Discussions about Puerto Rico’s political status include both U.S. statehood and independence as possible future options, along with varying takes on the current territory status. Independence continues to be a relatively unpopular option, with the most recent vote seeing fewer than 12% of voters choosing this prospect.
One reason behind the unpopularity of the independence option is the strength of the existing U.S.-Puerto Rico ties forged over a roughly 127-year relationship, albeit an undemocratic one. Most notable among these ties is the extension of U.S. citizenship to Puerto Rico in 1917.
While a segment of strong independence advocates might not want to continue U.S. citizenship, most Puerto Ricans cherish their U.S. citizenship and would not be willing to give it up for the sake of independence. This number may even include a portion of the 11.82% of voters who chose independence in the last plebiscite given that some independence proponents hold out hope that Congress just wouldn’t refuse dual citizenship for all Puerto Ricans.
The evidence points to a contrary conclusion. Legal and policy statements spanning decades make it clear that continued U.S. citizenship in an independent Puerto Rico cannot be guaranteed and, in fact, cannot be protected. Once such example is a memo the U.S. Department of Justice (DOJ) shared with Congress in 1989.
The DOJ Memo
In 1989, the Department of Justice prepared a memo for the Senate Committee on Energy and Natural Resources on legislation under consideration in the U.S. Senate.
The memo considered a number of issues, ranging from the planning for a status referendum to decisions about Puerto Rico’s water rights as a state. One section focused on the question of U.S. citizenship for an independent nation of Puerto Rico.
U.S. citizenship for citizens of a Republic of Puerto Rico
The citizenship section is clear and direct. Writing for the Justice Department, Deputy Assistant Attorney General John P. Mackey affirmed that the Department would “strongly oppose allowing dual citizenship for the entire Puerto Rican population.” Mackey explained the reasoning behind this clear position, saying, “Independence for Puerto Rico must mean real independence, which must include an eventual loss of American citizenship for residents of Puerto Rico.”
“Under a venerable rule of international law,” the Mackey continued, “a transfer of sovereignty of a territory transfers the allegiance of those who remain in the territory from the former sovereign to the new sovereign.”
The DOJ memo explicitly considered and then rejected the possibility of the 14th amendment to the Constitution protecting the U.S. citizenship of current U.S. citizens. The 14th amendment states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
“We doubt…that as an original matter the first sentence of the fourteenth Amendment was intended to protect citizenship which is lost by virtue of a rule of international law recognized at the time of the Amendment’s adoption,” the U.S. Justice Department concluded.
“In any event we believe that requiring citizens of a newly independent Puerto Rico to choose between remining there as citizens of Puerto Rico and returning to the United States to retain U.S. citizenship is wholly consistent with the Supreme Court’s jurisprudence on this clause of the Fourteenth Amendment.”
The message is clear: U.S. citizenship would not continue to be available to current U.S. citizens who choose to remain in a newly sovereign Puerto Rico.
U.S. citizenship for Puerto Ricans
The U.S. Justice Department memo goes on to remind readers that Puerto Rican U.S. citizenship is statutory, not constitutional. As such, “it is subject to reasonable statutory regulations.”
“Hence,” Deputy Assistant Attorney General Mackey concludes, “it would appear reasonable to assume that provisions to the effect that citizens of the United States who continue to reside in Puerto Rico after independence lose their United States citizenship, or would have to opt for one or the other citizenship, would pass constitutional muster.”
The DOJ’s position
The Department of Justice was clear in its position regarding continued U.S. citizenship in an independent Puerto Rico:
- The Department opposes dual citizenship for the entire population of a sovereign Puerto Rico.
- Independence would lead to a loss of U.S. citizenship.
- Puerto Ricans desiring to maintain U.S. citizenship would have to take actions such as living in the United States and rejecting Puerto Rico citizenship.
These are not popular positions in Puerto Rico, which helps explain why independence is not a popular status option in Puerto Rico.
U.S. Department of Justice Letter to U.S. Senate Committee on Energy and Natural Resources, 1989
The post A Page from History: Justice Department Addresses U.S. Citizenship in a Sovereign Puerto Rico appeared first on PUERTO RICO REPORT.
