civil rights. The clause also embraces a right to travel, so that a citizen of one state can have privileges and immunities in any other state; this constitutional clause regarding the rights, privileges, and immunities of citizens of the United States was expressly extended to Puerto Rico by the U.S. Congress through the federal law codified on the Title 48 of the United States Code as 48 U.S.C. § 737 and signed by President Truman in 1947.[11][12][13] The Supreme Court has indicated that once the Constitution has been extended to an area (by Congress or the Courts), its coverage is irrevocable. 'To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say "what the law is." '.[14]

Other fundamental rights such as the Eleventh Amendment and the Dormant Commerce Clause were expressly extended by the United States Court of Appeals for the First Circuit, and the First Amendment, Fourth Amendment, Fifth Amendment, the due process clause and the equal protection guarantee of the Fourteenth Amendment were expressly extended to Puerto Rico by the U.S. Supreme Court.[15][16][17][18][19]

In a brief concurrence in the judgment of Torres v. Puerto Rico,[20] Supreme Court Justice Brennan argued that any implicit limits from the Insular Cases on the basic rights granted by the Constitution (including especially the Bill of Rights) were anachronistic in the 1970s.[21][22][23]

Judiciary

Article Three of the United States Constitution establishes the judicial branch of the federal government. This article was expressly extended to the United States District Court for the District of Puerto Rico by the U.S. Congress through Federal Law 89-571, 80 Stat. 764, signed by President Lyndon B. Johnson in 1966. After that date, judges appointed to the Puerto Rico federal district court have been Article III judges appointed under the Constitution of the United States. In addition, in 1984 one of the judges of the federal district court, Chief Judge Juan R. Torruella, a native of the island, was appointed to serve in the United States Court of Appeals for the First Circuit with jurisdiction over Puerto Rico, Massachusetts, Rhode Island, Maine, and New Hampshire.[21]

Federal presence

Federal executive branch agencies have significant presence in Puerto Rico, just as in any state, such as the U.S. Attorney, U.S. Customs and Border Protection, Drug Enforcement Administration, Environmental Protection Agency, Equal Employment Opportunity Commission, Federal Bureau of Investigation, Federal Emergency Management Agency, Homeland Security, U.S. Immigration and Customs Enforcement, Internal Revenue Service, U.S. Marshals Service, National Labor Relations Board, U.S. Postal Service, Social Security Administration, and Transportation Security Administration. The island's economic, commercial, and banking systems are integrated to those of the United States.[21]

Taxation

The U.S. Government classifies Puerto Rico as an independent taxation authority by Federal Law codified on the Title 48 of the United States Code as 48 U.S.C. § 734. Puerto Rico residents are required to pay U.S. federal taxes, import/export taxes,[24] federal commodity taxes,[25] social security taxes etc. Individuals working with the Federal Government pay federal income taxes while the rest of the residents are required to pay federal payroll taxes (Social Security[26] and Medicare),[27] as well as Commonwealth of Puerto Rico income taxes. All federal employees,[28] plus those who do business with the federal government,[29] in addition to Puerto Rico-based corporations that intend to send funds to the U.S.,[30] and some others[31] also pay federal income taxes. In 2009, Puerto Rico paid $3.742 billion into the US Treasury. That was more than paid by the state of Vermont, and about the same as paid by the states of Wyoming, Montana, and North Dakota. It was also over six times more than all U.S. Armed Service members overseas and all other U.S. territories combined.[32]

Because residents of Puerto Rico pay into Social Security, they are eligible for Social Security benefits upon retirement, but are excluded from the Supplemental Security Income (SSI), and the island actually receives less than 15% of the Medicaid funding it would normally receive if it were a U.S. state.[33] Yet Medicare providers receive less-than-full state-like reimbursements for services rendered to beneficiaries in Puerto Rico, even though the latter paid fully into the system.[34]

Political participation

Since 1961, several Puerto Ricans have been appointed by the President, upon the advice and consent of the Senate to serve as United States Ambassadors to Venezuela, Spain, Costa Rica, Chile, the Dominican Republic, and the Republics of Mauritius and Seychelles. A Puerto Rican was also appointed by President Obama as ambassador to El Salvador. Pending the advice and consent of the United States Senate, the President issued a recess appointment so that the Ambassador could assume her post.[35] As embassies fall within the Department of State, ambassadors answer to the Secretary of State.[36]

Puerto Rico also participates in the primary process of the Democratic and Republican parties of the United States, is accorded a proportional representation in both parties, and local delegates vote during each party's national convention.

