Back in 2013, a Senate hearing on Puerto Rico’s political relationship with the U.S. – its “status” – Senators tussled with the question of what might be “viable status options” for the U.S. territory. The Senators concluded that while statehood and independence were both credible choices, a unique status for Puerto Rico, often referred to as “enhanced commonwealth” for Puerto Rico was not a possibility.

This was by no means the first time a part of the federal government had made this determination, and as time went on, decisions from the Supreme Court reinforced the Senate Committee’s conclusion as well as related declarations from the U.S. Departments of Justice and State, as well as statements from the President’s Task Force on Puerto Rico.

Senators: Statehood or Nationhood Only Ways to Resolve Status Issue

By 2020, Congress determined that justice and fairness dictated that Puerto Rican voters should be presented with only viable non-territorial options for status, and that elections should not waste time with implausible choices.  In a recent interview in El Nuevo Dia, however, Puerto Rico’s new Resident Commissioner in Washington, Pablo Jose Hernandez Rivera has said that wants to revisit the range of acceptable status choices for the people of Puerto Rico.

Questions and answers from Hernandez

El Nuevo Dia asked Hernandez for details.

Q: Can you be within the territorial clause and not be a colony?
A: You can be within it and be a unique status.

FACTS: The U.S. Supreme Court has repeatedly it made clear that if an area is covered by the Territory Clause, it can only be a territory that is part of the United States, either as an incorporated territory on the path towards statehood, or an unincorporated territory that is a possession of the U.S.

The Territory Clause gives each Congress the power to govern all territories in local as well as national matters, provided that it does not violate the fundamental rights of individuals, such as freedom of speech. A Congress can delegate the exercise of congressional governing power to a territorial government, and it is done so in the case of Puerto Rico. That delegation of power does not change the territory’s status. A subsequent Congress can take back the delegation from the territorial government, as was apparently done with the establishment of the Fiscal Oversight and Management Board under a 2016 U.S. law.

Q: Can you be outside the territorial clause and not be a sovereign nation or a state?
A: That remains to be seen. The prevailing view, right now, from a Justice Department that is more conservative than it was before, is no.”

FACTS: The Justice Department has addressed the issue many times over many years since at least the administration of President Bill Clinton and found no such alternative. There is little if any room for ambiguity. The State Department and the White House have echoed this position many times. It has, further, been the dominant position of the U.S. House of Representatives and the U.S. Senate committee of jurisdiction.

As just one example, the 2005 report of the President’s Task Force on Puerto Rico’s Status said succinctly, “The Federal Government may relinquish United States sovereignty by granting independence or ceding the territory to another nation; or it may, as the Constitution provides, admit a territory as a State, thus making the Territory Clause inapplicable. But the U.S. Constitution does not allow other options.”

Proposals for a different governing arrangement with “unique” status outside of the U.S. Constitution’s territorial clause have been consistently rejected by the Federal government in every decade since the 1950s.

A Page from History: The Fernós-Isern Bill

It’s not just Hernandez

Resident Commissioner Hernandez is not the first person to make these claims, but as the first member of his  political party to hold the position of Resident Commissioner since 2005, his views are receiving attention. The claims are the same ones the Popular Democratic Party (not affiliated with the U.S. Democratic party and also commonly called the “commonwealth” party) has been making for decades.

A Page from History: Free Beer and BBQ for Puerto Rico

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