Military service

Puerto Ricans may enlist in the U.S. military. Since 1917, Puerto Ricans have been included in the compulsory draft whenever it has been in effect and more than 400,000 Puerto Ricans have served in the United States Armed Forces. Puerto Ricans have participated in all U.S. wars since 1898, most notably World War I, World War II, the Korean and Vietnam wars, as well as the current Middle Eastern conflicts. Several Puerto Ricans became notable commanders, five have been awarded the Medal of Honor, the highest military decoration in the United States, and several Puerto Ricans have attained the rank of General or Admiral, which requires a presidential nomination and Senate confirmation, as is the case of judges and ambassadors.[21] In World War II,[37] the Korean War[38] and the Vietnam War[39] Puerto Ricans were the most decorated Hispanic soldiers and in some cases were the first to die in combat.[40][41]

References

  1. ^ U.S. Const. art. IV, § 3, cl. 2 ("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 States ...").
  2. ^ Keith Bea; R. Sam Garrett (April 23, 2010). "Political Status of Puerto Rico: Options for Congress" (PDF). Congressional Research Service CRS RL32933. Federation of American Scientists. Retrieved December 3, 2009.
  3. ^ 39 Stat. 954, 48 USCA 734 48 U.S.C. § 734. "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 Rico as in the United States ...".
  4. ^ The two are: (1)Refusing to apply the Federal Firearms Act to transactions solely within Puerto Rico: United States v. Rios, 140 F. Supp. 376 (D.P.R. 1956) and (2)Refusing to apply federal death penalty to Puerto Rico: United States. v. Acosta Martínez, 106 F. Supp 2d 311 (D.P.R. 2000), rev’d 252 F. 3d 13 (1st Cir. 2001); cert. denied 535 U.S. 906 (2002).
  5. ^ See United States v. Rios, 140 F. Supp. 376 (D.P.R. 1956) (refusing to apply the Federal Firearms Act to transactions solely within Puerto Rico); United States. v. Acosta Martínez, 106 F. Supp 2d 311 (D.P.R. 2000) (refusing to apply federal death penalty to Puerto Rico), rev’d 252 F. 3d 13 (1st Cir. 2001); cert. denied 535 U.S. 906 (2002).
  6. ^ "Efrén Rivera-Ramos,". Yale Law School. {{cite web}}: External link in |publisher= (help); Missing or empty |url= (help)
  7. ^ Puerto Rico's Political Status: The Long-Term Effects of American Expansionist Discourse, by Efrén Rivera Ramos. Levinson Sanford and Bartholomew H. Sparrow. (editors) In, "The Louisiana Purchase and American expansion, 1803–1898." Rowman & Littlefield. 2005. Retrieved 12 June 2013.
  8. ^ The Louisiana Purchase and American Expansion: 1803–1898. By Sanford Levinson and Bartholomew H. Sparrow. New York: Rowman & Littlefield Publishers. 2005. Pages 166, 178. "U.S. citizenship was extended to residents of Puerto Rico by virtue of the Jones Act, chap. 190, 39 Stat. 951 (1971)(codified at 48 U.S.C. § 731 (1987)"
  9. ^ a b "Constitutional Topic: Citizenship". U.S. Constitution Online. Retrieved June 6, 2009. {{cite journal}}: Cite journal requires |journal= (help)
  10. ^ "Presidential elections in the United States: a primer" (PDF). Congressional Research Service. United States Congressional Research Service. April 17, 2000. Retrieved December 3, 2009.
  11. ^ a b "U.S. Department of State. Foreign Affairs Manual: Volume 7 – Consular Affairs (7 FAM 1120) ',Acquisition of U.S. Nationality in U.S. Territories and Possessions.', Pages 1–3" (PDF). Retrieved December 13, 2015.
  12. ^ "Puerto Rico Status Hearing before the Committee on Resources House of Representative One Hundred Fifth Congress" (PDF). U.S. Government Printing Office. Retrieved June 7, 2009. {{cite journal}}: Cite journal requires |journal= (help)
  13. ^ Torres v. Puerto Rico.
  14. ^ Downes v. Bidwell, 182 U.S. 244, 261 (1901), commenting on an earlier Supreme Court decision, Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820); Rasmussen v. United States, 197 U.S. 516, 529–530, 536 (1905) (concurring opinions of Justices Harlan and Brown), that once the Constitution has been extended to an area, its coverage is irrevocable; Boumediene v. Bush—That where the Constitution has been once formally extended by Congress to territories, neither Congress nor the territorial legislature can enact laws inconsistent therewith. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.
  15. ^ "Posadas de Puerto Rico Assoc. v. Tourism Co., 478 U.S. 328 (1986)". FindLaw. Retrieved January 10, 2010.
  16. ^ 478 U.S. 328 (1986)
  17. ^ Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico
  18. ^ Examining Board v. Flores de Otero
  19. ^ Puerto Rico v. Branstad – Extradition Clause was expressly extended by the U.S. Supreme Court to Puerto Rico.
  20. ^ 442 U.S. 465 (1979)
  21. ^ a b c d Consejo de Salud Playa de Ponce v. Rullan, 586 F.Supp.2d 22 (D.P.R. 2008)
  22. ^ Eleventh Amendment to the United States Constitution
  23. ^ Dormant Commerce Clause
  24. ^ "Puerto Ricans pay import/export taxes". Stanford.wellsphere.com. Retrieved August 14, 2010.
  25. ^ "Puerto Ricans pay federal commodity taxes". Stanford.wellsphere.com. Retrieved October 30, 2011.
  26. ^ "Internal Revenue Service. ',Topic 903 – Federal Employment Tax in Puerto Rico',". Irs.gov. December 18, 2009. Retrieved August 14, 2010.
  27. ^ a b "Reuters. ',Puerto Rico hopes to gain from U.S. healthcare reform.', 24 September 2009". Reuters. September 24, 2009. Retrieved August 14, 2010.
  28. ^ Schaefer, Brett. "The Heritage Foundation, 11 March 2009. ',D.C. Voting Rights: No Representation? No Taxation!', By Robert A. Book, PhD". Heritage.org. Retrieved October 16, 2010.
  29. ^ "Puerto Rico Manufacturers Association, CEO Summit. ',Federal and Local Incentives: Where we are, Where We Want to be. By Amaya Iraolagoitia, Partner, Tax Dept" (PDF). Retrieved August 14, 2010.
  30. ^ a b "Joint Committee on Taxation. An Overview of the Special Tax Rules Related to Puerto Rico and an Analysis of the Tax and Economic Policy Implications of Recent Legislative Options" (PDF). Retrieved August 14, 2010.
  31. ^ Members of the military must pay federal income tax[27] as well as those who are residents of Puerto Rico but with income sourced in the US mainland.[30]
  32. ^ "Table 5. Internal Revenue Gross Collections, by Type of Tax and State, Fiscal year 2009" (XLS). irs.gov. {{cite web}}: External link in |publisher= (help)
  33. ^ "Puerto Rico receives less than 15% of the Medicaid funding that similar states of the Union currently receive". Magiccarpetautotransport.com. Retrieved August 14, 2010.
  34. ^ "News & Media". PRFAA. July 6, 2009. Retrieved October 30, 2011.
  35. ^ [1][dead link‍]
  36. ^ "Consejo de Salud Playa de Ponce v Johnny Rullan, Secretary of Health of the Commonwealth of Puerto Rico" (PDF). The United States District Court for the District of Puerto Rico. Retrieved December 31, 2009. {{cite journal}}: Cite journal requires |journal= (help)
  37. ^ Who was Agustín Ramos Calero?, The Puerto Rican Soldier, August 17 2005. PDF format. Retrieved November 19 2006. Archived 2013-07-28 at the Wayback Machine
  38. ^ Mr. Asencio. "Grave and Ever Present Danger: The CCF Spring Offensives, Part I – April 1951" (PDF). valerosos.com. p. 10. Retrieved October 16, 2010. {{cite web}}: External link in |publisher= (help)
  39. ^ "City of Lorain". City of Lorain. Retrieved August 14, 2010.
  40. ^ Brozan, Nadine (August 11, 1992). "Chronicle". New York Times. Retrieved January 2, 2008.
  41. ^ Nieves, New York Times, 1993
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